| Original Full Text | Indiana Law Journal Volume 99 Issue 2 Article 3 Winter 2024 Defining Religion and Accommodating Religious Exercise Justin Collings Brigham Young University Law School, collingsj@law.byu.edu Anna Bryner Brigham Young University Law School, brynera@law.byu.esu Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Constitutional Law Commons, First Amendment Commons, and the Religion Law Commons Recommended Citation Collings, Justin and Bryner, Anna (2024) "Defining Religion and Accommodating Religious Exercise," Indiana Law Journal: Vol. 99: Iss. 2, Article 3. Available at: https://www.repository.law.indiana.edu/ilj/vol99/iss2/3 This Article is brought to you for free and open access by the Maurer Law Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact kdcogswe@indiana.edu. Defining Religion and Accommodating Religious Exercise JUSTIN COLLINGS* AND ANNA BRYNER** Forthright observance of rights presupposes their forthright definition. —Justice Robert H. Jackson Try to define religion and you invite an argument. —Patrick H. McNamara All definitions are dangerous. —Erasmus of Rotterdam It is a volatile time in the jurisprudence of the First Amendment’s Religion Clauses. In recent terms, the U.S. Supreme Court has revisited many key Church-State and free exercise questions, and the Justices seem poised to revisit several more. Each of these fundamental questions presupposes an antecedent question: what, for constitutional purposes, is religion itself? The Court has never answered this question consistently or systematically. But, at least in the case of constitutionally mandated religious exemptions, a clear pattern emerges over time: the broader the Court’s definition of religion, the weaker its regime of religious exemptions. The reverse has also been true: when the Court has moved toward more robust accommodations, it has simultaneously narrowed its definition of religion. This Article traces this pattern across time in the United States, as well as in several foreign jurisdictions. The upshot is that, over time and across jurisdictions, the antecedent question of religion’s definition is inescapably linked to the substantive strength of protections for religious exercise. In a time of rapid doctrinal flux, courts and commentators alike should attend more consciously to this strong link. * Justin Collings is professor of law and academic vice president at Brigham Young University. The authors are grateful for the research assistance of Jorden Truman, as well as for invaluable feedback on earlier drafts from Professors Stephanie Barclay and Fred Gedicks. ** Anna Bryner is a 2024 J.D. candidate at the J. Reuben Clark Law School at Brigham Young University. 387896-ILJ 99-2_Text.indd 111 1/25/24 9:49 AM516 INDIANA LAW JOURNAL [Vol. 99:515 INTRODUCTION ....................................................................................................... 516 I. THEORETICAL APPROACHES ............................................................................... 520 A. THE MINEFIELD ........................................................................................ 521 B. ABANDON SHIP? ....................................................................................... 525 C. PROPOSED SOLUTIONS ............................................................................. 527 1. SUBSTANTIVE DEFINITIONS ............................................................. 527 2. FUNCTIONAL APPROACHES ............................................................. 528 3. DEFERENTIAL APPROACHES ............................................................ 530 D. DEFINITION AND JUSTIFICATION .............................................................. 531 II. U.S. APPROACHES ............................................................................................. 532 A. FROM REYNOLDS TO BALLARD (1878-1944) ........................................... 533 B. FROM BALLARD TO YODER (1944-1972) ................................................. 537 C. FROM YODER TO SMITH (1972–1990) ...................................................... 542 D. FROM SMITH TO FULTON (1990-2021) ..................................................... 546 III. INTERNATIONAL APPROACHES ......................................................................... 549 A. GERMANY ................................................................................................ 550 B. THE EUROPEAN CONVENTION ON HUMAN RIGHTS .................................. 553 C. CANADA AND THE BRITISH COMMONWEALTH ......................................... 556 D. SOUTH AFRICA ......................................................................................... 559 CONCLUSION .......................................................................................................... 560 INTRODUCTION Religious liberty has received increased attention in recent years, not least because of periodic tensions between religious liberty claims and LGBTQ+ rights claims. Some signs suggest that interest will only intensify in years to come. One commentator predicts that, following the Supreme Court’s reversal of Roe v. Wade in the 2022 Dobbs case,1 “the relationship between church and state will become the defining concern of a new era in the courts.”2 As the Court’s recent jurisprudence makes clear, that concern will encompass both of the First Amendment’s religion clauses. With respect to both the Establishment Clause and the Free Exercise Clause, recent caselaw has revisited several crucial questions and raised many others. In the case of the Free Exercise Clause, one core question will continue to regard when, if ever, religious accommodations are constitutionally required. But there are many other key questions, all of which implicate a longstanding, antecedent question, which the Supreme Court has never answered in a settled or satisfying way. That question is as simple as it is fundamental: What, for purposes of the religion clauses, is religion itself? Obviously, one cannot know what the Establishment Clause forbids or what the Free Exercise Clause demands without knowing what “religion” is—this central entity whose “establishment” must not be effected and whose “free exercise” must 1. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022). 2. Gerald V. Bradley, First, Freedom, 22 CLAREMONT REV. OF BOOKS 79, 79 (2022). 387896-ILJ 99-2_Text.indd 112 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 517 not be barred.3 And yet, defining religion has proven bewilderingly, stubbornly, irreducibly difficult for all who have undertaken the task—whether philosophers or poets, anthropologists or theologians, sociologists or historians. As two careful students of the topic observe, confessing the impossibility of a unitary definition of religion has become “almost an article of methodological dogma” within religious studies.4 The task is doubly difficult for jurists, both because nothing in their professional preparation equips them for it and because the demands of their discipline don’t allow them the luxury of professing aporia and admitting defeat. Jurists must make distinctions; judges must decide cases. Some government actions do establish religion or prohibit the free exercise thereof; others do not. Decisions must be made; lines must be drawn. To borrow a famous phrase from a different legal context, “We draw an uncertain and wavering line, but draw it we must as best we can.”5 Many courts, however, do their best to avoid drawing definitional lines, wavering or otherwise, in the religious context. Such judicial avoidance takes two main forms. The first and far most frequent approach is simply to assume that religion is implicated and move on to the case’s merits.6 The second is to define religion with almost boundless breadth and elasticity, or to defer almost without qualification to the religious claimant’s self-definition. For most practical purposes, the first of these approaches works tolerably well. In most cases, the question of an asserted belief’s religious character simply does not arise.7 In the overwhelming majority of cases, courts need not address the definitional question simply because neither party raises it. Most of the time, the definitional question is so easy that it need not even be asked. But only most of the time. To say that the definitional question is usually easy is to admit that it is sometimes hard. Borderline cases require some working definition.8 When this happens courts are, for a variety of reasons, inclined to adopt the second 3. See Steven D. Collier, Beyond Seeger/Welsh: Redefining Religion Under the Constitution, 31 EMORY L.J. 973, 976 (1982) (“A clear definition of religion is essential to any case based solely on the religion clauses, since the First Amendment claim disappears if ‘religion’ is not involved.”). 4. W. COLE DURHAM, JR. & ELIZABETH A. SEWELL, Definition of Religion, in RELIGIOUS ORGANIZATIONS IN THE UNITED STATES: A STUDY OF IDENTITY, LIBERTY, AND THE LAW 4 (James A. Serritella et al. eds., 2006) (quoting Brian C. Wilson, From the Lexical to the Polythetic: A Brief History of the Definition of Religion, in WHAT IS RELIGION? ORIGINS, DEFINITIONS, AND EXPLANATIONS 141, 141 (Thomas A. Idinopulos & Brian C. Wilson eds., 1998)). 5. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 354 (1928). 6. Jeffrey Omar Usman, 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, 83 N.D. L. REV. 123, 126 (2007). 7. DURHAM et al., supra note 4, at 69–70. 8. Jeffrey L. Oldham, Constitutional “Religion”: A Survey of First Amendment Definitions of Religion, 6 TEX. F. ON C.L. & C.R. 117, 123 (2001) (noting that “the practical necessity of defining religion outweighs” concerns about the difficulty because “[t]he lack of a definition seems to make policing the First Amendment all but impossible in marginal cases”). 387896-ILJ 99-2_Text.indd 113 1/25/24 9:49 AM518 INDIANA LAW JOURNAL [Vol. 99:515 avoidance approach—that of defining religion broadly, sometimes extremely broadly. For many practical purposes, this approach also works tolerably well. But the viability of this broad-definition approach becomes problematic in the context of religious exemptions or accommodations. By definition (le mot juste), a broad definition of religion places more activity under the protective canopy of the Free Exercise Clause than does a narrow definition. Other things being equal, the broader the definition of religion, the larger the sphere of protected religious activity. And, in a regime of robust religious accommodations, the larger the sphere of protected religious activity, the greater the number of religious exemptions from generally applicable laws. The upshot, for some, is that a broad definition of religion sits uneasily with the robust accommodation of religious exercise. This perception is contestable: the definition of religion is only one variable shaping the reach of religious accommodations; it has always been supplemented by others, such as whether an asserted belief is sincere, or whether government action has in fact placed a burden on religious exercise. But whatever its validity, the perception of tension between a broad definition and robust accommodations has proved persistent. It appears to have influenced courts and commentators alike. As one observer has put it, a broad definition of religion is better suited to a “low accommodations” regime than to a “high accommodations” regime.9 As is well known, the Supreme Court’s decision in Employment Division v. Smith10 moved U.S. jurisprudence in the direction of a “low accommodations regime.”11 As is equally well known, federal and state legislation passed in Smith’s aftermath pushed the pendulum back towards a “high accommodations regime.”12 If Smith is overruled—and several Justices signaled in the 2021 case of Fulton v. Philadelphia that they are willing to overrule it13—that would mark a further step toward strong accommodations. One student of judicial definitions of religion has noted that “a high accommodations regime necessitates a workable definition of religion.”14 This is so because, as another commentator notes in a different context, “[s]ince it is impractical to relieve every burden or accommodate every litigant, the availability of religious exemptions must be joined with an exemption-denial mechanism.”15 The definition of religion is one such exemption-denial mechanism: courts can constrain the availability of exemptions by defining religion in a way that precludes some exemption claims. Other exemption-denying mechanisms include assessments of sincerity or burden, as well as the test courts use to determine when exemptions are 9. Courtney Miller, Note, “Spiritual but Not Religious”: Rethinking the Legal Definition of Religion, 102 VA. L. REV. 833, 849–50 (2016). 10. Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990). 11. Miller, supra note 9, at 849. 12. Id. at 849–50. 13. Fulton v. Philadelphia, 141 S. Ct. 1868, 1923, 1926 (2021) (Alito, J., concurring) (Gorsuch, J., concurring). Justice Thomas joined both concurring opinions that signaled a willingness to overturn Smith. 14. Miller, supra note 9, at 850. 15. VINCENT PHILLIP MUÑOZ, RELIGIOUS LIBERTY AND THE AMERICAN FOUNDING: NATURAL RIGHTS AND THE ORIGINAL MEANINGS OF THE FIRST AMENDMENT RELIGION CLAUSES 316 (2022). 387896-ILJ 99-2_Text.indd 114 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 519 available. This Article focuses on the link between the definition of religion and the last of these exemption-limiting mechanisms: the generosity of the test by which exemptions are afforded. Making that test more generous will put pressure on the definition of religion. This doesn’t mean that a post-Smith Court will inevitably revisit the received definition of religion, such as it is. Indeed, as noted earlier and as we shall see later, the Justices have addressed this question only sporadically and seemingly reluctantly for a very long time. There is no reason to expect a sudden appetite to engage the question any time soon. But reversing Smith would put pressure on the hydraulic system that seems to operate among the definition of religion, the requirement of sincerity, the assessment of burden, and the test for constitutional exemptions. This Article will focus largely on the first and last of these factors—on the relationship, that is, between the definition of religion and the scope of religious exemptions, and on the implications for the former if the latter is revised. Before proceeding with that analysis, it’s worth noting that the expectation that either a broad definition of religion or a generous test for religious exemptions (or, a fortiori, a combination of the two) will inundate and overwhelm the courts with religious exemption claims—that expectation rests on questionable empirical assumptions. As attractive as exemptions might be for many religious dissenters, there are other incentives at work. These obviously include the costs, in time and treasure, of litigation, but also the social costs of seeking an exemption from a popular, majoritarian law—especially, in our time, an antidiscrimination law.16 In what follows, we will take seriously the concerns that seem to animate many courts and commentators when discussing the definition of religion. But we will maintain—and we invite readers to maintain with us—a healthy skepticism of the underlying empirical assumptions. Whether the Court addresses the question openly or not, a post-Smith regime will likely revive scholarly and (perhaps) judicial discussions of how, for constitutional purposes, religion should be defined. The purpose of this Article is not to anticipate such discussions by proposing yet another definition of religion, but rather to highlight the persistent link between a court’s definition of religion and the scope of protection it affords to religious exercise. There are, to be sure, other factors at play, some of which we will highlight along the way. But our focus is on the link between these two variables: the definition of religion and the regime of exemptions and accommodations it underwrites. The Article underscores the link between these two variables in two directions: historically (by looking at past practice in the United States Supreme Court) and comparatively (by looking at analogous practices in other jurisdictions). In both directions, the same pattern emerges: the broader the definition of religion, the weaker the protections afforded religious exercise; and, on the flip side, as protections for religious exercise strengthen, definitions of religion narrow. The Justices of the U.S. Supreme Court should keep this pattern in mind as they consider revising (or consistently sidestepping) Smith or (less likely) as they revisit 16. See generally Stephanie H. Barclay, The Historical Origins of Judicial Religious Exemptions, 96 NOTRE DAME L. REV. 55 (2020); Nathan Chapman, Adjudicating Religious Sincerity, 92 WASH. L. REV. 1185, 1232 (2017). 387896-ILJ 99-2_Text.indd 115 1/25/24 9:49 AM520 INDIANA LAW JOURNAL [Vol. 99:515 the constitutional definition of religion in the aftermath of Smith’s demise. As we shall see, broad definitions of religion are often prompted by a desire not to exclude novel or marginalized religious groups or individuals. But the broad definitions that allow non-traditional believers entry at the front door of definition often usher them—unceremoniously and unprotected—out the back door of implementation. What’s more, the weak protections that often travel in tandem with broad definitions apply to traditional groups as well, making it far from obvious that broad definitions of religion result in greater protection for religious exercise overall. And the very judicial prejudices and priors that broad definitions are intended to neutralize will often influence judicial application of the weakened tests that broad definitions almost invariably entail. This doesn’t necessarily mean that courts should embrace a narrow definition of religion. We suggest only that, if a high-accommodations regime “necessitates a workable definition of religion,”17 such a definition should be chosen with full cognizance of the consequences that such a definition—broad or narrow, substantive or functional—will surely entail. Along the way, we also note how a broad definition with weak protections is sometimes supplemented by strong protections within a restricted sphere, such as the U.S. doctrine of the “ministerial exception” or the German doctrine of a right’s “core area.” We also observe how the definition of religion operates in tandem with other limiting factors, such as the requirements of sincerity and burden. This Article proceeds as follows. Part I outlines the difficulties and dilemmas that attend any effort to define religion for constitutional purposes and summarizes the efforts of various scholars, despite such difficulties, to do just that. Part II recounts the Supreme Court’s rare and checkered efforts to define religion, highlighting how the scope of religious protection has often varied inversely with the breadth of religious definition. Part III examines the parallel efforts of apex courts in Germany, South Africa, Canada, and the European Convention on Human Rights. A conclusion draws lessons from these historical and comparative examinations for possible future efforts—by the U.S. Supreme Court and others—to define religion for purposes of constitutional rights of religious exercise. I. THEORETICAL APPROACHES The academic literature on the constitutional definition of religion is littered with lamentations and expressions of distress. Defining religion, we are told, is “a herculean task”18—a task “uncommonly volatile” and “fraught with uncertainty and complications.”19 Worse still, the complexity of the task intensifies as societies grow ever more pluralistic and ever more individualistic.20 Many, surveying the scene and 17. Miller, supra note 9, at 850. 18. Michael Rhea, Comment, Denying and Defining Religion under the First Amendment: Waldorf Education as a Lens for Advocating a Broad Definitional Approach, 72 LA. L. REV. 1095, 1103 (2012). 19. Id. at 1109; Sarah Lubin, Note, Defining Religion under the First Amendment: An Argument for Anchoring a Definition in Injury, 28 S. CAL. REV. L. & SOC. JUST. 107, 108 (2019). 20. LAW AND RELIGION IN THEORETICAL AND HISTORICAL CONTEXT 8 (Peter Cane et al. eds., 2008). 387896-ILJ 99-2_Text.indd 116 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 521 heeding the inscription on the gate of Dante’s hell, have abandoned all hope.21 “[T]here are,” says one observer, “exceptions and objections to every definition.”22 “The definition of religion,” another concludes, “will never be perfect.”23 One commentator declares the task of defining religion “hopelessly ambiguous.”24 Still another discerns an overarching consensus in the literature that the quest for a unitary definition of religion is doomed to failure.25 Two of the most thorough students of the subject assess the situation in vividly Dantean (not to mention Sartrean) terms: “Quickly,” they write, “one finds oneself in a dark wood from which no exit seems possible.”26 Elaborating on the impasse in a similar vein of mythic gloom, they add that “[e]ach proposed definition reveals itself as one more Sisyphean stone rolled upward only to relapse into a sea of endless deconstruction.”27 Judges have expressed consternation as well. Forty years ago, an Australian High Court judge observed that “[i]t would be difficult, if not impossible, to devise a [legal] definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world.”28 More recently, the Supreme Court of the United Kingdom has noted that there is no “universal legal definition of religion in English law,” and that “experience across the common law world over many years has shown the pitfalls of attempting to attach a narrowly circumscribed meaning to the word.”29 What makes defining religion so hard? And what is it about the constitutional context that renders the task doubly difficult? In addition to the endlessly elusive nature of religion itself, anyone aiming to define religion for constitutional purposes must navigate between a series of opposing dangers—between excluding the plainly religious and including the obviously secular, between protecting too much religious exercise and shielding too little. In effect, to define religion in a constitutional setting is to dance through an interpretive minefield. A. The Minefield Trying to define religion raises a host of difficult subsidiary questions. Must, for instance, a religious belief be theistic? Do “merely” moral or ethical convictions count? How does one prevent the definer’s own prejudices and priors from shaping 21. DANTE, INFERNO, Canto III, I.9. 22. Brittany Acors, Legally Faithful: Establishing a Constitutional Definition of ‘Religion’ for the United States, 5 PA. UNDERGRADUATE L.J. 81, 94 (2017). 23. Usman, supra note 6, at 221. 24. T. Jeremy Gunn, Conference: Religion, Democracy, & Human Rights: The Complexity of Religion and the Definition of “Religion” in International Law, 16 HARV. HUM. RTS. J. 189, 191 (2003). 25. Miller, supra note 9, at 841. 26. DURHAM et al., supra note 4, at 3. 27. Id. at 4. 28. Church of the New Faith v. Comm’r of Pay-Roll (1983) 154 CLR 120, 132 (High Ct.) (Austl.). 29. R v. Registrar Gen. of Births, Deaths and Marriages [2013] UKSC 77, [34] (appeal taken from Eng.). 387896-ILJ 99-2_Text.indd 117 1/25/24 9:49 AM522 INDIANA LAW JOURNAL [Vol. 99:515 the definition? To what extent should an individual’s self-understanding influence judges’ assessment of whether her convictions are religious? Behind these and other hard questions lies a basic dilemma. A working constitutional definition of religion must navigate between the Scylla of an underinclusive definition and the Charybdis of an overinclusive definition—between too narrow a definition and too broad.30 On the one hand, an overly exacting definition runs various risks, such as excluding beliefs that most agree are religious;31 according undue weight to judges’ own parochial experience; favoring “conventional Western patterns of religion”32; redounding to the detriment of novel, obscure, or unpopular beliefs;33 and even establishing a state-prescribed orthodoxy.34 One prominent scholar goes so far as to contend that underinclusive definitions of religion are immoral.35 On the other hand, an all-inclusive definition is useless.36 When constitutional texts accord special treatment to “religion,” they are not creating a boundlessly inclusive category. A definition that doesn’t exclude does not define.37 And yet, the effort to avoid Scylla’s monstrous heads often pulls inexorably to Charybdis’s whirlpool.38 Two perceptive observers describe the process well: [W]herever one attempts to set the definitional line, there is always some new group, belief, or activity that falls outside the definition but is functionally analogous to something included within it and cries out for equal treatment. This equalitarian argument is either resisted, in which case one is left with difficult problems of unequal treatment, or it is 30. See Lubin, supra note 19, at 109; Jaclyn L. Neo, Definitional Imbroglios: A Critique of the Definition of Religion and Essential Practice Tests In Religious Freedom Adjudication, 16 INT’L J. CONST. L. 574, 575 (2018); Russell Sandberg, Clarifying the Definition of Religion under English Law: The Need for a Universal Definition, 20 ECCLESIASTICAL L.J. 132, 152–53 (2018); Austin Cline, Defining the Characteristics of Religion, LEARN RELIGIONS, https://www.learnreligions.com/defining-the-characteristics-of-religion-250679 [https://perma.cc/9NAX-H2RF] (June 25, 2019). 31. See Neo, supra note 30, at 577; Donald L. Beschle, Does a Broad Free Exercise Right Require a Narrow Definition of “Religion”?, 39 HASTINGS CONST. L.Q. 357, 377 (2011). 32. Note, Toward a Constitutional Definition of Religion, 91 HARV. L. REV. 1056, 1072 (1978); Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933, 958 (1989). 33. Neo, supra note 30, at 575. 34. Toward a Constitutional Definition of Religion, supra note 32, at 1073. 35. See Micah Schwartzman, Religion as a Legal Proxy, 51 SAN DIEGO L. REV. 1085, 1086 (2014) [hereinafter Schwartzman, Legal Proxy] (“Given the diversity of religious and philosophical perspectives that have developed within our society, the inequality between religious and nonreligious views implied by the constitutional text is morally indefensible.”); Micah Schwartzman, What If Religion Is Not Special, 79 U. CHI. L. REV. 1351, 1355 (2012) [hereinafter, Religion Is Not Special] (arguing that when the “Religion Clauses are interpreted according to their original meaning . . . they should be criticized as morally defective.”). 36. Toward a Constitutional Definition of Religion, supra note 32, at 1073. 37. Val D. Ricks, To God God’s, to Caesar Caesar’s, and to Both the Defining of Religion, 26 CREIGHTON L. REV. 1053, 1061 (1993). 38. Cf. Lupu, supra note 32, at 947 (“Behind every free exercise claim is a spectral march; grant this one, a voice whispers to each judge, and you will be confronted with an endless chain of exemption demands from religious deviants of every stripe.”). 387896-ILJ 99-2_Text.indd 118 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 523 accepted, in which case the boundary is pushed out farther and farther until almost no group would be excluded.39 As we will see later on, generosity toward marginalized individuals or groups at the definitional stage doesn’t necessarily portend robust protection for them in practice.40 Judges’ preconceptions are just as likely to influence their application of tests for religious exemptions or accommodations as they are to shape their definition of religion itself—and they might sometimes be more transparent at the definitional phase.41 The conundrum is compounded by the question of how far, if at all, courts should defer to the individuals’ or groups’ conception of their beliefs as religious. On the one hand, deferring absolutely to individual self-understanding will likely lead to over-inclusiveness and perhaps the risk of fraud.42 Complete deference, moreover, effectively abdicates the secular state’s final authority to define the terms of its secular constitution.43 On the other hand, defining one’s own beliefs as religious is itself an exercise of religious liberty, which means that not deferring to self-definition is itself a limitation on religious exercise.44 The question of deference to individual self-definition in the Free Exercise context has a corollary in the Establishment Clause context, in which individuals and groups sometimes insist, in the face of an Establishment Clause challenge, that their beliefs are not religious.45 Can the secular state pronounce a belief to be religious against the believer’s will? Can it—if the Establishment Clause is to have any teeth—avoid doing so? These questions point to a broader challenge—namely, that even if one can articulate a satisfactory definition of religion for the Free Exercise context, that definition might not prove equally satisfying (indeed, it might prove profoundly unsatisfying) in the Establishment Clause context. This is especially likely if the definition of religion adopted is an expansive one. A capacious definition of religion might meet demands for inclusiveness for Free Exercise purposes but also, if applied to the Establishment Clause, constrain or cripple government action.46 Over the 39. DURHAM et al., supra note 4, at 56. 40. Collier, supra note 3, at 1011 (“If the standard for what constitutes a religion were lowered too far, the degree of protection afforded religions would inevitably tend to be diluted as the number of claimants to that protection increased.”). 41. Cf. Usman, supra note 6, at 147 (“[B]y defining religion, discrimination between religions is less likely to be subtly hidden through court presumptions.”). 42. DURHAM et al., supra note 4, at 30. 43. Id. at 35. 44. Id. at 36. 45. See, e.g., Malnak v. Yogi, 592 F.2d 197, 197–99 (3d Cir. 1979). 46. DURHAM et al., supra note 4, at 15; Schwartzman, Legal Proxy, supra note 35, at 1084; James M. Donovan, God Is as God Does: Law, Anthropology, and the Definition of “Religion”, 6 SETON HALL CONST. L.J. 23, 32 (1995). See also Collier, supra note 3, at 987 (“Even if the definition of religion was originally the same under both the Free Exercise and Establishment Clauses, commentators advocating a more narrow definition under the Establishment Clause argue that the historical expansion of the role of government now requires a more restrictive Establishment Clause definition so that the modern welfare state will not be hamstrung by the need to avoid entanglement with religion as defined broadly.”). 387896-ILJ 99-2_Text.indd 119 1/25/24 9:49 AM524 INDIANA LAW JOURNAL [Vol. 99:515 years, some commentators have responded to this dilemma by proposing different definitions of religion for the two religion clauses—one for Free Exercise purposes and one for Establishment Clause purposes, each designed to advance the relevant clause’s ostensible aims.47 In our view, these proposals for a dual definition are untenable. They are doomed by both a textual objection and a functional objection. The textual objection—famously raised by Justice Rutledge in a dissenting opinion in Everson v. Board of Education (1947)48—is that the First Amendment uses the term “religion” only once, which means that the term cannot plausibly be defined twice. The Free Exercise clause, on this view, cannot possibly employ “religion” in a different sense than does the Establishment Clause for the simple reason that the Free Exercise clause does not employ the term at all; it merely carries the term over from the Establishment Clause (“or prohibiting the free exercise thereof”). Since the term is carried over from one clause to the next, so must its definition. 49 The functional objection—prominently raised by Judge Arlin Adams of the Third Circuit50—is that the upshot of a dual definition would be discrimination among religious groups: those deemed religious for Free Exercise purposes but not for Establishment Clause purposes would hold a privileged position vis-à-vis those deemed religious for purposes of both clauses.51 And those, if any, deemed religious for Establishment Clause purposes but not Free Exercise purposes would be worse off still.52 This seems an intolerable result. There seem to be few contemporary champions of a dual definition of religion for constitutional purposes. Professor Larry Tribe, for a time the most prominent academic defender of a dual definition, later reconsidered and recanted.53 In our view, the best way to account for the different aims of the two religion clauses is not through a bifurcated definition of religion but rather through differing definitions of the differing operative terms: “establishment” and “free exercise.”54 The complicated questions just discussed are compounded by the question of sincerity: should courts assess claimants’ sincerity and, if yes, how?55 Can courts 47. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 831 (1st ed. 1978); Schwartzman, Legal Proxy, supra note 35, at 1085–89. 48. 330 U.S. 1, 32–33 (1947). 49. Id. 50. Malnak, 592 F.2d at 209. 51. Usman, supra note 6, at 154–56; see also Mary Harter Mitchell, Secularism in Public Education: The Constitutional Issues, 67 B.U. L. REV. 603, 652 (1987) (“[I]f the free exercise definition is broader than the establishment definition, the result might in some sense discriminate in favor of religions included in the former but not the latter.”). 52. Ricks, supra note 37 at 1059 (“If a group is a religion for the Establishment Clause but not for the Free Exercise Clause, it would seem that such a group could in some cases argue that it was discriminated against on the basis of religion. Such a group’s ideas could not be taught in the schools because they would be deemed religious ideas; but, on the other hand, that group could not exempt its children from compulsory education laws on the basis of a free exercise right.”). 53. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1186 (2d ed. 1988). 54. Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 STAN. L. REV. 233, 289 (1989). 55. Lubin, supra note 19, at 108. 387896-ILJ 99-2_Text.indd 120 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 525 assess sincerity of possibly religious beliefs without also passing on their validity?56 Can they impose meaningful limits on the free exercise clause without inquiring into sincerity?57 Sincerity, as we shall see, is an important auxiliary to the definition of religion in demarcating the constitutional limits of free religious exercise. These difficulties are compounded by the question of institutional competence. This problem takes two forms, one having to do with capacity and the other with authority. In the former case, most judges are not experts in matters of religion and theology. Their socialization and training hardly equip them to define a concept as protean and elusive as religion.58 But even if judges were well-suited to define religion, there remains the question whether they can or should do so. It is awkward at best for the officers of the secular state to pronounce on matters that might seem, by definition, to lie beyond their jurisdiction and purview—to determine which convictions are religious and which are not.59 Do secular judges possess the authority to designate individuals or groups as religious—or not religious—against their will?60 B. Abandon Ship? These many difficulties—and others as well—have led some commentators to recommend abandoning attempts to define religion altogether,61 and others to celebrate the Supreme Court’s general success at dodging the issue.62 Of those who recommend renouncing the quest, some maintain that defining religion is impossible, others that it is unconstitutional. In the former camp, one observer opines that the effort to define religion is “understandable, but misguided.”63 Another suggests that classifications in this area are inherently arbitrary.64 Another still contends that there is simply “no essence of religion, no single feature or set of features that all religions have in common and 56. United States v. Ballard, 322 U.S. 78, 92–93 (1943) (Jackson, J., dissenting) (“The most convincing proof that one believes his statements is to show that they have been true in his experience. Likewise, that one knowingly falsified is best proved by showing that what he said happened never did happen.”). 57. Beschle, supra note 29, at 373. 58. Neo, supra note 30, at 579. 59. Mark Strasser, Free Exercise and the Definition of Religion: Confusion in the Federal Courts, 53 HOUS. L. REV. 909, 911–12 (2016); DURHAM & SEWELL, supra note 4, at 58; Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940). 60. Rhea, supra note 18, at 1096. 61. See PHILIP B. KURLAND, RELIGION AND THE LAW OF CHURCH AND STATE AND THE SUPREME COURT 17–18 (1982) (recommending against using the term “religion” in constitutional contexts). 62. Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement” Test, 86 MICH. L. REV. 266, 298 (1987). 63. T. Jeremy Gunn, The Complexity of Religion and the Definition of “Religion” in International Law, 16 HARV. HUM. RTS. J. 189, 189 (2003). 64. Anita Bowser, Delimiting Religion in the Constitution: A Classification Problem, 11 VAL. U. L. REV. 163, 164 (1977) (contending that the process of classification “is . . . inherently arbitrary”). 387896-ILJ 99-2_Text.indd 121 1/25/24 9:49 AM526 INDIANA LAW JOURNAL [Vol. 99:515 that distinguishes religion from everything else.”65 Others observe that “no definition of religion for constitutional purposes exists, and no satisfactory definition is likely to be conceived,”66 and that “[f]ashioning a general definition of religion seems virtually impossible.”67 Other commentators suggest that, feasible or not, defining religion for constitutional purposes might itself be unconstitutional. On this view, a constitutional definition of religion amounts to a state-prescribed orthodoxy. “[A]ny definition of religion,” one scholar suggests, “would seem to . . . dictate to religions, present and future, what they must be.”68 Another observer similarly points to “the irony” that “the definition of religion may ultimately be the greatest establishment.”69 Similarly, another writer suggests that allowing a group of theologians to establish their view of religion as the law of the land might constitute an unconstitutional establishment of religion—and that the case might be no different with a group of judges.70 And yet, the Constitution itself points to a realm called “religion,” within which the state must not intrude, and a realm outside religion, in which no such strictures apply. The Constitution cannot implicitly forbid what it explicitly requires. As noted earlier, there is simply no way to apply the religion clauses without some working definition of religion.71 Commentators thus toggle between urging the impossibility of defining religion and conceding its inevitability.72 In our view, those stressing inevitability have both the greater numbers and the better case. Even those who plead abstention ultimately plead it in vain.73 However delicate or difficult the task, religion must be somehow defined. And, undeterred by a task perhaps as quixotic as it is herculean, scores of academic paladins have tilted their lances against the definitional windmill. 65. George C. Freeman, III, The Misguided Search for the Constitutional Definition of “Religion”, 71 GEO. L.J. 1519, 1565 (1983). 66. Phillip E. Johnson, Concepts and Compromise in First Amendment Religious Doctrine, 72 CALIF. L. REV. 817, 832 (1984). 67. Smith, supra note 62, at 298. 68. Jonathan Weiss, Privilege, Posture and Protection “Religion” in the Law, 73 YALE L.J. 593, 604 (1964). 69. William P. Marshall, “We Know It When We See It”: The Supreme Court and Establishment, 59 S. CAL. L. REV. 495, 512 (1986). 70. See C. John Sommerville, Defining Religion and the Present Supreme Court, 6 UNIV. FLA. J.L. & PUB. POL’Y 167, 167–68 (1994). See also Collier, supra note 3, at 998 (“[A]ny definition that operates to exclude anyone from the protection of the Free Exercise and Establishment Clauses would be discriminatory on its face, because it would exclude beliefs and practices that at least some people would consider religious and because it would deny religion clause protection to people who do not believe in religion at all.”). 71. Mary Harter Mitchell, Secularism in Public Education: The Constitutional Issues, 67 B.U. L. REV. 603, 632 (1987). 72. For those urging inevitability, see Lubin, supra note 19, at 109; Sandberg, supra note 30, at 152; Usman, supra note 6, at 147; Dmitry N. Feofanov, Defining Religion: An Immodest Proposal, 23 HOFSTRA L. REV. 309, 313 (1994); Comment, Defining Religion: Of God, the Constitution and the D.A.R., 32 UNIV. CHI. L. REV. 533, 558 (1965). 73. See DURHAM et al., supra note 4, at 29 (“The Kurland [i.e., non-definition] approach . . . pleads abstention, but ultimately lapses into analogy.”). 387896-ILJ 99-2_Text.indd 122 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 527 C. Proposed Solutions There are as many proposed constitutional definitions of religion as there are would-be definers. Each proposal varies in some nuances and particulars from its predecessors and successors. Even so, a few rough categories can be rudely drawn. In general, most proposals are either substantive (focused on what religion is) or functional (focused on what religion does). Each approach has obvious merits; each has also been subjected to serious critique. 1. Substantive Definitions Substantive definitions focus on the essence of religious belief—on the nature or substance of faith. In earlier times, beginning at least in the nineteenth century, substantive definitions often highlighted theism as the heart of religion.74 Over time, this conception drew heavy criticism for excluding belief systems, like Buddhism, that were not theistic but that nearly everyone agreed were religious.75 In more recent decades, substantive definitions have tended to focus more on the nature or source of belief than on its object. In the early 1980s, for instance, Jesse Choper defined religion (for constitutional purposes) in terms of belief in “extratemporal consequences”—faith that one’s actions on earth will have consequences in another realm.76 Choper also spoke in terms of “transcendent reality.”77 Other modern substantive proposals stress that religion is characterized by its nonrational nature;78 still others maintain that its distinctive feature is external compulsion—something beyond the believer’s personal control.79 These latter approaches argue that it is precisely the nonrational, externally compelled nature of religion that makes it worthy of special protection.80 Other substantive approaches abandon the notion that religion has one defining essence and look instead for common features shared across religions. This is sometimes described as an analogical approach—one centered on a Wittgensteinian “family resemblance.”81 These approaches sometimes identify a particular paradigm case—one that all observers will agree is obviously religious—then ask what features mark that case as religious and to what extent other putatively religious practices or beliefs share those distinctive features. Some of these modern substantive views—particularly Choper’s emphasis on extratemporal consequences—have, like their theistic predecessors, been criticized as underinclusive and Western-centric.82 Some observers highlight the ever-present 74. DURHAM et al., supra note 4, at 8. 75. Id. at 20. 76. See Jesse H. Choper, Defining “Religion” in the First Amendment, 1982 UNIV. ILL. L. REV. 579, 599 (1982). 77. Id. at 601. 78. See generally Feofanov, supra note 72. 79. See generally Sommerville, supra note 70. 80. Feofanov, supra note 72, at 389; Sommerville, supra note 70, at 175. 81. DURHAM et al., supra note 4, at 12. 82. Id. at 19 (One scholar notes “this definition would force courts to intrusively examine individual beliefs and make irrational distinctions between almost identical beliefs.”); see also 387896-ILJ 99-2_Text.indd 123 1/25/24 9:49 AM528 INDIANA LAW JOURNAL [Vol. 99:515 risk that any a priori substantive definition will exclude believers outside the religious mainstream.83 Critics maintain that even definition by analogy doesn’t escape these dilemmas: there is no objective basis for identifying a paradigm case—or salient features—from which to analogize. Others note that all essentialist proposals are either over- or under-inclusive.84 Sometimes they might be both. Still other critics object that there is simply no essential, substantive feature shared by all religions or religious beliefs—nothing that all religions share with all other religions85—and that any effort to identify a single, shared strand will inevitably exclude novel or marginal religious movements.86 2. Functional Approaches In an effort to avoid these ostensible shortfalls of substantive approaches, many students of the problem would define religion in functional terms—in terms of the role religion plays in believers’ lives and the fundamental questions that religion seeks to answer.87 For some of these writers, the heart of religion is its response to the individual’s existential concerns.88 In describing those concerns, some—including, at times, the U.S. Supreme Court—have employed the phrase “ultimate concern,” drawn from the mid-twentieth-century progressive Protestant theologian Paul Tillich.89 “Religion exists,” argued one influential (student) commentary, “when there is an ultimate concern”—no matter how “secular” the substance of the underlying belief might seem.90 In the Supreme Court’s formulation, a belief was religious so long as it occupied a position in the believer’s life parallel to that occupied by traditional faiths in the lives of traditional believers.91 The test thus focused not on the substance, but on the function of the belief—not on the belief’s object or nature, but on the intensity with which it was held. Critics of functional approaches contend that the category is overbroad92—perhaps boundlessly so. “The field of ultimate concerns,” one writer notes, “is limitless.”93 Another observes that “an honest application of Tillich’s theory would Ingber, supra note 52, at 276 (criticizing Choper’s extratemporal consequence approach as being, even “by conservative standards, . . . grossly underinclusive. Afterlife perspectives like Choper’s are predominantly associated with Western religions.”). 83. Celia G. Kenny, Law and the Art of Defining Religion, 16 ECCLESIASTICAL L.J. 18, 19 (2014). 84. Miller, supra note 9, at 842–43. 85. Gunn, supra note 63, at 194. 86. DURHAM et al., supra note 4, at 20. 87. Another recent writer focuses on the injuries the religion clauses are designed to prevent. Lubin, supra note 19, at 111. 88. Donovan, supra note 46, at 29. 89. United States v. Seeger, 380 U.S. 163, 187 (1965). See also Welsh v. United States, 398 U.S. 333, 342 (1970) (holding that a plaintiff qualified as a conscientious objector due to his “paramount concern”). 90. Schwartzman, Legal Proxy, supra note 35, at 1082, 1075. 91. Seeger, 380 U.S. at 187 ; Welsh, 398 U.S. at 340 . 92. DURHAM et al., supra note 4, at 17. 93. Usman, supra note 6, at 216. 387896-ILJ 99-2_Text.indd 124 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 529 not in any way limit the field of constitutionally protected conduct.”94 For these critics, functional approaches fail to distinguish religion from everything else. And, as noted earlier, a definition that doesn’t distinguish is not a definition at all. A very different critique is that an ultimate concern test might, in practice, prove vastly underinclusive. Not all religious beliefs constitute ultimate concerns.95 If “ultimate concern” is defined strictly as a belief for the sake of which the believer is willing to risk persecution or martyrdom, the beliefs of many traditional religionists will not qualify. “In application,” writes one trenchant observer, “the standard is either so demanding as to bestow religious protection upon an extremely limited few or so broad that it leaves no distinction between religion and other value systems, thus becoming insignificant or even meaningless.”96 Furthermore, insofar as functional approaches focus on the intensity rather than the substance of beliefs, they undermine any basis for treating religious beliefs or actions differently from any others.97 And secular beliefs, even if they qualify as ultimate concerns, don’t necessarily occupy a position “parallel” to that of beliefs that anticipate “extratemporal consequences.”98 Functional approaches also pose practical problems. How does one define or identify an “ultimate concern”? And how does one decide which religions are to serve as the baseline for “parallel position” comparisons?99 These concerns also apply to analogical approaches,100 which focus on paradigm cases101 and seek to identify salient features that all or most religions share, such as their communal character;102 to “polythetic” approaches, which look to “family resemblance” rather than common characteristics;103 and to multi-factor tests, which operate, in practice, as a species of analogical approach.104 Unsurprisingly, these approaches have been criticized on many of the same grounds as most substantive and functional approaches: they are, critics maintain, arbitrary, ethnocentric, and endlessly malleable.105 94. Steven G. Gey, Why is Religion Special?: Reconsidering the Accommodation of Religion Under the Religion Clauses of the First Amendment, 52 U. PITT. L. REV. 75, 160 (1990). 95. Rhea, supra note 18, at 1106. 96. Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 STAN. L. REV. 233, 268–69 (1989). 97. Rebecca Rains, Can Religious Practice Be Given Meaningful Protection After Employment Division v. Smith?, 62 U. COLO. L. REV. 687, 699 (1991). 98. Sommerville, supra note 70 at 174. 99. Miller, supra note 9, at 843. 100. Kenny, supra note 83, at 23; Miller, supra note 9, at 870. 101. Kent Greenawalt, Religion as a Concept in Constitutional Law, 72 CAL. L. REV. 753, 769 (1984). 102. MARK L. MOVSESIAN, DEFINING RELIGION IN AMERICAN LAW: PSYCHIC SOPHIE AND THE RISE OF THE NONES 13–14 (Robert Schuman Ctr. for Advanced Stud. Working Paper No. 19, 2014); GEORGE P. FLETCHER, LOYALTY: AN ESSAY ON THE MORALITY OF RELATIONSHIPS 98 (1993). 103. Gunn, supra note 63, at 194. 104. DURHAM et al., supra note 4, at 25. 105. DURHAM et al., supra note 4, at 13. 387896-ILJ 99-2_Text.indd 125 1/25/24 9:49 AM530 INDIANA LAW JOURNAL [Vol. 99:515 3. Deferential Approaches The criticisms described above have led some to seek refuge in synonyms like “conscience”—a problematic approach, both textually (the framers consciously chose to protect “religion,” not “conscience”106) and practically (synonyms for religion face the same definitional quandaries as religion itself). Others, as noted, have been tempted to abandon the effort to define religion altogether. But such renunciation, as also noted, is unworkable, and most renouncers slip into some form of synonym or analogy.107 More promising are approaches that attend to individual autonomy and thus afford significant weight to individual self-definition. Some proponents of these approaches champion what they call “limited deference.”108 On this view, self-definition should always be relevant and often decisive.109 The belief that one’s views are religious is itself a religious belief and enjoys, as such, constitutional protection. If the state rejects that self-definition, it is restricting the individual’s religious freedom.110 Accordingly, the state’s decision to reject an individual’s self-definition as religious must—as with any limitation on religious exercise—be justified by a countervailing state interest. In concrete terms, this limited deference approach leads to a two-step inquiry. At the first phase—the definitional phase—the court simply asks whether the asserted religious belief is insincere, fraudulent, or animated by some ulterior motive.111 It might also ask whether the state’s decision to reject the individual’s self-definition is justified—“whether,” that is, “there is an inherent limit on religious freedom or an overriding state concern that necessitates rejecting the self-definition.”112 (The commentators who advocate this approach offer little guidance as to what those overriding state concerns might be.) At the second phase—the justification phase —the court applies a balancing test or proportionality analysis “to determine whether the religious freedom claim is outweighed by competing state or public interests.”113 Critics of deferential approaches warn that allowing self-definition might unleash “a flood-gate of claims, some of clearly non-religious nature,” and that such approaches will prove “judicially illimitable.”114 This warning might apply with less force to limited deference approaches—and the fear of floodgates might simply be 106. Lubin, supra note 19, at 115. 107. DURHAM et al., supra note 4, at 29. 108. Neo, supra note 30, at 574; DURHAM et al., supra note 4, at 27–38; W. COLE DURHAM, JR. & BRETT G. SCHARFFS, LAW AND RELIGION: NATIONAL, INTERNATIONAL, AND COMPARATIVE PERSPECTIVE 40, 56 (2d ed. 2017). 109. DURHAM et al., supra note 108, at 40. 110. DURHAM et al., supra note 4, at 36. 111. Neo, supra note 30, at 591. 112. DURHAM et al., supra note 4, at 45. 113. Neo, supra note 30, at 591. 114. Feofanov, supra note 72, at 317. This warning might apply with less force to limited deference approaches. 387896-ILJ 99-2_Text.indd 126 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 531 overblown.115 But other commentators worry about the sincerity inquiry that even these more modest approaches envision. Nearly eighty years ago, Justice Robert Jackson argued that courts cannot assess a belief’s sincerity without also passing on its validity (or at least its plausibility).116 One more recent observer maintains that there is no reliable way for courts to assess sincerity, that it is not in their province to do so even if they could, and that a belief is increasingly likely to be dubbed insincere the further it falls from the religious mainstream.117 And, insofar as limited deference approaches rely on balancing tests or proportionality analysis, they create the possibility that the judicial prejudices and priors—ostensibly avoided at the definitional phase—will return, sub silentio, at the balancing phase. D. Definition and Justification Behind each of the approaches just described—and behind the almost endless variations on those approaches—lies the link between definition and justification: between how courts define religion and the burden the state must meet to justify limiting religious exercise, or, put differently, between the constitutional definition of religion and the test for when religious exemptions (or accommodations) are constitutionally required. That link is well described by Jesse Choper, champion of an influential (if controversial) substantive approach to defining religion. The constitutional definition of religion, Choper writes, acts as a screening mechanism that determines what claims will be subjected to the substantive “balancing test” that the Court has developed for judging whether an exemption for religion must be granted. Thus, the more inclusive the legal definition of religion, the greater the number and diversity of claims under the free exercise clause that must be considered on the merits.118 Other things being equal, if courts must consider more claims on the merits, they must either reject more cases on the merits or mandate more exemptions. Every exemption is, by definition, an exception to some statutory or regulatory requirement. The more exemptions the Constitution requires, the less, it would seem, the state can govern. This being so, Choper predicts, “it is unlikely that an extremely broad definition of religion will be permitted to coexist with an extremely generous protection of the claims that fall within that definition.”119 Put more concisely, the breadth of religion’s definition is likely to vary inversely with the strength of its protection: the broader the definition, the weaker the safeguards. A more recent observer notes that definitions of religion and balancing/proportionality inquiries are both means of limiting constitutional 115. Lubin, supra note 19, at 135 (noting that there is no evidence that either the availability of exemptions or a broad definition of religion lead to a flood of free exercise claims). 116. United States v. Ballard, 322 U.S. 78, 92–93 (1944). 117. Lubin, supra note 19, at 128. 118. Choper, supra note 76, at 591. 119. Id. at 592. 387896-ILJ 99-2_Text.indd 127 1/25/24 9:49 AM532 INDIANA LAW JOURNAL [Vol. 99:515 protection for religious exercise.120 But she favors a broad definition—specifically, a limited deference approach—on the grounds (among others) that it is unfair to require religious claimants to clear both a definitional and a justification hurdle and that there is value in having the state recognize one’s views as religious, even if one’s religious claim does not prevail on the merits.121 There might indeed be some such “symbolic value” in acknowledging as religious all or nearly all beliefs that religious claimants assert to be religious. But that symbolic value comes with a cost. Judges tend to operate on the contestable but unstated assumption that the combination of a broad definition of religion and robust protections for religious exercise will unleash a torrent of exemptions. Accordingly, broad definitions tend to correspond with weak protections; largesse at the definition phase portends parsimony at the justification phase; the admirable impulse to exclude none tends to dilute protections for all. Or such, at least, has been a common judicial pattern—both in the United States and around the globe. II. U.S. APPROACHES Across several decades, the U.S. Supreme Court’s attempts to define religion have been sporadic and incomplete. They have not won uniformly high marks from commentators. “The Supreme Court’s rare attempts to define religion,” notes one reviewer, “have been seriously inadequate.”122 Others have reached similar conclusions.123 Some observers note that the Court has never really defined religion at all; it has only, in an unsystematic way, identified a handful of factors that incline it to rule on the question in one direction or another in individual cases.124 Even these ad hoc 120. See Neo, supra note 30, at 588–91. 121. Id. at 592–93. 122. Janet L. Dolgin, Religious Symbols and the Establishment of a National ‘Religion,’ 39 MERCER L. REV. 495, 496 (1988) 123. See Samuel J. Levine, The Supreme Court's Hands-Off Approach to Religious Questions in the Era of Covid-19 and Beyond, 24 U. PA. J. CONST. L. 276, 280 (2022) (“Notably . . . and . . . somewhat anomalously—the Supreme Court has not provided a definition of religion.”); Lubin, supra note 19, at 135 (2019) (“[T]he Supreme Court has never been able to formulate a unitary definition of religion that suits the religious pluralism embraced by the United States.”); Aaron R. Petty, Accommodating “Religion,” 83 TENN. L. REV. 529, 563 (2016) (“In the thirty-five years since Welsh the Supreme Court has addressed the definition of religion only twice, both times in dicta, and has not sought to modify its holding in Seeger.”); Miller, supra note 9, at 844 (2016) (calling the Supreme Court’s guidance on defining religion as “unclear and seemingly conflicted”); Antony Barone Kolenc, Not “For God and Country”: Atheist Military Chaplains and the Free Exercise Clause, 48 U.S.F. L. REV. 395, 412 (2014) (“The Framers viewed religion in theistic terms under a single definition. For its part, the Supreme Court has sent mixed signals, struggling to maintain a distinction between belief and nonbelief while at the same time respecting the nation’s growing religious diversity.”); Carl H. Esbeck, A Restatement of the Supreme Court's Law of Religious Freedom: Coherence, Conflict, or Chaos?, 70 NOTRE DAME L. REV. 581, 583 (1995) (finding that the Supreme Court’s religious jural arrangements as having “lost all simplicity . . . and . . . all consistency.”). 124. See Strasser, supra note 59, at 910–11. 387896-ILJ 99-2_Text.indd 128 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 533 interventions have been inconsistent. The Court, one writer notes, has delivered mixed messages and scattered sometimes contradictory hints.125 Whatever one’s qualitative assessment of the Court’s efforts to define religion, there can be no question that its approaches have varied widely over time. The pendulum has swung back and forth from narrower to broader definitions: the Court began with a narrow definition in the late nineteenth century, steadily broadened it in the middle decades of the twentieth century, slowly—and unevenly—backtracked in the latter decades of the twentieth century, and has largely ignored the question in the twenty-first century.126 As the pendulum has swung, so has the strength the Court has afforded to religious exercise. On the whole and in the main, the Court has weakened protections for religion when it has broadened religion’s definition, and it has narrowed religion’s definition when it has strengthened protections for religious exercise. We make no strong causal claims in this regard, and we acknowledge that there are other factors at play. But the correlation between these two variables—breadth of definition and strength of protection—has been consistent and impressive. A. From Reynolds to Ballard (1878-1944) In the first seventy years or so of its Religion Clauses jurisprudence, the Supreme Court traced a discernible but gradual arc away from defining religion in narrowly theistic terms.127 The Court began this era by emphasizing theology and liturgy and ended it by stressing subjectivity and sincerity.128 It was a shift, as one writer puts it, from object (the Being worshiped) to subject (the worshiping person).129 Before describing that development, we comment briefly on how the founding generation defined religion. The evidence from the founding era regarding the definition of religion is, at first blush, unequivocal but ambivalent on further inspection. On the one hand, it is clear that the framers of the Constitution and their contemporaries uniformly defined religion in unmistakably theistic terms. Most founders saw religion and theism as synonyms.130 Madison’s views were typical. In his well-known Memorial and Remonstrance, Madison referred to “[r]eligion, or the duty which we owe to our Creator.”131 Even Tom Paine, not renowned for piety in his day or since, defined religion as “man bringing to his Maker the fruits of his heart.”132 There is no evidence that the framers intended to protect irreligious views, and there is some evidence that, 125. Id. at 910. 126. Lubin, supra note 19, at 110; Feofanov, supra note 72, at 321. 127. Donovan, supra note 46, at 35. 128. See Note, supra note 32, at 1060–61. 129. Donovan, supra note 46, at 35. 130. Usman, supra note 6, at 160. 131. James Madison, Memorial and Remonstrance Against Religious Assessments, (1785), in 8 THE PAPERS OF JAMES MADISON, 10 March 1784–28, March 1786 (Robert A. Rutland & William M.E. Rachal eds., Univ. Chi. Press, 1973). 132. Thomas Paine, Rights of Man, in 4 LIFE AND WRITINGS OF THOMAS PAINE 92 (D. Wheeler ed., 1908). 387896-ILJ 99-2_Text.indd 129 1/25/24 9:49 AM534 INDIANA LAW JOURNAL [Vol. 99:515 for many founders, even “conscience” was a strictly religious—that is, theistic—category.133 But the founding generation’s equation of religion with theism might simply be the product of a society in which nontheistic religions were vanishingly rare and perhaps nonexistent.134 “Had there been nontheists among them,” one scholar suggests, “the Founders, in the interest of neutrality, might very well have conceived of religion in broader terms.”135 Some founders argued that religious liberty protected even atheists,136 but there is no evidence that they intended to place irreligious views under the aegis of the Free Exercise Clause.137 Religious liberty was for everyone; but free religious exercise was, by definition, for the religious alone. In any event, one can certainly marshal evidence that the First Amendment’s reference to “religion” meant theistic religion; but, that evidence is not definitive, and this conclusion is not inescapable.138 The Free Exercise Clause was nearly ninety years old when the Supreme Court construed it for the first time.139 The case was Reynolds v. United States, and the context was the clash between federal antibigamy laws and the polygamy taught and practiced by members of The Church of Jesus Christ of Latter-day Saints.140 George Reynolds, a young Latter-day Saint polygamist convicted of violating federal law, argued that, because his multiple marriages were commanded (or at least sanctioned) by his religious beliefs, they could not be punished by the secular law. The Justices disagreed unanimously, ruling that, whereas the Free Exercise Clause guaranteed absolute freedom of religious belief, it offered no shield for religiously motivated conduct that fell afoul of the general laws. To rule otherwise, wrote Chief Justice Morrison Waite, would be to allow every man “to become a law unto himself.”141 Along the way, Chief Justice Waite defined religion—sort of. “The word ‘religion,’” he noted, “is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted.” But Waite then made clear that “[t]he precise point of the inquiry” was not the definition of religion per se, but rather “what is the religious freedom which has been 133. WILLIAM LEE MILLER, THE FIRST LIBERTY: RELIGION AND THE AMERICAN REPUBLIC 122–23 (1985). On this account, including “conscience” in the terms of the First Amendment would not have altered its meaning. 134. Note, supra note 32, at 1060. 135. George C. Freeman, III, The Misguided Search for the Constitutional Definition of “Religion,” 71 GEO. L.J. 1519, 1521 (1983). 136. Usman, supra note 6, at 163. 137. Lubin, supra note 30, at 115. 138. Usman, supra note 6, at 165. 139. The First Amendment was not incorporated against the states until well into the twenty-first century, and it was rare, in antebellum America, for federal law to affect the religious lives of American citizens. The first Free Exercise cases arose when federal law clashed—by design—with the quotidian religious lives of the inhabitants of a particular federal territory. 140. See 98 U.S. 145 (1878). 141. Id. at 167. 387896-ILJ 99-2_Text.indd 130 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 535 guaranteed.”142 On the question of religion as such, Waite did little more than quote the Madisonian definition (“the duty we owe the Creator”) en route to concluding that although “Congress was deprived of all legislative power over mere opinion,” it “was left free to reach actions which were in violation of social duties or subversive of good order.”143 Secular laws thus “cannot interfere with mere religious belief and opinions, [but] they may with practices.”144 George Reynolds, in short, was free to believe—and to say—what he liked. But the First Amendment offered no shield at all to his religiously motivated actions. The upshot, for our purposes, was that “religion” was limited to theists and confined to belief and expression.145 The Court reinforced this view a dozen years later in Davis v. Beason, another polygamy case, in which the Justices upheld an Idaho test oath statute that required voters to swear that they were not bigamists or polygamists.146 In some respects, by targeting beliefs as well as conduct, the Idaho law upheld in Davis went further than the federal law approved in Reynolds. But the Davis Court ultimately concluded that the Free Exercise Clause was not implicated at all because the belief that God commands or condones plural marriage was not, in fact, religious. Some beliefs and practices, the Court suggested, were so outré as not to be religious at all. Polygamy was a clear example of this. It lay so far beyond the pale as to fall outside the definition. Polygamy had been criminalized, noted Justice Stephen Field, “by the laws of all civilized and Christian countries” because its effect was “to destroy the purity of the marriage relation, to disturb the peace of families, to degrade women, and to debase man.”147 Exempting polygamy from criminal punishment would “shock the moral judgment of the community.”148 It was, in short, really bad—so bad that it could not possibly qualify as religious. “To call [polygamy’s] advocacy a tenet of religion,” wrote Justice Field, “is to offend the common sense of mankind.”149 To “teach, advise, and counsel [its] practice” was criminal, not religious.150 The Free Exercise Clause, therefore, did not apply. Justice Field proceeded to reaffirm the theistic conception of religion, noting that the term religion “has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.”151 The First Amendment protected everyone’s right “to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal 142. Id. at 162 (emphasis added). 143. Id. at 164. 144. Id. at 166. 145. See Beschle, supra note 31, at 360.This holding might have made the Free Exercise Clause redundant—especially once the Court began enforcing the First Amendment’s speech protections robustly and against the states. Id. 146. See 133 U.S. 333, 334 (1890). 147. Id. at 341. 148. Id. 149. Id. at 341. 150. Id. at 342. 151. Id. at 342. 387896-ILJ 99-2_Text.indd 131 1/25/24 9:49 AM536 INDIANA LAW JOURNAL [Vol. 99:515 rights of others.”152 Once again, Free Exercise was limited to belief and expression, and religion itself was limited to belief about one’s “relations” to a “Creator” or “Maker.” Religion was limited, in short, to theism—and apparently to a Western version of theism at that.153 The Davis case offers a classic example—perhaps the classic example—of limitations analysis parading as definitional work. Instead of ruling that the complainant’s convictions about polygamy had to yield, in practice, to some countervailing public interest (promoting traditional marriage, protecting women, etc.), the Court ruled that those convictions were not religious at all—and not because they were not convictions about his relations with his Maker—they manifestly were—but because they were barbaric.154 The upshot was to modify Madison with an implicit adjective: “religion” should be defined as the civilized belief about man’s relations to his Maker. In a related case decided the same year, the Court ruled that polygamy belonged to a class of “open offences against the enlightened sentiment of mankind,” which the state had a “perfect right to prohibit . . . notwithstanding the pretence of religious conviction by which they may be advocated and practiced.”155 The implication was that, to enjoy the protections of the Free Exercise Clause, religious beliefs must be not only theistic but “enlightened.”156 Forty years later, in the case of United States v. Macintosh, a majority of the Court endorsed the dictum that “[w]e are a Christian people,” and a dissenting Chief Justice Hughes reaffirmed theism as the core of any constitutional definition of religion.157 “The essence of religion,” he wrote, “is belief in a relation to God involving duties superior to those arising from any human relation.”158 The Chief Justice added that the concept of religious liberty “assum[ed] the existence of a belief in supreme allegiance to the will of God.”159 Although Hughes’s dissent hinted at “the beginning of a more individualistic idea of religion,”160 it unequivocally reinforced the traditional notion that religion is, for constitutional purposes, essentially—and inescapably—theistic. And the majority of the Justices, in the same case, suggested a strongly normative role for Christianity within that theistic definition. This was an unwaveringly consistent view from the 1870s through the 1930s. Surprisingly, given what followed, this period dominated by a narrow definition of religion was also a period devoid of any constitutionally mandated religious exemptions. Beginning in the 1940s, the definition of religion broadened even as the first religious exemptions emerged. That coincidence inaugurated a dynamic tension that has helped drive 152. Id. at 342. 153. Lubin, supra note 30, at 117. 154. Donovan, supra note 46, at 38. 155. Late Corp. of The Church of Jesus Christ of Latter-day Saints v. United States, 136 U.S. 1, 50 (1890) (quoting Davis v. Beason, 133 U.S. 333 (1890)). 156. Donovan, supra note 46, at 38–39. 157. 283 U.S. 605, 625 (1931) (citing Holy Trinity Church v. United States, 143 U.S. 457, 470–71 (1892)). 158. Macintosh, 283 U.S. at 633–34 (Hughes, C.J., dissenting). 159. Id. at 634. 160. Lubin, supra note 19, at 118. 387896-ILJ 99-2_Text.indd 132 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 537 developments in both the definition of religion and the scope of religious exemptions into the twenty-first century. B. From Ballard to Yoder (1944-1972) The first winds of change blew from the courts of appeal. In the case of United States v. Kauten, decided by the Second Circuit in 1943, Judge Augustus Hand inscribed various delphic dicta regarding the definition of religion. “[T]he content of the term,” he noted, “is found in the history of the human race and is incapable of compression into a few words.”161 Religious belief, Hand continued, flowed “from a sense of the inadequacy of reason”; it was “a belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets.”162 It was, at bottom, “a response of the individual to an inward mentor, call it conscience or God, that is for many persons at the present time the equivalent of what has always been thought a religious impulse.”163 Hand’s definition was striking in at least two respects. First, it equated religious belief with conscience—gratuitously, in the view of at least one critical commentator.164 Second, it focused on religion’s psychological function rather than its theological object.165 The Kauten dicta vastly broadened the definition of religion and shifted from a substantive to a functional approach to the question. Four months later, in his dissenting opinion in West Virginia v. Barnette, Justice Felix Frankfurter quoted Kauten’s broad, functional definition of religion with manifest approval.166 Intriguingly, Barnette happened to be one of the first two cases in which the U.S. Supreme Court mandated a religious exemption from a generally applicable law. The Barnette decision—which invalidated a public-school student’s suspension for refusing to salute the flag as required by law—rested on both free speech and religious exercise grounds, though commentators have tended to emphasize the free speech aspects of the case.167 (Six weeks before Barnette, the Court granted, in the case of Murdock v. Pennsylvania, a religious exemption from a local ban on door-to-door solicitation.168) There is a certain historic symbolism in Barnette—a case in which the majority granted a religious exemption and the dissent endorsed a broad, functional definition of religion. These two strands—exemption and definition—have enjoyed a tense, symbiotic coexistence ever since. 161. 133 F.2d 703, 708 (2d. Cir. 1943). 162. Id. 163. Id. 164. Feofanov, supra note 72, at 339–40. 165. Toward a Constitutional Definition of Religion, supra note 32, at 1061. 166. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 658–59 (1943) (Frankfurter, J., dissenting). 167. Id. at 624. 168. 319 U.S. 105 (1943). On Murdock’s place in the history of judicial religious exemptions, see Stephanie H. Barclay, The Historical Origins of Judicial Religious Exemptions, 96 NOTRE DAME L. REV. 55, 66 (2020). 387896-ILJ 99-2_Text.indd 133 1/25/24 9:49 AM538 INDIANA LAW JOURNAL [Vol. 99:515 The following year, 1944, in the case of United States v. Ballard, a majority of the Justices signaled their willingness to define religion more broadly.169 Writing for the Court, Justice William Douglas placed “freedom of religious belief” within the larger category of “[f]reedom of thought.”170 That larger category, Douglas continued, “embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths.”171 What’s more, “[r]eligious experiences which are as real as life to some may be incomprehensible to others.”172 Douglas’s dictum was significant for its suggestion that religious belief need not correspond to “the orthodox faiths,” that it might even be “incomprehensible,” and that, by implication, it might not need to be theistic. Douglas’s definition was also significant for its focus on “theories of life and of death”—a focus that points to the questions a belief system seeks to answer rather than on the content of the answers it gives.173 This portended, once again, a shift toward a broader, functional approach.174 In Douglas’s words, the Constitution’s framers “fashioned a charter of government which envisaged the widest possible toleration of conflicting views.”175 At the same time, Ballard did not abandon Davis’s theistic definition. The majority still spoke in terms of “[m]an’s relation to his God” and quoted Davis approvingly.176 Moreover, Ballard’s actual holding—that conduct animated by ostensibly religious convictions was not immune to federal fraud charges—suggested, in the words of one commentator, that “the Court would not deem some religions as real religions that warranted protection, and some religions as untrue religions, which were not worthy of protection.”177 In the end, Ballard pointed toward a possible shift, but the shift came slowly. When it came, however, it came dramatically. In 1961, in the case of Torcaso v. Watkins, the Court declared explicitly—albeit in dicta and in a footnote—that religious faiths need not be theistic.178 At issue was the constitutionality of a Maryland constitutional requirement that public officials—including notaries, of whom the petitioner sought to become one—affirm their belief in the existence of God. The Court ruled that this state constitutional requirement violated the Federal First Amendment. Along the way, the Court cited several “religions in this country which do not teach what would generally be considered a belief in the existence of God,” among them “Buddhism, Taoism, Ethical Culture, Secular Humanism and 169. 322 U.S. 78 (1944) (citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)). 170. Id. at 86. 171. Id. 172. Id. 173. Usman, supra note 6, at 169. 174. Three years later, dissenting in the seminal Everson case, Justice John Rutledge made his functional approach explicit, speaking of religion in terms of believers’ “feeling toward ultimate issues of existence.” Everson v. Bd. of Educ., 330 U.S. 1, 45 (1947) (Rutledge, J., dissenting). 175. Ballard, 322 U.S. at 87. 176. See id. 177. Usman, supra note 6, at 169. 178. 367 U.S. 488, 495 n.11 (1961). 387896-ILJ 99-2_Text.indd 134 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 539 others.”179 The Court had clearly abandoned an exclusively theistic conception of religion. Indeed, Torcaso ruled that defining religion in exclusively theistic terms would privilege theistic faiths over nontheistic ones and thus violate the Establishment Clause. Neither the state nor the federal government, the majority declared, “can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.”180 For the Torcaso Court, faith in God was “a belief in some particular kind of religious concept,” not the sine qua non of religion writ large.181 In a different case decided earlier the same year, Justice Frankfurter filed a concurring opinion that equated religion with “some transcendental idea,”182 arguing that the Constitution used the term in a “comprehensive sense” to signify “an aspect of human thought and action which profoundly relates the life of man to the world in which he lives.”183 On this telling, “[r]eligious beliefs pervade . . . virtually all human activity.”184 Frankfurter, of course, was speaking only for himself, but these dicta, together with those of the full Court in Torcaso, signaled a serious broadening in the Court’s concepts of religion. That broadening continued in two key statutory cases in which the Court defined religion in unambiguously functional terms. The first was United States v. Seeger,185 decided in 1965, and the second was Welsh v. United States, decided in 1970.186 In both cases, each of which involved conscientious objection to the Vietnam War, the Court construed the Selective Services Act far beyond any plausible reading of its actual terms. Along the way, the Justices defined religion explicitly in terms, not of its content or object, but of the role it plays in the believer’s life. Adopted in 1940, and amended in subsequent years, the Selective Services Act conferred conscientious objector status on persons whose “religious training and belief” committed them to pacifism.187 The statute defined “religious training and belief” as “belief in a relation to a Supreme Being involving duties superior to those arising from any human relation,” and it expressly excluded from this category “essentially political, sociological, or philosophical views or a merely personal moral code.”188 At least the first part of this formulation seemed clear enough: religious belief meant theism. But the Supreme Court in Seeger ruled that the statute did not mean what it said. One could, it turned out, believe in a relation to a Supreme Being without believing in a Supreme Being. The real question, a majority of the Justices explained, was “whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God 179. Id. 180. Id. at 495 (citations omitted). 181. Id. at 494. 182. McGowan v. Maryland, 366 U.S. 420, 466 (1961) (Frankfurter, J., concurring). 183. Id. at 461. 184. Id. 185. 380 U.S. 163 (1965). 186. 398 U.S. 333 (1970). 187. Seeger, 380 U.S. at 164–65. 188. Id. at 172. 387896-ILJ 99-2_Text.indd 135 1/25/24 9:49 AM540 INDIANA LAW JOURNAL [Vol. 99:515 of one who clearly qualifies for the exemption.”189 A “relation to a Supreme Being” thus meant any relation sufficiently like a relation to a Supreme Being. The key was not a belief’s substance but its sincerity, not its object but its intensity. This portion of the Seeger opinion gave rise to what came to be called the parallel position test. “Where [nontheistic] beliefs,” the Seeger Court wrote, “have parallel positions in the lives of their respective holders, we cannot say that one is ‘in a relation to a Supreme Being’ and the other is not.”190 The majority in Seeger went on to explain that “religious training and belief” as used in the statute encompassed “all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent.”191 In support of this construction, the majority quoted (apparently approvingly) a somewhat confusing passage from Paul Tillich, a progressive theologian.192 Tillich had defined religion as one’s “ultimate concern.” On Tillich’s account, everyone had an ultimate concern and therefore a religion.193 By incorporating Tillich into its own account of religion, the Court embraced a sweeping, functional definition that would seem, on its face, to exclude no one. Although the Seeger Court offered this definition in the course of construing a statute, the opinion strongly suggested that its logic would apply to constitutional cases as well.194 Five years later, in another statutory case dealing with conscientious objection, the Court went even further. The complainant in Seeger saw himself as a believer, of a sort, and had insisted all along that his pacifist views were fundamentally religious. But the complainant in Welsh v. United States was an avowed atheist who had crossed out the word “religious” from his application and explained that his pacifist convictions were rooted in his readings of history and sociology.195 Did the statute’s accommodation of religious objections extend to one who denied that his views were religious? The Court ruled that it did. As a plurality explained, the statute excluded from its exemption “those whose beliefs are not deeply held and those whose objection to war does not rest at all upon moral, ethical, or religious principle, but instead rests solely upon considerations of policy, pragmatism, or expediency.”196 Two things are significant about this language. First, “religious” is juxtaposed on equal terms with “moral” and “ethical.” Second, only those whose views are based entirely on nonmoral, nonethical, and nonreligious considerations are excluded. Even “beliefs that are purely ethical or moral in source and content” could satisfy the parallel position test if they “impose upon [the believer] a duty of conscience to refrain from participating in any war at any time.”197 189. Id. at 166. 190. Id. 191. Id. at 176. 192. Id. at 180. 193. PAUL TILLICH, SYSTEMATIC THEOLOGY 102 (Univ. of Chi. Press, 1951) (1951). 194. Usman, supra note 6, at 172. 195. Beschle, supra note 31, at 369–70. 196. Welsh v. United States, 398 U.S. 333, 342–43 (1970). 197. Id. at 340. 387896-ILJ 99-2_Text.indd 136 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 541 The statutory exemption thus encompassed “all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.”198 Although Welsh himself was an atheist and insisted that his views were not religious, he too fell under the exemption because he held his views “with the strength of more traditional religious convictions.”199 What counted, under Welsh, was that the beliefs were, at least in part, of a moral, ethical, or religious nature, and that they were held with the requisite intensity. “Religion” had become, effectively, a synonym for conscience.200 This was hard to square with the statute’s text. The plurality’s lexical gyrations, grumbled a concurring Justice Harlan, smacked of “an Alice-in-Wonderland world where words have no meaning.”201 Even so, Justice Harlan concurred in the judgment because he worried that excluding nontheistic believers might run afoul of the Establishment Clause.202 A solid majority of the Court, then, suggested that, for constitutional purposes, a broad, inclusive definition was required. What that might mean in practice remained to be seen. At the same time the Court was defining religion in sweepingly broad and explicitly functional terms, the Justices were also taking critical steps to expand constitutional protection for religious exercise. In Sherbert v. Verner, decided in 1963, the Court reaffirmed that the Free Exercise Clause required that at least some religious exercise be exempt from the application of generally valid laws.203 The complainant in Sherbert was a Saturday Sabbatarian who had been denied state unemployment benefits because she refused to accept jobs that would require her to work on Saturdays. The majority of the Justices held that “any incidental burden” on the appellant’s religious exercise must be “justified by a ‘compelling state interest in the regulation.’”204 This holding marked a crucial shift in the Court’s Free Exercise doctrine. Between Sherbert and Reynolds a chasm yawned. Sherbert also marked a critical step in the development of the Court’s strict scrutiny test.205 The Justices, in short, were promising more protection than ever for religious exercise even as they were, in other cases, defining religion ever more broadly. The two trends, it turned out, were on a collision course. One or the other would have to give. Over time, it was sometimes one and sometimes the other. But the broad definition yielded first. 198. Id. at 344. 199. Id. at 343. 200. Miller, supra note 9, at 846. 201. Welsh v. United States, 398 U.S. 333, 354 (1970) (Harlan, J., concurring). 202. Id. at 356–59, 366–67. 203. 374 U.S. 398 (1963). 204. Id. at 403 (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)). 205. See Donald L. Beschle, No More Tiers? Proportionality as an Alternative to Multiple Levels of Scrutiny in Individual Rights Cases, 38 PACE L. REV. 384, 422 (2018); Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1281 (2007); Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 AM. J. LEGAL HIST. 355, 379–80 (2006). 387896-ILJ 99-2_Text.indd 137 1/25/24 9:49 AM542 INDIANA LAW JOURNAL [Vol. 99:515 C. From Yoder to Smith (1972–1990) The tension between a broad definition of religion and robust protection of religious exercise first snapped in Wisconsin v. Yoder, decided in 1972.206 In Yoder, the Court ruled that Wisconsin couldn’t require Amish teenagers, in violation of the precepts and practices of their religious community, to attend public school past the eighth grade. This represented a burly extension of the exemptions jurisprudence revived in Sherbert—a clear instance in which the Constitution was held to bar the state from applying a religiously neutral, generally applicable law against religious dissenters. Yoder both affirmed and expanded a high-accommodations regime. On the face of things, Yoder barely implicated the question of religion’s definition. All parties agreed that the Amish views in question were religious. And yet the Court took care to explain that the Amish beliefs were entitled to special protection because of their special nature. Other sorts of belief were not similarly entitled. The robust protection of religious exercise presupposed—and the Yoder Court articulated—a narrow definition of religion. To make this point, the Court contrasted the beliefs of the Amish with those of a famous American thinker of the previous century: Henry David Thoreau. The upshot of this contrast was that the Amish beliefs were indubitably religious, whereas Thoreau’s transcendental philosophy was not. The Amish way of life was “not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living.”207 It stemmed from “their literal interpretation” of certain New Testament passages, and it “pervade[d] and determine[d] virtually their entire way of life, regulating it with the detail of the Talmudic diet through the strictly enforced rules of the church community.”208 Thoreau’s convictions, by contrast, were rooted in his “subjective evaluation and rejection of the contemporary secular values accepted by the majority.”209 He might have gone to the woods because he wished to live deliberately,210 but his “choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.”211 All of this represented a sharp break from Seeger and Welsh, under which Thoreau’s convictions would almost certainly have been deemed religious because they almost certainly satisfy the parallel position or ultimate concern test.212 Although the Yoder majority didn’t offer an explicit definition of religion, in explaining what made the Amish way of life religious, the majority seemed to shift 206. 406 U.S. 205 (1972). 207. Id. at 216. 208. Id. 209. Id. 210. HENRY DAVID THOREAU, WALDEN; OR LIFE IN THE WOODS 96–97 (Heritage Press ed., 1939) (1854) (“I went to the woods because I wished to live deliberately, to front only the essential facts of life, and see if I could not learn what it had to teach, and not, when I came to die, discover that I had not lived.”). 211. Yoder, 406 U.S. at 216. 212. See Donovan, supra note 46, at 53–55; Usman, supra note 6, at 173; Lubin, supra note 19, at 124–25; Strasser, supra note 59, at 913–16; Miller, supra note 9, at 846–48. 387896-ILJ 99-2_Text.indd 138 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 543 back toward a substantive definition of religion—one centered in communal life and focused on forms, rites, and sacred texts. The Court thus seemed to narrow its conception of religion even as it expanded protections for religious exercise. “[O]nly those [government] interests of the highest order,” the Yoder majority wrote, “and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”213 Unless the category of “the free exercise of religion” were a comparatively narrow one, a standard like this might seem to threaten much governance in a religiously pluralistic nation. The Court seems to have responded to that perceived threat by narrowing its definition of what counts as religious exercise. Before long, however, the Court began to tack back in the opposite direction. In the half century since Yoder, the Court has never again seriously grappled with the definition of religion.214 But in a series of post-Yoder cases, the Court consistently rejected claims that a purported belief and practice did not constitute religious exercise. In 1981, the Court explained that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”215 The Court conceded that a belief might be “so bizarre” as to be “clearly nonreligious in motivation,”216 but that wasn’t true of the case at hand, in which the Court ruled that a petitioner’s convictions need not even be consistent with those propounded by the religious community to which he belongs.217 This holding went some way toward obviating Yoder’s emphasis on religion’s communal nature. Eight years later, the Court went even further, ruling in 1989 that an individual need not belong to a religious group at all in order to assert free exercise claims.218 One commentator called this “a negative vote against Yoder.”219 At the same time, the Court’s rhetoric stressed enabling representative government more than accommodating religious dissenters. “To maintain an organized society that guarantees religious freedom to a great variety of faiths,” a majority of the Court wrote in 1982, “requires that some religious practices yield to the common good. Religious beliefs can [not must!] be accommodated,” the Justices continued, “but there is a point at which accommodation would ‘radically restrict the operating latitude of the legislature.’”220 In the aftermath of Yoder, the Justices were clearly feeling the tension between religious accommodation and legislative discretion, as well as the ongoing challenge of defining religion. That tension came to a head in 1990 in the landmark case of Employment Division v. Smith.221 The facts in Smith are well known. Two Native Americans were 213. Yoder, 406 U.S. at 215. 214. Miller, supra note 9, at 847. 215. Thomas v. Rev. Bd. of the Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981). 216. Id. at 715. 217. Id. at 715–16. 218. Frazee v. Ill. Dept. of Emp. Sec., 489 U.S. 829, 834 (1989). 219. Donovan, supra note 46, at 94. 220. United States v. Lee, 455 U.S. 252, 259 (1982) (quoting Braunfeld v. Brown, 366 U.S. 599, 606 (1961)). This language was reiterated in Bowen v. Roy, 476 U.S. 693, 702 (1986). 221. Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990). 387896-ILJ 99-2_Text.indd 139 1/25/24 9:49 AM544 INDIANA LAW JOURNAL [Vol. 99:515 terminated from public employment for their sacramental ingestion of peyote and thereafter denied unemployment benefits. The Court’s holding is equally well known (and currently under pressure): the Free Exercise Clause provides no protection when generally applicable laws with a valid secular purpose incidentally infringe on religious exercise.222 What is salient about Smith for our purposes is that the Court’s shift toward a regime of weaker accommodations seems to have been driven, at least in part, by its newly (re)expanded definition of religion. In his opinion for the majority, Justice Scalia maintained that the “compelling interest” test for religious accommodations was untenable in a society, like America’s, of bewildering religious diversity—and, by implication, in a legal regime that defined religion broadly enough to encompass the full range of putatively religious beliefs. “Any society adopting such a [test],” wrote Justice Scalia, would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind. . . .223 With the temporary exception of Yoder, the Court had been defining religion with increasing breadth for at least thirty years. That expansion had surely been driven partly by the very proliferation of diverse convictions that made Justice Scalia apprehensive about robust accommodations. In the Smith Court’s view, a high-accommodations regime was simply unsustainable in a regime that defined religion broadly and in a country of staggering religious diversity. One commentator has suggested that Smith might have been “a response to the vast expansion of the concept of religion in constitutional law since the Court’s first free exercise decisions employing strict scrutiny.”224 On this view, the Smith Court concluded that either the broad definition of religion or the robust accommodations for its exercise had to go. The majority opted to jettison the robust accommodations. Actually, the Court’s accommodations prudence had never, in practice, been very robust. With the exception of employment cases, the Court’s application of strict scrutiny to religious accommodations claims had been weak.225 But Smith abandoned the rhetoric as well as the reality of robust accommodations. The upshot—and perhaps a motivating factor—was that, for accommodation purposes, the 222. Id. at 882. 223. Id. at 888 (citation omitted). 224. Beschle, supra note 31, at 357. 225. Id. at 362–64, 388–89. 387896-ILJ 99-2_Text.indd 140 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 545 classification of beliefs as religious or not had become effectively irrelevant.226 The Court could define religion as broadly as it liked; unless the challenged laws targeted religion as such, no exemptions would be constitutionally required. These developments in the constitutional definition of religion coincided with a period of relative stability regarding the other two prongs in the prima facie case for a free exercise claim: sincerity and burden. Some of the leading cases on sincerity are also leading cases regarding the definition of religion. The sincerity requirement first emerged in the 1944 Ballard case, in which a majority of the Court—over an earnest and eloquent dissent by Justice Robert Jackson—ruled that an asserted belief need not be plausible, only sincere, and that sincerity was determined only with reference to the religious adherent’s honesty and good faith.227 In the Thomas case, decided in 1981, the Court explained that sincerity is not to be assessed with respect to reasonableness or to how other believers within the same community interpret or implement the requirements of their common faith.228 In the case of Burwell v. Hobby Lobby,229 decided in 2014, a majority of the Justices reaffirmed—in the statutory context of the Religious Freedom Restoration Act (RFRA)—that sincerity is simply a matter of honest conviction.230 Hobby Lobby was also a significant decision on the question of burden. Many who opposed Hobby Lobby’s claim for a RFRA-based exemption from the contraception mandate of the Affordable Care Act (ACA) insisted that the company’s religious convictions—even if corporations can hold religious convictions, which was also contested—were simply not burdened by the ACA’s requirements.231 But the Hobby Lobby majority insisted that it wasn’t the Court’s 226. Id. at 377. 227. See United States v. Ballard, 322 U.S. 78, 81–82, 86–88 (1944). 228. See Thomas v. Rev. Bd. of the Ind. Emp. Sec. Div., 450 U.S. 707, 715–16 (1981). 229. 573 U.S. 682, 724 (2014). 230. Id. at 725 (quoting Thomas, 450 U.S. at 716). The Court’s most recent word on the question of sincerity came in Ramirez v. Collier, 142 S. Ct. 1264, 1273 (2022), in which the Court found sincerity on the ground that the claimant’s requested accommodation comported with “traditional forms of religious exercise,” id. at 1277. A dissenting Justice Thomas objected that whether a purported belief is traditional is “irrelevant” to the question of sincerity. Id. at 1298 (Thomas, J., dissenting). “The relevant issue,” Justice Thomas wrote, “is whether [the claimant] himself actually believes” that the requested accommodation is required by his faith. Id. 231. Some parties to the case and amici thought Hobby Lobby incurred no burden at all. See Brief for Ovarian Cancer National Alliance and its Partner Members as Amici Curiae Supporting Appellant at 17, Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014) (No. 12-6294) (“Individual-Plaintiffs are not complicit, through the corporations they own, with activity their religion deems wrong, so the Individual-Plaintiffs’ exercise of religion is not burdened at all. . . .”); Brief for Center for Inquiry & American Humanist Association et. al. as Amici Curiae Supporting Appellant at 20, Hobby Lobby, 573 U.S. 682 (2014) (No. 12-6294) (“It strains credibility that this possible independent action by an employee can be considered an infringement on the religious free exercise rights of the individual owners . . . [or] the corporation. A burden under RFRA cannot be created by the fear that some third party may act in a way that the objecting party would not itself act.”); Brief for American Civil Liberties Union & the American Civil Liberties Union of Pennsylvania et. al. as Amici Curiae 387896-ILJ 99-2_Text.indd 141 1/25/24 9:49 AM546 INDIANA LAW JOURNAL [Vol. 99:515 place to inquire whether a belief—or a government intrusion on that belief—was insubstantial.232 This seemed a shift from the Court’s earlier jurisprudence on the question. In the prominent Lyng decision of 1988, the Court ruled that even truly significant intrusions on religious exercise could be constitutional if necessary to advance important public goals.233 This was so, the Court explained, even if the challenged government acts made the relevant religious practice difficult, costly, or even impossible.234 The ruling in Lyng makes some sense as a response to the pre-Smith regime, which combined high accommodations with a broad definition of religion. Indeed, Lyng, which came just two years before Smith, can be seen as responding to some of the same pressures that drove Smith itself. Hobby Lobby is more surprising: it combined a broad (received) definition with a high-accommodations (statutory) regime and forgiving concepts of burden and sincerity. At first blush, Hobby Lobby might be an anomaly in this respect. On closer inspection, it might be a portent of things to come under a conservative Court apparently open to a robust regime of constitutional exemptions. On the whole, trends in the Court’s conception of sincerity and burden are less volatile than those with respect to the definition of religion. These other limiting factors have been comparatively stable—these other variables less variable. This suggests that the link described throughout this Article between the definition of religion and the scope of religious exemptions has not been significantly affected by jurisprudential changes regarding the other two elements of the prima facie case for religious exercise claims. D. From Smith to Fulton (1990-2021) Unsurprisingly, given how vastly Smith reduced the significance of the definition question, the Court has not seriously grappled with the definition of religion since Smith was decided. To be sure, the definition question has not gone away entirely. Congressional statutes passed in Smith’s aftermath restored some of the high-accommodations features of the Sherbert/Yoder regime, making the definition of religion newly salient for statutory purposes.235 But for the most part, the Court has engaged with the definition of religion only indirectly. Indeed, insofar as the Court has limited the reach of these statutory accommodations features, it has done so (and sometimes declined to do so) by considering whether a given law imposes a burden on religious exercise, not whether the underlying beliefs are religious.236 Supporting Appellant at 8–9, Hobby Lobby, 723 F.3d 1114 (2013) (No. 12-6294) (“[T]he employee’s independent decision about whether to obtain contraception breaks the causal chain between the government action and any potential burden on Appellants’ free exercise.”). 232. Hobby Lobby, 573 U.S. at 725. 233. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 441–42 (1988). 234. Id. at 450–52; MICHAEL W. MCCONNELL, THOMAS C. BERG & CHRISTOPHER C. LUND, RELIGION AND THE CONSTITUTION 134 (4th ed. 2016). 235. See Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb–2000bb-4; Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc–2000cc-5 (2000). 236. See, e.g., Hobby Lobby, 573 U.S. 682 (2014). 387896-ILJ 99-2_Text.indd 142 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 547 In some key cases, the Justices have provided more robust protection for religious exercise. But they have not done so by revisiting Smith’s basic test. Rather, they have at times sharpened the teeth of Smith’s requirement that generally applicable laws be religiously neutral and defined narrower spheres within the broader definition of religion within which a stronger test than Smith’s applies. Examples of the former include the Lukumi case from 1993 and the Fulton case from 2021.237 The leading example of the latter is the Hosanna-Tabor case from 2012.238 In Lukumi, the Court invalidated an ordinance that barred animal sacrifices. Because the law effectively targeted a religious rite—and because it served no stated secular purpose beyond restricting that rite—the Court ruled that the law wasn’t neutral. “[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation,” the Justices wrote, “the law is not neutral.”239 Because this was the case with the challenged ordinance, the ordinance could not stand. Similarly, in Fulton, the Court ruled that Smith did not apply because the challenged policies “d[id] not meet the requirement of being neutral and generally applicable.”240 Neither Lukumi nor Fulton engaged with the definition of religion.241 The same was true—at least superficially—of Hosanna-Tabor. But only superficially. In Hosanna-Tabor, the Court ruled (unanimously) that an antidiscrimination lawsuit against a religious group was barred because the (former) employee bringing the suit was covered by what the Court called the “ministerial exception.”242 As the Court explained, the rule in Smith does not apply to “government interference with an internal church decision that affects the faith and mission of the church itself.”243 Under this rule, government intrusion on core internal decisions regarding policy, personnel, or doctrine—even if the intrusion is incidental, and even if the law is neutral and generally applicable—is simply forbidden. For our purposes, the salient feature of Hosanna-Tabor is that it carves out a separate sphere within the broader Smith regime—and within the broader-received definition of religion. In the broader regime, religion is defined expansively but accommodated weakly; within the separate sphere, religion is defined narrowly244 but accommodated almost invincibly. The result is a low-accommodations (and broad-definition) regime with a high-accommodations (and narrow-definition) pocket. It is, in many respects, an innovative solution to the perennial tension between the breadth of religion’s definition and the scope of protection for religious exercise. 237. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); Fulton v. City of Phila., 141 S. Ct. 1868 (2021). 238. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012). 239. Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 533. 240. Fulton, 141 S. Ct. at 1878. 241. Feofanov, supra note 72, at 375 (making this point about Lukumi). 242. Hosanna-Tabor, 565 U.S. at 188. 243. Id. at 190. 244. See Carl H. Esbeck, Defining Religion Down: Hosanna-Tabor, Martinez, and the U.S. Supreme Court, 11 FIRST AMEND. L. REV. 1, 3 (2012) (observing that Hosanna-Tabor employs “a narrow definition of religion”). 387896-ILJ 99-2_Text.indd 143 1/25/24 9:49 AM548 INDIANA LAW JOURNAL [Vol. 99:515 Less than a decade later, in Fulton, some Justices signaled a willingness (perhaps an eagerness) to restore a high-accommodations regime across the board.245 Other Justices demurred, unsure what test for exemptions might replace Smith’s test should Smith be overruled. To this question, the concurring Justices had a clear answer: the strict-scrutiny test that preceded Smith—perhaps this time with a keener bite.246 Another possibility is the proportionality analysis prominent among apex courts internationally.247 But whatever test the Court adopts—if the Justices do in fact overrule Smith—will raise anew the question of how religion is defined.248 Even if Smith is not overruled directly, the Court’s decisions in Fulton v. Philadelphia and Tandon v. Newsom might point toward a path around Smith. That path involves a heightened threshold for showing that a challenged law is religiously neutral and generally applicable. Under this heightened standard, a law is not deemed generally applicable if it contains any individualized exceptions or if some unprohibited secular activity might undermine the relevant government interest in the same way as some restricted religious conduct. If a law is not generally applicable or religiously neutral, Smith does not apply, and the burden shifts to the government to justify its failure to grant religious exemptions/accommodations. Although the Court has thus far applied this analysis largely in cases involving mainstream religious individuals or groups, future challenges brought by novel or idiosyncratic religious parties might—especially if they are numerous—place further pressure on the received definition (or nondefinition) of religion. The Court’s historical pattern suggests that the Justices might have little appetite for grappling anew with the definition question, which means that an invigorated exemptions test might put pressure on other limiting tests, such as those of burden and sincerity. In any event, based on the foregoing, one thing at least should be clear: the stronger the Court’s new test for exemptions, the more uneasily it will sit with its traditionally broad definitions of religion. A workable post-Smith regime for exemptions might require a narrower post-Smith definition of religion. Reversing Smith should require the Court to grapple—overtly or implicitly—with the definitional question it has frequently ducked. In what follows, we suggest that, in confronting that hard question, the Justices might learn from the experiences of courts who have confronted the same question in other lands. 245. See Fulton, 141 S. Ct. at 1883, 1926 (Alito, J., concurring; Gorsuch, J., concurring). 246. Id. 247. See generally Beschle, supra note 31; Justin Collings & Stephanie Hall Barclay, Taking Justification Seriously: Proportionality, Strict Scrutiny, and the Substance of Religious Liberty, 63 B.C. L. REV. 453 (2022). 248. Mark Movsesian argues that, even if Smith is not overturned, courts will face mounting pressure to (re)define religion because both the growing number of “Nones” (religious individuals with no institutional affiliation and largely idiosyncratic religious beliefs) and courts’ recent tendency to grant religious exemptions that parallel secular exemptions will place increasing pressure on previous, broad definitions of religion. See Mark Movsesian, The New Thoreaus, 54 LOYOLA U. CHI. L. J. 476 (2023). 387896-ILJ 99-2_Text.indd 144 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 549 III. INTERNATIONAL APPROACHES In one key respect, the question of religion’s definition is not nearly as problematic in some foreign jurisdictions as it is in the United States. This is because many foreign constitutions explicitly include other categories alongside religion in their constitutional texts. Thus, the Canadian Charter of Rights and Freedoms guarantees “freedom of conscience and religion,”249 and the German Basic Law safeguards “[f]reedom of faith and of conscience,” as well as “freedom to profess a religious or philosophical creed.”250 Even more expansively, the South African constitution protects “freedom of conscience, religion, thought, belief and opinion.”251 Major international rights charters follow a similar pattern. Both the European Convention on Human Rights and the European Charter of Fundamental Rights promise “freedom of thought, conscience and religion.”252 On the one hand, these expansive texts make the definitional question easier. They clearly point to a broadly inclusive approach, and they lower the stakes for fixing a boundary to “religion.” Any belief that is even arguably religious will almost certainly fall within the surrounding categories of conscience, thought, opinion, or belief. But, perhaps unsurprisingly in light of what we have seen in the U.S. context, this inclusive approach to defining religion (alongside other categories) often leads to relatively weak protections for religious exercise. Religious accommodations in these regimes are sometimes uneven as well as weak, suggesting that a broad definition might do more to cloak judicial discretion than to constrain it. In addition, foreign courts sometimes shift the definitional question to a different plane—either by carving out a subsidiary sphere of narrow definitions and strong protections, much as the U.S. Supreme Court did in Hosanna-Tabor, or by conceding that an asserted belief qualifies for protection but contesting whether the relevant, restricted action is in fact an expression of the ostensibly underlying belief. One should hazard generalizations about “foreign courts” only with extreme caution—and perhaps not at all. Of necessity, we have been highly selective in examining only a few influential apex courts in a handful of foreign jurisdictions. There are many important differences among these courts and many nuances to which we haven’t space to attend. Even so, these strike us as helpful examples because they share loosely similar structures of constitutional judicial review, their protections for religious liberty have similar ideological underpinnings, and they represent both national and international courts operating in different regions (Europe, North America, and the Global South). It strikes us as fair to say that, among the four jurisdictions we consider—Germany, Canada, South Africa, and the European Convention on Human Rights253—the same basic pattern holds that we 249. Canadian Charter of Rights and Freedoms, s. 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11 (U.K.). 250. Grundgesetz [GG] [Basic Law], art. IV, translation at http://www.gesetze-im-internet.de/englisch_gg/print_englisch_gg.html [https://perma.cc/8669-DPTM]. 251. S. AFR. CONST., art. 15, 1996. 252. Convention for the Protection of Human Rights and Fundamental Freedom, art. 9, § 1, Nov. 4, 1950, E.T.S. No. 005 [hereinafter ECHR]; Charter of Fundamental Rights of the European Union art. 10, Dec. 7, 2000, O.J. (C364) 9. 253. We selected these jurisdictions because they are particularly influential and offer 387896-ILJ 99-2_Text.indd 145 1/25/24 9:49 AM550 INDIANA LAW JOURNAL [Vol. 99:515 saw in the American contexts: the more broadly religion is defined, the less robustly it is accommodated. A. Germany German constitutional jurisprudence faces the same dilemma that arises in all jurisdictions that guarantee freedom of religion. The substance of the religious right depends on the definition of religion, but the state’s role in defining religion is fraught with tension. On the one hand, the state has no special capacity or criteria for defining religion and should therefore, perhaps, defer to the self-definition of the claimant. On the other hand, claimants invoking religious freedom are often seeking exemptions or accommodations vis-à-vis generally valid laws, making it inexpedient for the state to surrender the last word on religion’s definition. Otherwise, religious liberty threatens to swallow law’s generality in a sea of subjectivity.254 In practice, German jurisprudence strikes a middle path. It accepts, prima facie, the claimant’s self-understanding, but it also tests that self-understanding for plausibility.255 As the German Federal Constitutional Court explained in a 1991 judgment, a community’s own claims and self-understanding do not, standing alone, suffice to establish its religious character for purposes of Article 4 of the Basic Law.256 Rather, “it must in fact—according to its spiritual content and external forms—constitute a religion and a religious community.”257 In contested cases, this assessment must be made not by individual claimants, but by the organs of the state—which means, in the last instance, by courts.258 That assessment has multiple factors, many of which sound similar to the “ultimate concern” considerations that have sometimes influenced U.S. jurisprudence.259 But these factors have been applied in a highly deferential fashion, and the German Federal Constitutional Court has never articulated a precise or demanding definition of religion.260 One careful student of the question concludes that, within the court’s jurisprudence, the concept of religion remains “content-poor.”261 (The court’s standard is more exacting with respect to whether a religious group merits corporation status.262) some geographical spread (Europe, North America, and Africa), as well as represent both national and international approaches. We recognize that analysis of other jurisdictions may yield additional insight. 254. Michael Droege, Der Religionsbegriff im deutschen Religionsverfassungsrecht – oder: Vom Spiel mit einer großen Unbekannten, in DER BEGRIFF DER RELIGION: INTERDISZIPLINÄRE PERSPEKTIVEN 160, 164 (Mathias Hildebrandt & Manfred Brocker eds., 2008). 255. Id. at 165. 256. Bundesverfassungsgerichts [BVerfG] [Federal Constitutional Court] Feb. 5, 1991, 83 Entscheidungen des Bundesverfassungsgerichts [BVERFGE] 341, 353 (Ger.) (my translation). 257. Id. (my translation). 258. Id. 259. Droege, supra note 254, at 166 (my translation). 260. Id. at 173. 261. Id. (my translation). 262. See, e.g., Bundesverfassungsgerichts [BVerfG] [Federal Constitutional Court] Dec. 19, 2000, 102 Entscheidungen des Bundesverfassungsgerichts [BVERFGE] 370, 384–86 387896-ILJ 99-2_Text.indd 146 1/25/24 9:49 AM2024] DEFINING AND ACCOMMODATING RELIGION 551 In its earliest cases, the German Constitutional Court linked the concept of religion to its historical development.263 But the justices soon made clear that “religious exercise” must be construed expansively within that historical context.264 It applied not only to Christian churches, but to other communities united by a common religion or worldview, and it extended not only to acts of worship but to other religiously motivated activities.265 It also encompassed organizations—in the case at hand, a Catholic youth group—that address themselves only to a part, rather than the totality, of the religious lives of its members.266 This meant, in practice, that the youth group’s efforts to gather scrap cloth—organized by a religiously affiliated entity and encouraged over the pulpit—counted as religious exercise.267 This was, in some respects, a very expansive definition of religious exercise. Tellingly, the case involved one of the country’s two dominant religions. Within the broader context of German constitutional jurisprudence, the vagueness of the German Court’s definition of religion is unsurprising. Not only does the constitution’s text extend protection to “philosophical” as well as “religious” creeds (in the former case, the adjective weltanschaulich derives from the inimitable German term, Weltanschauung, or worldview), but any claim that doesn’t qualify as either one still enjoys constitutional protection under the sweeping autonomy right that the German Constitutional Court has construed to apply to every imaginable human act or omission.268 What’s more, whether characterized as a religious exercise claim or an autonomy claim, the claimant’s assertion will be subject to the same constitutional test: proportionality analysis. The German Constitutional Court was the original architect of the proportionality test that has now spread to virtually every constitutional jurisdiction except (with some tacit exceptions) the United States.269 In its classical (German) formulation, the proportionality analysis asks whether the challenged restriction of a constitutional right is (1) legitimate (i.e., it pursues a legitimate state purpose), (2) suitable (i.e., it is rationally calculated—suited—to advance that purpose), (3) necessary (i.e., it restricts the constitutional right no more than necessary to secure its intended purpose), and (4) proportional (i.e., it restricts the constitutional right in a manner proportionate to the countervailing interest it secures).270 (Ger.) (ruling that Jehovah’s Witnesses merit corporation status because they meet the requirement of a certain “durability” (my translation)). 263. Bundesverfassungsgerichts [BVerfG] [Federal Constitutional Court] Nov. 8, 1960, 12 Entscheidungen des Bundesverfassungsgerichts [BVERFGE] 1, 4 (Ger.). 264. Bundesverfassungsgerichts [BVerfG] [Federal Constitutional Court] Oct. 16, 1968, 24 Entscheidungen des Bundesverfassungsgerichts [BVERFGE] 236, 246 (Ger.) (my translation). 265. Id. 266. Id. at 246–47. 267. Id. at 247. 268. Bundesverfassungsgerichts [BVerfG] [Federal Constitutional Court] Jan. 16, 1957, 6 Entscheidungen des Bundesverfassungsgerichts [BVERFGE] 32, 32 (Ger.). 269. Collings et al., supra note 247, at 469–70; see Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 COLUM. J. TRANSNAT’L L. 72, 75 (2008). 270. Collings et al., supra note 247, at 471. 387896-ILJ 99-2_Text.indd 147 1/25/24 9:49 AM552 INDIANA LAW JOURNAL [Vol. 99:515 On its face, proportionality analysis offers neither stronger protection nor weaker protection vis-à-vis its multitiered American counterparts. It is sometimes as permissive as rational basis review and sometimes as exacting as the fiercest strict scrutiny. In close cases, the outcome of proportionality analysis often depends on the judges’ assessment of the relative strength of the competing interests. The protection the test affords depends, in the end, on how it is applied. In Germany, that application is often fact specific. A legal ban on Islamic headscarves might be condemned, for instance, in the case of public school teachers,271 but permitted in the case of judicial interns working in open court.272 On the whole, the German court accommodates its fairly expansive definition of religion not by adopting a low accommodations approach across the board, but by employing a flexible proportionality approach that allows the justices to account for the particulars of each case. That flexibility, of course, has its drawbacks. It certainly enhances—or at least exposes—judicial discretion. It also ensures that such discretion does most of its work at the application step rather than the definition step. Constitutional claimants in Germany seeking religious exemptions enjoy a mixed record of success, but they virtually never lose because the court deems them not religious. Although proportionality analysis is the standard framework for fundamental rights adjudication in Germany, there are some limits to its remit. The court has held that at least one fundamental right—the supreme constitutional value of human dignity—cannot be balanced against other values and is therefore immune to proportionality analysis.273 What the justices have called the “core area [Kernbereich] of shaping private life” is similarly protected absolutely.274 Other rights have “core areas” as well,275 and the court almost uniformly invalidates laws found to infringe on those areas. The German court has suggested in dicta that religious rights have a “core area” as well,276 but we are unaware of any case in which the justices have ruled that a law or administrative act has infringed on that core area, or that within that core area religious exercise is protected absolutely. But the idea raises intriguing comparative possibilities. In its jurisprudence regarding the “ministerial exception,” the U.S. Supreme Court has effectively identified a “core area” of free religious exercise 271. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Jan. 27, 2015, 138 Entscheidungen des Bundesverfassungsgerichts [BVERFGE] 296, 296 (Ger.). 272. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Jan. 14, 2020, 153 Entscheidungen des Bundesverfassungsgerichts [BVERFGE] 1, 1–2 (Ger.). 273. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Feb. 15, 2006, 115 Entscheidungen des Bundesverfassungsgerichts [BVERFGE] 118, 118, 123, 127 (Ger.). 274. BVerfG, 2 BVR 543/06, May 11, 2007, ¶ 19, https://www.bverfg.de/e/rk20070511_2bvr054306.html [https://perma.cc/FR4S-NX82] (my translation). 275. BVerfG, 1 BvR 444/13, ¶ 23, July 24, 2013, https://www.bverfg.de/e/rk20130724_1bvr044413en.html [https://perma.cc/XDG5-GMBS] (identifying the right to criticize measures taken by public authorities as part of the “core area” of the freedom of opinion). 276. BVerfG, 2 BvR 1838/15, Apr. 3, 2020, ¶ 5, http://www.bverfg.de/e/rk20200403_2bvr183815.html [https://perma.cc/RAF9-57GT]. 387896-ILJ 99-2_Text.indd 148 1/25/24 9:50 AM2024] DEFINING AND ACCOMMODATING RELIGION 553 within which the general rules governing constitutional exemptions do not apply—a core area within which religious exercise is protected almost absolutely. The German Constitutional Court’s “core area” jurisprudence involving other rights similarly suggests the possibility of a narrow definition of religion—limited to a confined sphere but with almost invincible protections—within a broader regime in which religion is defined broadly and free exercise rights are balanced flexibly. B. The European Convention on Human Rights Like the German Constitutional Court, the various entities charged with enforcing the European Convention on Human Rights have taken a broadly deferential approach to defining religion and a flexible, proportionality-based approach to protecting religious exercise.277 The European Court of Human Rights (ECtHR), along with its associated Strasbourg institutions, are typically quite deferential to an applicant’s claim of religion or belief. But although the Strasbourg Court generally avoids using a definition of religion to filter out claims, its exemptions jurisprudence is often highly deferential to state authority, which frequently results in the court affording little protection to religious exercise—especially when claimants’ beliefs or practices fall outside the religious mainstream. As noted earlier, Article 9 of the European Convention on Human Rights promises to everyone “the right to freedom of thought, conscience and religion.” The Convention proceeds to enumerate a non-exclusive list of examples of what “this right” (singular) includes: “freedom to change [one’s] religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”278 As we will see, the ECtHR has used this enumeration of examples to limit Article 9’s potentially vast scope. It has done so, not by defining “religion or belief,” but by narrowing the category of what counts as a manifestation of religion or belief. Article 9’s scope is potentially vast because it combines religion, thought, and conscience into a single, capacious right. The court has done little to limit the scope of this right by defining its terms. Instead, the court has emphasized what it calls the “comprehensiveness of the concept of thought.”279 That comprehensiveness has led the Strasbourg judges to admit claims from many individuals or groups who are not obviously religious and whose practices and views are far from mainstream. Like the German Constitutional Court, Strasbourg institutions employ a form of proportionality analysis to determine whether a government act limiting the right secured by Article 9 of the ECHR is justified. The Strasbourg version of proportionality analysis thus asks whether the limitation is “prescribed by law” and “necessary in a democratic society” to preserve public safety, public order, public health, public morals, or to protect the “rights and freedoms of others.”280 This formulation clearly encompasses the first three prongs of the German test: 277. The “Strasbourg institutions,” so known because they are housed in Strasbourg, include most prominently the European Court of Human Rights. 278. ECHR, supra note 252, art. 9, § 1. 279. Salonen v. Finland, App. No. 27868/95, ¶ 2 (July 2, 1997), https://hudoc.echr.coe.int/eng?i=001-3751 [https://perma.cc/RWS5-FCNU]. 280. ECHR, supra note 252, art. 9, § 2. 387896-ILJ 99-2_Text.indd 149 1/25/24 9:50 AM554 INDIANA LAW JOURNAL [Vol. 99:515 legitimacy, suitability, and necessity.281 What is missing is the fourth and final prong of the German test, the test of “proportionality in the strict sense” or “proportionality as such.” This suggests that the Strasbourg version of the test might be more permissive of government action than the German one, though experience across many jurisdictions suggests that the crucial variable is not so much how the Court articulates the test but how it is applied.282 In practice, the Strasbourg Court’s jurisprudence does prove more permissive of government action than the German one, but not because of its differential articulation or application of the proportionality test. Instead, the Strasbourg Court often screens claims asserting novel or idiosyncratic beliefs before it arrives at the proportionality analysis. And it does this by reading the enumerated examples of Article 9’s scope as a strict requirement. As noted earlier, the Article 9 right “includes freedom . . . to manifest [one’s] religion or belief, in worship, teaching, practice and observance.”283 At least at first blush, “worship, teaching, practice and observance” would seem to be illustrative rather than exhaustive. But the Strasbourg Court has sometimes suggested that, in order to invoke Article 9’s protection, a claimant must assert a manifestation of thought, religion, or belief, and that worship, teaching, practice, and observance constitute an exhaustive list of protected manifestations. Three cases illustrate. In Arrowsmith v. United Kingdom, decided in 1979, the court rejected a claim brought by a pacifist who had been sanctioned for distributing leaflets encouraging soldiers to dodge their military duties in the Northern Ireland conflict.284 The problem was not that the claimant’s pacifist convictions did not qualify as religion or belief, but rather that distributing leaflets was not clearly a manifestation of her pacifist beliefs. More specifically, although pacifism qualified as a belief under Article 9,285 the court concluded that Article 9 had not been violated because distributing these particular leaflets did not constitute a manifestation of pacifist belief through worship, teaching, practice, or observance. The court conceded that the leaflets might have been “motivated or influenced” by the claimant’s pacifist beliefs; but the leaflets themselves “d[id] not actually express the belief concerned”286 and thus did not qualify as a “practice” manifesting her pacifist 281. Although “suitability” is not spelled out explicitly, it is clearly encompassed within the necessity requirement. A law cannot be necessary to achieving its stated end without also being rationally related to that end. 282. See generally NIELS PETERSEN, PROPORTIONALITY AND JUDICIAL ACTIVISM: FUNDAMENTAL RIGHTS ADJUDICATION IN CANADA, GERMANY AND SOUTH AFRICA (2017) (highlighting the differences and similarities in how courts apply the same test across jurisdictions). 283. ECHR, supra note 252, art. 9, § 1. 284. App. No. 7050/75, ¶¶ 67–76 (Dec. 5, 1978), https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-104188&filename=001-104188.pdf [https://perma.cc/28Z5-LU82]. The Committee of Ministers affirmed the Commission’s Report on December 6, 1979. https://hudoc.echr.coe.int/?i=001-49229 [https://perma.cc/XA2R-WCXG]. 285. Id. ¶ 69. (“The Commission is of the opinion that pacifism . . . falls within the ambit of the right to freedom of thought and conscience.”). 286. Id. ¶ 71. 387896-ILJ 99-2_Text.indd 150 1/25/24 9:50 AM2024] DEFINING AND ACCOMMODATING RELIGION 555 belief.287 The court thus coupled a broad definition of belief with a narrow conception of practice. Similarly, in the case of Pretty v. United Kingdom, the court rejected a claim because the claimant failed to establish one of the four forms of manifestation recognized in Article 9 (worship, teaching, practice, or observance). In Pretty, a terminally ill claimant asserted a belief in assisted suicide and, on the basis of that belief, sought an exemption from laws forbidding the practice.288 Once again, the ECtHR found that the claimant’s asserted conviction did qualify as a belief under Article 9, but the court also ruled, as in Arrowsmith, that the asserted belief lacked the necessary corresponding practice. The practice of assisted suicide, although clearly related to the claimant’s belief, was not a manifestation of that belief for purposes of Article 9. Invoking Arrowsmith, the court justified this approach by explaining that the concept of a manifestation or practice, for purposes of Article 9, “does not cover each act which is motivated or influenced by a religion or belief.”289 The court thus combined once more a capacious definition of belief with a cramped concept of manifestation. The case of Salonen v. Finland, decided in 1997, provides a third example of this phenomenon. Once again, the court found that a practice, purportedly rooted in belief, fell outside Article 9’s protection because it lacked “a manifestation of any belief in the sense that some coherent view on fundamental problems can be seen as being expressed thereby.”290 On this formulation, the decisive factor was that the relevant practice was not a manifestation or “expression” of the underlying belief. But the language also suggests a functionalist conception of belief itself—“some coherent view on fundamental problems”291—under which belief is distinguished not by its substance or object but by the problems it seeks to address. The Salonen case involved parents who argued that their Article 9 rights had been violated because they had not been allowed to name their child in accordance with what they described as their “ethical conviction.”292 The court agreed that the claimants’ convictions regarding onomastic ethics qualified as a belief for purposes of Article 9. But, as noted earlier and consistent with a pattern by now familiar, the court ruled that the practice of naming a child in accordance with such convictions failed to express “some coherent view on fundamental problems.”293 Once again, a broad concept of belief was neutralized by a narrow notion of practice. And in this case, the court also slightly narrowed the belief requirement: a belief now needed to be “coherent” and address “fundamental problems.”294 Each of these cases follows the same pattern: the court initially recognizes the asserted conviction as a belief, but ultimately concludes that the relevant associated 287. Id. ¶ 71. 288. App. No. 2346/02, ¶ 3 (Apr. 29, 2007), https://hudoc.echr.coe.int/?i=001-60448 [https://perma.cc/KUN7-DFWR]. 289. Id. ¶ 82. 290. App. No. 27868/95, ¶ 2 (July 2, 1997), https://hudoc.echr.coe.int/eng?i=001-3751 [https://perma.cc/9UV7-CMWD]. 291. Id. 292. Id. ¶ 4. 293. Id. ¶ 2. 294. Id. 387896-ILJ 99-2_Text.indd 151 1/25/24 9:50 AM556 INDIANA LAW JOURNAL [Vol. 99:515 conduct does not qualify as a manifestation of belief for purposes of Article 9. As a limiting mechanism, this approach allows the court to avoid both discriminating among putative beliefs at the front end and employing a proportionality test at the back end. The court could have decided any of these cases simply by finding that the challenged legal measure was “necessary in a democratic society” to secure one of the recognized interests that justify limiting a right.295 But the court did not take that route. Whether the measures were necessary in a democratic society was ultimately irrelevant, the court found, because the conduct those measures restricted did not in fact manifest the underlying belief. Sometimes, of course, the court does employ proportionality analysis, and when it does so, it often uses that analysis as an additional limiting mechanism. This often takes the form of the court’s well-known “margin of appreciation” doctrine, which accords significant deference to “the domestic policy-maker.”296 In cases involving Article 9 claims, the upshot of the margin of appreciation doctrine is often that the court, once again, recognizes the asserted belief but denies the Article 9 claim. Unsurprisingly, this has often redounded to the detriment of unpopular or embattled religious minorities. The court has invoked the margin of appreciation in decisions deferring to such domestic policies as affixing crucifixes on the walls of Italian public-school classrooms,297 banning full-face Muslim veils in Belgium298 and France,299 and proscribing Islamic headscarves in Turkey.300 On the whole, then, regardless of which limiting mechanism it uses—the narrow understanding of “manifestation” or the margin of appreciation doctrine—the European Court of Human Rights tends to couple an expansive definition of religion or belief with a fairly weak regime of religious or conscientious accommodations or exemptions. As often happens in other jurisdictions, generosity at the definitional phase is linked to stinginess at the implementation phase. C. Canada and the British Commonwealth Like the European Court of Human Rights, the Supreme Court of Canada generally has an open front door for most religious claims. The Canadian Court rarely assesses whether a given claim is “religious.” The court typically accepts claimants’ assertion that their beliefs fall within the “freedom of conscience and religion” guaranteed by section 2(a) of the Canadian Charter of Rights and 295. Id. 296. See, e.g., Dakir v. Belgium, App. No. 4619/12, ¶ 54 (July 11, 2017), https://hudoc.echr.coe.int/eng?i=001-175660 [https://perma.cc/GYQ9-KZPH]. 297. Lautsi v. Italy, App. No. 30814/06, ¶ 70 (Mar. 18, 2011), https://hudoc.echr.coe.int/eng?i=001-104040 [https://perma.cc/J4BP-MMVT]. 298. Dakir v. Belgium, App. No. 4619/12, ¶¶ 56–62 (July 11, 2017), https://hudoc.echr.coe.int/eng?i=001-175660 [https://perma.cc/XU3L-49RL]. 299. S.A.S. v. France, App. No. 4385/11, ¶ 155 (July 1, 2014), https://hudoc.echr.coe.int/eng?i=001-145466 [https://perma.cc/JHY2-L9M5]. 300. Leyla Şahin v. Turkey, App. No. 44774/98, ¶¶ 116–23 (Nov. 10, 2005), https://hudoc.echr.coe.int/tur?i=001-70956 [https://perma.cc/NZ8V-FFVV]. 387896-ILJ 99-2_Text.indd 152 1/25/24 9:50 AM2024] DEFINING AND ACCOMMODATING RELIGION 557 Freedoms.301 This right is rarely, if ever, limited at the definition phase. Instead, the court’s principal limiting mechanism is its proportionality test. Under that test, any limitation on a fundamental freedom—including the freedom of conscience and religion—must be “demonstrably justified in a free and democratic society.”302 Such demonstrable justification requires that the restricting measure have a legitimate objective, that the means it adopts be rationally related to that objective, that the right be minimally impaired vis-à-vis the achievement of the measure’s objective, and that the relationship between the infringement and the objective be proportional.303 Readers will not have missed that the steps of this analysis closely resemble the four steps of the German proportionality analysis, though at least one careful student has noted that the German court has historically been more willing than its Canadian counterpart to decide cases at the last step of the analysis—the step that inquires into proportionality as such, or proportionality in the strict sense.304 Unlike the European Court of Human Rights, the Supreme Court of Canada has been willing to define at least an “outer definition” of religion to distinguish it from those “beliefs, convictions and practices” that are “secular, socially based or conscientiously held.”305 The court has defined that outer boundary so expansively, however, that whether an asserted belief is religious almost never plays a major role in the court’s jurisprudence. The Canadian court’s conception of religion is highly individualistic. In Syndicat Northcrest v. Amselem, the leading case in which the court has sought to define the outer limits of religion, the justices observed that religion centers on “freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to [one’s] self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.”306 This definition reflects mid- to late-twentieth-century U.S. approaches that focus not on the object of belief but on the believing subject—and not on the substance of the belief but on the intensity with which it is held. Religion might entail a “connection with the divine,” but the Canadian court’s broad subsequent language suggests that “spiritual faith” can be connected to almost any other “subject or object” of the individual’s choosing.307 In the Syndicat Northcrest case, the court also noted that religion tends to involve “a particular and comprehensive system of faith and worship,” as well as a belief “in a divine, superhuman or controlling power.”308 This sounds a bit like the multi-factor tests sometimes favored by commentators or some U.S. courts of appeals, but the Canadian court has never suggested that these common features form part of 301. Canadian Charter of Rights and Freedoms, s. 2(a), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11 (U.K.). 302. Id. 303. Id.; The Queen v. Oakes, [1986] S.C.R. 103, 138–40 (Can.). 304. E.g., Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence, 57 U. TORONTO L.J. 383 (2007). 305. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 576 (Can.). 306. Id. 307. Id. 308. Id. 387896-ILJ 99-2_Text.indd 153 1/25/24 9:50 AM558 INDIANA LAW JOURNAL [Vol. 99:515 religion’s sine qua non. Like its U.S. counterpart, the Supreme Court of Canada assesses the sincerity but not the validity of claimants’ beliefs.309 The court explains this approach in terms of its desire to avoid becoming “the arbiter of religious dogma.”310 So far as we have discovered, the Canadian court has never rejected a claim because the asserted belief fell outside the scope of “conscience and religion.” This is surely a product of the court’s expansive definition of this category. The court tends almost uniformly to accept that a belief is religious and to assume that it is sincere. But religious claimants enjoy a decidedly mixed record of success under the court’s proportionality test. Consider the case of Alberta v. Hutterian Brethren of Wilson Colony.311 Members of the Hutterite faith objected to having their photographs taken for their driver’s licenses because they believe it violated the Ten Commandments’312 strictures against graven images.313 The court questioned neither the sincerity of the Hutterite beliefs, nor their religious character. But the justices ultimately deemed the law’s limitation on the right to be reasonable and proportional. The government’s aim of fighting fraud was an important one, and the challenged law did not in fact “compel the taking of a photo.” It merely conditioned receipt of a driver’s license on the taking of such a photo. And “[d]riving automobiles on highways is not a right, but a privilege.”314 The court concluded that the limit imposed on Hutterian religious practice was not serious. The Hutterites could, after all, “hire people with driver’s licenses” or “arrange third party transport” to meet their travel needs.315 Not all minority religious claimants fail under the court’s proportionality test. Some have enjoyed notable successes, such as the claimant in Multani v. Commission scolaire Marguerite-Bourgeoys. In the Multani case, the court ruled that school administrators’ absolute ban on a Sikh student’s wearing his kirpan—a ceremonial dagger—to school was disproportionate and therefore unconstitutional. The court did not grant the claimant an exemption from rules prohibiting weapons at school, but it did order administrators to make a reasonable accommodation—such as allowing the student to wear the kirpan underneath and sewed into his clothing, where it could not be accessed.316 In sum, like the German Constitutional Court whose proportionality analysis it mirrors, the Canadian Constitutional Court combines an expansive definition of conscience and religion at the front end with a flexible proportionality approach at the back end. The result is a jurisprudence that varies considerably from case to case and that may not maximize religious protections for the minority individuals and groups whom the expansive definition is designed to accommodate. 309. See id. at 578. 310. Id. at 581. 311. [2009] 2 S.C.R. 567 (Can.). 312. Id. at 614. 313. Id. at 579. 314. Id. at 614. 315. Id. 316. [2006] 1 S.C.R. 256 (Can.). 387896-ILJ 99-2_Text.indd 154 1/25/24 9:50 AM2024] DEFINING AND ACCOMMODATING RELIGION 559 D. South Africa South Africa’s constitution protects religious freedom for both individuals and communities. Article 15 of the constitution decrees that “[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion.”317 This is surely the most capacious formulation among the constitutional texts considered in this Article. The right guaranteed by Article 15, like all other rights enshrined in the South African constitution, is subject to the general limitations clause of Article 36, which provides that constitutional rights “may be limited only in terms of law of general application” and only “to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors . . . .”318 Article 36 proceeds to list some examples of “relevant factors,” which collectively amount to a prescription for proportionality analysis: the limitation’s purpose; its nature and extent; its relationship to its purpose; and whether the purpose could be achieved through less restrictive means.319 Unsurprisingly, the Constitutional Court of South Africa considers just these factors in its proportionality analysis. The South African court’s religious freedom jurisprudence is relatively sparse. This too is perhaps unsurprising: the court is less than thirty years old, and it sometimes decides fewer than thirty cases a year. The court has never hazarded a comprehensive definition of religion, but it has articulated some distinctive elements of religion—including by quoting language first used by the Supreme Court of Canada.320 These elements point to an expansive definition of religion, and in practice, the court defers to the religious claimant on the definition question so long as the claimant’s beliefs are sincere. “It is accepted both in South Africa and abroad”, the justices have written, “that, in order to determine if a practice or belief qualifies as religious a court should ask only whether the claimant professes a sincere belief.”321 Additionally, the court has emphasized the interrelation between individual and collective religious exercise. Religious practice, the majority of the court noted in a 2000 case, “usually has both an individual and a collective dimension and is often articulated through activities that are traditional and structured, and frequently ritualistic and ceremonial.”322 But by observing that religious exercise is often communal and ritualistic, the court did not imply that either aspect was part of a prima facie claim under Article 15. Instead, like the Supreme Court of Canada, the Constitutional Court of South Africa pointed to this family resemblance within the context of an expansive definition of religion and a highly deferential approach to claimants’ self-understanding of their views as religious. 317. S. AFR. CONST., § 15, 1996. 318. Id. § 36. 319. Id. 320. See Christian Educ. S. Afr. v. Minister of Educ. 2000 (4) SA 1 (CC) at 9 para. 18 (S. Afr.). 321. Kwazulu-Natal v. Pillay 2008 (1) SA 474 (CC) at para. 52 (S. Afr.) (internal footnotes omitted). 322. Christian Educ., 2000 (4) at 9 para. 19. 387896-ILJ 99-2_Text.indd 155 1/25/24 9:50 AM560 INDIANA LAW JOURNAL [Vol. 99:515 As we have seen in other jurisdictions, the South African court’s expansive concept of religion at the front end has been coupled with a flexible application of the proportionality test at the back end. For this reason, it is hard, in the South African case, to trace any direct link between the definition of religion and the scope of religious exemptions. The link is further clouded by the court’s tendency to combine constitutional values in its proportionality analysis. When claimants seeking religious exemptions are successful, it is sometimes because the court concludes that the claim implicates not only religious freedom but human dignity as well. In a case, for example, the court granted an exemption to a Hindu student who wished, in violation of school dress rules, to wear a gold stud in her nose for both religious and cultural reasons. The court grounded its decision largely in the constitutional value of human dignity, which, the justices explained, added weight to the rights and interests of a religious and cultural minority.323 Human dignity, of course, is a protean concept, and it is hard to discern any general patterns regarding how it interacts with rights of religious exercise. It is interesting to note, however, how successful religious claimants in South Africa sometimes succeed when the court considers multiple constitutional rights in conjunction—a practice that echoes Justice Scalia’s comments in Smith about the “hybrid rights” supposedly at play in those earlier cases in which the U.S. Supreme Court applied a strict scrutiny standard to religious exemption claims.324 CONCLUSION The constitutional definition of religion lies at the back of virtually every major law-and-religion question likely to confront the U.S. Supreme Court in coming years. How the Court answers those questions will have implications for the constitutional definition of religion—and vice versa—regardless of whether the Court directly revisits the definition question. The Court’s historical pattern of consistently dodging the definition question suggests that the Justices might have little appetite for revisiting that question, even if they decide to reverse Smith or revise major aspects of Church-State doctrine. Ignoring the question, however, will not make it go away. Instead, for example, any decision to expand the scope of religious exemptions by revising the test under which they are granted will put pressure on the limiting mechanisms that the Court has traditionally used to limit the overall number of religious exemptions: the tests for sincerity and burden but also the definition of religion. In this Article, we have seen—over time and across jurisdictions—that generous definitions of religion at the front end tend to narrow the scope of religious exemptions at the back end. The more generously religion is defined, the more parsimoniously constitutional exemptions are bestowed. Broad definitions tend to travel with narrow—or at least highly flexible—tests for exemptions. This doesn’t necessarily mean either that courts should define religion narrowly or that they 323. Kwazulu-Natal v. Pillay 2008 (1) SA 474 (CC) at para. 62 (S. Afr.) (“[R]eligious and cultural practices are protected because they are central to human identity and hence to human dignity . . . .”). 324. Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 881–82 (1990). 387896-ILJ 99-2_Text.indd 156 1/25/24 9:50 AM2024] DEFINING AND ACCOMMODATING RELIGION 561 should grant exemptions only grudgingly. It might be the case that fidelity to the Constitution requires both a broad definition of religion and a robust regime of religious exemptions, and that governments must simply live with the consequences of that combination as part of the price of constitutional freedom. It might also be the case that the assumptions (or even fears) that have historically driven the inverse relationships between breadth of definition and strength of exemptions are misguided or overblown. But at the very least, any court revisiting either of these variables should be keenly aware that doing so will likely have implications for the other—and that defining religion broadly for the sake of including novel beliefs or non-mainstream believers might not benefit them much in the end and might even weaken constitutional protections for religious exercise writ large. 387896-ILJ 99-2_Text.indd 157 1/25/24 9:50 AM |
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