The First Amendment, putting aside that it originally was not the first,
* starts not with speech, but religion. The federal government, the state as well per the 14th and state constitutions, is limited from interfering with religion from both ends -- establishment and free exercise. Uneasy as it might seem to some to accept, the amendment in fact discriminates for and against religion, to quote Justice White's dissenting opinion in
Welsh v. U.S.:
It cannot be ignored that the First Amendment itself contains a religious classification. The Amendment protects belief and speech, but, as a general proposition, the free speech provisions stop short of immunizing conduct from official regulation. The Free Exercise Clause, however, has a deeper cut: it protects conduct, as well as religious belief and speech.
True enough that
Oregon v. Smith later limited the breadth of the conduct security, though it still holds, surely as to various state constitutions (NY, e.g., has a weaker security as to conduct, but a recent ruling involving supplying contraceptives in health plans noted things like sacramental wine and such are secured ... conduct), in various respects. The spirit of the sentiment is also expressed in federal legislation that singles out religious activity for security. Such laws have been upheld, including when they clash with civil rights legislation (e.g., clergy can be limited to men).
Thus, "religion" is a fundamental matter, putting aside its role in human civilization generally. Of course, its fundamental role there -- both practically and spiritually -- is a core reason why the matter is fundamental in the first place. For instance, Thomas Jefferson is known for his support of religious freedom. This threatened various people, since religion seemed necessary for public safety. Given this fact, some governmental security of the practice, at some level religious favoritism, was necessary. Many still think that way. But, Jefferson wouldn't disagree that religious belief per se lacked importance ... he just thought it had to come privately. Similarly, as we examine the nature of "religion," consider how a broader definition will still further the ends of the institution generally. The ends as much as anything else helps to define the contours.
"Religion" originally was generally deemed in this country to be mostly synonymous to "Christianity," though push come to shove, some would include other monotheistic religions as well as perhaps Hinduism and the like (cites to Jefferson will pop up "Hindoo" or the like). Some might also note that the acts of atheists have a religious freedom component, since s/he actively rejected a "religious" path. That is, even if the atheist (Deists like TJ often deemed that) is not "religious," the fact that religion ultimately is an active choice, means the "religious freedom" includes the choice itself. One lower court opinion in the modern era when dealing with holiday displays, as I recall, even spoke of non-religious sorts as a whole belonging to a sect of unbelievers. This seems to be putting together some strange bedfellows.
Back to the functional, the breadth of "religious" was shown in the area of conscientious objectors. The Supremes in the 1960s defined the term broadly -- in part to save the statutory provision at issue from Establishment Clause problems [see particularly the concurring opinions by Justice Harlan] -- when various people not traditionally deemed religious wanted to be so classified. For instance,
U.S. v. Seeger and
Welsh v. U.S., both which provide fascinating discussions of terms like "Supreme Being" and "religious" generally. See also,
Gillette v. U.S., which discussed religious freedom as a whole when the ultimate question (answered in the negative) was if the law at issue supplied exemptions to those who oppose only some wars. Justice Douglas, particularly his broader view in
Gillette, along with the other opinions also provided very good commentary.
Consider this from
Welsh:
Most of the great religions of today and of the past have embodied the idea of a Supreme Being or a Supreme Reality -- a God -- who communicates to man in some way a consciousness of what is right and should be done, of what is wrong and therefore should be shunned. ...If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content, but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual "a place parallel to that filled by . . . God" in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a "religious" conscientious objector exemption under § 6(j) as is someone who derives his conscientious opposition to war from traditional religious convictions.
A rough definition of the
traditional understanding of "religion" would amount to our relationship with God, including the creeds and rituals involved.
Seeger/
Welsh defined "God" rather broadly, ultimately accepting "religious" includes those who have some ultimate reality on the level of "God." In other words, something else that "communicates to man in some way a consciousness of what is right and should be done" ... which is at the core often understood to be our conscience. In fact, Justice Douglas in
Gillette argued that overall we have a freedom of conscience [comparable to the broad "freedom of expression" that secures more than "speech" etc. alone], even if we deem it separate from "religion," of which he notes it is probably a part.
** And, in fact, early discussions of religious freedom did tend to connect it to freedom of conscience. As do we today.
Thus,
Planned Parenthood v. Casey spoke of a protected "zone of conscience and belief," and in a often (and at times ridiculed) cited passage:
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Likewise:
Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage.
Not only that, as suggested, they have the right to on their own make such choices. In fact, the first contraceptives case --
Griswold -- connected "privacy" with religion in a fashion ... the main opinion noted that the matter touched upon matters "intimate to the degree of being sacred." One discussion of religious freedom considered "religious" to in some core way mean "intimate." And, a school bible reading
case cited with apparent approval an opinion that held religious matters "altogether private." Surely, not everything that is private is religious, but the intimate, the core conscientious belief that hits to the core of our own being, is eminently personal and often religious.
"Sacred" seems like a good enough word as any to get a feeling of what "religion" means. What we feel to be "sacred" is not centered on the deistic alone, but it seems to me to be religious at the core. It is not a scientific fact, but a moral judgment call. It often connects to rituals and
sectarian creeds/belief structures. A basic inner feeling of what is eminently special and taboo. So "life is sacred," and questions of life and death are basically religious/sectarian in nature. Do atheists not think life is "sacred?" When we say that do we just think of God or broader basic ultimate truths?
[To the degree it matters, the Supreme Court has repeatedly spoken of non-deistic religions, surely those beyond the "God" of Scalia in the Ten Commandments cases. Showing the path of the "liberal" (in the old fashioned sense, he of the privacy friendly
Poe dissent) conservative, see also Harlan's concurrence in
Welsh.]
The word overall suggests more than belief in God. Thus, ritual can be deemed religious on its own. A birth, a marriage ceremony, a death ... they bring to mind religion. Some cultures honor ancestors or certain locations, in part because they believe some spirit is present there or some force, but not only that. Likewise, some who favor nature religions, including Wiccan, commune with nature for "religious" reasons but probably do not all believe in some independent spiritual universe. I'd add that religion cannot just be mainstream churches, especially since many in the 18th Century did not join or actively take part. Rulings that honor individual spiritual paths -- not tied to any set religions -- are surely loyal to the Declaration, that honors laws that grow out of nature and nature's God.
[For instance, if religion is deemed necessary to promote good citizens, it need not only come via organized churches. Some disagree. They think individualistic belief structures as to wishy-washy or something. Such is not the law, nor a healthy view of the matter. Anyway, organizations can be wishy-washy too ... as recent discussions here suggest.]
God surely plays a core role, surely, but in some important sense religion with God alone is a pretty sad thing. Some fleeting idea God exists can lead to thin gruel religion. God also is thought by many as a part of nature. Remarks about it is necessary to explain where things come from and so forth. God in some real sense is not "supernatural" (nature's God, remember?). But, "religion" is how we honor this entity. Since "God" ultimately for some became a concept, not an actual independent entity, we can understand religion as tied to God even among atheists. But, we need not even do that, if we look at the various components of the institution and concept as whole.
[Governmental support of "In God We Trust" on coinage is still troubling given the generally understood meaning of the message and the problems with mixing religion and state in such a matter, but by itself it can be seen as relatively minor. "Under God" in the Pledge is more troubling since it is an active recitation involving young children, one that suggests a more active deity ... a matter more apparent if we look at the history of the addition and modern day rhetoric on it.]
A true respect for the First Amendment -- and religion -- warrants a rich understanding of such terms. Let me add that religion is often deemed a matter of "faith" and those who take part members of religious faiths or just "faiths." We "believe." God's laws were and still are deemed by many to be part of the natural order,
*** in a fully scientific sense of the word. Such things are not just separate from religion, and many would tell you they think it all connected. Religion in effect gives meaning to their role in the universe. Such meaning in some real sense cannot be justified by scientific logic, though maybe utilitarians will disagree. Likewise, who does not have some sort of "faith" in something?
Again, I disagree that "religion" just means faith in God or future rewards/punishments, to take an
original understanding view of things, no matter how broadly such terms are defined ... unless it becomes a metaphorical enterprise that meets the terms of the general discussion. To sum up, think of the components of "religion" ... think "faith," "sacred," "ritual," "conscience," and "ultimate truths." Add what all those things are meant to promote.
And, you might just get an idea of what "religious freedom" should truly mean.
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* The original [proposed] first involved apportionment of the House of Representatives, a core issue in a republican government, surely one involving a national one with the breadth the seemed remarkable and a bit scary at the time. The original second is the current 27th, involving congressional pay. All the same, just like originally there were twelve proposed amendments and now a Ten Commandments-like ten, the "first" amendment received charm of place over time.
** Justice Douglas thought conscientious objector status was a constitutional demand, which is probably
not reflective of original understanding, which specifically removed such an exemption from the Second Amendment. But, surely, his path fits in a living constitution approach. Taking that path, I think he is right.
*** And, consider the term "crime against nature" as applied to various things like sodomy. If the term is given a moral meaning, that is an objective natural fact is subjectively deemed "bad," we are getting into matters of conscience and religious belief. But, many do not think so -- they have what amounts to a "scientific" understanding, or think they do. The term implies such acts are "unnatural," right? You mean, like flying or extending life?
