In First Things this month, I have an essay arguing that religion, for legal purposes, presumptively means a collective rather than a purely personal pursuit. It’s a question that already has perplexed courts in the context of COVID-19, and is likely to become more pressing with the rise of the Nones.
Here’s an excerpt:
It’s time for the Court to establish that religion, at its core, denotes communal beliefs and practices rather than idiosyncratic personal commitments. A communal definition makes sense for several reasons. First, the existence of a community captures something important about the social reality of religion. In lived experience, religion suggests a group of people linked with one another, through time, in worship. As sociologist Christian Smith writes, “religions are almost invariably social activities—communities of memory engaged in carrying on particular traditions.” Without a communal structure to give them meaning, religious practices such as prayer, fasting, and so on are incoherent, “simply the strange doings of odd people.”
Second, a focus on community accords with an important goal of religious freedom: the promotion of private associations that encourage cooperative projects and check state power. As Tocqueville explained, the despotic state desires nothing more than for individual citizens to feel isolated from and indifferent to others, so that it can divide and dominate them all. By encouraging people to identify with and look out for one another, private associations militate against self-centeredness and social isolation and help keep the state in check. Religious groups perform this function especially well. No associations have been better, historically, at promoting cooperative social projects and defying state oppression—as dictators down the centuries have learned.
Third, the existence of a religious community reduces the possibility of fraud. Everyone agrees that courts need not honor a religious claim that a litigant does not genuinely hold or raises merely as a pretext. But sincerity, which depends on a claimant’s subjective state of mind, is notoriously difficult for courts to evaluate. The existence of a religious community to which the claimant belongs can provide objective evidence of the claimant’s good faith. A continuous tradition of teaching and worship, and an organized body that enforces discipline, can go a long way toward demonstrating the claimant’s genuineness about his religious convictions.
Fourth, the existence of a community helps ensure that religious commitments are not frivolous and fleeting, but serious and lasting. It is one thing for the state to accommodate a citizen’s profoundly held beliefs. To do so honors the citizen’s dignity and accords him respect. It is another thing to defer to commitments that may be temporary and superficial. Not all idiosyncratic commitments fit that description, of course, and beliefs can be religious even if novel. But the existence of an established religious community can screen out passing whims that the state need not honor.
Finally, making the definition of religion turn at least in part on the existence of a religious community reduces the potential for administrative disorder. Long ago, the Supreme Court warned that if personal spiritual convictions were sufficient to override legal obligations, “every citizen [would] become a law unto himself.” One should not overstate this concern, but the rise of the Nones makes it important today. Requiring a claimant to show that his or her objections are not merely personal but derive from the teachings of an organized body of believers can reduce the potential for conflict with state laws—especially in a society in which very large numbers claim to follow their own spiritual paths.
You can find the rest of the First Things essay here. A much longer version of the essay will appear in a forthcoming symposium issue of the Loyola University Chicago Law Journal.