Because federal and state constitutions forbid government from infringing upon religious liberty or supporting religion, courts must sometimes decide whether a claim, activity, organization, purpose, or classification is religious. In most cases arising under these religion clauses, the religiousness of an activity or organization will be obvious. However; when the presence of religion is seriously controverted, the threshold question, "defining religion," becomes important. Most courts have prudently eschewed theoretical generalizations in approaching that question. Academic commentators have struggled to startlingly diverse proposals.
This Article suggests that in both free exercise and establishment cases, courts should decide whether something is religious by comparison with the indisputably religious, in light of the particular legal problem involved. No single characteristic should be regarded as essential to religiousness. Furthermore, a threshold determination that religion is present should not automatically invoke use of the compelling interest test or similar standards of review.
I explicate these suggestions more fully in Part III, illustrate their applications in Part IV, and compare them against other approaches in Part V. These efforts follow a preliminary clarification in Part I of the ways in which the threshold question about religion arises and a sketch in Part II of standards for judging the adequacy of general approaches to that question. Though my discussion deals explicitly only with clauses of the federal constitution, it applies to state provisions as well.
Constitutional Law | Law | Religion Law
Religion as a Concept in Constitutional Law,
Calif. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3820