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date: 24 May 2020

A Legal Approach to Questions About Religious Diversity

Abstract and Keywords

Academic legal research and the associated method of legal analysis can significantly enhance the study of religion. Scholars of American religions cite legal cases but often do not apply the necessary legal methods to ground their claims. For instance, in approaching questions about religious diversity, scholars may inadvertently work from an inaccurate legal definition of religion. In US constitutional law, the legal definition of the term religion has meant different things at different points in history and it remains highly contested. These contradictory definitions reflect society’s struggle with religious diversity, defining who is and who is not protected by American law. This chapter summarizes the evolving legal definitions of religion, surveys some central legal questions regarding American religions, and introduces a five-step legal methodology for scholars of religion to apply to questions of religious diversity. The purpose is to enable scholars of religion to demonstrate a sophisticated level of legal literacy and thus to more effectively assist the courts in achieving religious literacy.

Keywords: religious diversity, religion, law, legal analysis, American law, US constitutional law, defining religion

Researchers in the humanities teach us that the problem of governing religious diversity is not unique to any one time or place. They apply discipline-specific methodologies to inquire into this age-old problem—as demonstrated in The Oxford Handbook of Religious Diversity. Historians chronicle the social and political conflicts that derive from legal restrictions on religious expression, while scholars of religious studies ensure that those unique expressions are accurately and fairly represented. Philosophers illuminate the nature of religious thought and the philosophical underpinnings of law, while sociologists critically examine the origins and impacts that diverse forms of religious behavior have on civil society. In all four of these disciplines, scholars of religion often cite legal decisions but are rarely trained to apply the necessary legal methods to ground their inquiries.

A legal approach to questions about religious diversity can significantly enhance the study of religion across disciplines. When scholars of religion apply legal methods as a companion methodology, they will be poised not only to contribute to their subject area but also to the legal system. Without the ability to demonstrate a comprehensive understanding of legal doctrine, scholars of history, religious studies, philosophy, sociology, and other social sciences will not be persuasive contributors to legal questions inherent in the problem of governing a religiously diverse society.1 I advocate the application of legal research and legal analysis as complementary methodologies to approaches used throughout the humanities.

The purpose of this chapter is to charge social scientists to become legally literate. In doing so, they will not only further enrich their scholarship but may also position themselves to contribute meaningfully to the study and advancement of law. Legal literacy is the what. Legal research and analysis is the how.

To demonstrate the need for such methods, I begin the chapter with a survey of the evolving and contradictory legal definitions of religion in American law. I illustrate the legal problem of the state in guaranteeing freedom of belief while retaining the power to restrict religious practices. I then introduce a step-by-step legal methodology that may benefit those social scientists who want to effectively apply legal principles to their study of American religion. The urgency for its application is found in various legal issues regarding religious diversity, challenges that are increasingly complicated given the competing judicial tests found in different religious clauses in federal and state constitutions.

1. Legally Defining Religion

The First Amendment of the US Constitution begins, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Interpreters of the establishment and free exercise clauses are confronted by the historic dilemma of legally defining religion. This problem has disproportionally affected religious and racial minorities throughout American history.

In the colonial era, Baptists rarely reconciled disputes in the courts because Baptists did not meet the legal definitions of religion at the time, having no representation in the jury, at the bar, or on the bench. From the eighteenth through nineteenth centuries, Catholics, Jews, Quakers, and nonbelievers were denied citizenship and prevented from holding office. Along with Mormons, people from these groups were routinely disenfranchised because of their religion. In the nineteenth and twentieth centuries Catholics, Jews, Sikhs and Muslims, and practitioners of various Asian and emerging religions were faced with legal restrictions on religious expression.

These prohibitions were linked to the fact that the legal definition of citizenship was explicitly synonymous with white. This resulted in the voter disenfranchisement of many religious people of Native American, Asian, and African descent. The study of law and religion is, in part, a study of the intersection of discrimination based on race and religion.

For instance, in his attempt to assimilate into the political life of the territory of Nebraska, John Elk was denied citizenship when he attempted to vote. In Elk v. Wilkins (1884), the US Supreme Court upheld the decision to deny him citizenship because, even though Elk had renounced his allegiance to the Winnebago nation, he was born on the reservation, which was considered an alien nation. Four years later, Congress passed the Chinese Exclusion Act, designed to bar Chinese laborers from gaining access to America—a law upheld by the US Supreme Court in Chae Chan Ping v. United States. In 1922, Japanese immigrant Takao Ozawa was denied citizenship on the grounds that Japanese were not considered white—a ruling referenced by the high court in later justifying the internment of Japanese Americans during World War II (Korematsu v. United States). Eastern Indians were also barred from citizenship based on race, which significantly affected many different religious groups. Bhagat Singt Thind, an Indian Sikh, was unable to persuade the high court that Indians, as a branch of Aryans, were Caucasian. Even though he had previously served in the US Army during World War I, the US Supreme Court upheld the decision to revoke his citizenship status.

The interlocking conflicts of race and religion continued in the later half of the twentieth century. Sixteen years after the US Supreme Court overturned bans on interracial marriage in Loving v. Virginia (1963), the high court unanimously ruled against Bob Jones University for using its religious doctrine as a justification for racial discrimination. The university claimed that the First Amendment guaranteed it the freedom to enact policies in accordance with its belief that the Bible prohibited interracial dating. Five years later, in 1987, the high court issued another unanimous ruling against the race-based discrimination of Saint Francis College for denying tenure to Professor Majid Ghaidan Al-Khazraji, an Iraqi-born Muslim and American citizen. Similarly, the US Supreme Court protected Jews from discrimination based on ethnicity in Shaare Tefila Congregation v. Cobb in 1987.

Although some religious minorities were able to win cases involving racial discrimination, it is important to note that when it came to the free exercise of religion, the US Supreme Court, to date, has never ruled in favor of a Jew, Muslim, Native American, or Sikh. In the last three decades religious minorities have had high rates of involvement in the courts yet reaped a very small number of free exercise victories. On the other hand, Protestant Christians rarely file lawsuits based on religious discrimination, but when they do, the courts disproportionately rule in their favor. The inconsistency in these rulings mirrors the myriad legal definitions of religion, complicated by the fact that there are over 1,500 self-identified religious groups in the United States.2

1.1 A Nation of Religious Minorities

Currently, 22 percent of the American population affiliates with a Catholic branch and 48 percent with a Protestant sect. The year 2012 was the first time Protestants represented less than 50 percent of the American population.3 The fastest-growing religious identity, however, is the group that associates with no religion, representing one in five adults. The landscape of American religiosity has become increasingly complex, as the previous majority of Christian traditions—Episcopal, Presbyterian and Congregationalist—has declined by 20 to 40 percent. Vincent Parrillo notes that the United States contains seven times more Muslim Americans (6 million), ten times more Buddhists (2 million), nine times more Hindus (1 million), and 220 times more Sikhs (220,000) than it did in 1970. It is estimated that by 2050, Muslims will surpass Jews to become the third largest religious group while, owing to an anticipated increase in the Latino population, Catholicism will move from one quarter to one third of the total population. For the first time, Protestants, who historically influenced the legal definitions of religion, are now a religious minority. Essentially, the United States has become a nation of religious minorities and arguably the most religiously diverse country in the world.

A profusion of minority religions has gained greater representation in the legal system, as evidenced in the 2012 election when a Mormon became the Republican Party’s presidential nominee and a number of Hindus, Buddhists, and Muslims were elected to local and national office. As a result, the evolving legal definitions of religion significantly affected how public officials tried to govern a religiously diverse citizenry. The state has learned that the judicial system can no longer rely on narrow definitions of religion, especially because a variety of federal and state courts have used different methods to determine those competing definitions. I illustrate this point with a historical survey of the legal definitions of religion, followed by an introduction of legal methods necessary for social scientists who research American religion.

1.2 Religion as Monotheism

In the 1890 polygamy case of Davis v. Beason, the US Supreme Court considered religion to be synonymous with monotheism. In writing for the unanimous court, Justice Stephen Field stated that the term religion “has reference to one’s views of his relationship to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.” He goes on to clarify, “The First Amendment… was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker.” The court found Mormons to pass Justice Field’s theological standard, deeming them worthy of inclusion in the definition of monotheism; however, the “act” of a man marrying multiple wives was not worthy of protection from government regulation. The court held that the practice of polygamy was a “nonsensical” tenet of religion and must be “subordinate to the criminal laws of the country.” Thus a distinction was made between belief and “acts” —citizens were free to believe but some religious behavior could be regulated because it violated the “morality of… all civilized and Christian countries” (Davis v. Beason).

Forty years later, the high court reaffirmed the monotheistic definition of religion in relation to Christian morality in saying, in United States v. MacIntosh (1931), “We are a Christian people [who acknowledge] with reverence the duty of obedience to the will of God.” Political scientists affirm the statistical fact of a Christian majority throughout US history, and sociologists affirm the cultural fact of the prevailing Christian customs, together legitimating the definition of “a Christian people.” Historians and philosophers of American law often affirm this concept, pointing to the cultural and theological origins of American society; however, legal scholars distinguish these facts from the modern political claim that America was founded as a “Christian nation.”

For instance, six years after the adoption of the Bill of Rights, the US Senate unanimously ratified The Treaty of Tripoli, signed by John Adams, one of the most pious of the founding fathers. The treaty reads, “The United States of America is not, in any sense, founded on the Christian religion.”4 The treaty was published in leading newspapers and received no public opposition, suggesting political legitimacy. The legal significance of this definition of America’s religious identity is found in Article VI of the US Constitution, which explains that “all treaties made… under the authority of the United States, shall be the supreme law of the land.” In other words, when it comes to defining the legal identity of the country, treaties are as authoritative as is the Constitution itself. The first word of the First Amendment of the US Constitution is significant to this discussion, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The federal government could not legally establish a national religion but states could and did write state constitutions endorsing monotheism.

1.3 Incorporating Religion

Before outlining the religious language in state constitutions, it is important to note that the Fourteenth Amendment, ratified in 1868 as part of the Reconstruction of the American South, requires states to give due process and equal protection under the law to all people in all jurisdictions. In the first half of the twentieth century, the US Supreme Court began incrementally to incorporate the religion clauses of the First Amendment to the states. The free exercise clause was first applied to the states in 1940 in Cantwell v. Connecticut, when the US Supreme Court overturned the Connecticut Supreme Court and ruled that a Jehovah’s Witness family was free to preach and disseminate its religious views without the state regulating the time, place, and manner of the religious solicitation. However, the court did make clear that in some contexts, religious conduct could be regulated to protect society. In 1947, the Establishment Clause was first applied to the states in Everson v. Board of Education, when a narrow majority affirmed a transportation subsidy to parents who enrolled their children in a religiously affiliated private school. Both the majority and dissenting opinions affirmed the highly controversial legal metaphor of “a wall of separation between Church and State,” a concept originally articulated by Roger Williams, founder of Rhode Island, and made famous by President Thomas Jefferson. Put simply, the First Amendment of the US Constitution was not considered to be legally binding to the states until the mid-twentieth century.

1.4 Including Nontheistic Religions, Excluding Moral Codes

In the 1961 case Torcaso v.Watkins, the US Supreme Court broadened the legal definition of religion in finding that the Maryland Bill of Rights, Article 36, violated the Establishment, No-Religious-Test-for-Office, and Equal Protection, clauses of the US Constitution. Writing for the majority, Justice Hugo Black proclaimed that the states cannot establish a religion, that the states cannot create a religious test for office, and that the states cannot privilege one religious group over another. Despite this ruling, the Maryland Constitution continues to use but not enforce a theistic definition of religion. Article 36 of the Maryland Declaration of Rights says that no person will “be deemed incompetent as a witness, or juror, on account of his religious belief; provided, he believes in the existence of God, and that under His dispensation such person will be held morally accountable for his acts, and be rewarded or punished therefore either in this world or in the world to come.”

In Torcaso, the high court held that no state or federal government could require public officials to hold private religious beliefs, which made moot the legitimacy of seven similar state constitutions. Justice Hugo Black explained that state legislatures cannot “constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can they aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” Justice Black effectively redefined the legal definition of religion by adding a footnote that listed nontheistic religions such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. The courts ruled that the inclusion of Ethical Culture and Secular Humanism referred to particular religious organizations in Washington, D.C., and California, not broad secular movements—secularism or civil religion was not considered to fall under the legal definition of religion.

During the Vietnam War, the high court issued two rulings that clarified that religion was not “merely a personal moral code.” In United States v. Seeger, the US Supreme Court effectively dismantled Congress’s prerequisite to believe in a “Supreme Being” in order to be deemed a religious conscientious objector by defining religion as follows: “a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption.” The court reached this conclusion by acknowledging “a vast panoply of beliefs” in a country with a “rich and varied spiritual life” —ranging from monotheism to Buddhism to Hinduism and various forms of Christianity. In emphasizing this point, the court cited Paul Tillich’s God above the God of Theism and the Catholic Church’s statement in Vatican II that “the whole concept of a God ‘out there’… is itself becoming more of a hindrance than a help.” The very fact that theologians and scholars of religion struggled to define religion left the courts to develop their own means for legally interpreting Congress’s definition of Supreme Being, which they did in the broadest terms possible.

In 1972, in another conscientious objector case, Welsh v. United States, the court held that the objector need not demonstrate “traditional or parochial concepts of religion” but rather that his or her religious behavior (i.e., nonviolence) would need to be parallel to religious actions “in the ethical sense of the word.” The acts need only be matched “with the strength of a more traditional religious conviction.” The court delineated two groups: (1) those whose exemption rests on “moral, ethical, or religious principle” could be classified as “religious conscientious objectors” but not (2) those whose “considerations of policy, pragmatism, or expedience [were] essentially political, sociological, or philosophical.”

These concepts were put into question when the court singled out the beliefs and practices of Henry David Thoreau—social values that were, according to Judge Burger, “philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.” This is an obvious example of the court’s religious illiteracy. Scholars of Unitarian history rightfully dispute this claim, demonstrating that Thoreau’s civil disobedience against the Mexican-American war was explicitly religious in terms of the theology and practices of Unitarianism and Transcendentalism. Furthermore, Thoreau’s religious writings inspired the theology of Tolstoy, Gandhi, and Martin Luther King Jr., all of whom adopted civil disobedience as an explicit and sincerely held religious practice.

1.5 Sincere and Long Standing

In 1972, the US Supreme Court overwhelmingly affirmed the sincere and long-standing beliefs of the Old Order Amish and the Conservative Amish Mennonite Church in granting their children an exemption from the compulsory education law requiring school attendance until the age of sixteen. In Wisconsin v. Yoder, the high court found that the Amish and Mennonite traditions were “aided by a history of three centuries as an identifiable religious sect.” The court applied the Sherbert test, which asks whether the claim involves a sincere religious belief that is substantially burdened by government action and whether the government demonstrates a “compelling state interest” to justify the burden and pursues that interest in the least restrictive manner possible. Known as strict scrutiny, the Sherbert/Yoder cases set the legal standard for free exercise cases at the federal and state levels for the next two decades; however, the methods by which religion was legally defined changed significantly.

1.6 Religion by Analogy

In 1979, in referencing the Sherbert and Yoder rulings, Judge Arlin Adams of the US Court of Appeals of the Third Circuit, in Malnak v. Yogi, defined “Science of Creative Intelligence” as a religion, thereby banning Transcendental Meditation from New Jersey’s public schools. Judge Adams applied the same method of defining religion in a 1981 case in which the circuit court upheld a prison warden’s decision to deny a special raw-food diet to prisoner Frank Africa, a naturalist minister of an emerging religion called MOVE. In both cases, Judge Adams’ religious threshold test was based on three analogies: (1) the belief would be considered to be religious if the adherents routinely addressed “fundamental and ultimate” questions regarding “deep and imponderable matters”; (2) if the adherents held a comprehensive “belief system” as compared with an “isolated teaching”; and (3) if their religion could be recognized by external signs, such as services, ceremonies, clergy, proselytizing, and observance of holidays. The court deemed that although its beliefs were sincerely held, MOVE did not meet the legal definition of religion because it “lacked almost all of the formal identifying characteristics common to most recognized religions and did not conduct any special services and did not recognize any official customs.” Judge Adam’s described it as “philosophical naturalism.” In these cases, the Third Circuit applied a “parallel position” test to develop a “definition by analogy.”

The Second Circuit continued to rely on scholarly definitions of religion. In the 1983 case about the false tax returns of Sun Myung Moon, Judge Cardamone of the Second Circuit relied on the 1910 writings of American philosopher William James, who defined religion as “the feelings, acts, and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine.” Judge Cardamone clarified, “Professor James used the word ‘divine’ in its broadest sense as denoting any object that is godlike, whether it is or is not a specific deity.” He reaffirmed the legal protection of religions that “do not positively require the assumption of a God.”

Fifteen years later, the Tenth Circuit returned to the definition by analogy methodology, but rather than applying Judge Adams’ three-point position test, it used a new and improved five-point test, with the last indicia consisting of ten new criteria. In doing so, the court asked whether “The Church of Marijuana” was a legitimate religion, acknowledging that the “threshold for establishing the religious nature of beliefs is low.” The court considered religion to have:

  1. 1.Ultimate Ideas: Religious beliefs often address fundamental questions about life, purpose, and death. As [Judge Adams] stated, “a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters.” These matters may include existential matters, such as human’s sense of being; teleological matters, such as man’s purpose in life; and cosmological matters, such as man’s place in the universe.

  2. 2.Metaphysical Beliefs: Religious beliefs often are “metaphysical,” that is, they address a reality that transcends the physical and immediately apparent world. Adherents of many religions believe that there is another dimension, place, mode, or temporality, and these adherents often believe that these places are inhabited by spirits, souls, forces, deities, and other sorts of inchoate or intangible entities.

  3. 3.Moral or Ethical System: Religious beliefs often prescribe a particular manner of acting, or way of life, that is “moral” or “ethical.” In other words, these beliefs often describe certain acts in normative terms, such as “right and wrong,” “good and evil,” or “just and unjust.” The beliefs, then, proscribe those acts that are “wrong,” “evil,” or “unjust.” A moral or ethical belief structure also may create duties—duties often imposed by some higher power, force, or spirit—that require the believer to abnegate elemental self-interest.

  4. 4.Comprehensiveness of Beliefs: Another hallmark of “religious” ideas is that they are comprehensive. More often than not, such beliefs provide a telos, an overreaching array of beliefs that coalesce to provide the believer with answers to many, if not most, of the fundamental problems and concerns that confront humans. In other words, religious beliefs generally are not confined to one question or to a single teaching.

  5. 5.Accoutrements of Religion: Similar to many of the established or recognized religions, the presence of the following external signs may indicate that a particular set of beliefs is “religious”:

    1. a.Founder, Prophet, or Teacher: Many religions have been wholly founded or significantly influenced by a deity, teacher, seer, or prophet who is considered to be divine, enlightened, gifted, or blessed.

    2. b.Important Writings: Most religions embrace seminal, elemental, fundamental, or sacred writings. These writing often include creeds, tenets, precepts, parables, commandments, prayers, scriptures, catechisms, chants, rites, or mantras.

    3. c.Gathering Places: Many religions designate particular structures or places as sacred, holy, or significant. These sites often serve as gathering places for believers. The sites include physical structures, such as churches, mosques, temples, pyramids, synagogues, or shrines, and natural places, such as springs, rivers, forests, plains, or mountains.

    4. d.Keepers of Knowledge: Most religions have clergy, ministers, priests, reverends, monks, shamans, teachers, or sages. By virtue of their enlightenment, experience, education, or training, these people are keepers and purveyors of religious knowledge.

    5. e.Ceremonies and Rituals: Most religions include some form of ceremony, ritual, liturgy, sacrament, or protocol. These acts, statements, and movements are prescribed by the religion and are imbued with transcendental significance.

    6. f.Structure or Organization: Many religions have a congregation or group of believers who are led, supervised, or counseled by a hierarchy of teachers, clergy, sages, priests, and so on.

    7. g.Holidays: As is etymologically evident, many religions celebrate, observe, or mark “holy,” sacred, or important days, weeks, or months.

    8. h.Diet or Fasting: Religions often prescribe or prohibit the eating of certain foods and the drinking of certain liquids on particular days or during particular times.

    9. i.Appearance and Clothing: Some religions prescribe the manner in which believers should maintain their physical appearance, and other religions prescribe the type of clothing that believers should wear.

    10. j.Propagation: Most religious groups, thinking that they have something worthwhile or essential to offer non-believers, attempt to propagate their views and persuade others of their correctness. This is sometimes called “mission work,” “witnessing,” “converting,” or proselytizing.”

Ultimately, the Tenth Circuit court deemed that the minister of “The Church of Marijuana” held sincere religious beliefs; however, those “beliefs constituted a philosophy rather than a religion.” This exercise was somewhat muted by the fact that the new legal standard set by the US Supreme Court six years earlier in Employment Division v. Smith bypassed the need to legally define religion in cases where the law did not single out religion.

1.7 Bypassing Legal Definitions of Religion

In 1990, the US Supreme Court fundamentally narrowed decades of free exercise jurisprudence, leading a number of state courts to rely on the religion clauses in state constitutions to protect religious practices and to abandon the limited protections offered by the US Constitution.

In the Smith case, two former public school teachers were denied unemployment benefits after being fired for using peyote for sacramental purposes. The court upheld the state’s decision on the grounds that the state criminal law forbidding possession of illegal drugs was a generally applicable law that was neutral to religion. This meant that if the law did not single out religion and applied equally to all citizens, then individuals could not receive an exemption, as was previously granted in the Sherbert and Yoder cases. In effect, the Court said that strict scrutiny did not apply in cases with general neutral laws.

Members of Congress were outraged and responded by passing the Religious Freedom Restoration Act of 1993. Known as RFRA, it received the unanimous support of members of the House of Representatives, and 97 of 100 US Senators approved the bill. President Clinton signed it into law. How did the US Supreme Court respond? Four years later, the high court overturned RFRA through its ruling on City of Boerne v. Flores. Why? Because the court deemed that Congress had overstepped its power. Only the judicial branch can introduce judicial tests, and only the court can determine which rights subsumed under the Fourteenth Amendment can be applied to the states. Technically speaking, section five of the Fourteenth Amendment refers to the congruence and proportionality test. In other words, Congress can enact only laws that are consistent with previous US Supreme Court rulings and in proportion to its limited authority to legislate in the states.

Put simply, the issue of religious freedom became entangled in the issue of separation of powers between the judicial and legislative branches of government. It became a question of federal versus state jurisdiction. These topics are worthy of national debate; however, there was an unfortunate outcome to this sandbox fight—a great cloud of dust hovered over the already hazy legal definitions of religion.

Congress attempted to exercise its legal authority in 2000 by passing the Religious Land Use and Institutionalized Persons Act. RLUIPA effectively restored the Yoder/Sherbert standard for the federal government only, not for the states. How did states respond? First, many state legislatures began passing their own religious freedom acts. For instance, in 2002 the Pennsylvania General Assembly enacted “An Act protecting the free exercise of religion; and prescribing the conditions under which government may substantially burden a person’s free exercise of religion” (71 Pa. Stat. Ann. § § 2401–2407). This is the long version of what is referred to as a Religious Freedom Restoration Act. Similar to the language used by Congress, this Pennsylvania statute represents the many attempts by states to reinstate the Sherbert and Yoder standards.

By 2006, the Supreme Court had issued two unanimous decisions in the Cutter and Gonzales cases, which affirmed the constitutionality of the RLUIPA and RFRA, respectively. In reflecting upon the decision to uphold the Religious Land Use and Institutionalized Persons Act, Chief Justice Roberts wrote, “We had ‘no cause to believe’ that the compelling interest test ‘would not be applied in an appropriately balanced way’ to specific claims for exemptions as they arose.” He went on to acknowledge Congress’s intent to ensure that the courts would balance religious liberties and state interests. These rulings did not in and of themselves have the power to allow the constitutional question of religious freedom to rest in peace. It will take years of collective reinforcement to reach such balance.

1.8 State Religion Clauses

In the last decade lower courts have been trying to reconcile these distinctions by attempting to interpret the legal standards surrounding this constitutional controversy. According to Honorable Christine M. Durham, Chief Justice of the Utah Supreme Court,

almost immediately after Smith, several state courts began to discard their history of reliance on federal precedent and turn to the language of their state constitutions in religious liberty cases. [As of 2004] at least ten state supreme court cases have used a heightened scrutiny standard in their state constitutional analysis, either reaffirming that the Sherbert standard reflects the proper standard under their own religion clauses, or applying those religion clauses without considering federal precedent at all.

Chief Justice Durham clarifies that issues of religious liberty could be resolved solely on state constitutional grounds. The state courts would have to maintain a minimum standard as guaranteed by the federal constitutions, but the states could, and currently do, understand their own constitutions to grant additional religious freedoms.

2. A Legal Approach

If it is true that the legal definition of religion has been entangled in competing religion clauses in federal and state constitutions and if the methods by which those definitions are reached have lacked uniformity, then it is also true that legal questions about religious diversity have been particularly vulnerable to government bias. Historians describe the trends in religious inequality, sociologists analyze the ways in which diverse groups barter for legitimacy, and philosophers of law reveal the intellectual underpinnings to such behavior. But are these scholars trained to understand the legal complexities that implicitly influence their research? Extremely few religious studies programs and only a handful of history, sociology, and philosophy programs require students to demonstrate competencies in legal research and analysis.

For these reasons I recommend that scholars of American religion develop research plans that integrate discipline-specific methodologies with two legal methods. The first is legal research, using specific techniques to collect relevant statutes and cases in order to identify appropriate law. The second method is legal analysis, which allows the researcher to accurately apply judicial tests to specific legal questions. Together, these legal methods prepare researchers to employ what I call the five-step legal approach to questions of religious diversity.

  • Step 1. Distinguish social problems

  • Step 2. Collect primary and secondary source documents

  • Step 3. Synthesize judicial tests

  • Step 4. Articulate legal questions

  • Step 5. Conduct legal analysis

2.1 Distinguish Social Problems

The first task of a researcher of American religion is to distinguish social problems from legal questions. Many scholars of religious studies apply various methods to understand the nature of social problems associated with religious diversity. The subject of religious diversity is often embedded in governmental attempts to legally restrict religious expression. These legal actions originated in social conditions that made those decisions possible. Scholars of religious studies are wise to delineate social problems clearly, aware that historical, philosophical, and sociological questions are related to the law but are distinct from the precise legal questions the courts used to rule on religion cases.

Metaphorically speaking, researchers can approach this topic as if looking through a telescope and can survey the broad landscape of limits to religious expression—examining the bias that society has toward various religious minorities and the historical reasons for these conflicts. Researchers can then approach the narrow legal issue related to that regulation as if looking into a microscope, analyzing how religion is defined, who is and who is not protected by which court on which grounds. By approaching topics from both broad and narrow viewpoints, researchers are better prepared to differentiate between the broad social problems and the narrow legal questions. This first step in a research plan allows the researcher to assemble and organize the source documents more precisely.

2.2 Collect Source Documents

Legal research involves using various techniques to retrieve content-relevant primary sources. For instance, in collecting state-level or federal-level statutes, a legal researcher will conduct a “legislative history,” which includes collecting reports, hearings, and the Congressional Record and determining which primary sources are most applicable to the subject. These documents are compared with legal cases that address the legitimacy of the law, gloss and interpret the underlying statute or Constitutional provision, or include analogous fact patterns. Depending on the relevancy to the precise legal question at hand, these are potentially persuasive arguments but not necessarily mandatory law.

Cases are organized according to the federal court structure and the state judiciary system. The US Supreme Court is the highest authority, supported by the thirteen intermediate courts of appeals. Below the appellate division are ninety-plus district courts. Each state has a unique judicial system.

Researchers can gather the data about these rulings by using online programs to extract the statutes and cases, such as WestLaw, WestLawNext, LexisNexis, LexisAdvance, Bloomberg and Thomas, the Library of Congress legislative website, PACER (Public Access to Court Electronic Records), as well as the websites of state legislatures. Additional sources can be found in law libraries, such as US Reports, the US Code, and the Code of Federal Regulations. In some instances, courts may need to be contacted directly for primary archival records. Researchers use these primary sources to classify the outcomes of the cases in relation to the cases’ jurisdiction and the judicial tests applied by the courts.

A common method of academic legal research is to brief each case, a method of articulating a precise summary of the court’s holding. Briefs usually include the formal name of the case and date of the decision; a summary of the case history (lower court decisions, appeals, etc.); a summary of the facts; and the legal questions presented by the case that would elicit a yes or no answer. In addition, they include a one- or two-sentence summary of the holding, and a brief analysis, which includes the legal standards used by the majority, along with a summary of its rationale and, if applicable, a summary of the dissenting opinions.

Researchers use the Shepard’s citation system or Westlaw’s KeyCite to determine which statutes had been struck down or amended or which cases had been overturned, reaffirmed, questioned, or cited by later cases. This is essential to understand what is still good law and relevant to the study. This system is eminently useful in that it creates custom tables and images, illustrates the evolution of the case law, and articulates clearly which statutes and cases are still applicable.

Primary source documents need not be limited to the bills passed by federal or state legislatures, court opinions, or administrative regulations. Additional materials may include administrative policies created by state municipal bodies and commentaries issued by state district attorneys, such as advisory opinions, no-action letters, and regulatory decisions. These documents may be considered by some courts to be compelling statements but will not have the same authority as do mandatory laws, such as statutes adopted by state legislatures, or Congress, or orders issued by state supreme courts or appellate courts or the U.S. Supreme Court.

Legal researchers also develop a list of secondary sources, such as law review articles, books, and articles in professional publications. The American Law Reports (A.L.R.) is a commonly used secondary source that summarizes the legal history on a particular topic, giving researchers a birds-eye legal summary of the relevant cases. The United States Code Annotated Currentness serves a similar purpose. In both cases, scholars may benefit from turning to these sources first before becoming too bogged down in one particular subject. These sources give researchers a broad understanding of how to frame legal questions about religious expression and can help them map the legal intersections of related subjects.

Together, these sources allow researchers to identify holes in the legal literature. For instance, some law review articles, law reports, legal digests, legal encyclopedias, and legal dictionaries may inadvertently leave out information that may be essential to a researcher’s inquiry. Once all primary and secondary sources are classified, the researcher will have the confidence to design a study that accurately applies judicial tests.

2.3 Synthesize Judicial Tests

In the third step, legal researchers create a rubric of the various tests that different courts use to justify their decisions. As noted earlier, some cases about religion may have relied on judicial principles derived from state constitutions because they either occurred before the 1940 incorporation of the free exercise clause, before the 1947 incorporation of the establishment clause, or after the 1990 Smith case. These earlier standards may have originated from cases tried in particular states, although—because state constitutions have different religion clauses—not all of the courts considered rulings in other jurisdictions to be persuasive. In these state-specific cases, the most binding documents became the state constitution, state statute, and court decisions offered by courts within the state. However, in addressing issues of religion and law in the United States, researchers will benefit from exposure to educational law. The reason is that a majority of disestablishment and free exercise cases in the twentieth century were a direct result of legal conflicts in schools. The American educational system is one of the favorite places for conflicts concerning religion to breed.

Whether in the state or federal systems, courts that took up religious matters after 1940 and before 1990 were subject to the US Constitution. After 1964, the states were also subject to the standards set in Title VII of the Civil Rights Act, which prohibits discrimination in employment based on religion. Some federal courts addressed questions about religious diversity through the lens of Title VII, avoiding altogether the questions of free exercise, free speech, and disestablishment. Other cases may have stayed in the state systems and yet focused only on the question of free exercise, but through the state constitution’s unique definition of freedom of religion. In some instances, the rulings made by state supreme courts may be appealed to the US Supreme Court. These various jurisdictions can often make for a complicated legal analysis, which is simplified when researchers articulate precise legal questions.

2.4 Articulate Legal Questions

Once a social scientist has distinguished the social problems from the legal ones, collected source documents, and synthesized judicial tests, it is critical to return to the core legal questions. This step is usually one of the first steps used by legal researchers; however, because social scientists may be unfamiliar with legalese, it is recommended that they articulate their legal questions only after having previously surveyed the primary and secondary sources. To specify a legal inquiry, one must first understand how cases are classified.

Federal cases regarding religion usually fall under one or a combination of the three clauses of the First Amendment of the US Constitution—the free exercise, free speech, and disestablishment clauses—or the nondiscrimination clause of the Civil Rights Act of 1964. Although relatively few cases explicitly draw upon the no-religious-test-for-office clause, Article VI paragraph 3 of the US Constitution may also be an important part of one’s study. Researchers focusing on federal law would then ask one of the following precise legal questions (which have already been established as distinct from broad social problems):

  1. 1. Does Law X violate Y’s right to free exercise of religion?

  2. 2. Does Law X violate Y’s right to free speech? (This question may be significant if the study is about religious clothing, religious literature, and religious speeches, which may be classified as protected speech.)

  3. 3. Does Law X violate the establishment clause of the First Amendment?

  4. 4. Does Law X make religion or nonreligion a prerequisite for employment, thereby violating Title VII of the Civil Rights Act of 1964?

Each question is derived from a distinct set of case law for which the courts applied a number of judicial tests. For instance, in establishment clause cases, the Lemon Test (from Lemon v. Kurtzman) remains the predominant although contested standard for determining a violation. It specifically requires that (1) laws must have a secular legislative purpose, (2) the government’s action must not have the primary effect of either advancing or inhibiting religion, and (3) the government’s action must not result in an excessive government entanglement with religion. If the court determines that any of these three prongs were violated, then the law fails the test. It is critical for social scientists to review the origins and applications of these tests, determine their current legitimacy, and then construct a legal analysis.

2.5 Conduct Legal Analysis

The final step, the legal analysis, begins with a “rule synthesis” —a composite of the authoritative summary of judicial tests used across similar cases. This is done in conjunction with a “case synthesis,” a classification of cases in similar jurisdictions addressing similar legal issues. The analysis consists of exploring the legal questions in relationship to this complexity and determining which legal analogies are broad and supplemental arguments as compared with narrow legally binding mandates. This technique is called analogical reasoning—the application of fact patterns presented in the source documents against the legal questions and the judicial tests designed to resolve the case. Together, these legal analysis methods coupled with legal research techniques prepare the researcher to demonstrate legal literacy.

By following these five steps, social scientists are more likely to develop policy recommendations that may be viewed as having legal legitimacy.

3. Significance

In summary, why is a legal approach necessary to the study of religious diversity in the United States? Social scientists often cite legal cases in their research on American religion but can err in uniformly applying First Amendment judicial tests to cases involving state statues enacted before the 1940s. Social scientists can also err in assuming that from 1990 onward the US Constitution serves as a glass ceiling to state constitutions rather than demonstrating that it serves as the foundation from which state constitutions can erect additional religious protections. At the federal level, cases involving the free exercise and establishment clause have their own unique judicial tests, and various levels of federal courts have used different legal definitions of religion and different methods to determine those definitions.

Nineteenth-century legal definitions of the term religion were limited to monotheism. Later, the courts broadened its constitutional meaning to include nontheistic traditions while rejecting the idea that religion is “merely a personal moral code.” Then, a legitimate religion was considered to have a long-standing and sincere belief system and was to be protected only if it did not contravene criminal laws. The methods used to define religion range from scholarly definitions to narrow or broad analogies to traditional religious practices. These legal definitions can rest on the two religion clauses of the First Amendment of the US Constitution; however, when it comes to justifying expanding religious liberties, federal case law need not take precedence over myriad religion clauses in state constitutions. Put simply, the definitions of religion, the methods to achieve the definition, and the doctrinal tests used by federal and state courts are just as diverse as the number of religions in the United States.

For these reasons, it is critical for scholars of religion to demonstrate a sophisticated level of legal literacy. In doing so, they will be better equipped to assist the courts in achieving a sophisticated level of religious literacy. The absence of legal literacy in the social sciences can result in gross misunderstandings about the nature of legally protected religious belief as compared with religious behavior. The absence of religious literacy in law can result in bias and invidious discrimination. The absence of a keen understanding of the interlocking nature of race and religion can also result in institutionalized oppression.

In a time when the religious diversity of the American citizenry is at its peak, the first time when no single sect holds the majority, it is more important than ever for experts in all fields to work together to engage skillfully the age-old questions about how to govern a religiously diverse citizenry. As the Japanese proverb goes, “All of us are smarter than any one of us.”


Select Religion Cases

Berman v. United States, 156 F.2d 377 (1946)

Cantwell v. Connecticut, 309 U.S. 626 (1940)

Church of the Chosen People (North America Panarchate) v. United States 548 F. Supp. 1247

City of Boerne v. Flores 521 U.S. 507 (1997)

Cutter v. Wilkinson, 544 U.S. 709 (2005)

Davis v. Beason, 133 U.S. 333 (1890)

Employment Division v. Smith 494 U.S. 872 (1990)

Fellowship of Humanity v. County of Alameda, 315 P.2d 394 Cal. Dist. Ct. App. (1957)

Frank Africa v. the Commonwealth of Pennsylvania, 662 F.2d 1025 3rd Cir. (1981)

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)

Lemon v. Kurtzman, 403 U.S. 602 (1971)

Malnak v. Yogi, 592 F.2 197 (1979)

Sherbert v. Verner, 374 U.S. 398 (1963)

Torcaso v. Watkins, 367 U.S. 488 (1961)

United States v. McIntosh, 283 U.S. 605 (1931)

United States v. Meyers, 95 F.3d 1475 (1996)

United States v. Seeger, 380 U.S. 163 (1965)

United States v. Sun Myung Moon, 718 F.2d. 1210 (1983)

Washington Ethical Soc’y v. District of Columbia, 249 F.2d 127 (1957)

Welsh v. United States, 393 U.S. 333, 339 (1970)

Wisconsin v. Yoder, 406 U.S. 205 (1972)

Select Race and Religion Cases

Bob Jones University v. United States, 461 U.S. 574 (1983)

Chae Chan Ping v. United States, 130 U.S. 581 (1889)

Elk v. Wilkins, 112 U.S. 94 (1884)

Korematsu v. United States, 323 U.S. 214 (1944)

Loving v. Virginia, 388 U.S. 1 (1967)

Ozawa v. United States, 260 U.S. 178 (1922)

Saint Francis College v. al-Khazraji, 481 U.S. 604 (1987)

Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987)

United States v. Bhagat Singh Thind, 261 U.S. 204 (1923)

Banakar, Reza, “Reflections on the Methodological Issues of the Sociology of Law,” Journal of Law and Society 27.2 (June 2000): 273–295.Find this resource:

Bernstein, David E., “Brandeis Brief Myths,” Green Bag 15 (2001) 2d 9.Find this resource:

Brennan, William J., “State Constitutions and the Protections of Individual Rights,” Harvard Law Review 90 (1977): 489‒495.Find this resource:

Carmella, Angela C., “State Constitutional Protection of Religious Exercise: An Emerging Post-Smith Jurisprudence,” BYU Law Review 275 (1993): 275–276.Find this resource:

Cobb, Sanford H., The Rise of Religious Liberty in America (New York: Macmillan, 1902).Find this resource:

Durham, Christine, “What Goes Around Comes Around: the New Relevancy of State Constitution Religion Clauses,” Valparaiso University Law Review 38 (2004): 353.Find this resource:

Edwards, L. H. Legal Writing: Process, Analysis, and Organization, 4th ed. (New York: Aspen, 2006): 106–118.Find this resource:

Fea, John, Was America Founded as a Christian Nation? (Louisville, KY: Westminster John Knox Press): 3–4.Find this resource:

Funk, Cary, and Smith, Greg, “Nones” on the Rise: One-in-Five Adults Have No Religious Affiliation (Washington DC: Pew Research Center, The Pew Forum on Religion and Public Life, 2012): 13.Find this resource:

Gaustad, Edwin, and Schmidt, Leigh (1990) A Religious History of America (San Francisco: Harper & Row, 1990)Find this resource:

Gedicks, Frederick Mark, The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence (Durham, NC: Duke University Press, 1995): 116.Find this resource:

Haack, Susan, “Irreconcilable Differences? The Troubled Marriage of Science and Law,” The Journal of Law and Contemporary Problems 72.1 (Winter 2009): 1–23.Find this resource:

Hensley, Jonathan B., Approaches to the Hybrid-Rights Doctrine in Free Exercise Cases. Knoxville, TN: Tennessee Law Review: 2000).Find this resource:

Jefferson, Thomas, “Correspondence with the Danbury Baptist Association,” January 1, 1802, in Jefferson, Thomas, Jefferson on Freedom: Wisdom, Advice, and Hints on Freedom, Democracy, and the American Way (New York: Skyhorse, 2011): 51–53.Find this resource:

Kunz, C. L., The Process of Legal Research (Boston: Little, Brown, 1989).Find this resource:

Laycock, Douglas, “Summary and Synthesis: The Crisis in Religious Liberty,” George Washington Law Review 60 (1992): 841‒846.Find this resource:

Lupu, Ira C., “Employment Division v. Smith and the Decline of Supreme Court-Centrism,” BYU Law Review (1993): 269.Find this resource:

McLoughlin, William G., New England Dissent, 1630‒1833: The Baptists and the Separation of Church and State, Vols. 1 & III (Cambridge, MA: Harvard University Press, 1971).Find this resource:

Mertz, Elizabeth, Introduction: The Role of Social Science in Law, Legal Studies Research Paper No. 1142, Social Science Research Network (Farnham, Surry, UK: Ashgate, 2008): xxix–xxix.Find this resource:

Morgan, Julie Margetta, and Pullin, Diana, “Social Science and the Courts: Challenges and Strategies for Bridging Gaps Between Law and Research,” Educational Researcher, 33 (2010): 515–524.Find this resource:

Murray, M. D., and DeSanctis, C. H., Legal Research Methods. Legal Research and Writing (New York: Thomson Reuters/Foundation Press, 2009).Find this resource:

Parillo, Vincent N., Diversity in America, 3rd ed. (Newbury Park, CA: Sage, 2009): 51–54.Find this resource:

Pfeffer, Leo, Church, State, and Freedom (Boston: Beacon Press, 1967).Find this resource:

Romantz, D. S., and Vinson, K. E., Legal Analysis: The Fundamental Skill (Durham, NC: Carolina Academic Press, 1998).Find this resource:

Romantz, D. S., and Vinson, K. E., Legal Analysis: The Fundamental Skill, 2nd ed. (Durham, NC: Carolina Academic Press, 2009): 30–31.Find this resource:

Salter, M., and Mason, J., Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Harlow, UK: Pearson/Longman, 2007).Find this resource:

Stokes, Anson Phelps, and Pfeffer, Leo, Church and State in the United States (New York: Harper & Row, 1964).Find this resource:

Volokh, E., Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review (New York: Foundation Press, 2010).Find this resource:

Walker, Nathan C., “Introduction to Theolegal Theory,” in Nathan C. Walker and Edwin J. Greenlee, eds., Whose God Rules? Is the United States a Secular Nation or a Theolegal Democracy? (New York: Palgrave Macmillan, 2011): 1–18.Find this resource:

Williams, Roger, “Mr. Cotton’s Letter Lately Printed, Examined and Answered,” in The Complete Writings of Roger Williams, Vol. 1 (New York: Russel & Russel, 1965): 108.Find this resource:

Wybraniec, John, and Finke, Roger, “Religious Regulation and the Courts: The Judiciary’s Changing Role in Protecting Minority Religions from Majoritarian Rule,” in Regulating Religion: Case Studies from Around the Globe, ed. James T. Richardson (New York: Kluwer Academic/Plenum, 2004): 535–553.Find this resource:

Further Reading

Derek H. Davis, The Oxford Handbook of Church and State in the United States (Oxford, UK: Oxford University Press, 2010).Find this resource:

Kent Greenawalt, Religion and the Constitution: Vol. 1. Free Exercise and Fairness (Princeton, NJ: Princeton University Press, 2006).Find this resource:

Kent Greenawalt, Religion and the Constitution: Vol. 2. Establishment and Fairness (Princeton, NJ: Princeton University Press, 2008).Find this resource:

T. Jeremy Gunn and John Witte Jr., (2012) No Establishment of Religion: America’s Original Contribution to Religious Liberty (New York: Oxford University Press, 2010).Find this resource:

Ian Haney Lopez, White by Law: The Legal Construction of Race (New York: New York University Press, 1996).Find this resource:

Mark A. Noll, Nathan O. Hatch, and George M. Marsden, The Search for Christian America (Colorado Springs, CO: Helmers & Howard, 1989).Find this resource:

Eduardo M. Peñalver, “The Concept of Religion,” Yale Law Journa, 791 (1997).Find this resource:

Vijay Prashad, The Karma of Brown Folk (Minneapolis: University of Minnesota Press, 2001).Find this resource:

Ronald T. Takaki, ed., From Different Shores: Perspectives on Race and Ethnicity in America (New York: Oxford University Press, 1987).Find this resource:

John Witte Jr., and Joel A. Nichols, Religion and the American Constitutional Experiment, 3rd ed. (New York: Westview Press/Perseus Books: 2011).Find this resource:

Robert F. Williams, The Law of American State Constitutions. (New York: Oxford University Press, 2009).Find this resource:


(1) Social scientists are limited in their ability to influence the development of American law. I argue in this chapter that by applying legal methods, social scientists may be perceived as having more legitimacy, a legitimacy that is rightfully questioned by scholars, David Bernstein, Julie Margetta Morgan, Diana Pullin, Elizabeth Mertz, Reza Bankar, and Susan Haack.

(2) There are obvious complications about quantifying religious diversity—such as the national census, which does not collect information about religious affiliation—limitations to surveys, and bias in self-reporting religious communities.

(3) When all Protestant branches—Catholics, Mormons, Jehovah’s Witness, Orthodox Christians, and “other Christians,” —are added together,73 percent of all adults in 2012 identified with some form of Christianity. It should be noted that not all groups listed define the others in the list as Christian, even though they self-identify as such, illustrating the fact that even those who identify within the Christian religion struggle to define Christianity.

(4) Even the definition of Christian had different legal meanings at different times. For instance, in the Christian theocracy of the Colony of Massachusetts, it was illegal to celebrate Christmas from 1659 to 1681 because Puritans associated the holiday with idolatry and drunkenness. Christmas was not a major holiday at the time of the ratification of the US Constitution, as noted in the fact that Congress was in session on December 25, 1789. It was not until 1870 that Christmas became a national holiday, suggesting that the legal recognition of Christmas occurred nearly a century after the country’s founding. The historic and contemporary evidence that the United States has and is culturally Christian shadows this legal distinction, demonstrating the unique contribution each discipline brings to the study of American religion.