Law in Contemporary Society
In one of my classes last week, someone asked “how do we tell the difference between religion and a regular belief?” This question gets to the heart of something I’ve thought about a lot – why do we accord special protection to beliefs we deem “religious” but not to other, secular beliefs?

As someone who is not religious, tends to be skeptical of religion in general, but also tries to remain open-minded, I find it frustrating when religious beliefs are given immunity or sanctity above other beliefs. I realize the importance of freedom to believe, and of having state-supported rights to associate based on belief, and of knowing that you will not be persecuted for religion. However, I think that having strictly “religious” freedom might be illogical and underinclusive.

What makes one belief protected and another one not? The fact that a long-standing institution and community share that belief with you? The fact that it involves “God” and is therefore sacred and cannot be touched? Surely, people should be able to believe whatever they want to believe about God, afterlife, and other such “sacred” things – but then why shouldn’t someone also have an equally-protected right to believe in, say, ghosts. I’m sure most people wouldn’t really care if someone believed in ghosts (maybe some people in this class do), but the state wouldn’t give any special protection to that belief, unless it was a religious one. I don’t think this makes sense, and I think that beliefs of all kinds should be protected equally. And that’s not to say that I think there should be immunity based on any belief a person has, however ill-founded, but to the extent that protection is offered for one belief, I think it has to be offered for another.

Some might say that a genuine and absolute belief in purple aliens from outer space is illogical and crazy, and deserves no protection. But how is a belief in a supernatural being for whom there is no scientific evidence any less illogical? If the only thing supporting a belief is faith, how can we make a value judgment of the actual things believed? The only explanation seems to be that we protect certain beliefs because they are shared by huge numbers of people, have been encapsulated and promulgated by institutions, and have lasted over vast historical time spans. These indicia, however, while certainly testaments to endurance and cultural importance, do not actually raise the soundness of such beliefs over that of any others.

I’m not trying to say that religious beliefs shouldn’t be tolerated or respected. I am trying to say that, logically, the protection extended to religious beliefs cannot (at least in my mind) be separated from a sweeping protection of what people believe in general. I understand the historical necessity for protecting religious freedom specifically, but don’t know if this is adequate explanation for strictly religious protection in a

Should freedom of religion be eliminated from the constitution, on the grounds that belief in general should be adequately protected by free speech, etc? Should “freedom of belief” replace it, so that everyone’s belief is afforded equal protection? I’m not really sure – what does everyone else think? I realize this is kind of a drastic idea, and hasn’t been thought through to the fullest, so I’d like to see what other people think.

-- JessicaHallett - 16 Apr 2010

Jessica, Anyone is free to believe whatever they want to believe. The text of the First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." There is nothing about religious beliefs or what constitutes a religion, or anything else. I think you are vastly overstating the so-called "Freedom of Religion" aspect of the Constitution.

I think that your point about criticism of religious beliefs is valid. It is certainly taboo in our culture to mock someone's faith, but there is nothing legally that prevents me from doing so. When someone criticizes another's religion that tends to lead to hurt feelings. As an atheist, I have certainly learned this lesson many times over. While this can be frustrating, it is certainly an understandable reaction.

-- JohnAlbanese - 17 Apr 2010

Hi John- I guess that my overstatement of "freedom of religion" comes from the way that I've been used to hearing about religious issues come up in the way we commonly talk about them. Maybe that speaks to the way the Constitution has been interpreted over the years, and the special place religion has in first amendment social and political discourse. Even if nothing mentions what constitutes religion in the Constitution itself, I think it's fair to say that some beliefs seem to be accorded a certain sanctity that others are not. That's my impression, at least. In any case, I of course understand why reactions to criticism of religion are extremely heated, passionate, and emotional, and hope I didn't suggest otherwise.

-- JessicaHallett - 13 May 2010

My Con Law class didn't spend much (any?) time on religion (and obviously no one in this class was in the First Amendment elective-- too bad, or we could get them to weigh in!), but John's right that the constitution doesn't protect religious BELIEF, merely the right to practice (free exercise). I see where your overall impression comes from though. I've been thinking about law and religion lately in the Supreme Court nomination context (given the fact that people still seem to care about the justices' religions). I wonder how many people in political life are closet atheists?

-- CourtneySmith - 17 May 2010

This piece of news reminds me of the discussion. Unlike other beliefs, religions occupy a special place in the legal system. I don’t believe the Belgium police’s power to investigate the scandals should be curbed by canon law as the Pontiff said, but there is no denying that Western legal systems were heavily influenced by religions. Even today, regardless of whether textually speaking religions are entitled to more protection than other beliefs under the First Amendment or not, practically religions are treated differently from other beliefs. It is Thomas von Aquin that is discussed in jurisprudence classes, not aliens or ghosts.

I think there are two questions worth asking: firstly, since the laws today are no longer sacred in any sense, why does religion still occupy a special place? In this regard, I tend to agree with Jessica: it is promulgated by institutions composed of a lot of people. Just like what we see in the Belgium incident, when a person that is purported to be the spiritual leader of more than 1 billion people criticizes you, you have to beware. What’s more, this institution has clouts in many aspects, politically, economically, etc. Once in a while, there would be people challenging the authority of the institution. Napoleon held the Pope prisoner for five years, and Mazzini drove the Pope out of Rome. However, no one actually succeeded and the Pope is still considered a world leader today. This authority leads to the general assumption that religions should be treated differently. The Pope’s response to the Belgium raid seems to be a natural reaction under this assumption.

As to the second question, namely the soundness of it, I don’t have an answer here. In some cases, a special treatment may be necessary considering the passion and irrationality incited by religions. This may be a good example. However, in the sexual abuse cases, I don’t know how the Pope can be justified in saying that “such serious issues should be attended to by both civil and canon law.” What is so special about a cleric harassing little boys? In my opinion, the special treatment given to religions based on the nature of affairs involved might be acceptable, but a general immunity simply because of the status is not. If such a general immunity is granted, it will become another type of sovereign immunity. For sovereign immunity, we can still expect the judicial system of another country to take action. I really don’t have much confidence in the Church’s internal investigation or punishment.

-- WenweiLai - 29 Jun 2010

I think the answer may lay in defining what a religion actually is and what that means. First, what compromises a religion? Can one person's beliefs be a religion? Can the beliefs be illogical, unrealistic, or unproven? There is no defined boundary of religious definition, but at some point religions gain general recognition (with a substantial following).

When a religion gets to this point, there are so many members that 1) the head of that "church" inherently wields power, both economic and political, and 2) there are enough members of the church that denouncing one member's beliefs is to denounce potentially millions of peoples' beliefs, no matter how absurd (and increases the likelihood that I will personally know a member).

Facing the prospect of being openly judgmental, it's easier for me to be respectful yet skeptical and not make known my opinions of these people's beliefs.

As for the power, well, L. Ron Hubbard put it best: "You don't get rich writing science fiction. If you want to get rich, you start a religion."

-- MikeAbend - 30 Jun 2010

The Establishment Clause was included in the Bill of Rights to protect citizens from the creation of a national religion like the Church of England. There was a huge fear of religious persecution at the hands of the state...think of the Puritans, etc.

The matter was complicated, though, in that six US states had state-sponsored religions when the US was founded. The establishment clause was eventually (and mercifully) extended to the states a number of decades later, ending state churches.

Corollary to the Establishment Clause, the Free Exercise Clause created a positive right to "practice" "religion." What these words mean, in terms of limits placed on what kinds of beliefs and actions can be privileged, I really have no idea.

Also, the Free Exercise Clause gets really tricky when you don't believe, a priori, in the truth of any religion. Why should one class of illogical and potentially harmful beliefs be preferenced over other classes of similarly illogical beliefs (ie that it is best for children to work in factories rather than go to school)?

I was raised by my parents to be very religious (I'm an atheist now, for whatever that's worth). In middle school, I wrote a paper advocating Christianity as the only true religion, which paper the other students had to read and edit as part of an assignment. My teacher confiscated the paper, finding it inappropriate for public school, and gave me an F. In retrospect, the content probably was out of place, since the state would be forcing religious propoganda on other kids. Perhaps the paper should have been permitted as an exercise of free speech, but, in this instance, it seems like freedom of speech conflicted with separation of church and state. From a legal standpoint, I'm not quite sure what to make of the whole thing.

The counter-factual, illogical, and anti-historical nature of religious beliefs means that they will naturally conflict with one another. Given the large membership of many religions in the US, and the fercor of many fundamentalist groups, attempts by one group (probably Protestant Christians) to dominate other groups would seem to be inevitable. Freedom of religion addresses this rather nicely.

On the other hand, I'm not sure how useful it would be to have an expanded, generalized freedom of belief, for the simple reason that, as things stand, I don't think it's possible to make a law controlling what anyone believes. There are no thought police, and you can only be liable if you open your mouth and someone listens. It does seem odd, though, that faith healers and the like do not go to jail for fraud when their followers are injured by false promises of divine intervention. Even the act of collecting tithes for a purpose that doesn't exist - the "glory of god," or whatever - seems to be something the law should prevent. I wonder whether any such cases have succeeded.

-- SamWells - 06 Jul 2010

I think the extra sensitivity afforded to religious beliefs has to do both with the way religious groups are seen and treated from the outside, as well as how religious people view their own religious beliefs.

Externally, religious groups are often discriminated against in a way that ghost-believers, for example, are not. Similarly to other categorizations (e.g. race, sexual orientation), the degree of sensitivity demanded often correlates to the degree of discrimination a given group has experienced.

Internally, religious people often consider their religion to be at the core of their identity in a way that ghost-believers do not. There often is also a sense of immutability to one's religion, and perhaps criticizing someone's inherent characteristics isn't fair game. Some religions believe this explicitly. Orthodox Judaism, for example, believes that once you're Jewish there is nothing you can ever do to change that, even if you claim to forsake Judaism or convert to another religion. It's supposedly an immutable part of your soul.

These two factors play off each other. Because believing in ghosts isn't at the core of someone's identity, they don't wear it on their sleeve and don't form large and influential social groups based around believing in ghosts. That means that external groups probably won't feel threatened by or suspicious of ghost-believers, and there probably won't be discrimination against them.

Of course, simply referring to someone as a "ghost-believer" suggests that they're not involved enough with that belief to warrant referring to it as a religious belief. There are no doubt some religions that believe in ghosts.

-- DanKarmel - 31 Jul 2010



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