Definition of Religion: Honest Conviction, Regardless of Perception, in a Predominantly Non-Secular Subject Matter

Abstract

This comment has a two-part purpose. First, this comment analyzes and critiques the existing definition-of-religion tests developed by the federal courts. Second, the comment proposes a definition of religion based on the concept of belief. In two decisions, Welsh v. United States and Africa v. Pennsylvania - the two leading cases of definition of religion - courts have defined religion in terms of “religious function,” “religious scope,” and “religious goals.” However, if it is no business of courts to say “what is a religious practice...for one group is not religion under the protection of the First Amendment,” then courts should not decide what constitutes religion in terms of religious terms. Such judicial standard-setting creates appearance of endorsement of particular beliefs, and is that kind of religion-to-religion discrimination that the Supreme Court has struck down under the Establishment Clause. Part II, explains the history and the development of the Welsh and Africa definitions of religion under the First Amendment. Part III critiques the current definitions of religion. That section provides overview of pertinent cases under the Establishment Clause of the First Amendment. In addition, Part III critically analyzes the Welsh and Africa definitions of religion in their essence and under the Establishment Clause. The analysis of the Welsh and Africa tests suggests that both tests are essentially and historically inconsistent with the First Amendment. Part IV proposes a new approach to definition of religion. To be consistent and permanent, religion must be defined in terms of its historical meaning and essence. Such historically consistent meaning and essence of religion must satisfy both the Establishment Clause and the Free Exercise Clause for the definition to be unifying. The proposed approach defines religion in terms of what it truly protects: the religious belief. First, a belief must be defined in terms of its sufficient and necessary elements: (1) conviction, (2) perception, and (3) subject matter. Then, the comment proposes, religion should be defined as: (1) an honest conviction, (2) regardless of perception, (3) in a predominantly non-secular subject matter. The comment concludes that such definition of religion is historically consistent, logically essential, unifying and permanent; and it removes any appearance of governmental favoring of a particular religion-model. Thus, the proposed definition of religion is more secular in content, and less religious.