Jeremy Patrick is a Lecturer for the University of Southern Queensland School of Law and Justice.[1]
The archetypal religious freedom claimant is a deeply serious, long-standing member of a religious organization who is faced with an agonizing decision: to follow the dictates of God or the laws of man. When judges and legal scholars think of religious freedom, they may think of such iconic issues as Jehovah’s Witnesses refusing blood transfusions despite the risk of death[2], the Amish gaining an exemption for their children from compulsory school attendance, or Jewish prison inmates demanding kosher meals[3]. With the sanctity of conscience given great weight, courts in major western liberal democracies have developed expectations that those claiming protection in this context must be sincere in their beliefs, that those beliefs must be recognizably religious, and that, nonetheless, important government objectives may still trump.
These judicial expectations, in turn, are then reflected in the types of questions claimants are asked and the types of evidence they are expected to provide. Of course, if the idealized religious claimant has certain identifiable characteristics, it is also easy to imagine the opposite: litigants that will never succeed on a freedom of religion claim because their beliefs in the relevant context have no religious connection whatsoever. The ardent desire of an environmentalist to protect a rare species and the passionate arguments by a gun rights advocate to own firearms may involve different sides of the political spectrum, but they share the feature that they’re not rooted in religious belief. The courts have always made it clear that freedom of religious exercise is guaranteed, not a general freedom to take actions that may be motivated by purely secular philosophies, political views, and so forth. To go down this path would lead to anarchy, according to the U.S. Supreme Court, because “the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”
Between traditional religious beliefs and clearly secular ones, however, there are those that are much harder to label because they seem to contain elements of both. This may seem the trite observation that in any process of legal classification, there will be difficult cases. However, there is strong evidence to believe that the difficult cases are going to become more and more common because the nature of religion and religious belief itself is changing in the West. Although institutional religion continues on, there has been a dramatic increase in the past 20 years in those who describe themselves as “spiritual but not religious.” (SBNR) [4]
The common trait among so-called SBNRs[5] is that they take an individualistic approach to religion: picking and choosing particular beliefs from a wide variety of religious traditions and then adding in, on an a la carte basis, notions from what may be derided by many as folklore, pseudoscience, the New Age smorgasbord, pop culture, or personal intuition[6]. Legal scholar Rebecca French calls this “grocery cart religion[7]” and summarizes it well:
A grocery cart religious practice has only the rituals and ethical boundaries that the practitioner explicitly agrees to take on. Instead of following a revealed canon, the individual fits the interesting parts of different religions together into a structured personal spiritual practice.[8]
Thus, SBNRs lack many of the criteria associated with traditional religious freedom claimants. They may not belong to an organization, follow an authority figure, or have easily-accessible or easily-articulated beliefs. They may change their beliefs frequently, apply them in practice intermittently, or even describe those beliefs as constituting something other than religion. Christopher Partridge calls this trend one of the most significant developments in Western religion over the past 50 years, noting that:
There is in the West . . . a move away from traditional forms of belief, which have developed within religious institutions, towards forms of belief that focus on the self, on nature or simply on “life” . . . There is a move away from a “religion” that focuses on things that are considered to be external to the self (God, the Bible, the church) to “spirituality”—that which focuses on “the self” and is personal and interior.[9]
The rise of this “new spirituality” presents challenges for the traditional application of religious freedom principles in liberal democracies.[10] In A la carte Spirituality and the Future of Freedom of Religion[11], I explore the three-step process that courts in the United States, Canada, and Australia use to examine religious freedom claims in general: whether the belief is sincere, whether the belief can be considered “religious,” and whether a government interest, nonetheless, outweighs the exercise of the right. For example, when the Supreme Court of Canada upheld the right of a Sikh school student to bring a kirpan (ceremonial dagger) to school, they first determined that the student and his family had a deeply-seated belief in the importance of doing so, that this belief was rooted in their religious faith, and that the government’s interest in ensuring a safe education for children could be accommodated without preventing the practice altogether.
After applying that framework of analysis to SBNRs, I conclude that although their beliefs are easily dismissed as “dilettantism” or “half-baked,” judges tasked with adjudicating their claims should approach those beliefs with as much compassion, respect, and deference as is given to more traditional forms of religion. If our understanding of religious freedom remains static while religion itself continues to evolve, one of the fundamental rights of liberal constitutionalism may gradually become hollow for future generations of believers.
[1]Brett Scharffs (eds), Freedom of Religion or Belief: Creating the Constitutional Space for Fundamental Freedoms (Elgar, 2020) 58-91
[2] See, e.g., M.L. Moore, ‘Their Life is in the Blood: Jehovah’s Witnesses, Blood Transfusions, and the Courts’ 10 (1983) 10 Northern Kentucky Law Review 281.
[3] See, e.g., Abraham Abramovsky, ‘First Amendment Rights of Jewish Prisoners: Kosher Food, Skullcaps, and Beards’ (1994) 21 American Journal of Criminal Law 241.
[4] Linda A. Mercadante, Belief Without Borders: Inside the Minds of the Spiritual but not Religious (Oxford University Press, 2014).
[5] Ibid.
[6] See generally Mercadante, above, and Rebecca French, ‘Shopping for Religion: The Change in Everyday Religious Practice and Its Importance to the Law’ (2003) 51 Buffalo Law Review 127.
[7] French, above, at 165.
[8] Ibid. 166. I refer to this phenomenon as the “new spirituality”, although, of course, religious syncretism has a long history prior to, and sometimes concurrent with, the rise of institutional religion.
[9] “Introduction” in Christopher Partridge, ed., Encyclopedia of New Religions 17 (Lion Publishing, 2004).
[10] The challenges involve, but extend far beyond, the familiar debate about how “religion” should be legally defined.
[11] This topic is taken up in greater depth in my new book. See Jeremy Patrick, Faith of Fraud? Fortune-telling, Spirituality, and the Law (University of British Columbia Press, 2020).