Does It Matter What Religion Is?

By Eisgruber, Christopher L.; Sager, Lawrence G. | Notre Dame Law Review, January 2009 | Go to article overview

Does It Matter What Religion Is?

Eisgruber, Christopher L., Sager, Lawrence G., Notre Dame Law Review


One memorable conceit of the Monty Python comedy troupe was the problematic weapon developed by the English military during World War II. The weapon was a joke so funny that upon hearing it the auditor died laughing. Unfortunately, the weapon suffered from a fatal defect: no one could learn the joke in order to deliver it without suffering the fate intended for the enemy. You can imagine how the sketch unfolds. (1) A dedicated soldier walks into a shed with sheaf of paper ... uncontrolled laughter is heard ... then a gasp and a crash. And so on, through many zany iterations.

On some accounts, religious liberty may be self-destructive in much the same way as the undeliverable joke. The problem goes roughly like this: in order to protect religious liberty we have to define what religion is, and once we are in the business of saying that some beliefs, commitments, and projects are entitled to special treatment as "religious" while others are not, we are creating a sphere of orthodoxy of exactly the sort that any plausible understanding of religious liberty should deplore.

In earlier work, we have illustrated this problem with the story of the two Ms. Campbells who live across the street from each other in a suburban community. (2) Both want to run soup kitchens for the poor, and both suffer from a zoning regulation prohibiting that activity. (3) One Ms. Campbell understands the teaching of her faith to demand good works of this sort, and believes herself to be under personal command from her god to run her soup kitchen. (4) The other Ms. Campbell, if asked, would say that religion has nothing to do with her enterprise; she cannot stand the suffering of innocent persons, and takes widespread, poverty-driven hunger to be something that any responsible person would seek to ameliorate. (5) Giving the first Ms. Campbell a privilege to disregard the ordinance on the grounds that she is religiously motivated, while denying that privilege to the second Ms. Campbell, seems patently unjust. Indeed, it seems to be an affront to religious liberty itself. Hence the possibility that religious liberty will of necessity come unstrung in the same paradoxical way as the Monty Python joke weapon.

Can religious liberty be spared this fate of self-destruction? To put the question more narrowly, can an attractive regime of religious liberty be built which does not insist on decisions about whether one or another of our Ms. Campbells is appropriately religious to be its beneficiary? If not, then the Constitution's commitment to religious freedom would require the government to choose among controversial conceptions of religion for the very purpose of identifying which beliefs enjoyed constitutional protection. It would matter very much, in other words, that courts be able to say exactly what religion is.

We have no doubt that it does matter, for many purposes and in many ways, what religion is. It matters, for example, that there is a domain of human activity and experience which we call religion, that we are broadly capable of distinguishing that domain from other realms of activity and experience, and that we can call out the cultural and personal characteristics that are common to much activity and experience that we recognize as religious. The distinction between religion and nonreligion is a significant ethical guidepost in many people's lives. Sociological studies of civil society almost certainly need to take account of religion and its impact. And it is hard to imagine how historical, philosophical, or legal conversations about religious freedom could proceed without a common, general understanding of what religion is and what role it has played and continues to play in a given time and place.

But for these purposes--however profound and important they may be--close and controversial definitions of what counts as religion at the margins are not likely to be crucial. …

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