Towards a Constitutional Definition of Religion: Challenges and Prospects

Dr. Alex Deagon is a Senior Lecturer and Faculty of Law at the Queensland University of Technology.

 


Definitions of “religion” are of central importance to creating the constitutional space for freedom of religion, for it is “religion” which receives protections in constitutional law and international law, and the definition of “religion” in “freedom of religion” will determine the scope of that freedom. However, attempts to define religion have proved to be controversial and contested.  There are many competing definitions by scholars and judges but no consensus has emerged. Some courts even refuse to define religion (see, for example, the
2013 Overview of the European Court of Human Rights’ Case-law of Freedom of Religion, para 11).

There are at least four challenges to defining religion. 

First, a definition may be too narrow, focusing on theistic “Western” religions at the expense of non-traditional Indigenous religions or non-theistic “Eastern” religions such as Buddhism. 

Second, a definition may be too broad by including conscience or any deeply held belief (for example, pacifism or socialism), such that the term “religion” becomes meaningless by capturing everything.

Third, definitions might be inconsistent or equivocal, changing with the legal circumstances in a way that is incongruent with the underlying purpose of legal protection for freedom of religion (for example having different definitions of religion for free exercise purposes versus establishment purposes, which has the effect of discriminating between religions). 

Finally, judges lack the expertise to accept or reject particular definitions of religion, and sometimes appear to construct definitions unduly influenced by their own culture or religion. For example, in Brazil, the courts have defined religion as requiring a foundational book or deity, based on the Brazilian cultural affinity for traditional Catholic/Protestant beliefs.[1]

One prospect is to contrast religion with the “secular” or “secular humanism” and identify the differences to construct a “negative” definition (that is, to define what is religious by defining what religion is not). But in addition to the US Supreme Court classifying secular humanism itself as a religion, I have argued extensively in From Violence to Peace (Hart, 2017) that the secular is also a type of religion. In particular, the concept of the “secular” has its origins in Christian theology, has a kind of faith in a transcendent entity (reason), has particular views regarding the fundamental questions of origins, purpose and destiny, and has views about how to live ethically in an individual or communal context given one’s answers to these questions. Of course, such views about the secular life are not uniform across the spectrum of “secular,” just as they are not uniform across the spectrum of “religion” or even within particular religions. These distinct streams or “denominations” of secularism could be seen as more or less religious or even analogous to different streams of religious belief.

From this perspective the difference between the secular and religion is structurally equivalent to, say, the difference between Christianity and Islam, or Judaism and Buddhism, or Sikhism and Scientology. They are different religions which come within the overall category of “religion.” In The Myth of Religious Violence (OUP, 2009) Cavanaugh also argues that even the categories of “religious” and “secular” themselves have been constructed  according to specific configurations of political power. Any definitional difference between religion and the secular is consequently contingent rather than principled. If that is the case, this potentially makes the definition of religion impossibly broad. If the quintessential non-religion, secularism, is also a religion, what can possibly be categorized as non-religion?

In my chapter for Freedom of Religion or Belief: Creating the Constitutional Space for Fundamental Freedoms, I propose the following definition: Religion is a set of systematic beliefs in relation to a transcendent being, thing, or principle. An essential aspect of a religion is exercise or practice based on those beliefs. Exercising a religion involves engaging in formal or informal conduct to give effect to/manifest those beliefs, privately or publicly and in private or public interactions, and in community with others. Although the religion may be exercised privately, there should be some kind of community which internally regulates the set of beliefs and the related conduct.

The definition has been constructed carefully. 

First, religion involves a “set” of “systematic” beliefs. The beliefs are not ad hoc, random, or incoherent. Each discrete belief is part of a set, a coherent system which reinforces itself. The “truth” or “goodness” of the beliefs are not relevant in deciding whether the belief is religious. 

Second, the beliefs are in relation to a “transcendent” being, thing, or principle. Here “transcendent” takes the meaning of somehow beyond the “natural,” to the “supernatural,” something beyond perception by the five natural senses. This addresses religion as considering fundamental issues which are beyond purely physical and scientific analysis—morality, purpose, life, and death. 

Third, the beliefs are in relation to a transcendent “being, thing or principle.” This incorporates a broad view of religion as extending beyond theism to some kind of transcendent entity, and it also allows for the inclusion of secularism as a religion if it meets the other criteria. 

Fourth, the beliefs are “in relation to” a transcendent being, thing or principle, rather than “in” a transcendent entity. This phrase was deliberately chosen to broaden the definition and incorporate secularism, which has systematic beliefs about or “in relation to” the supernatural but not “in” the supernatural.

In terms of exercise or practice in a public or private context, it is emphasized as an “essential” aspect to a religion. Religion is not merely internal or private, beginning and ending “at the church door.” It is often fundamental to a person’s identity and integrated into every aspect of their lives. For example, manifestation can be formal (regular attendance at a place of worship or connection) or informal (ad hoc meditation), private (personal prayer) or public (affecting social and business interactions—such as only selling, buying, or eating meat, which is halal), individual or in community. Finally, religion is not purely individual or at worst solipsistic—the beliefs and practice require at least some informal (if not formal) regulation by the religious community.

This is a principled, informed definition which is clearly broad enough for free exercise purposes, including non-theistic religions, traditional, and Indigenous religions, as well as systemized, communal versions of the secular. It intrinsically connects belief with practice. It also potentially allows for the formation of new, previously unrecognized religions as they consolidate over time. 

However, for establishment purposes, it does impose some limits—for example, not every conceivable worldview is a religion. If that were true every government with a policy platform would be establishing a religion. Individually constructed, solipsistic beliefs are not religious. Beliefs which focus purely on immanent factors are not religious. Beliefs which carry no associated conduct to give effect to them are not religious. In this way, religion is distinguished from any ordinary or deeply held belief of conscience, but such beliefs may be religious if they meet the criteria.

The definition also draws from Article 18 of the International Covenant on Civil and Political Rights and that proposed by the High Court of Australia in the Scientology case, with some modifications. Secularism is included as a religion, and it is not required that a religious group believe that they are a “religion” for the group to be deemed as “religious” under the definition. In that sense, it is an objective rather than subjective test and a type of substantive-content approach.

No doubt this proposed definition is open to challenge, and it is hoped that scholars will re-engage with this vital issue which penetrates to the heart of what it means to create constitutional space for freedom of religion.

[1] Kozicki and Pugliese, ‘Religious Liberty in Brazil’ in Religious Liberty and the Law (ed Angus Menuge 2018, Routledge: 213)

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