The Establishment Clause of the First Amendment of the US Constitution tersely says that “Congress shall make no laws respecting an establishment of religion”. Over time, this short phrase has had to be fleshed out and this has resulted in a messy stew of decisions resulting in great confusion.
One major advance was when the Supreme Court said in 1947 in Everson v. Board of Education of Ewing TP that the due process clause of the 14th Amendment broadened the reach of the ban to more than just Congress and included state and local government and indeed any agency that acts on behalf of any of these governments. There is broad consensus on that though justice Clarence Thomas wants to roll that back and set the limit only on Congress again.
There was another feature that was once thought to be generally true and that was that the establishment Clause meant that government should not only be neutral between religions but also between religion and non-religion. In other words, the government should exercise strict neutrality. Justice Hugo Black said this in his same Everson opinion that “Neither [the state or federal government] can pass laws which aid one religion, aid all religions, or prefer one religion over another” and “That Amendment requires the state to be a neutral in its relations with groups of religious believers and nonbelievers.” This was reaffirmed in the famous evolution case Epperson v. Arkansas in 1968 where justice Abe Fortas said, “The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”
But that requirement of strict neutrality has become increasingly loosened as the Supreme Court seems to have quietly moved away from that and focused more on the fact that the government should not favor one religion over another but that it was acceptable to favor religion over non-religion. In fact, justice Antonin Scalia has explicitly said that “I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over non-religion,” a view that Thomas is also sympathetic too.
The problem with this view is that there is no such thing as ‘religion’, standing all by itself. What there are are religions, in that various individuals and groups subscribe to widely different sets of beliefs and practices that can be called religious. But if one were to draw a Venn diagram of the beliefs and practices of all religions, there is nothing that lies within the intersection of all of them that we can call just religion. There seems to be no single essence that defines what is and what is not a religion. If someone claims that what they believe is a religion, there is no way to refute it.
So when Scalia, or anyone else for that matter, speaks of ‘religion’, he is necessarily referring to a particular religion or a subset of religious beliefs that share some common features. And if you favor ‘religion’ over ‘non-religion’, you are inevitably favoring that subset of religious beliefs over other subsets, which even Scalia would have to concede would be constitutionally problematic.
I think that the logic is fairly clear that not being able to favor one religion over another necessarily entails that you cannot also favor religion over non-religion. That is the only way to be consistent. The only alternative is to allow anyone to call a belief a religion and claim the benefits that accrue.
There is an interesting case out of Oregon last month involving a prisoner who was denied by prison authorities the opportunity to create and Atheist or Humanist study group the way that religious groups can. The American Humanist Society sued on his behalf and the US District Judge ruled in his favor. But what was interesting was the reasoning of the judge who said that “Secular Humanism is a religion for Establishment Clause purposes.” But he also added that since the Establishment Clause requires neutrality between religion and nonreligion, “whether Humanism is a religion or a nonreligion, the Establishment Clause applies.”
I do not think this case will go to the higher courts. But it is only a matter of time before a group of nonbelievers who demand the same rights and privileges granted to believers have their case reach the Supreme Court and they will have to tackle the tricky issue of what constitutes a religion.
I have argued that this cannot be done, that demarcation rules for doing so simply do not exist. But as we have seen in recent years, consistency with respect to the Establishment Clause has not been a feature with the Supreme Court. Instead its members seems to start out with a desired result in mind and then find some reasoning, however tortuous, to justify it. And clearly there is a desire of people like Scalia and Thomas to give preference to traditional US religions.
Many will argue that belief in deity is the convergence point of religions, however, even that is not accurate. Many Pagans are religious and atheist. They reverence the earth, nature, the universe -- but not deities and certainly not anthropomorphic deities. As I understand it, Buddhists similarly do not have deities, that Buddha himself was a teacher or prophet figure.
@breaplum #1 -- Jainism is another atheist religion; like it younger cousin, Buddhism, it reveres teachers rather than gods.
The passage “congress shall make no laws respecting an establishment of religion” doesn’t refer to a single religion, it speaks of religion as an uncountable collective thing, like fruit or clothing. The writers intended it to refer to a multiplicity of beliefs.
Additionally, regarding the religious and the word “respecting”, I would respond with “I do not think it means what you think it means.” Respecting, in the sense that it was used in the US constitution, means “with regard to”. “Congress shall make no laws with regard to an establishment of religion” takes on a very different meaning than what the religious want it to mean.
The religious think respecting means reVerence, when in actually means reFerence.
Is not belief in a supernatural realm and/or mysticism attributes of all religions?
dogfightwithdogma,
Confucianism has nothing of either as far as I am aware. Taoism also does not believe in anything mystical or supernatural.
The idea of the Tao sounds rather mystical to me. (http://www.bbc.co.uk/religion/religions/taoism/beliefs/gods.shtml).
As for Confucianism what is your basis for labeling it a religion? I think of it more as a philosophy. Seems to me that Confucianism is more akin to something like secular humanism, which, despite the recent court decision, is not a religion, but rather a philosophy. I acknowledge that Confucianist thought contains an ethical and moral system and thus in some ways resembles a religion. But I don’t think this similarity makes Confucianism a religion.
I call Confucianism a religion because it has long been called one. That is the problem with trying to set up demarcation rules for some thing after many concrete instances have come into being for that thing and have been around for a long time.
On the one hand, if you start with all the groupings that have historically been considered religions (and that includes Confucianism and Taoism as that chart I linked to in the post illustrates), then there does not seem to be an essential element.
If on the other hand you try to create a priori necessary conditions to be a religion, say the existence of a supernatural element or a god, then you throw out some things that have long been considered to be religions. You can claim that they have no right to do so and must call it something else like a philosophy, but they don’t have to agree with your rules and they have history on their side.
Creating demarcation rules are always difficult and in some cases hopeless.
I accept the labeling of Taoism as a religion, but not because it has traditionally been labeled one and appears on lists of religions. So we agree about this one. But I am still not sure that Confucianism is a religion. Yes, it has traditionally been called one. It has also often been referred to as a philosophy. But I am not a fan of doing something simply because that has been the tradition. I suppose, however, there is insufficient grounds upon which we can resolve our disagreement about this. So I’ll not belabor it any longer. I do want to point out, however, that the chart to which you linked is not simply a listing of religions. The far left column is labeled Religion/Sect/Belief System. Atheism is listed in this column. I don’t think we can or should use this chart to definitively establish that Confucianism is a religion. Belief system? Yes. But this alone does not make it a religion. I notice that Stoicism is also listed. Don’t most, if not all, philosophers consider it to be a philosophy rather than a religion?
A belief system can be both a philosophy and a religion, the determent is not an outside judgement but the judgement of the individual who professes that system. One Taoist’s religious practice may be another Taoist’s life philosophy. The same is true of Druidry and perhaps is true of Confucionism as well.