Late last month, the Supreme Court held oral arguments on a case that looks at what behavior counts as religious activity. The court seems poised to overturn Wisconsin’s absurd decision that self-giving acts of charity are not religious activity. But the court also has the chance to prevent such sins against religious liberty from happening to begin with if only it will define religion under the First Amendment.
The Catholic Charities Bureau was created by the Roman Catholic Diocese of Superior in Wisconsin to serve the poor and needy. In furtherance of this mission, Catholic Charities provides a number of important social services. These services are open to any Wisconsinite in need, regardless of his religious background. One might think Wisconsin would want to incentivize such open-ended acts of charity by granting Catholic Charities the same benefits made available to other religious organizations. Alas, that is not the case.
Instead, the Wisconsin Supreme Court disregarded the undeniably religious purpose behind the creation of Catholic Charities and ruled that serving the poor and needy is not “typical” religious activity. Setting aside the Wisconsin Supreme Court’s blissful ignorance of both the role religion plays in charitable activity and the dictates of Catholic Social Teaching, such a ruling creates a narrow set of state-approved religious activities that limits religious activity to the likes of “observance of liturgical rituals,” “evangelical outreach,” “pastoral counseling,” “performance … of church ceremonies,” and “education in … doctrine.”
The court’s ruling unilaterally declares that any activity that is unorthodox or resembles secular activities cannot be motivated by a religious purpose. This means that church-run food pantries or community projects cannot be religious activities under Wisconsin’s limited understanding of religion.
The Becket Fund, which represents Catholic Charities at the Supreme Court, has rightfully argued that the Wisconsin Supreme Court’s decision “violates the principle of church autonomy,” “entangles church and state,” and “discriminates among religions.” While a ruling in favor of Catholic Charities on these grounds would be a win for religious liberty, it would only be a Band-Aid on a bullet hole.
Without a definition of religion, courts are forced to guess at what activities mandate protection from government interference. This guesswork often results in judgments that do little more than make distinctions based on what looks religious rather than what is religious. With religious discrimination surging to all-time highs, religious people need their protections grounded in something more substantive than the subjective assessment of individual judges. They need the protections promised by the First Amendment.
The Supreme Court has long expressed its unwillingness to define religion under the First Amendment. But if the American people are to secure the protections due their rights under the Constitution, they must know the contours of those rights. To do otherwise is to ensure the erosion of the constitutionally imposed boundaries on political authority. After all, liberty is not found in the absence of law but in the just enforcement of good law.
The problem is, there is too little “good law” identifying what is religious under the First Amendment. Instead, lower courts have been left to wander aimlessly in the chasm between religious relativism and religious discrimination, resulting in battles between subjective definitions that equivocate religion with irreligion and narrow definitions that elevate aesthetics over substance.
The Supreme Court needs to put an end to these battles and define religion once and for all.
The Supreme Court has many definitions to choose from. The justices could adopt a purely theistic definition. Or a subjective definition grounded in personal convictions that could even recognize atheism as deserving of free exercise protections. Or even still, the Supreme Court could adopt a mixed definition — in some contexts religion would mean something broad akin to a subjective definition, and in others it would mean something narrow, more in line with a traditional theistic definition.
However, the definition the court should adopt is that which best reflects the original meaning and is adaptable to a changing religious landscape: namely, religion means a system of beliefs and practices derived from duties to a sacred authority, which is prior to and beyond human relations and receives allegiance and worship.
This definition recognizes that religion is not merely the product of internal contemplation but also features externally compelled duties. Such an understanding was commonplace among the founders and reflects the original meaning of religion as used in the Religion Clauses. However, this definition also provides flexibility by recognizing protections for religions with external governing authorities — such as the Great Spirit common to American Indian religions — that operate similarly to God in the Abrahamic faiths but may not be covered by an exclusively theistic definition.
Moreover, supporting a single definition respects the painfully obvious truth that the Religion Clauses of the First Amendment are complementary provisions working together to defend a preexisting sphere of authority against government capture. Similarly, this definition recognizes something that courts have so desperately tried to deny for decades: The Religion Clauses are not antagonistic to religion or even indifferent; they exist for the benefit of religion.
Citizens’ natural right to religious liberty is one of the foundational principles of American law, so much so that, according to the Supreme Court, a “religious people” enshrined in the First Amendment a guaranteed freedom to worship as one wills. A “religious people” are not a people indifferent or antagonistic to religion. Rather, they are a people who believe the dictates of religion impose superior obligations to those imposed by the state.
In recent years, the Supreme Court has looked to revitalize the Religion Clauses. The next step along this road is to recognize the meaning of religion under the First Amendment so that the people might at last secure for themselves those protections promised by the Constitution.
Jesus Christ is King
