74 Cornell L. Rev. 532 (1988-1989)
Defining Religion in the First Amendment: A Functional Approach

handle is hein.journals/clqv74 and id is 552 raw text is: DEFINING RELIGION IN THE FIRST AMENDMENT:
A FUNCTIONAL APPROACH
The essence of religion is belief in a relation to God involving
duties superior to those arising from any human relation.
ChiefJustice Hughes, 1931.1
Now is a great time for new religions to pop up. There are people
who get religious about jogging, they get religious about sex....
Health foods have become the basis of a religion. ESP, of course,
flying saucers, anything is fertile ground now. There's a new mes-
siah born every day.
Tom Wolfe, 1980.2
The First Amendment provides that Congress shall make no
law respecting an establishment of religion or prohibiting the free
exercise thereof.3 Although the Supreme Court has discussed the
concept of religion in several cases,4 it has not provided a specific
definition to govern cases arising under the religion clauses. Most
courts have approached the question with caution, recognizing that
a very rigid judicial definition of religion would implicate the con-
cerns underlying the religion causes.5 Indeed, one commentator
has argued that any judicial definition of religion would violate both
the free exercise clause and the establishment clause.6 Nonetheless,
the constitutional command that the government neither promote
religion, nor restrain religious liberty, requires an interpretation of
the word religion.
This Note attempts to provide a definition of religion that is
generally consistent with Supreme Court precedent, as well as the
Court's discussions of the religion clauses, and that will advance the
purposes of the religion clauses in both free exercise cases and es-
tablishment clause cases. Part I establishes criteria for a constitu-
tional definition of religion in light of the purposes of the religion
1 United States v. McIntosh, 283 U.S. 605, 633-34 (1931).
2 TWENTY YEARS OF ROLLING STONE: WHAT A LONG STRANGE TRIP IT'S BEEN (J.S.
Wenner ed. 1987).
3 U.S. CONST. amend. I.
4 See infra notes 24-44 and accompanying text.
5 See, e.g., Thomas v. Review Board, 450 U.S. 707, 714 (1981) (The determination
of what is a 'religious' belief or practice is more often than not a difficult and delicate
task .. ).
6 See Weiss, Privilege, Posture and Protection: Religion In the Law, 73 YALE LJ. 593
(1964). The author argues that any definition of religion would seem to violate reli-
gious freedom in that it would dictate to religions, present and future, what they must
be.... Furthermore, an attempt to define religion... would run afoul of the 'establish-
ment' clause ....  Id. at 604.

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