Danger in Definition

I blogged some time ago about the difficulties that courts face when trying to define religion. In a recent interview, Judge Guido Calabresi (of the U.S. Court of Appeals for the 2nd Circuit), makes some interesting comments about this issue. (Most of Judge Calabresi’s interview deals with the case of Town of Greece v. Galloway, which I discussed here; however, I am not sure I follow his argument, so I will say no more of it. What I am interested in here are the last three paragraphs of the interview.)

Judge Calabresi points out a paradox regarding legal definitions of religion. To implement a law (for example a constitutional provision, such as the First Amendment to the U.S. Constitution) which protects religion, you need a definition of what religion is. You need to know what it is that you are protecting. Yet defining what is, and what is not protected can have perverse consequences:

the moment one defines religion, and the stronger the First Amendment protections to religion are, the more those things that are outside the definition are thrown outside of Constitutional protection.

Judge Calabresi points out that this problem is not unique to religion ― it is the same thing with speech. But human experience in the religious realm is not easily amenable to sharp distinctions:

If you have a clear definition of religion, then what is outside that definition are “cults” and get no protection at all. This says to some people, “What you believe in is outside the Constitution,” and to say that is a very dangerous thing. For, when you say that something people believe in is outside the Constitution, you force people to do one of three things. One: to go in the streets and try to change the Constitution. (Which we’ve seen as to some things … ) Or two: to drop the belief that made them a cult, which is what happened with the Mormons and polygamy. (This, however, is very dangerous because those who have been forced to abandon their belief, are then quite understandably likely to say, “When we’re in the majority, we can impose our view on others. You told us we couldn’t do certain things, then, when we think that there are some things that others do that are immoral, we can do the same.”) Or, finally, you get some “believers” who become outlaws. (And every five or six years The New York Times will write an article about these “horrible” people who are living somewhere or another and doing this and that which is wrong and “cultish.”)

So here you go. Sometimes you can’t avoid defining religion; but the more precise your definition, the more problems you will generate in the medium- and long-term.

I think this is an important point, and it applies not only to wholesale attempts to distinguish between religion and “cults”, but also to more “retail-level” attempts to distinguish religious rituals from cultural practices. Trying to draw such distinctions ― as, for example, many of the people who advocate in favour of more or less extensive bans of Islamic headscarves do ― would lead to the same problems that Judge Calabresi describes ― demands for constitutional protection of cultural, as well as religious, rights; a replacement of the live-and-let-live attitude with a winner-take-all one, with the ensuing deleterious consequences for the political process; or withdrawal from society (which is the most likely consequence when the group whose practices are being outlawed is small and weak).

The lesson, I think, is that we might do well to learn to live with our vague understandings of what religion is. Or, at least, we need definitions that are open-ended and flexible, so as to accommodate new cases, without expecting them to conform to patterns set by the old. That, of course, is if we care about religious liberty. Those who don’t can read judge Calabresi’s argument as support for a strategy towards which they are already intuitively gravitating.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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