April 13th, 2017

In legal terms, what is a religion?

The question of how a religion is defined has come up many times on this blog in relation to Islam and terrorism. One question sometimes asked is why can’t any group simply declare itself to be a religion and have this be legally so, no matter what the group espouses. In other words, what are the limits of the term “religion”? Are there any criteria for a belief system and its practices to be considered a bona fide religion in the legal sense, with the protection of rights that go along with that designation?

There are many reasons why there is a legal interest in defining religion, because religions get many benefits under our legal system. But the law has traditionally had quite a bit of difficulty defining the term:

Complex interests may depend on the classification of a specific belief system or practice: tax exemptions; religious practices in prison or in the military (e.g., assembly for worship services; possession and sacramental use of various religious physical objects; access to religious literature; wearing of religious garments and jewelry; availability of food required by religious tenets); specific rights of workers, etc. The application of some constitutional and federal legal rules compels courts to delineate the boundaries of the concept of religion.

Legal theorists have made serious attempts to provide an adequate definition of what religion is for First Amendment purposes, and the Supreme Court’s and other federal courts’ efforts have been manifested in a string of cases in the context of the First Amendment as well as in statutory interpretation. These efforts should not be seen as entirely fruitless, but they have not provided a generally accepted legal definition of religion.

In other words, it ain’t easy.

It’s not easy to slog through that linked article, either. But the reader who does get through it should achieve some appreciation of how difficult a task it is to create a legal definition of religion. For example:

If one makes religion a subjective phenomenon determined purely by the individual, one comes into conflict with the social experience that religion generally requires social mediating structures on account of its communal aspects. Through these social structures, religion becomes valuable for the individual and the society integrates the individual’s concerns into social activities and a whole communal experience. The natural need for this integration calls for some social, objective standards of religion beyond the individual’s assertions.

The functional definition practically diminishes the boundaries between religious and nonreligious beliefs in a traditional sense. There remains no valid test for the content of a claimed religious belief and any belief may be seen as religious if it performs the required psychic function in the individual’s life. The merging of the religious and nonreligious spheres, in Sanderson’s view, is in itself unconstitutional (Sanderson 1007). Under a functional definition, no identifiable class could be delineated as the recipient of the protection although the Constitution distinguishes a class under the word “religion” from other classes and provides special protection for that class.

So let’s turn to everybody’s favorite institution, the IRS (especially timely right now). The IRS uses these criteria to define churches (and thus, “religion”) for tax purposes, requiring the presence of some but not all of the following:

Distinct legal existence
Recognized creed and form of worship
Definite and distinct ecclesiastical government
Formal code of doctrine and discipline
Distinct religious history
Membership not associated with any other church or denomination
Organization of ordained ministers
Ordained ministers selected after completing prescribed courses of study
Literature of its own
Established places of worship
Regular congregations
Regular religious services
Sunday schools for the religious instruction of the young
Schools for the preparation of its members

The IRS generally uses a combination of these characteristics, together with other facts and circumstances, to determine whether an organization is considered a church for federal tax purposes

Not all religions meet all the criteria. For example, Quakers don’t have “ordained” ministers who have “completed prescribed courses of study.” They do have pastors, though, who have been “recorded“:

The peculiarly Quaker way of thinking about ministers comes more clearly into focus when one compares the Friends practice of ‘recording’ with the more common practice of ‘ordination.’ In many Christian denominations, one must first be ordained in order to become a minister. To be ordained, the potential minister must first meet a certain set of requirements. Usually, for example, there is a certain level of education one must attain. Some churches also exclude certain categories of people (e.g. women, divorced people, married people) from even entering the process.

As Friends, we reject the idea that some outward trait or experience could qualify someone to be a minister (remember what Fox said about Oxford and Cambridge!). Instead, we believe that anyone may be called to pastoral ministry. Rather than setting human-engineered prerequisites, Quakers have chosen simply to observe those who work as ministers. When it becomes clear that a person is indeed doing pastoral ministry, then we make an official record of what God seems to be doing. That person is “recorded” as a minister among Friends.

And yet I have little doubt that Quakers legally are considered members of a bona fide and protected religion, and their meeting houses are considered as churches in the eyes of the law.

There is something almost intuitive about the definition of a religion, and the societal and legal acceptance of that designation. It is not completely arbitrary. It is not based on just any set of beliefs. Custom and history are part of it. And although there is probably no one element that must always be present for a belief system to be defined as a religion, there are some behaviors that would result in members of a bona fide religion being excluded from protection and even prosecuted for acts that they say are in accord with their religion, but which have been designated by the legal system as criminal.

The classic example is suttee (or sati), a custom among Hindus in India that required a widow to commit suicide by throwing herself on her husband’s funeral pyre. Although initially accepted by the British occupiers, in time they came to criminalize it. Note, though, that the British didn’t declare Hinduism to not be a religion as a result; they demanded that the particular practice of suttee cease. Something similar has occurred in this country regarding Islam and female genital mutilation, a practice which is a federal crime in the US and is criminal under statutes in many states as well.

However, neither suttee nor FMG were or are basic tenets of their respective religions. Their presences in those religions may throw doubt among some people as to the definitions of Hinduism or Islam as religions or churches, but not among most people and not in the legal sense.

27 Responses to “In legal terms, what is a religion?”

  1. JohnGalt47 Says:

    One religious practice that has been outlawed is the Mormon tradition of polygyny. Although how long this law will stand is a active question.

  2. Cornhead Says:

    JohnGalt

    If Hillary would have won polygamy would have been the law of the land within five years.

  3. Cornhead Says:

    So where does treatment of women as second class persons, terrorism, suicide bomb missions, head chopping, torture and use of force of arms fit into that IRS definition?

  4. OM Says:

    Neo:

    Thanks for pointing out that it isn’t an easy thing to do, in our republic, to legally define what isn’t a “religion.”

    So many easy solutions, regarding Islam, often strongly held and repeated over and over…

    As a lighter example the Pastafarian “religion” was legally found not to be a religion. Those who worship the Flying Spaghetti Monster (FSM), were crushed (probably not). 😉

  5. Mark30339 Says:

    Why is there something rather than nothing? What is a soul? What is spirituality? What is divine? Why are we here? What is our purpose? Why is there both harmony and discord, and which of these do we serve? How are we to deal with the reality of death? Religion exists when a community of people form common beliefs to honor, ponder and begin answering these questions. THE GIFTS OF THE JEWS by Thomas Cahill is a great read in this regard.

  6. Geoffrey Britain Says:

    One definition of religion is any faith based system of beliefs, reliant upon acceptance of unprovable assertions.

    In America, in order to be accepted as a religion, one condition that must arguably apply is that acceptance of its unprovable assertions be absent of coercion, since coercion cannot by definition be truly voluntary, thus acceptance cannot be genuine.

    Any ‘religion’ possessive of a basic tenet that, non-members must either convert, accept slavery or death is inherently coercive.

    Nor can Islam’s tenets be revised, as by definition, fallible mankind cannot correct infallible Allah.

    OM,

    Those of us who offer “easy solutions, regarding Islam” await with anticipation your reasoned refutation. Those easy solutions are repeated over and over in reaction to assertions that ignore the factual observations upon which those easy solutions are based despite having yet to be refuted.

  7. SAD Says:

    why can’t any group simply declare itself to be a religion and have this be legally so, no matter what the group espouses.

    You went over most those group but you did not mentioned one very close to you and may have some importance within western societies more than Muslims or other religious minorities

    religious minorities throughout Europe, including Jehovah’s Witnesse or vigilantes

    One of the most momentous cases on the Supreme Court docket as war raged globally in 1943 was about a single sentence said aloud by schoolchildren every day. They stood, held their right hands over their hearts or in a raised-arm salute and began, “I pledge allegiance to the flag…” To most Americans the pledge was a solemn affirmation of national unity, especially at a time when millions of U.S. troops were fighting overseas. But the Jehovah’s Witnesses, a religious sect renowned for descending en masse on small towns or city neighborhoods and calling on members of other faiths to “awake” and escape the snare of the devil and his minions, felt otherwise. They insisted that pledging allegiance to the flag was a form of idolatry akin to the worship of graven images prohibited by the Bible. In West Virginia State Board of Education v. Barnette, Walter Barnett (whose surname was misspelled by a court clerk) argued that the constitutional rights of his daughters Marie, 8, and Gathie, 9, were violated when they were expelled from Slip Hill Grade School near Charleston, W.Va., for refusing to recite the pledge.

  8. parker Says:

    As an agnostic, I tend to view all religions and cults as potenially dangerous. But there are religions/cults that I realize have true believers that certainly wish to do harm to me and mine. My personal ‘religion’ holds life, liberty, and the pursuit of happiness as the bedrock of what defines my right to left alone.

  9. Geoffrey Britain Says:

    parker,

    Presumably you hold “life, liberty and the pursuit of happiness” as “unalienable rights”. If so, upon what basis, as an agnostic, do you claim them to be unalienable? From what source, other than consensual personal opinion… are they extended to mankind as unalienable? As if the source of our rights is simply the current consensus of opinion, cannot a later consensus of opinion rescind them?

  10. OM Says:

    Geoffrey:

    There aren’t any easy solutions that are not monstrous and more evil than the problem of totalitarian Wahabi and Shia Islamisists. But you don’t seem to get that.

  11. OM Says:

    Geoffrey:

    Not to clever with the straw man test for Islam as a religion BTW. April fools was 12 days ago.

  12. David Aitken Says:

    Here’s how the Colorado Legislature is attempting to deal with Sharia law: http://www.leg.colorado.gov/sites/default/files/documents/2017A/bills/2017A_277_01.pdf

  13. parker Says:

    Geesh GB, IT GETS TIRESOME…

    As I have stated before… I just do not presume to know. You may presume but you do nof know. Join the club.

  14. Geoffrey Britain Says:

    OM,

    I get that you are mischaracterizing the solutions I offer. It is NOT monstrous to hold Islam’s Imams and Mullahs responsible for the murderous terrorism they promote. Nor that proportional consequence be applied to them for their monstrous crimes. When they direct the unilateral taking of innocent lives, they forfeit their own claim to an unalienable right to life.

    “eliminate the mullahs and Islam shall disappear in fifty years. It is only the mullahs who can bring the people into the streets and make them die for Islam– begging to have their blood shed for Islam.” -Ayatollah Khomeini

    It is NOT monstrous to hold the survival of Islam’s holy sites hostage to Imams and Mullahs abandoning jihad. That is not based in petty retaliation but recognition that you gain leverage over an enemy by connecting the consequence of losing what they cannot accept the loss of… to the practice of terrorism.

    It is NOT monstrous to throw into grave doubt the promise of paradise for jihadists. Reduce the incentive and you reduce recruitment. The history of the Spanish-American war in the Philippines demonstrates the effectiveness of that proposal.

    None of that is a straw man argument but factual and you engage in intellectual dishonesty in claiming it to be.

  15. Geoffrey Britain Says:

    parker,

    I cannot prove what I sense to be true and would not claim otherwise. I’m simply pointing out that the only rationale that supports the assertion that mankind have “unalienable rights” rests upon them extending from a source that transcends mankind’s fallible opinion. I simply wondered if you had ever considered such a tiresome consequence of both agnosticism and atheism…

  16. OM Says:

    Geoffrey:

    Back at ya, your own words:

    “In America, in order to be accepted as a religion, one condition that must arguably apply is that acceptance of its unprovable assertions be absent of coercion, since coercion cannot by definition be truly voluntary, thus acceptance cannot be genuine.

    Any ‘religion’ possessive of a basic tenet that, non-members must either convert, accept slavery or death is inherently coercive.”

    Set up the Geoffrey rule – “coercion,” then apply acts of coercion by some to all in order to invalidate the entirety as a religion. Not too clever. A straw man.

    Mischaracterization? “When they direct the unilateral taking of innocent lives, they forfeit their own claim to an unalienable right to life.” Kill them for what they say, says Geoffrey.

    You are something. We already drone folks who mostly aren’t citizens, too tame, eh?

  17. Geoffrey Britain Says:

    OM,

    Coercion is the opposite of liberty. Do you disagree? If we are going to accept a belief system as a ‘religion’ how is that not a relevant metric for evaluation of it in America?

    It is NOT the acts of coercion by some Muslims that invalidates Islam. It is the core, immutable tenets of that ideology that invalidate it from qualifying as an acceptable religion in America.

    When they direct the unilateral taking of innocent lives it is NOT protected speech but direct incitement of violence. Lost lives are the direct result of that incitement. They are directly culpable in the violence.

    “Kill them for what they say, says Geoffrey. You are something. We already drone folks who mostly aren’t citizens, too tame, eh?”

    That’s not substantive refutation, that’s demonization.

  18. OM Says:

    Geoffrey;

    Focus, your rules for what constitutes a religion may be valid in the realm of Geoffrey, but don’t step out in to the real world with them.

    Incitement of violence in this country is generally not punished with forfeiture of one’s life. Details, details. There are legal, acceptable methods that have been employed to monitor such behavior in churches and mosques. Try harder.

  19. J.J. Says:

    This is a knotty problem. Knotty though it be, it needs to be examined in much greater detail by both religious scholars and keen legal minds.

    Separation of church and state is a rather recent development in history. Unfortunately, there are still many humans who want religion to be coupled to the state or even one and the same, as in Iran.

    One of the major features of Christianity is the Golden Rule – to treat others as you would have them treat you. This tenet calls for believers to be kind to and tolerant of others. At least that’s the way I read it because I like to be treated well. All other major religions, except Islam, have an equivalent of the Golden Rule.

    The view of Mohammed was that Allah was a fierce, vengeful god who demanded submission. (Islam means submission.) That’s why devout Muslims do not believe in free will – the human ability to take command of their lives and not depend on fate or Allah’s will. Allah also commanded that all non-believers be converted or put to the sword. There is no equivalent of the golden Rule in Islam. Islam’s most devoted believe in a worldwide theocracy and in achieving it through violence or invasion and subterfuge.

    Could a widely held belief system that has many of the appearances of a religion, but is actually a belief system that is dangerous to all non-believers, be classified as a political/military system, not a religion? Communism was a widely held belief system that had many of the appearances of a religion (If atheism is considered the state religion.) and was recognized as a political/military system dangerous to non-Communists. Maybe that is a model for thinking about radical Islam?

    While authorities may judge that Islam is a religion, no one who has looked realistically at what has happened in the last 16 years could conclude that radical Islam is not dangerous for all non Muslims.

    Other religions have shed practices that didn’t meet the cultural norms of new situations – Suttee and polygamy for example. Considering that the world is now well aware of the calls by the Wahhabis for worldwide theocracy, forcible conversion, and intolerance of all infidels; it seems to me that more people would be listening to moderate (non-jihadi) Muslims who challenge these tenets as President el-Sisi, Zhudi Jasser, and Tarek Fatah have.
    For the names of other moderate Muslims see this:
    http://www.meforum.org/5007/moderate-muslims-ignored
    Their beliefs and practices could be a guide for eventual reform of Islam from a political/military system to a religion.

    Smarter people than I need to be grappling with this issue. I hope some are, but it doesn’t seem like anyone is taking up the issue with any seriousness.

  20. groundhog Says:

    If God of the Bible decides to make it rain 40 days and nights and drown us, I haven’t much to say about it.

    But I draw the line at followers turning on their faucets and doing it in his name.

    Same with Islam. If Allah comes to kill me himself, I’ve nothing to say about that either.
    But I don’t accept being slain by his followers in his name.

    If your God wants you to kill you, that’s up to you.

    But he better show up himself if he wants to kill me.

  21. Lee Says:

    No one has a really good definition of “religion.” The dictionary definition is:

    “a set of beliefs concerning the cause, nature, and purpose of the universe, especially when considered as the creation of a superhuman agency or agencies, usually involving devotional and ritual observances, and often containing a moral code governing the conduct of human affairs.” And:

    “a specific fundamental set of beliefs and practices generally agreed upon by a number of persons or sects.”

    I’ve gotten a little obsessed with what is “religion” lately. Because I think that some atheists’ practice their atheism as if it were a religion. (There are atheist chaplains now! WTH?) And why I find that significant is that of it can be considered a religion, then the Government forcing atheism on us is a violation of the establishment claus.

  22. huxley Says:

    The IRS generally uses a combination of these characteristics, together with other facts and circumstances, to determine whether an organization is considered a church for federal tax purposes

    Or until the Church of Scientology and its members started filing thousands of lawsuits against the IRS and its employees in a scorched earth effort to force the IRS into giving CoS tax-exempt status.

    It worked. The IRS caved in 1993.

    Due to declining revenues CoS had been circling the drain financially and this tax windfall saved them. They put the money into prime real estate which has appreciated handsomely in the booms since. CoS is now worth over a billion dollars.

    The Gibney documentary, “Going Clear,” on Scientology is must viewing for anyone interested. The Church of Scientology is truly a horrible organization and undeserving of tax breaks.

    Thanks, IRS!

  23. Yomythe Says:

    JJ, “The Golden Rule” predates Christianity. We would have gone the way of other mammals that went extinct if we did not know that being good to others might reciprocate good behavior toward ourselves.

  24. Nick Says:

    Lee – I hate to point out typos, but I loved ” the establishment claus”. Yes, forcing atheism on us would be a violation of Santa.

  25. J.J. Says:

    Yomythe: “JJ, “The Golden Rule” predates Christianity.

    Indeed. Egypt (Middle Kingdom) in approximately 1800 BC, China (Confucius) in approximately 500 BC. had that idea of reciprocity Interesting that Mohammed didn’t get the concept.

  26. Big Maq Says:

    “But I don’t accept being slain by his followers in his name.” – groundhog

    Nor should you.

  27. Big Maq Says:

    @OM – where GB is headed, aside from mistakenly making that the sole focus, there isn’t a limiting principle.

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