Tuesday, September 08, 2015

What is religion for legal purposes?

If it is unconstitutional to establish a religion, then it might sometimes be important to determine whether something is a "religion" for Establishment Clause purposes.  For example, Malnak v Yogi (1979, 3rd Cir.) considered whether SCI/TM (scientific creative intelligence/transcendental meditation), offered as an elective course in New Jersey public schools, was a religion.  If so, offering such a course--even on an elective basis--might be unconstitutional.  Those challenging the course produced evidence that instructors told students that "creative intelligence is the basis of all growth" and that getting in touch with this intelligence through mantras is the way to "oneness with the underlying reality of the universe."  They also pointed out that students received personal mantras in puja ceremonies that include chanting and ritual.  On the other hand, supporters of the course showed that SCI/TM put forward no absolute moral code, had no organized clergy or observed holidays, and had no ceremonies for passages such as marriage and funerals.  Is SCI/TM a religion?  Judge Adams of the Third Circuit applied these three criteria before  answering the question in the affirmative:
1. A religion deals with issues of ultimate concern; with what makes life worth living; with basic attitudes toward fundamental problems of human existence.
2. A religion presents a comprehensive set of ideas--usually as "truth," not just theory.
3.  A religion generally has surface signs (such as clergy, observed holidays, and ritual) that can be analogized to well-recognized religions.


Ilíon said...

One thing no one ever seems to get around to asking is the question, "What does it mean to 'establish' a religion?"

Now, I fully understand why the anti-religion folk want that question to be airbrushed out, but why does everyone else demonstrate such a curious lack of curiosity on the question?

B. Prokop said...

I was more interested in the judge's use of the wording "generally has". Huh?!? I always thought that law was all about precision. How the hell does one adjudicate "generally has"???

Ilíon said...

"... How the hell does one adjudicate "generally has"???"

"We judges can't define, precisely, what constitutes an unConstitutional "establishment" of "religion" (*); you'll just have to trust us (and defer to us) that we know it when we see it."

(*) not least because we (in cooperations with the pool of lawyers which are our spawning grounds) have, over a number of generations, intentionally muddled the understanding of what "establishment" means.