The Misguided Search for the Constitutional Definition of Religion
![handle is hein.journals/glj71 and id is 1535 raw text is: The Misguided Search for the Constitutional
Definition of Religion
GEORGE C. FREEMAN, III*
Courts and commentators have searchedfor a definition of religion.
Relatively little attention has been paid, however, to the problem of
whether religion can ever be satisfactorily def6ned Mr. Freeman out-
lines the attempts of the Founding Fathers, several of the lower courts,
and two leading scholars to define the term. After an effort to isolate the
essence of religion, Mr. Freeman concludes that the term can not be
dened The article concludes with several recommendations intended
to aid courts in deciding free exercise clause and establishment clause
cases without relying on a definition of religion. Mr. Freeman urges
courts to accept theproposition that they need only decide on a standard
meaning of religion and need not discover its definition.
Every definition is dangerous.
Erasmus'
Much has been written recently, by courts2 and by commentators,3 about the
constitutional definition of religion.'4 The focus of these efforts has been on
* Lecturer, Tulane Law School. A.B. 1975, Emory University; B.A. 1977, M.A. 1983, Oxford Uni-
versity; J.D., M.A. 1982, University of Virginia. I am deeply indebted to a number of people for read-
ing and commenting on an earlier draft of this article. In particular, I wish to thank Thomas Bergin,
Cora Diamond, Joel Goldstein, David Little, Richard Moreland, George Rutherglen, and, especially,
A. D. Woozley and my wife, Allison. All mistakes that remain are, of course, my own.
1. R. STARK & C. GLOCK, 1 PATTERNS OF RELIGIOUS COMMITMENT, AMERICAN PIETY: THE NA-
TURE OF RELIGIOUS COMMITMENT 11 (1968).
2. Eg., Thomas v. Review Bd., 450 U.S. 707 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972); Welsh
v. United States, 398 U.S. 333 (1970) (Harlan, J., concurring); International Soc'y for Krishna Con-
sciousness, Inc. v. Barber, 650 F.2d 430 (2d Cir. 1981); Fielder v. Marumsco Christian School, 631 F.2d
1144 (4th Cir. 1980); Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979); Founding Church of Scientology of
Wash. v. United States, 409 F.2d 1146 (D.C. Cir.), cert. denied, 396 U.S. 963 (1969).
3. Eg., Bowser, Delimiting Religion in the Constitution: A Classlcation Problem, I 1 VAL. U.L. REV.
163 (1977); Boyan, Defining Religion in Operational and Institutional Terms, 116 U. PA. L. REv. 479
(1968); Clark, Guidelines for the Free Exercise Clause, 83 HARV. L. REv. 327 (1969); Fernandez, The
Free Exercise of Religion, 36 S. CAL. L. REv. 546 (1963); Hollingsworth, ConstitutionalRelgiousProtec-
lion: Antiquated Oddity or Vital Reality?, 34 OHIO ST. L.J. 15 (1973); Killilea, Standardsfor Expanding
Freedom of Conscience, 34 U. PITT. L. REv. 531 (1973); Mansfield, Conscientious Objection--1964
Term, in RELIGION AND THE PUBLIC ORDER 3 (D. Giannella ed. 1965); Merel, The Protection of Indi-
vidual Choice: A Consistent Understanding of Religion Under the FirstAmendment, 45 U. CHI. L. REv.
805 (1978); Rabin, When is a Religious Belief Religious: United States v. Seeger and the Scope of Free
Exercise, 51 CORNELL L.Q. 231 (1966); Note, Toward a Constitutional Defnition of Religion, 91 HARV.
L. REv. 1056 (1978) [hereinafter Harvard Note]; Note, The Sacred and the Profane: A FirstAmendment
Defnition of Religion, 61 TEx. L. REv. 139 (1982); Comment, Defiing Religion Of God, the Constitu-
tion and the D.A.A, 32 U. CHI. L. REv. 533 (1965).
4. Congress shall make no law respecting an establishment of religion, or prohibiting the free exer-
cise thereof .... U.S. CoNsT. amend. I. Together these two clauses are known as the religion
clauses. The first, which is commonly called the establishment clause, was held applicable to the states
in Everson v. Board of Educ., 330 U.S. 1, 8, 15 n.22 (1947) (establishment clause not violated by state
payment of transportation costs for parochial school children). The second, which is generally known
as the free exercise clause, was held applicable to the states in Cantwell v. Connecticut,.310 U.S. 296,
303, 305 (1940) (free exercise clause not violated by prior state certification for religious solicitation).
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The Misguided Search for the Constitutional Definition of Religion
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