Defining Religion: The Struggle to Define Religion Under the First Amendment and the Contributions and Insights of Other Disciplines of Study, Including Theology, Psychology, Sociology, the Arts, and Anthropology
This article attempts to explore from many vantage points one word within one context — the word “religion” in the First Amendment of the United States Constitution. The article begins with placing our understanding of religion in a historical context. By exploring the history of religious liberty in the colonies and the Founders’ view thereof, an understanding of what the Founders were seeking to protect by safeguarding religious liberty will be gained. Having established this framework, the article then addresses overarching issues that complicate the quest to define religion. Then, the article transitions into an exploration of the development of the definition of religion in both federal and state courts. Changes in the definition of religion are traced from the early interpretations to more recent formulations. Next, this article addresses how courts, since the 1940s, have been reaching beyond the traditional tools of legal analysis to define religion by drawing upon and applying formulations of what constitutes religion that have been offered by scholars in disciplines outside the legal field. Theologian Paul Tillich, psychologist William James, and sociologist Emile Durkheim are three of the most frequent sources of inspiration, but are not the only examples. This article demonstrates their continuing influence on courts’ understanding of what constitutes religion. Finally, by drawing on insights from other disciplines, by reaching deeper within these fields than the courts have already gone, this article discusses problems with the definitions of religion that have been embraced by courts. But destroying, postmodernist deconstructionism, is easier than creating, and creation is necessary for the formulation of jurisprudence.Therefore, drawing on understandings reached throughout this article and insights from other disciplines, which have already explored some of the same issues that courts are struggling with, this article will offer seven principles that will, hopefully, lead to a better understanding of the definition of religion under the First Amendment.
83 N.D. L. REV. 123 (2007)