Introduction

For over two hundred years, scholars and lawyers nationwide have debated, interpreted, and applied the United States Constitution. Few provisions of the Constitution have attracted as much attention as the First Amendment. Indeed, the everyday person understands this one provision of the Bill of Rights as potentially the most integral and most sacred in the founding document.¹See, e.g., 2023 Update, Freedom Forum, https://perma.cc/BH6G-MR7K (indicating that ninety-three percent of polled Americans consider the First Amendment to be “vital”). Because of its far-reaching implications, it is no surprise that Supreme Court decisions interpreting the First Amendment receive intense attention and ultimately end up in textbooks as illustrative opinions.²See, e.g., Arthur D. Hellman, William D. Araiza, Thomas E. Baker & Ashutosh A. Bhagwat, First Amendment passim (5th ed. 2022).

Of the protections afforded by the First Amendment, interpretations of the Religion Clauses are frequently the most intense. The Establishment and Free Exercise Clauses—which state, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”—have led to two lines of cases, each embracing multiple schools of jurisprudence.³U.S. Const. amend. I; see, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2426–29 (2022) (discussing Establishment Clause jurisprudence); Sherbert v. Verner, 374 U.S. 398, 403, 406 (1963) (discussing the Free Exercise Clause jurisprudence). Yet both establishment and free exercise jurisprudence have generally avoided one crucial question: what is this “religion” that is afforded protections and of which the government is prohibited from establishing?

It is easy to see why the Court has evaded the question. In a society that considers politics and religion to be topics unfit for table conversation, surely a conversation built off both topics would attract the ire of many: both jurists and laypersons. Academically speaking, the task is daunting, and an error interpreting the word too broadly or narrowly could leave many religious persons—particularly members of minority religions—unprotected or likewise prevent the government from regulating most activities.

This Article attempts to answer this question of “religion” unlike previous scholars by looking at the philosophical and etymological roots of the word’s use. First, Part I gives a history of U.S. case law, hinting at a method of distinguishing religion from non-religion.⁴See infra Section I.A. This Part then discusses approaches offered by numerous scholars over the past century who recognized and attempted to resolve the problem.⁵See infra Section I.B.

Part II—the main portion—of this Article traces the etymological and philosophical origins of the word “religion” before and through the Founding Era.⁶See infra Section II. This Part culminates in a definition of religion that reflects the Founding Era’s understanding of the word:

Religion, for the purposes of the First Amendment, includes (A) all assertions of truth of and concerning the supernatural, (B) all assertions of truth flowing forth from supernatural beliefs, and (C) actions taken pursuant to such beliefs.⁷This definition should be viewed without prejudice to possible categorical exceptions. See infra note 256.

Finally, in Part III, this Article explains the practical strengths of this textualist definition, comparing it to other proffered definitions and applying it to difficult cases.

I.      A Missing Definition

The Supreme Court has never squarely addressed the question of religion’s meaning within the context of the First Amendment. On several occasions, the Court has considered the meaning of religion, but usually in passing dicta while reasoning to a final conclusion.⁸See infra Section I.A. As a result, the Court’s jurisprudence does not provide a clear and defined answer as to what constitutes religion. This Part provides an overview of relevant Supreme Court case law hinting at the definition of religion within the First Amendment, Supreme Court case law defining religion within statutory contexts (e.g., the Selective Service Act), and circuit and state court decisions tackling the religion question. It then provides an overview of scholarly commentary that attempts to define religion.

A.      Case Law

Because the Supreme Court’s opining on the definition of religion is so rare, this section examines the few cases that have addressed the issue in constitutional and statutory construction cases. With less discretion to avoid the question, lower courts provide additional examples of the judiciary grappling with the definition of religion. Many of the discussed cases primarily addressed establishment or free exercise questions. Given that this Article focuses on the definition of religion, this Section only attempts to glean answers as to what religion is and not when religion is established or its free exercise is infringed upon.

1.      First Amendment Jurisprudence

For the first century following the adoption of the Bill of Rights, the Supreme Court rarely had to apply the Religion Clauses, largely because (1) the First Amendment only applied to federal actions before the ratification of the Fourteenth Amendment, and (2) few federal laws implicated religious concerns.⁹See Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833). As such, the first cases to discuss religion were brought against the federal government. In these cases, the discussion on what constituted religion was brief and presumed that everyone understood the term’s meaning.¹⁰See, e.g., Watson v. Jones, 80 U.S. (13 Wall.) 679, 728–29 (1871). Nevertheless, they shed some light on the understanding at the time.

For example, in Watson v. Jones,¹¹80 U.S. (13 Wall.) 679 (1871). the Court—dealing with a property rights issue between a church and its congregation—observed, “In this country the full and free right to entertain any religious belief, to practice any religious principle and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all.”¹²Id. at 728. While this statement is dicta, the case helps illustrate a contemporary understanding of what religion is. This dictum reflects a distinction between religion and morality and between religion and other discrete categories of activity encompassed within religion (i.e., belief, practices, and teachings).¹³See infra Part III for further discussion.

It wasn’t until western expansion that the Supreme Court truly tackled the issue of defining religion. In Reynolds v. United States,¹⁴98 U.S. 145 (1878). the Court addressed a claim on error from the Utah territory challenging the prosecution of bigamy as violating the First Amendment’s free exercise Clause.¹⁵Id. at 161–62. The defendant argued that, because it was a duty of male members of the Mormon religion to practice polygamy, the First Amendment compels the territorial judgment to instruct the jury to enter a verdict of not guilty. Id. The Court correctly observed that religion was not defined in the Constitution and, as a result, could only determine the meaning by looking at the history of the text and how it was understood by the Founding generation.¹⁶Id. at 162. Quoting James Madison’s Memorial and Remonstrance Against Religious Assessments¹⁷James Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in 2 The Writings of James Madison 183 (Gaillard Hunt ed., 1901). and Thomas Jefferson’s Letter to Danbury Baptist,¹⁸Letter from Thomas Jefferson, President, U.S., to Nehemiah Dodge et al., Comm. of the Danbury Baptist Ass’n in the State of Conn. (Jan. 1, 1802), reprinted in 36 The Papers of Thomas Jefferson 258 (Barbara B. Oberg ed., 2009). See infra Section II.A for a discussion on Jefferson’s writings pertaining to religion. the Court stated that religion is “the duty we owe the Creator” and is a “matter which lies solely between man and his God.”¹⁹Reynolds, 98 U.S. at 163–64. The Court also distinguished between the absolute protection of religious belief and the qualified protection of religious actions, ultimately deciding that the First Amendment afforded the defendant no defense to a criminal prosecution of the act of bigamy.²⁰Id. at 166–67. The court distinguished between beliefs and “practices,” id., but “action” will ultimately be more descriptive in defining the contours of “religion” in Part III, infra.

Addressing a similar issue on appeal from the Idaho territory, the Court echoed the same definition proffered by Reynolds in Davis v. Beason,²¹133 U.S. 333 (1890). stating religion is a “reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.”²²Id. at 342. In Davis, the court addressed whether requiring potential voters to make an oath that they were not a member of an organization espousing polygamy violated the Free Exercise Clause, and subsequently, whether a law punishing illegal voter registration could be enforced against the defendant, a member of the Mormon faith. Id. at 341. Like Reynolds, the Davis Court asserted that, while a nation’s laws may never interfere with religious belief, laws oriented towards the “peace, good order and morals of society” may nevertheless be enforced.²³Id. at 342 (“With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with.”). The Davis Court further stated that bigamy fundamentally violates some “common sense of mankind,” which justified its outright prohibition.²⁴Id. at 341–42 (“Bigamy and polygamy are crimes by the laws of all civilized and Christian countries . . . . They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man. Few crimes are more pernicious to the best interests of society and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind.”).

The Court did not discuss the essence of religion within the First Amendment again until 1944 in United States v. Ballard.²⁵322 U.S. 78 (1944). Here, two leaders of a religious sect called the “I Am” movement were indicted for mail fraud.²⁶Id. at 79. The defendants claimed they had a supernatural ability to heal people of ailments and solicited payment for such. Id. at 80. The Court ruled that, while evaluating the sincerity of a religious belief is permissible, the Court of Appeals for the Ninth Circuit erred when it held a jury could evaluate the truth of the “I Am” movement’s religious tenets.²⁷Id. at 86–87. Particularly, the Court observed that “[h]eresy trials are foreign to our Constitution” and “[m]en may believe what they cannot prove,” implying that a core element of religion must deal with the truth or falsity of some substantively different type of claim than most fact issues.²⁸See id. at 86–87 (“If one could be sent to jail because a jury . . . found [Christian] teachings false, little indeed would be left of religious freedom.”).

Following the incorporation of the First Amendment against the states, the Court opened the door to more free exercise and establishment challenges.²⁹See generally Everson v. Bd. of Educ., 330 U.S. 1 (1947) (incorporating the Establishment Clause against the states by subjecting the public reimbursement for travel costs to-and-from private Catholic schools to constitutional scrutiny); Cantwell v. Connecticut, 310 U.S. 296 (1940) (incorporating Free Exercise clause protections against the States). One of the first cases was Fowler v. Rhode Island.³⁰345 U.S. 67 (1953). This rather short opinion dealt with a Jehovah’s Witness preacher who gave a religious speech in a local park, allegedly violating a city ordinance.³¹Id. at 67–68. The ordinance in question permitted religious services and sermons but not “political or religious meeting[s].”³²Id. at 67, 69. Ultimately, the Court asserted that Reynolds and Davis were exceptions to a broader rule that “it is no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amendment,” implying that the answer to “what is religion” is entirely subjective.³³See id. at 70.

Among all the cases in the mid-twentieth century, Torcaso v. Watkins³⁴367 U.S. 488 (1961). contributed the most to the “what is religion” debate. The simple decision, which held as unconstitutional a religious oath requirement³⁵The oath required a professed belief in God. Id. at 489. for public officeholders, famously stated: “Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism, and others.”³⁶Id. at 495 n.11. This statement by the Court continues to fuel many religion clause debates, namely whether secularism is a religion and whether the court can prefer religion over irreligion. See infra Section I.A.3 and Part III. This Article will address the prior question. The latter question is largely one that belongs to the interpretation of what “establishment” means and is beyond this Article’s scope. For the purposes of this Article, the footnote’s observation—if correct in interpretation—provides the vital insight that belief in a god is not necessary for a belief to qualify as religious under the First Amendment.

The Court delineated a few more parameters in the cases of Wisconsin v. Yoder³⁷406 U.S. 205 (1972). and Thomas v. Review Board.³⁸450 U.S. 707 (1981). Going against the grain of many prior selective-service, religious-exemption cases,³⁹See infra Section I.A.2. the Yoder Court asserted that there must be a distinction between a religious and secular-philosophical belief.⁴⁰Yoder, 406 U.S. at 215–16 (“A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief . . . . [I]f the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis.”. The distinction between a mere philosophic and a religious belief serves as one of the more important inquiries for lower courts today when determining if a belief is religious.⁴¹See, e.g., Founding Church of Scientology v. United States, 409 F.2d 1146, 1151 (D.C. Cir. 1969); Malnak v. Yogi, 592 F.2d 197, 204 (3d Cir. 1979). The Court echoed this distinction again in Thomas when it determined that a religious objector who struggled to articulate his objections to working at a foundry producing tanks was entitled to unemployment compensation.⁴²Thomas, 450 U.S. at 720. In its conclusion, the Court cited Yoder and stated,

[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection. . . .

                  . . . .

                  . . . [I]t is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.⁴³Id. at 714–16.

Between Yoder and Thomas, there appears to be an understanding that the secular—where philosophy resides—is something wholly separate from the religious.

2.      Selective Service Cases

The Supreme Court has addressed the question of religion in only a few statutory contexts, namely when interpreting Selective Service exemptions. In 1931, however, the Court interpreted a naturalization provision in United States v. Macintosh.⁴⁴283 U.S. 605, 608 (1931), overruled by Girouard v. United States, 328 U.S. 61, 69 (1946). While not directly interpreting the First Amendment, the Court grappled with provisions in the Nationality Act requiring an oath to “bear arms” for the United States before naturalization, particularly whether religious considerations were integrated into the law.⁴⁵Macintosh, 283 U.S. at 619–20. The issue was whether a man could satisfy the oath requirement with a qualified oath to bear arms only in a morally justified war, rather than the usual unconditional oath. Id. In his dissent, Chief Justice Charles Evan Hughes observed the statute only required a promise to “support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.”⁴⁶Id. at 630 (Hughes, C.J., dissenting). His view, which a majority of the Court vindicated fifteen years later, was that the text incorporated a historically understood principle that oaths do not require a “promise to put allegiance to temporal power above what is sincerely believed to be one’s duty of obedience to God” or one’s “religious or conscientious scruples.”⁴⁷Id.; Girouard, 328 U.S. at 63–67 (citing Chief Justice Hughes’ dissent in overturning Macintosh). Chief Justice Hughes’ observation of a dichotomy between temporal power and duty to God echoes the similar dichotomy between the secular and the religious in Yoder.

The Court’s jurisprudence on applying the Universal Military Training and Service Act’s religious objector exemption is frequently cited when lower courts seek to determine if a set of beliefs is religious.⁴⁸See 50 U.S.C. § 456(j). While these cases do not directly address the meaning of religion within the First Amendment, the Court expressly determined what objections were religious in nature and, consequentially, what constituted religion for purposes of the Selective Service Act.⁴⁹See, e.g., United States v. Seeger, 380 U.S. 163, 176 (1965); United States v. Welsh, 398 U.S. 333, 339–340 (1970). While not a controlling interpretation of the First Amendment, it is understandable why these cases are used in many academic attempts to define religion.

Before the Supreme Court addressed the issue, several courts of appeals interpreted the religious exemption. The first to do so, the Court of Appeals for the Second Circuit, loosely discussed the issue in United States v. Kauten.⁵⁰133 F.2d 703 (2d. Cir. 1943). While the court did not define “religion,” it drew upon a perceived distinction between the politico-philosophical and the religious reasons to object, characterizing the defendant’s beliefs as non-religious.⁵¹Id. at 708 (“[C]ongress intended to satisfy the consciences of the very limited class we have described and not to give exemption to the great number of persons who might object to a particular war on philosophical or political grounds.”). Defendant was an agnostic who opposed the war because of a strong philosophical principle. Id. at 707 n.2. However, the court of appeals also seemed to connect a “compelling voice of conscience” and “religious impulse.”⁵²Id. at 708. The Court of Appeals for the Ninth Circuit addressed similar questions three years later.⁵³Berman v. United States, 156 F.2d 377 (9th Cir. 1946). For nearly the same reasons articulated in Kauten,, the court likewise found a conscientious objector not entitled to relief.⁵⁴Id. at 380–81 (“[N]o matter how pure and admirable his [philosophical views] may be, and no matter how devotedly he adheres to it, his philosophy and morals and social policy without the concept of deity cannot be said to be religion in the sense of that term as it is used in the statute.”).

The Supreme Court weighed in shortly thereafter in United States v. Seeger.⁵⁵380 U.S. 163, 176 (1965). Seeger dealt with three conscientious objectors who did not belong to an orthodox religious sect but stated that their beliefs in a “cosmic order” or a “supreme reality” manifest in nature constituted religion. Id. at 164–65, 185–88. The Court defined religion as “[a] sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption.”⁵⁶Id. at 176. The Court relied primarily on the text of the statute using “Supreme Being” instead of “God,” opining that this choice of words meant that Congress did not want to demarcate “the form or nature of this higher authority.”⁵⁷Id. at 175. This interpretation stood as a contrast to prior views of religion that focused on the substance of belief and not the subjective role of the belief in the believer’s life.⁵⁸Compare Seeger, 380 U.S. at 175–76, with Reynolds v. United States, 98 U.S. 145, 161–67 (1879).

Five years later, the Court went further in Welsh v. United States.⁵⁹398 U.S. 333 (1970). Seeming to embrace an almost completely subjective view of religion, the Court stated a belief must “stem from the registrant’s moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions” to be religious.⁶⁰Id. at 340. The Court went on to state that beliefs that are “purely ethical or moral” in nature and “impose . . . a duty” upon a person’s conscience are religious under § 456(j).⁶¹Id. This contrasts widely with the later decision of the Yoder Court that determined purely ethical and philosophical beliefs were distinguished from religious beliefs.⁶²Wisconsin v. Yoder, 406 U.S. 205, 215–16 (1972). Despite the inconsistencies, a wide variety of lower courts at the state and federal level pull from both the Seeger-Welsh and Yoder definitions, which has led to starkly different rulings.

3.      Lower Court Rulings

This Section briefly surveys various decisions by lower federal and state courts interpreting religion within various contexts. Nearly all the opinions pull from Supreme Court case law on the subject, regardless of the legal context. If anything, this Section illustrates the confusion around what constitutes “religion,” the difficulty in framing the issue, and the spectrum of broad to narrow definitions offered by jurists. By no means is this Section exhaustive.

Early state cases before Seeger and Welsh relied heavily on Reynolds and Davis to interpret the word “religion.” Massachusetts, dealing with a case almost identical to West Virginia State Board of Education v. Barnette⁶³319 U.S. 624 (1943).—that is, a student who refused to say the pledge of allegiance in class on religious grounds—concluded the law did not violate Massachusetts’ religious protections because the requirement was not religious in nature.⁶⁴Nicholls v. Lynn, 7 N.E.2d 577, 580 (Mass. 1937). It should be noted that this decision was rendered prior to the incorporation of the Religion Clauses in Everson v. Board of Education, 330 U.S. 1 (1947), and Cantwell v. Connecticut, 310 U.S. 296 (1940). The case is offered here not for its now-erroneous conclusion on what constitutes an infringement on free exercise but rather for its valuable observation that the law and action regulated were not religious in nature. The relevant Massachusetts provision states: “[N]o subject shall be hurt, molested, or restrained, in his person, liberty, or estate for worshipping God in the manner and season most agreeable to the dictates of his own conscience . . . .” Mass. Const. art. II. The Massachusetts Supreme Judicial Court analogized the case to Reynolds, seeing the secular purpose of honoring the flag as comparable to the secular purpose of regulating marriage and comparing the refusal to say the pledge to the refusal to observe marriage laws.⁶⁵Nicholls, 7 N.E.2d. at 580 (“The pledge of allegiance to the flag, as set forth in the rule of the school committee and referred to in said chapter 258, is an acknowledgment of sovereignty, a promise of obedience, a recognition of authority above the will of the individual, to be respected and obeyed. It has nothing to do with religion. . . . It does not in any reasonable sense hurt, molest, or restrain a human being in respect to ‘worshipping God’ within the meaning of words in the [Massachusetts] Constitution.”). Any error in this decision stems from the court’s misunderstanding of what constitutes “prohibiting free exercise of religion,” and less so of what constitutes something “religious” itself. Alternatively, they failed to afford weight to the tenets of the plaintiff’s religion. California similarly refused to issue a writ of mandamus forcing a school to readmit a student expelled for the same reasons.⁶⁶Gabrielli v. Knickerbocker, 82 P.2d 391, 394 (Cal. 1938). This judgment can also be considered erroneous. See supra text accompanying note 64. According to these courts, the laws requiring the pledge of allegiance in schools were not religious, and their secular purpose outweighed any religious objection.⁶⁷See Nicholls, 7 N.E.2d at 580; Gabrielli, 82 P.2d at 394.

Some religions, like Scientology, have perplexed courts for decades because judges are forced to determine just which activities are religious and which are not. For example, in 1969, the Court of Appeals for the D.C. Circuit dealt with a challenge to condemnation of the Church of Scientology’s property by the Food and Drug Administration (“FDA”).⁶⁸Founding Church of Scientology v. United States, 409 F.2d 1146, 1151 (D.C. Cir. 1969). The FDA argued that the Church of Scientology falsely labeled and distributed “Hubbard Electrometers,”⁶⁹See What Is the E-Meter and How Does It Work?, Church of Scientology Int’l, https://perma.cc/UZF3-ANJU. which allegedly had health benefits.⁷⁰Founding Church of Scientology, 409 F.2d at 1151–52. The court concluded that the belief in the efficacy of the Hubbard machines was religious, relying heavily on Ballard, because the government did not contest Scientology’s status as a religion or the belief in the machines as a doctrine of the church.⁷¹Id. at 1158–62. The Supreme Court of Missouri reached an opposite conclusion in determining whether the Missouri Constitution’s automatic ad valorem tax exemption for religious groups applies to Scientologists.⁷²Mo. Church of Scientology v. State Tax Comm’n, 560 S.W.2d 837, 842–44 (Mo. 1977). Repudiating the application of Seeger, the court found the church’s activities were not religious because they had little to do with a belief in a “Supreme Being.”⁷³Id. at 840–42. Not surprisingly, the definition of religion comes up in the context of state and federal tax exemptions, often, but not always, tied up with state and federal constitutional provisions.⁷⁴See, e.g., Sunday Sch. Bd. of S. Baptist Convention v. McCue, 293 P.2d 234, 235 (Kan. 1956).

The educational arena is another context in which courts must decide what constitutes religion. One of the more cited lower court opinions comes from a religious challenge to a school’s activities and a concurrence by Judge Arlin Adams.⁷⁵Malnak v. Yogi, 592 F.2d 197, 200–15 (3d Cir. 1979) (Adams, J., concurring) (per curiam). The concurrence’s approach was later applied by a U.S. Court of Appeals for the Third Circuit majority and approvingly cited by other courts. See, e.g., Africa v. Pennsylvania, 662 F.2d 1025, 1032–36 (3d Cir. 1981) (applying Malnak); United States v. Meyers, 95 F.3d 1475, 1482 n.2, 1489 (10th Cir. 1996) (affirming the district court’s use of a multifactor-based approach including the Malnak factors and finding the belief that the use of marijuana is good for mankind and the earth to not be religious); Alvarado v. City of San Jose, 94 F.3d 1223, 1228 (9th Cir. 1996) (applying Malnak factors and finding that a “Plumed Serpent” statue installed by the city to commemorate Spanish and Mexican culture was not religious). In Malnak v. Yogi,⁷⁶592 F.2d 197 (3d Cir. 1979) (per curiam). the Court of Appeals for the Third Circuit had to address whether or not the teaching of the “Science of Creative Intelligence Transcendental Meditation” (“SCI/TM”) in a high school violated the Establishment Clause.⁷⁷Id. at 197–98. SCI/TM taught that “pure creative intelligence” is the basis of life; that through the process of Transcendental Meditation students could perceive the full potential of their lives; and required the students to attend a puja ceremony where they gave an offering to a deified guru to discover their own personal “mantra.” Id. at 198. While the majority held this violated the First Amendment, they did not articulate why SCI/TM was a “religion.”⁷⁸See id. at 197–200. The court offered only this by way of analysis: “Careful examination of the textbook, the expert testimony elicited, and the uncontested facts concerning the puja [ceremony] convince us that religious activity was involved . . . .” Id. Judge Adams single-handedly tackled the issue. In his concurrence, he attempted to outline the parameters of religion.⁷⁹Id. at 201 (Adams, J., concurring). After recounting the Supreme Court’s jurisprudence (including Seeger), he outlined three indicia by which one could identify a religion: (1) the “ultimate” nature of the belief (i.e., religions deal with humanity’s “ultimate concern”); (2) the fitting of the belief within a larger comprehensive framework; and (3) formal, external, or surface signs that may be analogized to accepted religions (i.e., similarity to existing religions).⁸⁰Id. at 207–10. These factors (“Malnak factors”), he argued, are meant to be weighed flexibly, and all need not be present.⁸¹Id. at 209. While this test is not controlling, it possibly represents the first attempt to provide an authoritative “test” for religion.

In another educational context, Grove v. Mead School District No. 354,⁸²753 F.2d 1528 (9th Cir. 1985). the Court of Appeals for the Ninth Circuit dealt with a civil rights action challenging the use of a book in a literature course.⁸³Id. at 1531. The book in question was The Learning Tree by Gordon Parks. Plaintiffs—parents of students—accused the book of advancing the religion of “secular humanism” (something identified as a religion in Torcaso). Still, the court held that, while secular humanism may be a religion in some contexts, the autobiographical book was included for a secular purpose.⁸⁴Id. at 1534. Other courts have considered atheism and humanism as religions because of the questions they seek to answer.⁸⁵See, e.g., Kaufman v. McCaughtry, 422 F. Supp. 2d 1016, 1020–22 (W.D. Wis. 2006); Smith v. Bd. of Sch. Comm’rs, 655 F. Supp. 939, 979 (S.D. Ala. 1987), rev’d, 827 F.2d 684 (11th Cir. 1987).

The most robust discussions of the definition of religion occur when courts face obscure or new beliefs seeking religious protection. Rarely, outside of an educational context, are novel “religions” accused of being promoted by the government in violation of the Establishment Clause.⁸⁶But see United States v. Allen, 760 F.2d 447, 449–50 (2d Cir. 1985) (holding prosecution of anti-nuclear protesters who destroyed U.S. property not a violation of the First Amendment because the government had a secular purpose in protecting its property and was not trying to advance a religion of “nuclearism”). For example, in International Society for Krishna Consciousness, Inc. v. Barber,⁸⁷650 F.2d 430 (2d Cir. 1981). the Court of Appeals for the Second Circuit evaluated at length whether Krishna Consciousness was a religion.⁸⁸Id. at 438–40 (2d Cir. 1981). The court relied heavily on the Seeger-Welsh approach and cited scholarly sources, determining that because the belief system was of “ultimate concern” to the adherents, it was a religion.⁸⁹Id. at 440. The court also cited dicta from Kauten: “A concern is more than intellectual when a believer would categorically ‘disregard elementary self-interest . . . in preference to transgressing its tenets.’” Id. (citing United States v. Kauten, 133 F.2d 703, 708 (2d Cir. 1943)).

Relying on this precedent, the District Court for the Eastern District of Virginia determined that Wicca was a religion in Dettmer v. Landon.⁹⁰617 F. Supp. 592, 595–96 (E.D. Va. 1985) (“[C]ourts must accept a belief as ‘religious’ so long as it is sincere, it occupies a meaningful position in the individual’s life, and it relates to that individual’s ‘ultimate concern.’ . . . With the above principles in mind, the Court thinks that the Church of Wicca is clearly a religion for First Amendment purposes.”). Likewise in another oft-cited case, Africa v. Pennsylvania,⁹¹662 F.2d 1025 (3d Cir. 1981). the Court of Appeals for the Third Circuit determined whether an organization called “MOVE” was a religion.⁹²Africa v. Pennsylvania, 662 F.2d 1025, 1025 (3d Cir. 1981). The plaintiff in the case sought religious accommodations during his confinement, namely a diet of entirely raw foods. Id. Applying the Malnak factors, the court held MOVE was not a religion deserving of protections, primarily due to its failure to answer “fundamental” or “ultimate” questions or assert that its tenets were necessary for humankind.⁹³Id. at 1032–33.

Overall, the approaches of lower courts have varied and are often inconsistent. None of the federal circuits (including the Court of Appeals for the Third Circuit in Malnak) offer a truly comprehensive test to distinguish between the religious and non-religious. As a result, citations to Yoder, Seeger, and Welsh followed by loose analogizing to previous circuit cases are the preferred method of resolving these cases.

B.      Scholarly Speculation

This Article is not the first to observe the absence of a firm definition or test for what qualifies as religion. Several scholars have attempted to outline the contours of religion—proposing standards that run the gambit from highly inclusive to extremely narrow and approaching the issue from numerous different perspectives utilizing various methodologies.⁹⁴See infra Section I.B.1–3. This Section is a non-exhaustive, brief discussion of those definitions. Many of the first scholars to write on this issue did not offer a constitutional definition but instead opted to merely describe the Supreme Court’s treatment of religion.⁹⁵See, e.g., Anita Bowser, Delimiting Religion in the Constitution: A Classification Problem, 11 Val. U. L. Rev. 163, 225–226 (1977) (distilling and restating the definition of religion from Seeger and Welsh and defining religion as that which is “related by doctrinal, ethical, or ritualistic consideration to the Ultimate Concern . . . in the life of an individual or group, the belief or faith to which all else is subordinate and which occupies in the life of its possessor a place parallel to that filled by the orthodox belief in God, giving fundamental meaning to life and dictating standards of belief, conduct or worship”); John H. Mansfield, Conscientious Objection—1964 Term, 3 Religion & Pub. Ord. 3, 4–5 (1965) (explaining the Court’s reasoning in Seeger and criticizing attempted distinctions between religious objection and non-religious objection). Other legal scholars chose to look at the issue through the lenses of other disciplines, and many works today continue in this vein.⁹⁶See, e.g., James M. Donovan, God is as God Does: Law, Anthropology, and the Definition of “Religion,” 6 Seton Hall Const. L.J. 23, 70–98 (1995) (discussing a purely anthropological and sociolinguistic approach to understanding religion). Some scholars have even gone so far to apply obscure branches of nominalism to the Religion Clauses and argue that no definition of religion is even possible. See, e.g., Victoria S. Harrison, The Pragmatics of Defining Religion in a Multi-cultural World, 59 Int’l J. for Phil. Religion, 133, 136–37 (2006) (arguing that there are no “essential” properties of religion); George C. Freeman III., The Misguided Search for the Constitutional Definition of “Religion”, 71 Geo. L. J. 1519, 1520 (1983) (arguing that attempts to define religion are misguided). Before the mid-twentieth century, however, few chose to construct a definition or test out of the text of the First Amendment or from case law.⁹⁷In other words, few scholars tried to identify defining elements of religion. Below is a brief discussion of the three main approaches to defining religion.

1.      Functional “Purposive” Approaches

One of the first comprehensive scholarly works attempting to ascribe meaning to religion—a Harvard Law Review note published in 1977—constructed a “bifurcated” definition from the limited case law.⁹⁸Toward a Constitutional Definition of Religion, 91 Harv. L. Rev. 1056, 1083 (1978) [hereinafter Student Note]. Taking a mostly “purposive” approach,⁹⁹See Abigail R. Moncrieff, Statutory Realism: The Jurisprudential Ambivalence of Interpretive Theory, 72 Rutgers U. L. Rev. 39 (2019), and John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113 (2011), for a discussion on the interpretive theory. the author argued that the “dramatic changes in American life” such as the growth in religious pluralism, the changing view of religion in contemporary society, and the secularization of the culture necessitate two separate definitions of religion within the context of the First Amendment.¹⁰⁰Student Note, supra note 98, at 1083–84. The author argues that two separate definitions are necessary to properly effectuate the “values underlying the religion clauses.” Id. at 1085. For the Free Exercise Clause, the author argued for an expansive “functional” approach that would best effectuate the purpose of the First Amendment (i.e. protection of the “inviolability of conscience”).¹⁰¹Id. at 1072. The note based its assertion that the purpose of the Free Exercise Clause was to protect the “freedom of conscience” on three observations: (1) the recognition of the importance of freedom of conscience itself by some Supreme Court Justices, (2) the emotional well-being that flows from freedom of belief, and (3) that religious freedom promotes pluralism of thought. Id. at 1058 (respectively citing Walz v. Tax Comm’n, 397 U.S. 664, 719–20 (1970) (Douglas, J., dissenting); J. Morris Clark, Guidelines for the Free Exercise Clause, 83 Harv. L. Rev. 327, 342 (1969); and Walz, 397 U.S. at 689 (Brennan J., concurring)). This “functional” approach to a definition differed from “content-oriented” methods in that a “functional” approach looks to the phenomenological role of an alleged religion in the individual’s life while a “content-oriented” definition looks to a distinguishing characteristic within religion itself.¹⁰²Id. at 1075. In other words, what distinguishes religion from non-religion is more so the function of the thing in an individual’s mind than any quality of the belief or action. The author found this better than a content-oriented definition, which would run the risk of omitting newer or religions unfamiliar to the Founders.¹⁰³Id. at 1072–73.

Using this purposive approach, the author advocated for the “ultimate concern” test discussed by the Seeger court and put forth by theologian Paul Tillich.¹⁰⁴Id. at 1066–83. Under this definition, religion in a free exercise context would refer to the “underlying concern which gives meaning to a person’s whole life” (i.e., “the motivational aspect of human experience” that is “unconditional, absolute, or unqualified”).¹⁰⁵Id. at 1066–67. The author emphasized a preferred definition that is subjective and relates solely to the individual’s perception, observing that solely nominal adherents of a religion would receive no religious protections normally afforded to their faith if they didn’t truly hold those tenets as their ultimate concern. See id. at n.129. With regards to the Establishment Clause, the author articulated different purposes to effectuate: protecting religious freedom of choice, avoiding political strife that results from intertwining religion and politics, and immunizing the church and state from each other.¹⁰⁶Student Note, supra note 98, at 1058. In an effort to achieve these goals, the note supports an “operational” test for religion requiring the court to approximate the power possessed by followers of a practice and the extent to which that practice is recognized as religious.¹⁰⁷Id. at 1086. The author articulated three factors to consider when a court engages in the approximation: (1) structural elements of the organization; (2) theological components of the belief including sacred texts, ethics, creeds, etc.; and (3) attitudinal conformity. Id. at 1087. The greater something is approximated as a religion, the more likely the government action supporting it violates the Establishment Clause. Other scholars have offered similar approaches, almost always rooted in Seeger.¹⁰⁸See, e.g., Donovan, supra note 96, at 95 (defining religion as a belief system that “serves the psychological function of alleviating death anxiety”); Ben Clements, Defining “Religion” in the First Amendment: A Functional Approach, 74 Cornell L. Rev. 532, 552–53 (1989) (defining religion as a comprehensive belief system that answers “fundamental and ultimate questions having to do with deep and imponderable matters”). These definitions mainly vary on just what function religion serves in the life of the individual.¹⁰⁹See supra note 108. Minor disagreements as to what role religion plays in an individual’s life is not enough to discount that all of these approaches still look to the subjective perception of the person and not to any quality of the belief.

2.      Content-Based “Essential” Approaches

Countering this purposive or functional approach, several scholars tried to articulate objective criteria for identifying religion. In his 1992 law review article, Anand Agneshwar criticized the Seeger approach and advocated for defining religion as “a system of beliefs, based on supernatural assumptions, that posits the existence of apparent evil, suffering, or ignorance in the world and announces a means of salvation or redemption from those conditions.”¹¹⁰Anand Agneshwar, Rediscovering God in the Constitution, 67 N.Y.U. L. Rev. 295, 319 (1992). Breaking his definition into elements, religious beliefs would have to (1) be a part of a system of belief, (2) be supernatural in origin, (3) contain some belief in an evil,¹¹¹Perhaps some ethical belief. and (4) contain some belief in a means of deliverance or redemption.¹¹²See id. Agneshwar argues his definition includes most major world religions and is much easier to apply than Seeger. ¹¹³See id. at 320–26.

Similarly, Jeffrey Oldham also rejects the idea of using bifurcated definitions and argues that a single “content-based” definition is more consistent with the text of the First Amendment than “functional” or “analogical” approaches.¹¹⁴Jeffrey L. Oldham, Constitutional “Religion” A Survey of First Amendment Definitions of Religion, 6 Tex. F. on C.L. & C.R. 117, 168–70 (2001). He proposes a definition of religion as “(1) a faith-based system of beliefs and actions, (2) that makes reference to a supernatural reality, (3) [the supernatural reality of which] dictates the believers’ perception of good and evil, and (4) answers the question arising from the existence of such forces.”¹¹⁵Id. at 170 (numbers added). Oldham asserts that “[t]he core foundation of religion is based upon faith rather than reason, and faith involves something unexplainable and greater than man.”¹¹⁶Id. at 169–170. Oldham further argues that religion must be defined narrowly to adequately reflect what the Framers of the First Amendment intended in their use of the word.

Likewise, Andrew Austin outlined criteria he found essential to religion.¹¹⁷Andrew W. Austin, Faith and the Constitutional Definition of Religion, 22 Cumb. L. Rev. 1, 6–9 (1991). He argued that whatever religion may be, its definition must serve the purpose of the Religion Clauses, include all groups universally accepted as religious, provide objective criteria, and fairly and truly distinguish between the religious and non-religious.¹¹⁸Id. at 6–7. While Austin gave his definition solely for Free Exercise Clause purposes,¹¹⁹Id. at 10–11. he concludes the essential component of religion is founded upon faith (i.e., not based on logical reasoning).¹²⁰Id. at 36.

Very much like Austin, Jesse Choper favors a definition of religion that partially relies on faith, specifically a belief that one’s actions or inactions have extratemporal consequences.¹²¹Jesse H. Choper, Defining “Religion” in the First Amendment, 1982 U. Ill. L. Rev. 579, 597–601 (1982). Choper observed that the Constitution’s First Amendment free speech doctrines protect most expressions of religious belief, and the Fifth and Fourteenth Amendments’ Equal Protection and Due Process Clauses bar most discrimination on the basis of religion.¹²²Id. at 581–83. Notably, the Religion Clauses’ meaning cannot be based on the Fourteenth Amendment’s function as it came much later. The remaining function of the Free Exercise Clause, he argues, is to extend further protections to “religious” conduct¹²³Id. at 583–85. and religious belief or speech that might fall within an exception to the free speech doctrines.¹²⁴Id. at 584–86. Namely, barring courts from deciding disputes on the truth or falsity of “religious” claims. Id.; see also Jones v. Wolf, 443 U.S. 595, 608 (1979); United States v. Ballard, 322 U.S. 78, 86–88 (1944). His extratemporal test is designed towards this conduct-gap and relies solely upon a singular element—extratemporal consequences—to distinguish religious conduct from non-religious.¹²⁵Choper, supra note 121, at 597–601.

Observing all of these objective approaches, Professor Lee J. Strang advocates for a narrow definition of “religion.”¹²⁶Lee J. Strang, The Meaning of “Religion” in the First Amendment, 40 Duq. L. Rev. 181, 183, 204–10 (2002). Professor Strang argues that the objectified meaning contained in the First Amendment requires a detailed inquiry into how the framers viewed religion.¹²⁷Id. at 210–11. Looking at the first states’ approaches to religious liberty as well as the writings of the Founding Fathers, Professor Strang concluded that the “intellectual foundation provided by [John] Locke” carried a particular view of religion.¹²⁸Id. at 211–19. This view, he asserts, is that the originalist definition of religion is “a monotheistic belief system . . . that holds true to a future set of rewards and punishments and thus imposes duties on believers in this world.”¹²⁹Id. at 238. This definition can be broken down into 3 distinct elements: (1) belief in a deity, (2) duties in this life, and (3) future state of rewards and punishments. Professor Strang later supported this definition with Corpus linguistics.¹³⁰Lee J. Strang, The Original Meaning of “religion” in the First Amendment: A Test Case of Originalism’s Utilization of Corpus Linguistics, 2017 B.Y.U. L. Rev. 1683 (2017). Corpus linguistics is an empirical method used to identify patterns of language and is often used to help identify how words were used within a certain time period. Professor Strang utilized the Corpus of Founding Era American English (“COFEA”) and the Pennsylvania Gazette in his study. Id. at 1693. Ultimately, he found that there was a high frequency of words implying a theistic meaning found around the word religion. Id. at 1697–1703.

3.      Analogical Approaches

Finally, a large swath of scholars uses a multi-factor balancing analysis to determine what is religious. This approach was partly championed by Judge Adams in his Malnak concurrence.¹³¹Malnak v. Yogi, 592 F.2d 197, 207–10 (3d Cir. 1979) (Adams, J., concurring) (approach is found in the third prong of his proposed test). Kent Greenawalt, a professor of jurisprudence and prominent advocate of this approach, argues that multi-factor analogizing to a recognized religion is the most practical and prudent.¹³²Kent Greenawalt, Religion as a Concept in Constitutional Law, 72 Calif. L. Rev. 753, 767–68 (1984). While he differs on the precise factors Judge Adams articulates, Professor Greenawalt asserts the most useful test for religion must analogize an alleged-religion-in-question to those religions that are “indisputably religious.”¹³³Id. at 767. Greenawalt does nothing more to describe the “indisputably religious” beyond stating that it is an instance where virtually everyone would say, “This is certainly religion.” He lists Roman Catholicism, Greek Orthodoxy, Lutheranism, Methodism, and Orthodox Judaism as examples. Id. In conducting this comparison, the reviewing judge should take into account a wide array of non-exclusive factors to determine if the alleged religion is similar enough to the “indisputably religious.”¹³⁴See id. at 767–68. Greenawalt’s non-exclusive factors are (1) belief in God, (2) comprehensive view of the world and human purposes, (3) a belief in some form of the afterlife, (4) communication with God through ritual acts of worship and through corporate and individual prayer, (5) practices involving repentance and the forgiveness of sins, (6) religious feelings of awe, guilt, or adoration, (7) use of sacred texts, (8) organization to facilitate the corporate aspects of religious practice and to promote and perpetuate beliefs and practices. Id.

Observing that the understanding of religion has colloquially changed over time, other scholars propose comparable approaches, arguing that First Amendment jurisprudence should reflect that shift.¹³⁵See, e.g., Eduardo Peñalver, The Concept of Religion, 107 Yale L.J. 791, 813–14 (1997) (contrasting the largely “western, Protestant” notion of religion from other culturally distinct understandings). Supplementing an analogical approach with certain guidelines—such as not denying religious status solely on the lack of a concept of god (so as to root out the United States’ historical Western biases in understanding the “indisputably religious”)—is just one of many adjustments one could make to an analogical analysis.¹³⁶Id. at 818–19. Peñalver further argues for two more “negative guidelines”: (1) not denying religious status solely because of particular structural/institutional features of the belief system and (2) not denying religious status solely because of the failure to focus on or distinguish the sacred, spiritual, supernatural, or other-worldly. Id. Notably, most proposed analogical tests also embrace a purely purposive approach.¹³⁷Discussed further below. See infra Part III.

From all these definitions, one can distill three general approaches to defining religion: functional (purposive) approaches; content-based (essential) approaches; and analogical (balancing) approaches.¹³⁸These categories act as a fair way of distinguishing the scholarly approaches thus far; Jeffrey Oldham first articulated them well in his work. Oldham, supra note 114, at 149. Andrew Austin alternatively articulates two categories, as he considers the analogous approach to be more of a subset of the functional. Austin, supra note 117, at 7. This Article will ultimately argue that an essential definition is the best approach when interpreting the Religion Clauses.

II.      Working Towards a Definition

With all these proffered definitions, it is difficult to know where to begin searching for a definition of religion within the First Amendment. Before outlining guidelines for formulating a definition, it is wise to look first at the usage of the word by the Constitution’s drafters. While there are many competing theories of constitutional interpretation, none of them eschew the text of the Constitution itself, nor do they degrade the value of looking at historical meaning.¹³⁹Even a living constitutionalist would argue that the text and historical context is the starting point for interpretation. Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube (Nov. 25, 2015), https://perma.cc/UZ22-7MMQ. This Article adheres to the view commonly called textualism (and “original-public-meaning originalism”) and, while this Article discusses that interpretive method, arguing for it is beyond the Article’s scope.¹⁴⁰For sources arguing the merits of textualism over alternative approaches, see Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts (2012). But see Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. Pa. L. Rev. 117, 169–71 (2009) (noting drawbacks to “axiomatic” formalism in textualist methodology). Ultimately, the philosophical and etymological distinctions made by the Founding Era, natural law philosophers, and early jurists support a definition of religion distinguishing it from numerous other concepts—like conscience, morality, or temporal affairs—encompassing both belief and act, and extending to numerous named faith backgrounds.

A.      Religion in the Founding Era

What the First Amendment means by “religion” depends on the Founding generation’s understanding and use of the word.¹⁴¹See Scalia & Garner, supra note 140 at 78–92 (fixed-meaning canon) (“Words must be given the meaning they had when the text was adopted.”). This approach differs notably from looking to the original intent of the many authors of the First Amendment, instead probing the common use or meaning at the time.¹⁴²Id. While arguably one should look to the intent of the lawgiver to interpret his meaning when he promulgates law, in a world where the legislators of a particular statute are many, this “public meaning” approach allows a singular objective meaning (in most cases) to be discerned as at any given time there is arguably one collective-subjective proper meaning of a term (at least contextually). Accordingly, the contemporary 1789 usage of the word “religion” reflects the meaning of the word in the First Amendment.

By analyzing the writings and views of the Founding Fathers and the Lockean thought they relied on, one can draw four conclusions about the definition of religion. First, religion had a real and palpable objective meaning when the First Amendment was ratified and was not rooted on the subjective interpretations of individuals. Second, religion was not synonymous with morality or conscience. Third, the meaning was rooted in some relationship with God or the divine and thus was a content-based definition under Oldham’s framework. Fourth, religion was not limited to Judeo-Christian doctrine but rather applied to a broader phenomenon or category of belief.

At the time the First Amendment was drafted, there seemed to be little to no debate on how to define religion by Congress. In fact, the Senate, upon receiving a draft of the language of the First Amendment from the House, cared more about the nuances of the text, particularly with regards to conscience rights than they did the word “religion.”¹⁴³See S. Journal, 1st Cong., 1st Sess., at 117 (1789) (striking “nor shall the rights of conscience be infringed” from the draft of the first amendment). It stands to reason that with a lack of debate on the issue among people from across the newly formed United States, religion had a widely accepted meaning. Indeed, many of the Founders wrote on the proper role of religion within the politico-social sphere, all with similar observations. James Madison, for example, protested a bill to provide tax-funded Christian education in his Memorial and Remonstrance, arguing that religion is fundamentally not subject to the government.¹⁴⁴Madison, supra note 17, at 184. Citing Virginia’s Declaration of Rights, he stated that “[r]eligion, or the duty which we owe to our Creator, and the manner of discharging it” was the product of conviction or reason and not coercion.¹⁴⁵Id. (emphasis added). See also Va. Const. art. I. §16 (The Virginia Declaration of Rights). This language was heavily relied on by the Court in Reynolds. See supra Section I.A.1. Interestingly, Madison questioned, “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?” and made numerous references to the “Christian Religion.”¹⁴⁶Madison, supra note 17, at 186 (emphasis added). From just the Senate journals and Madison’s writings, it would appear that religion is something broader than Christianity yet narrower than conscience rights. But did this hold true with others in the Founding generation?

Thomas Jefferson, in his Notes on Religion, spoke of John Locke’s view of religion and concluded that “neither Pagan nor Mahomedan nor Jew ought to be excluded from the civil rights of the Commonwealth because of his religion.”¹⁴⁷Thomas Jefferson, Notes on Religion (1776), reprinted in 2 The Works of Thomas Jefferson 252, 267 (Paul Leicester Ford ed., 1904). In his Autobiography, he wrote in support of a Religious Freedom Bill considered by the Virginia legislature. Following the legislature’s rejection of an amendment that would have placed Jesus Christ in front of “the holy author of our religion,” Jefferson stated, “The insertion was rejected by a great majority, in proof that they meant to comprehend within the mantle of protection the Jew and the Gentile, the Christian and the Mahometan, the Hindoo and infidel of every denomination.”¹⁴⁸Thomas Jefferson, Autobiography (1821), reprinted in Autobiography Yale Law School, The Avalon Project: Documents in Law, History and Diplomacy (2008), https://perma.cc/S5Q4-LJZC.

George Washington, in his Thanksgiving Proclamation of 1789, tied religion heavily to “the great Lord, and Ruler of Nations” or “the beneficent Author of all the good that was, that is, or that will be,” supporting the viewpoint that religion necessitates a Supreme Being.¹⁴⁹George Washington, Thanksgiving Proclamation, 3 October 1789, reprinted in 4 The Papers of George Washington 131–32 (W.W. Abbot & Dorothy Twohig eds., 1993). He qualified religion as “true” at one point¹⁵⁰Id. (beseeching God to “promote the knowledge and practice of true religion and virtue”). and appears to notice a distinction between civil and religious liberty.¹⁵¹Id. (assigning October 3, 1789, to be a day for rendering thanks for “the civil and religious liberty with which we are blessed”). His personal writings share the same affect: “The bosom of America is open to receive . . . the oppressed & persecuted of all Nations & Religions.”¹⁵²Letter from George Washington to Joshua Holmes (Dec. 2, 1783), Founders Online, Nat’l Archives, https://perma.cc/AAE3-SL4G.

Even Thomas Paine, in the 1792 Rights of Man, refers to the “Founder of the Christian Religion,” adding that qualifier to religion to distinguish Christianity from religion itself.¹⁵³Thomas Paine, Rights of Man 70 (Penguin Classics 1985) (1791) (emphasis added). Paine interestingly argues that man’s natural right to freedom of religion is an intellectual right, relating to the right of man to “judge in his own cause.”¹⁵⁴Id. at 68. In other words, the internal ability to judge what is right and wrong, or to use one’s conscience, is something inherent in man’s existence. While Paine ties conscience and morality closely to religion, he never uses them synonymously, and throughout his work, he refers to religion in a more spiritual sense as man’s duty or devotion to God.¹⁵⁵See generally Paine, supra note 153. Yet, Paine also shared in the idea that religion was for all mankind and draws only a distinction between good and evil persons:

It is also to be observed that all the religions known in the world are founded, so far as they relate to man, on the unity of man, as being all of one degree. Whether in heaven or in hell, or in whatever state man may be supposed to exist hereafter, the good and the bad are the only distinctions.¹⁵⁶Id. at 67.

In other words, he claims that every religion, while asserting to be true, necessarily asserts it is true with regards to all mankind (i.e., that the “religious” was some sort of objective claim about reality). Meanwhile, the only true distinction religion draws between persons is an ethical one (i.e., persons who have lived good lives or evil ones). In this early view, it would seem that morality is not religion but can “pour forth” from it.

Many of the first state constitutions and legislative acts included provisions that shed the same light on the meaning of religion. As mentioned above, the Virginia Declaration of Rights refers to religion as “the duty we owe to our Creator, and the manner of discharging it” but also guarantees “the free exercise of religion, according to the dictates of conscience.”¹⁵⁷Va. Const. art. I, § 16. In doing so, it both references a supreme being and indicates a separateness between conscience and religion. So too, the Massachusetts Constitution provides for the public instruction of “piety, religion, and morality” pointing towards a general recognition of each as something distinct.¹⁵⁸Mass. Const. of 1780, pt. 1, art. III, para. 1 (“As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of God and of public instructions in piety, religion and morality: Therefore . . . the legislature shall, from time to time, authorize and require, the several towns . . . and other bodies politic, or religious societies, to make suitable provision . . . for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.”). Other states’ constitutions also seem to view religion as distinct from—and broader than—Christianity.¹⁵⁹See, e.g., Ga. Const. of 1777, art. IV (referring to the “Protestant Religion”); S.C. Const. of 1776, pmbl. (referring to the “Roman Catholic religion”); Md. Const. of 1776, art. XXXIII (referring to the “Christian Religion”).

In addition, the two articles by Professor Strang provide a thoroughly researched dive into the contemporary literature of the era. He references many statutes and debates around the Religion Clauses and “no religious tests” clauses of the Founding Era. ¹⁶⁰Strang, supra note 126, at 233–35. As suggested above, many of these debates stemmed from the difference between protecting “conscience” and “religion.”¹⁶¹Id.; See also infra Section II.D. Professor Strang also found the literature most frequently used religion in a theistic sense, not in a secular, moral sense.¹⁶²Strang, supra note 126, at 1698–99. In fact, according to Strang, contemporary literature suggested that religion and morality were most often used distinctly yet interrelatedly.¹⁶³Id. at 1699–700 (“This concordance line suggests that religion and morality were related by religion’s capacity to push people to act ethically.”).

When interpreting a legal provision, it makes sense to also consult legal sources of the era. On questions of British common law, Blackstone’s Commentaries on the Laws of England was one of the most frequently cited authoritative source of the Founding Era. A cursory review of Sir William Blackstone’s writing shows that even he qualified religion with further adjectives.¹⁶⁴1 William Blackstone, Commentaries *216–17, *236 (referring to the “popish” religion and the “protestant” religion). Blackstone recognized the contrast between the affairs of the religious and the affairs of the temporal world.¹⁶⁵See id. at *382 (“A dean and chapter are the council of the bishop, to assist him with their advice in affairs of religion, and also in the temporal concerns of his see.” (emphasis added)). He also contrasts between “nature and religion”¹⁶⁶See id. at *45; See also infra Section II.B. and apparently distinguishes between religion and morality.¹⁶⁷See 1 Blackstone, supra note 164, at *438.

On the philosophical side, it is no secret that the political philosopher John Locke shaped much of the Bill of Rights’ drafters’ and ratifiers’ worldview. Locke, who lived only a generation or two before the American Revolution, wrote on religion and religious liberty in his Letter Concerning Toleration.¹⁶⁸John Locke, Letter Concerning Toleration (Liberal Arts Press 2d ed. 1955) (1689). Keeping with the theme, the letter also qualified “religion” with words like “true” or “Christian,” further adding to the evidence suggesting that religion was something broader than the Judeo-Christian faith. See id. at 13–14. In the letter, Locke emphasized the distinction between the direct ends of civil government and the ends of religion, believing the civil government as having just an interest in the possession of life and the things necessary for such¹⁶⁹Id. at 17. and referring to religion as concerning the salvation of the soul or the relation to God.¹⁷⁰Id. at 17–26. Locke’s emphasis on the two ends of civil and religious authority and the importance of religious liberty influenced the drafters of the First Amendment. Within his distinction between the concerns of the civil and spiritual, Locke justified religious toleration on the grounds that true religion could only be exercised without coercion.¹⁷¹See, e.g., id. at 22.

This Article, however, is concerned not so much with Locke’s view on liberty, but rather what he viewed as religious and how that influenced the Founding generation. Locke’s letter describes the power of religion as initially stemming from “the inward and full persuasion of the mind” with regards to what is “well pleasing unto God.”¹⁷²Id. at 18. Following correct belief, religion could and should be exercised.¹⁷³See id. Stating this within the context of the civil and spiritual distinction, one would conclude that the “religious” is that which concerns not worldly affairs but godly. But then what exactly is godly? If the Judeo-Christian God is not the defining element of religion as a concept, then what is? To answer this question, one must turn to the ancestor of Lockean thought: natural law philosophy and its Aristotelian essentialism.

B.      Natural Philosophy’s Understanding of Religion

Understanding how the First Amendment’s drafters and contemporaries understood religion requires a basic understanding of their philosophical worldview. Tracing natural law thought up to Locke sheds light on the philosophical understanding of the word (however, it is not dispositive). To do so, a brief primer on the philosophy is beneficial. Present-day scholars describe natural law theory as a concept “able to identify conditions and principles of practical right-mindedness, of good and proper order among persons, and in individual conduct.”¹⁷⁴John Finnis, Natural Law and Natural Rights 18 (Paul Craig ed., 2d ed. 2011). Theorists typically start with basic observations about the “nature” of an object, taking into account its ontology (i.e., its essential “whatness”) and teleology (i.e., the manifest purpose or end of the object). Frequently, this is informed by insights from a deeper view of metaphysical reality.¹⁷⁵See id. at 35. Once the object is understood, an assertion about what is “good” for the object achieving its end can follow.¹⁷⁶See id. at 34–36.

For natural law theorists, the object of observation is the human person, and as such, their assertion about what is good ultimately is an ethical one. By applying the ontological and teleological observations about the human person—including the “set of basic practical principles” which every person considers for individual flourishing—the natural law theorist can reason to objective moral standards.¹⁷⁷Id. at 23.

John Locke was an adherent of this natural law philosophy (frequently referred to as the philosophia perennis) and believed in a “universally obligatory moral law promulgated by the human reason as it reflects on God and his rights, on man’s relation to God, and on the fundamental equality of all men as rational creatures.”¹⁷⁸5 Frederick Copleston, A History of Philosophy 129 (Image Books 1994) (1959). The thought was not novel and can be traced back through most of Western philosophy.¹⁷⁹See, e.g., infra notes 180, 189 and accompanying text. Locke’s focus, within the natural law theory, was on the importance of individual rights, as he approached natural law as a political theory rather than a metaphysical idea.¹⁸⁰Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy 80 (Thomas R. Hanley trans., 1998). As a successor of natural-law thought, Locke believed that truth can come from one of two sources: reason (of which he spent most of his writings) and revelation (divinely revealed truth to humankind).¹⁸¹See Copleston, supra note 178, 120–21 (“Locke insisted, therefore, that even though God can certainly reveal truths which transcend reason, in the sense that reason alone cannot establish them as true, it must be shown by reason that they are in fact revealed before we can be expected to accept them by faith.”).

While this Article does not trace the natural law philosophy through each century of Western philosophy, the core tenets and conclusions of natural law theory’s metaphysical view are instrumental to understanding the “morality and religion” distinction and the “temporal affairs and religious affairs” distinction. Two of Locke’s influential predecessors, Thomas Aquinas and Aristotle, articulate it well. Aquinas is often considered the preeminent natural law theorist if not the founder of natural law theory.¹⁸²See, e.g., Randy E. Barnett, Law Professor’s Guide to Natural Law and Natural Rights, 20 Harv. J.L. & Pub. Pol’y 655, 667 (1997) (referring to Thomas Aquinas as “the father of modern natural law analysis”); Rommen, supra note 180, at xxi–xxii (“Thomas’s treatment of natural law is by far the most influential and certainly the most quoted discussion of the subject in the history of philosophy . . . . Two centuries before the American Revolution, and nearly three centuries before the American Civil War, issues of political self-determination and slavery were debated in terms framed by Thomistic natural law theory.”). His view of the natural law was fundamentally ethical and metaphysical, meaning that natural law prescribed right and wrong and reflected an essential reality of human existence.¹⁸³See Thomas Aquinas, Summa Theologica, pt. I-II, q. 94 (Fathers of the English Dominican Province trans., Benzinger Brothers 1947). In the Summa Theologica, Aquinas, asserting that “good is that which all things seek after,” described the natural law as man’s rational participation in pursuing good and avoiding evil.¹⁸⁴Id. art. 2 (“I answer that” section). Among the goods that each human person pursues is 1) the preservation of one’s own life, because it is naturally good for something existing to continue existence, 2) procreation and child-rearing, because it is naturally good for animals to do so and the human person shares in that nature, 3) knowing truth, because that is the sign of a naturally good human mind, and 4) living in society, because humans are social creatures. Id. Because humankind shares the same human nature, first principles are apparent to and binding on each person. Id. at q. 94, art. 4 (“I answer that” section). For Aquinas, however, natural law comes from reason, not revelation and is proximately mandated by the natural, not the supernatural.¹⁸⁵See id. at q. 94, art 4 (“I answer that” section). Contrast natural law with divine law which Aquinas describes as proximate mandates from God himself. See id. at q. 91, art. 4 & 5. Aquinas talked more of this contrast between reason and revelation in his Summa Contra Gentiles.¹⁸⁶See Thomas Aquinas, Summa Contra Gentiles, bk. 1, ch. 3 (photo. reprt. 2014) (Anton C. Pegis trans., Univ. of Notre Dame Press 1975). He describes natural reason as the natural power to “comprehend a substance” through intellect, where revelation is the communicated truths to humankind from the divine.¹⁸⁷See id. Aquinas likens a man who rejects a philosopher’s teachings as false because he can’t understand them to the man who rejects divine revelation because it is beyond the investigation of natural reason. Id. In the Summa Contra Gentiles, he speaks of the necessity for revelation to supplement natural reason because (1) many truths about the supernatural could not be apprehended by natural reason and observation alone; (2) some persons are ill-fit to acquire knowledge on their own; (3) many could not possibly spend enough time to acquire deep knowledge with so many temporal obligations; and (4) the frequency of error in human reason.¹⁸⁸See id. at ch. 4–5. Thus, by Aquinas’s and later Locke’s time, the natural law philosophy recognized its limits to discover supernatural truth and accepted that natural law can and should be supplemented by revelation where it exists.

Aquinas’s explication of natural law philosophy’s view of morality was, itself, partly pulled from Aristotle’s writings. Aristotelian thought lies at the core of the Founding Era’s philosophy, particularly in its understanding of the “good” and of “nature.” In Nicomachaen Ethics, Aristotle describes “the good” as the end for “which all things aim,” and the end for which one does something, desired for its own sake.¹⁸⁹Aristotle, Nicomachaen Ethics bk. 1, ch. 1–2 (c. 335 B.C.E.), reprinted in 2 W. D. Ross & J. O. Urmson, Complete Works of Aristotle 1729–30 (Jonathan Barnes ed., Revised Oxford trans. 1995). He also states that to an extent, each good that one achieves is aimed at another higher or further good. For example, a man works at crafting for the good of owning a new tool; he uses the tool for laboring in a field, for the good of acquiring food; he uses food to feed himself and his family, for the good of being fed; and so on. Being a “good” human person was obtained by achieving the highest aim for an individual human, which to Aristotle was internal virtue.¹⁹⁰Id. at 1731–35. The good life necessitated “good action.”¹⁹¹Id. at 1737. This was later explained by Aquinas: “Good . . . is achieved only in the concurrence of all the factors pertaining to the perfection of the thing.”¹⁹²Thomas Aquinas, Commentary on Aristotle’s Nicomachean Ethics 48 (C.I. Litzinger trans., Dumb Ox Books 1993) (c. 1270 C.E.).

Aristotle’s view of the good was intimately related to and informed by his view of human nature, which identifies “nature” as synonymous to the “form” or “order” of a particular thing.¹⁹³Thomas Aquinas, Commentary on Aristotle’s Metaphysics 296–301(John P. Rowan trans., Dumb Ox Books 1995) (c. 1270 C.E.). In other words, nature is the defining element or fundamental organizational principle of an object. Aristotle directly defined nature as “the substance of things which have in themselves, as such, [the] source of [their] movement.” Aristotle, Metaphysics bk. 5, ch. 4 (c. 340 B.C.E.), reprinted in 2 W. D. Ross, Complete Works of Aristotle 1603 (Jonathan Barnes ed., Revised Oxford trans. 1995). Human nature consists of all things that fundamentally define human persons.¹⁹⁴See Aquinas, supra note 193. This is so strongly tied to “the good” in that “the perfection of [a] thing” cannot come about without a deep understanding of what that thing is.¹⁹⁵See Aquinas, supra note 192, at 48. Knowledge of the “nature” of a thing is necessary to understand what makes that thing “good.”¹⁹⁶See id. Consequently, natural law’s core view of morality—to “do good and avoid evil”—is the application of this standard to the human person, who must act in accordance with his or her nature as made known through natural reason.¹⁹⁷See Aquinas, supra note 183, q. 94 art. 4. It was in this moral worldview that the founding generation understood law to be binding.¹⁹⁸See, e.g., 1 Blackstone, supra note 163, at *38–62. Even with Locke’s newer social contract views imported into the natural law philosophy he recognized that where “any number of men are so united into one society . . . . he authorizes the society . . . to make laws for him, as the public good of the society shall require.” John Locke, Second Treatise of Government ch. 7, at 53 (Richard H. Cox ed., John Wiley & Sons 1983) (1690).

If Lockean natural law philosophy contemplates that morality requires conformance to truths about human nature as revealed through reason, it logically follows that divinely revealed truths could shed further light on what would ethically be required of a human person. Indeed, if a higher good (or a deeper knowledge of human nature) were to be revealed to humankind, then natural law theory would mandate conformance with such truth. Most natural law philosophers would hold morality and ethics to be the end of proper state order and law.¹⁹⁹See, e.g.,Rommen, supra note 180, at 227–33. But would natural law theorists justify forceful compliance with such “revealed” truth? A passing glance at the drafters, fearing European wars of religion, would suggest no.²⁰⁰See e.g., Jefferson, supra note 147, at 268; Everson v. Bd of Educ., 330 U.S. 1, 8–13 (1947). Indeed, the Court in Everson quotes the Virginia Bill for Religious Liberty: “Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either . . . . ” Id. at 12–13. Yet, philosophically speaking, why?

While much of Aquinas’s works utilized Aristotelian thought, he also cited and pulled from Neo-Platonists from the ancient Roman world who reflected on religion’s relationship with the state.²⁰¹Aquinas notoriously cites Neo-Platonists throughout his works, particularly with regards to the “divine.” See, e.g., 2 Frederick Copleston, A History of Philosophy 427 (Image Books 1985). Interestingly enough, Lactantius, advisor to Emperor Constantine and one of the many predecessors to Aquinas, spoke on the matter of religious liberty as early as the third and fourth centuries:

Religion ought to be defended, not by killing but by dying, not by fury but by patience, not by crime but by faith. The former action each time belongs to evil, the latter to good, and it is necessary that good be the practice of religion, not evil. If you wish, indeed, to defend religion by blood, if by torments, if by evil, then, it will not be defended, but it will be polluted and violated. There is nothing so voluntary as religion, and if the mind of the one sacrificing in a religious rite is turned aside, the act is now removed; there is no act of religion.²⁰²Lactantius, Divinarum Institutionum bk. V, ch. 14 (c. 303 C.E.), reprinted in 49 The Fathers of the Church 379–80 (Roy Joseph Deferrari ed., Sister Mary Francis McDonald trans., 1964) (title translated as The Divine Institutes). The similarity of this to Locke’s Letter Concerning Toleration are astounding.

Likewise, Ambrose of Milan, a leading bishop and early theologian, wrote a remonstrance reproaching Emperor Valentintian for asserting that the emperor could appoint laymen to determine matters of religion.²⁰³Ambrose, Epistola ad Valentianum, Letter 21 (Rev. H. Walford trans., James Parker & Co. 1881) (c. 386 C.E.) (“[T]hat in a matter of the Faith or of any ecclesiastical ordinance, the judges ought to be qualified for it, both competent by office and qualified by profession . . . . who is there who will deny that in a cause of the Faith, in a cause, I say, of the Faith, Bishops are wont to judge Christian Emperors, not Emperors to judge Bishops.”). Augustine of Hippo argued that laws should not force people to embrace a religion but could prevent underlying evils made known by revelation.²⁰⁴Augustine, Contra Litteras Petiliani bk. II, ch. 84 (c. 400 C.E.), reprinted in Three Books of Augustine 820 (A.M. Overett ed., Rev. J.R. King trans., 2018). (“No one is indeed to be compelled to embrace the faith against his will. . . . If any laws, therefore, have been enacted against you, you are not thereby forced to do well, but are only prevented from doing ill. For no one can do well unless he has deliberately chosen, and unless he has loved what is in free will; but the fear of punishment, even if it does not share in the pleasures of a good conscience, at any rate keep the evil desire from escaping beyond the bounds of thought.”). Here, we begin to see early foundations of the natural law philosophy’s condemnation of both forced religious belief and assertions of temporal authority over the spiritual—early seeds underlying thought reared again in the Religion Clauses. These writings illustrate that religion both encompassed factual beliefs and moral actions that logically followed. They even hinted at a distinction between “sources” of that authority and reason.

Aquinas’s writings contributed a related, crucial distinction between the natural and supernatural. In the Summa Theologica, Aquinas addresses the question of whether Sacred Doctrine (i.e., revelation) is a science (i.e., a product of reason).²⁰⁵Aquinas, supra note 183, pt. I, q. 1, art. 2. He answers affirmatively but states there are two types of reason: those known by the “natural light of intelligence” and those that proceed from a higher science.²⁰⁶Id. He further states that “Sacred [D]octrine derives its principles not from any human knowledge, but from the divine knowledge, through which, as through the highest wisdom, all our knowledge is set in order.”²⁰⁷Id. at pt. 1, q. 1, art. 6, reply to obj. 1. This elevated nature of revelation is distinct and “supernatural.” One Thomist scholar describes Aquinas’s use of supernatural as “[referencing] some power or effect or agent or gift or end or some such is not natural and that it is outside the order of nature on account of direct divine intervention.”²⁰⁸Andrew Murray, The Spiritual and the Supernatural according to Thomas Aquinas, presented at Biennial Conf. in Philosophy, Religion and Culture, ‘The Supernatural,’ Catholic Inst. of Sydney (Oct. 3–5, 1998). Thus, there is an important distinction between truth derived from reason and observable nature and truth which is outside the order of nature. Blackstone essentially echoed this separation when he distinguished between the affairs of the religious and temporal worlds.²⁰⁹See I Blackstone, supra note 164, at *42, *141. Blackstone’s distinction between religious and temporal affairs does not mean he endorsed a segregation of their respective authorities. In his Commentaries, when discussing the foundations of law, he also states, “[U]pon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.”²¹⁰See id. at *42. He further acknowledges that the affairs of humans (i.e., temporal and natural affairs) are subordinate to those of the divine (i.e., the supernatural).²¹¹See id.

C.      Etymological Roots of Religion

The philosophical concept of religion paralleled the evolving linguistic use of the term. While the exact origin of the word religion is unclear, it is generally accepted to come from the Latin word religio, generally referencing the careful performance of obligations or rituals.²¹²Jonathan Z. Smith, Religion, Religions, Religious, in Critical Terms for Religious Studies 269 (Mark C. Taylor ed., 1998). The origin of religio, however, is more contested.²¹³See id. at 269–82. Cicero was one of the first to offer a definition. In De Natura Deorum, where he distinguished religion from superstition stating that the person who “spent whole days in prayer and sacrifice to ensure that their children should outlive them” were properly superstitious while the person who “carefully reviewed and so to speak retraced all the lore of ritual” were religious.²¹⁴Cicero, De Natura Deorum bk. II, ch. 28, at 193 (G. P. Goold ed., H. Rackman trans., Loeb Classical Library 2014) (c. 45 B.C.E). Cicero believed religio to come from relegere, meaning to retrace or reread.²¹⁵Id. Lactantius offered an alternative. He asserted that the origin of the word came from religare, meaning to re-bind or re-tie.²¹⁶Lactantius, Divinarum Institutionum bk. IV, ch. 28 (c. 303 C.E.), reprinted in 49 The Fathers of the Church 318 (Roy Joseph Deferrari ed., Sister Mary Francis McDonald trans., 1964) (title translated as The Divine Institutes) (“[Man must] instruct himself by the rudiments of justice for the practice of true religion. For we come to be under this condition, that we pay the just debt of service to the God who brings us into being, that we know Him alone, that we follow Him. We are fastened and bound to God by this bond of piety, whence religion itself takes its name.”). A few other modern Latinists offer alternative theories suggesting that religio comes from the Latin words for “to care for.”²¹⁷See, e.g., Benson Saler, Religio and the Definition of Religion, 2 Cultural Anthropology 395 (1987). Whatever its origins, religio itself was used in Rome to mean something akin to “scruple,” and importantly had no definitive legal meaning.²¹⁸Id. at 396 (citing W. Warde Fowler, The Latin History of the Word Religio, 2 Transactions Third Int’l Cong. for Hist. Religion 169, 169–75 (1908)).

By the Middle Ages, religio was used in two varied ways—one denoting the virtue (or habit) of religion, akin to reverence or piety, and another being a belief system.²¹⁹See Smith, supra note 212, at 271. At this time, Aquinas wrote on religion, describing it as “offering service and ceremonial rights to a superior nature that men call divine.”²²⁰Aquinas, supra note 183, pt. II-II, q. 81, art. 1. Again, there is a distinction between a lower and higher nature. After briefly discussing both Augustine and Cicero’s definitions of religio, Aquinas explains that religion can refer to two types of acts: (1) those immediately and proximately praising God (i.e. worship and sacrifice) and (2) those that honor God through obtaining virtue and order (i.e., living temperately, exercising mercy, or serving those in need).²²¹Id. He ultimately concludes that religion is a virtue, meaning a habit that “makes its possessor good and his act good likewise.”²²²Id. at pt. II-II, q. 81, art. 2. This view of religion being intimately tied up with the good yet conceptually distinct, continued into the modern era.

As new cultures and peoples were encountered during the age of exploration, intellectuals began describing these new cultures’ rituals and beliefs as “religious” but also distinguished them from the “true Religion.”²²³See Smith, supra note 212, at 271–72. Smith’s work does not analyze the evolution of religion in a thoughtful, philosophical sense, but rather in an empirical-historical sense. As such, his work does less to trace the understanding of “what religion was” through history, but rather looks at “accidental” characteristics (i.e., characteristics that do not change the essence of the object) as well as surface-level differences of discussions surrounding religion. Smith’s work does provide a concise history of the study of religion and its taxonomy with numerous cites to European primary sources from around the founder’s era. See id. at 275–76. Not long after this time, Enlightenment thinkers began to use the term “natural religion” (i.e., belief about God entirely stemming from secular reason).²²⁴Id. at 271–7. While their methodology and many of their insights were not new—much of their insights can be traced back to the natural religion of Aristotle—Enlightenment thinkers prioritized natural reason over revelation.²²⁵See, e.g., Thomas Jefferson, The Life and Morals of Jesus of Nazareth (1820), reprinted in The Jefferson Bible (Smithsonian ed. 2011). This work was Thomas Jefferson’s attempt to remove all supernatural references from the Gospels and focus solely on the ethics of Jesus. Consequently, later natural law thinkers in the decades before the Bill of Rights, who previously theorized about humankind’s nature and the readily apparent ethics that stemmed from it, attempted to discern everything they could about their creator without any assistance from a revelation (i.e. natural religion).²²⁶See, e.g., David Hume, Dialogues Concerning Natural Religion (1776). This manifested in a rise of deism in early America among the educated class.²²⁷See Thomas Paine, The Age of Reason: Being an Investigation of True and Fabulous Theology 21–25 (Moncure Daniel Conway ed., G.P. Putnam’s Sons 1896) (1794) (embracing belief in God while rejecting revelation or organized religion as a source of divine knowledge). Nevertheless, these viewpoints on the creator were widely described as “religious” in nature.²²⁸See, e.g., id. at 199 (“[M]y disbelief of the Bible is founded on a pure and religious belief in God . . . .”). The objective view and use of the word religion has evolved through the nineteenth and twentieth centuries in academia, reflected largely in the thought of Seeger and Welsh. For the purposes of this Article, however, the inquiry ends at the ratification of the Bill of Rights.

D.      What Is Religion Then?

Understanding the history of the word religion, as well as the philosophy surrounding its use in the First Amendment, helps one outline the parameters for a constitutional definition and test for what is religious. As discussed above, this Article presumes the meaning of religion is the original public meaning of the word at the time of penning the Bill of Rights. As a matter of textual interpretation, this original public meaning would encompass the commonly understood meaning of the word within the educated community in the late 1700s, which was intimately rooted in a natural philosophy.²²⁹See supra Sections II.A, II.B. Admittingly, the nuanced philosophical definition of Aquinas or the ancients is not controlling, yet it informs our understanding of Locke and the Founders’ philosophical understanding of “religion.”²³⁰Use of historical evidence like this is most useful when it was a practice or understanding that prevailed up until the “period immediately before and after the framing of the Constitution.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2136 (2022) (quoting Sprint Comms. Co. v. APCC Servs., Inc., 554 U.S. 269, 311 (2008) (Roberts, C.J., dissenting)). The first principle to establish then is that religion had an objective meaning to the Founders. They viewed religion as denoting something different from the non-religious. That religion was something conceptually distinct should be manifestly clear from many authors of the era distinguishing religion from, for example, morality, conscience, piety,²³¹See, e.g., Paine, supra note 153 and accompanying text; Va. Const. art. I. §16. or the consistent ties to God.²³²See, e.g., Washington, supra note 149 and accompanying text. That religion is something objective necessarily means there must be content-based distinctions or elements that define its scope. As such, a content-based definition is compelled instead of an analogical or functional definition.²³³Analogical factors, no doubt, are helpful to discerning just what qualities and elements adhere to a set of beliefs to make them “religious,” but an analogy in and of itself, is not sufficient to establish something as religious. Functional definitions, similarly, overlook the inquiry, “what is religion,” in favor of “what could best serve (the judge’s view of) the goal of the First Amendment’s free exercise and establishment clauses.” Essentially, neither approach gets to the core of what is religion.

So, what was religion to the Founders? From reading the Founders’ writings, it is readily apparent that by consistently qualifying the word with “Christian” or “the true,” the Founders understood religion encompassed both non-Christian faiths and religions they believed to be false.²³⁴See, e.g., Madison, supra note 17, at 183–84; Ga. Const. of 1777, art. VI; S.C. Const. of 1776, pmbl.; Md. Const. of 1776, art. XXXIII; Blackstone, supra note 163, at *425. Jefferson’s list of faiths “Jew and the Gentile, the Christian and the Mahometan, the Hindoo and infidel of every denomination” is highly informative as to what the word religion invoked in the minds of the Founding generation²³⁵See, e.g., Jefferson, supra note 147 and accompanying text. The few scholars that push content-based definitions often come very close to a correct definition of religion except, perhaps, for Jefferson’s pointed remark.²³⁶See e.g., Strang, supra note 125, at 182–83 (advocating for a definition that only encompasses monotheistic religions). But this is not the only parameter set by the Founders’ writings. Many of the Founders tied religion to some relationship with the divine or spiritual, particularly the reference to the “duty we owe our creator.”²³⁷See, e.g., Madison, supra note 16, at 184; Washington, supra note 148; Paine, supra note 152, at 67. Cf. Reynolds v. United States, 98 U.S. 145, 163–64 (1879). On its surface, this quote seems to point to religion denoting beliefs pertaining to “human origins” or “morality,” but a history of the language reveals much more depth.

Informed by natural philosophy, the Founders would have recognized many distinctions surrounding the religious. The distinction between ethics-morality and religion is particularly palpable. Morals imposed many duties on the individual, almost always flowing from some observation of human nature. Within the context of law, these duties also flowed forth from a legitimate authority serving the common good. Ethical duties were also asserted to flow forth from religious beliefs as well. Yet, religion was not purely an ethic. The belief in a creator, for example, was very much religious but not in and of itself ethical. It may inform ethical decisions—for if there is a creator, a creator-creature relationship carries duties a particular human being might owe within the relationship—but belief in a creator alone is not ethics. This seems to be widely understood in the Founding Era²³⁸See, e.g., Mass. Const. of 1780, pt. 1, art. III, para. 1; Paine, supra note 148. and is echoed in later case law.²³⁹See, e.g., Watson v. Jones, 80 U.S. (13 Wall.) 697, 728 (1872); Davis v. Beason, 133 U.S. 333, 342 (1890). Morality, then, is not synonymous with religion but can be religious.

Similarly, religion was not the same as conscience. The explicit choice to forego direct conscience rights in the constitution should be dispositive of this,²⁴⁰See S. Journal, 1st Cong., 1st Sess., at 104, 163 (1789). but conscience, being one’s subjective understanding of moral obligation in particular instances, is often viewed as the subjective component of morality.²⁴¹See supra Section II.A. As put forth by natural philosophy, morality can be either secular or religious, depending on its source.²⁴²See supra Section II.B.

This difference helps explain the Reynolds distinction between absolute protections of belief and qualified protections for action. The recognition that religion includes both (A) belief and (B) actions is important to coming to religion’s definition. Indeed, religio originally related only to action but later came to embrace both particular types of beliefs and actions.²⁴³See supra Section II.C. Because morality concerns itself with human actions, Reynolds’ holding recognized that, at times, asserted religious-moral beliefs might conflict with the perceived secular, natural-moral view embodied in law.²⁴⁴Whether Reynolds came to the right conclusion is not the subject of this Article and largely stems from one’s view of the proper extent of free exercise protections of religion, not what is religion. Because some morally obligatory actions (or inactions) flow forth from a religious belief, what constitutes a religious belief should be the focus of the inquiry. A particular species of belief is at the core of what religion is in the constitutional context.

Religious belief, like any belief, is a kind of truth claim about reality.²⁴⁵See, e.g., Paine, supra note 152, at 70 (implying that religion is a truth claim for all mankind). Yet, centuries of scholars and case law recognize that philosophy²⁴⁶Philosophy here includes both natural reason and the scientific method.—the typical method of making and asserting truth claims—is emphatically not religious.²⁴⁷See, e.g., United States v. Ballard, 322 U.S. 78, 87 (1944); Founding Church of Scientology of Wash. v. United States, 409 F.2d 1146, 1151 (D.C. Cir. 1969). Religion concerns truth of some substantively different type of claim. As discussed above, the philosophy of Blackstone, Locke, Aquinas, and Aristotle recognized a duality and distinction between truth made apparent by natural reason and truth made apparent by revelation.²⁴⁸See supra Section II.B. Natural reason was deeply rooted in empirical observations of the everyday world and extrapolating from that through logic.²⁴⁹See supra Section II.B. Revelation on the other hand was knowledge acquired through supernatural means—something or someone coming from an existence beyond or transcending the natural world communicating some truth (or even more broadly, some knowledge coming from beyond the natural).²⁵⁰It should be noted that the traditional scholastic distinction between the preternatural and the supernatural is not being adhered to in this essay. Supernatural for the purposes of this article, encompasses both the supernatural and preternatural. Even recent cases distinguish between secular philosophical assertions and religious truth.²⁵¹See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 215–16 (1972); Thomas v. Rev. Bd. of the Ind. Emp. Sec. Div., 450 U.S. 707, 714–20 (1981); Nicholls v. Mayor and Sch. Comm. of Lynn, 7 N.E.2d 577, 580 (Mass. 1937); Gabrielli v. Knickerbocker, 82 P.2d 391, 394 (Cal. 1938). The Macintosh dissent, in particular, articulated the age-old distinction described by Blackstone and Locke of temporal authority—the authority of the state coming from the natural world²⁵²See United States v. Macintosh, 283 U.S. 605, 627–635 (Hughes, C.J., dissenting). This Article does not enter into the debate on the ethics and nature of “temporal power.” It simply makes the observation that temporal power exists and is exercised by the state.—and religious authority—the authority stemming from revelation.

But not all religious beliefs seem to be directly and proximately “revealed” through a formal revelation. All Christians assert that sacred scripture is functionally revelation, yet there is vast disagreement on how to exegete it.²⁵³See generally Hermeneutics, Britannica.com, https://perma.cc/2MP7-KUN9 (last updated Sept. 29, 2023) (describing the study of scriptural interpretation). People who hold the Bible to be revealed truth disagree on doctrines as fundamental as the Trinity.²⁵⁴See id. Similarly, Muslims who hold the Qur’an or hadith to be divinely revealed, disagree on specific theological truths.²⁵⁵See id. Nevertheless, each of these particular beliefs are held to be religious and rightfully so. Revelation is sufficient to establish a particular belief as religious but not necessary to make a belief religious. Religious belief does not necessarily stem from the form of acquisition of the truth, but rather the nature of the knowledge itself.

A predicate to believing in a revelation is a belief that it comes forth from the supernatural. Thus, religion, at its core, is tied to beliefs of and concerning supernatural realities. This is also supported if we view the inquiry from a different angle. Natural religion, including the deism of many of the Founders, is a belief concerning the supernatural reached entirely through logic and reason. Few scholars would argue that the means that the Founders use (i.e., empirical observations, comparing cultures, and inductive reasoning) is religious, yet many would assert that the conclusion (i.e., that there is a creator-god) is. And this is entirely because religion hinges on a belief of and concerning the supernatural.

An appropriate test to determine “what is religion” should follow from this logic. Courts can and should apply the following test to distinguish religion from non-religion:

Religion, for the purposes of the First Amendment, includes A) all assertions of truth of and concerning the supernatural, B) all assertions of truth flowing forth from supernatural beliefs, and C) actions taken pursuant to such beliefs.

This definition (the “Offered Definition”) holds true to the Founding Fathers’ use of the word “religion,” their natural law worldview, and the etymology of the word up until their time.²⁵⁶The Offered Definition is not intended to foreclose the possibility of categorical exceptions to its rule. Much like categorical exceptions to free speech protections exist (i.e., obscenity, fighting words, etc.), historical evidence may support definitive conclusions by the Founding Era as to certain beliefs encompassed by the Offered Definition that would not be considered religious (but arguably superstitious) and would not be afforded religious protections (e.g., Satanism, fortune-tellers, witchcraft). The author expresses no view as to the existence or the extent of such carve-outs.

Additionally, while this Article does not adhere to the purposive approach, this definition effectuates the purposes that natural law theorists would have had in supporting the Religion Clauses. With the protections envisioned, the state, being a creation of natural reason, is free to make laws that natural reason dictates are necessary for the common good of society; however, it is not an organization claiming authority over or absolute competency in the supernatural. If, in fact, there was some supernatural truth, the state would still operate in its capacity as a worldly and temporal organization, but it should not be an arbiter or barrier to a supernatural truth or any moral obligations such truth might impose (i.e., it should not prohibit the free exercise of religion). Likewise, dating back to Neo-Platonists, one can find philosophers viewing religion as something that inherently must be accepted by an act of the intellect (or assent of the mind) and not by compulsion.²⁵⁷See supra notes 204, 206. “Establishing” religion was arguably not the role of the state and surely not the primary role of one. Actions necessary for the good of society rooted in natural ethics were always debatable as the natural world was readily available to the human observer, so the primary order to “establish” was a natural one, not a supernatural one. As a result, proscribing the establishment of supernatural dominion by the state and the coercive interference with a moral lifestyle in line with supernatural truth effectuated these goals.

III.      Comparison to Other Definitions and Application of the Offered Definition

How does this test hold up to other tests offered by scholars and jurists so far? And, more importantly, what are the legal implications of adopting it?

Many scholars try to effectuate the purposes of the Religion Clauses by bifurcating the definition and creating two separate tests.²⁵⁸See e.g., Student Note, supra note 98. But this bifurcation finds no support in a textualist approach and seems disingenuous with regards to the understanding of just what religion is or was to the Founding generation. The use of religion only once for both clauses is a strong reason not to bifurcate, and functionally, the word’s use in both clauses did not denote two separate meanings. The Offered Definition recognizes the singular use of religion and exists to be applied in both contexts. Second, the Offered Definition stays true to the age-old purpose of preserving religious liberty; if there is a supernatural reality, it is higher than the mere natural reality, and thus any obligations to such supersede an individual’s obligation to natural authority. It is, likewise, not the province of the state to dictate this supernatural reality and is imprudent to force acceptance of such when the risk of the state being wrong about the supernatural truth is great and the effectiveness of forced acceptance is minimal.

The Fowler, Seeger, and Welsh approach also fails at truly grasping the “essence” of religion. By making religion something that solely and subjectively occupies a role parallel to God, or beliefs that one holds with the strength of traditional religious convictions, the Seeger-Welsh approach forgoes truly trying to discern what makes all the “traditional religions” religious and almost becomes cyclical in argument. The traditional religions are religious simply because they are religious, and your belief is religious because you say it is like the traditional religions. This type of thinking would not help someone lacking familiarity with religion to understand the term. The definition also runs counter to the Founding generation’s understanding of religion. Focusing on conviction of belief, the Seeger-Welsh definition almost echoes the Founders’ understanding of conscience, which they chose not to protect, and seems to weigh the strength of belief instead of its nature or content. The Offered Definition lays out objectively observable elements to analyze a belief that is claimed to be religious and gives no credence to how strongly one might hold the belief.

The Seeger-Welsh approach also begot other approaches like the Malnak approach²⁵⁹Malnak v. Yogi, 592 F.2d 197, 207–10 (3d Cir. 1979) (Adams, J., concurring). and the Ultimate Concern Test.²⁶⁰See Int’l Soc. For Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440 (2d Cir. 1981). One component of both these approaches is looking to what an individual’s “ultimate concern” or “the motivational aspect of human experience” that is “unconditional, absolute, or unqualified.”²⁶¹See Student Note, supra note 98, at 1067. This approach is far too narrow as it would not define beliefs about a Supreme Being that are entirely unconcerned with the ultimate point of human existence (e.g., deist views or other non-ultimate spiritual realities) as religious, yet it would also include secular moral beliefs that deal with the “ultimate end” of humankind (e.g., fundamental principles in secular ethics). This distinction differs sharply from natural law theory’s views of natural theology (seen as religious) and ethics (seen as a secular study). The Offered Definition does not fall into this error and properly distinguishes between the two in accordance with the Founders’ philosophy.

The analogical approach found partly in Malnak and put forth by Professor Greenawalt and other scholars requires the weighing of multiple factors to see how similar the potential religion is to recognized religions.²⁶²See Greenawalt, supra note 132, at 767. This approach not only makes the same mistakes as Seeger and Welsh by not explaining what makes the generally accepted religious beliefs religious, but it also creates a wildly unpredictable approach to determining what is religious, giving too much discretion to judges who could easily use it to not protect minority or unfamiliar religions. On top of this, it really does not provide a definition, just a loose test. The Offered Definition contains clearer distinctions, leaving less up to ad hoc weighing by judges.

Finally, the content-based definitions, while sufficiently close in substance to the Offered Definition, fall short in some regards. Agneshwar, for example, requires a religion to contain some belief in a means of deliverance from evil. He does not seem to explain where exactly this element of religion comes from beyond his references to the Christo-centric society of the Founders’ time.²⁶³See Agneshwar, supra note 110, at 319–323. As discussed above, the Founders seemed to understand that Christianity was one of many religions every time they qualified the word religious with “Christian” or “true.” While surely Christianity contains all the elements of something that the Founding generation considered religious, one must hesitate before they siphon off Christian beliefs and put them at the core of religion. While the “fall of man” and his subsequent deliverance is a religious belief, other religions recognized by Jefferson, like Hinduism, contain only loose comparisons to redemption from evil in its belief in prāyaścitta and dharma.²⁶⁴Dharma typically references “truth” or “moral order” within Hinduism. Prāyaścitta are specific acts that can serve as a penance for infringements of dharma. These beliefs are not necessarily supernatural (another requirement of Agneshwar) and are frequently more akin to a natural ethic than a religious belief. See Prāyaścitta, OxfordReference.com, https://perma.cc/X3QN-7DTB; see also Dharma, OxfordReference.com, https://perma.cc/39BG-3ZV9. Agneshwar’s definition does not make clear whether all the elements had to adhere to one core belief or, rather, a number of beliefs could amalgamate together and suffice to be religion. This, paired with Agneshwar’s minimal explanation for his focus on the redemptive component of religion, makes this author reject it as superfluous.

Oldham’s and Austin’s definitions are very similar to the Offered Definition, but they also err in using “faith,” which they contrast with reason, as a core element of religion.²⁶⁵See supra Section I.B.2. While many people surely adhere to their religion with a blind faith, many also do so from a firm stance of reason. Indeed, the founders of many religions—should their claims of revelation be true—would most assuredly be well-reasoned in asserting and following their beliefs without any blind faith. If Joseph Smith truly had an other-worldly being reveal to him the location and language of golden tablets, he would be well-reasoned in asserting the tenets of Mormonism as truth, yet because there is no “faith” component, his belief would not be religious. Likewise, Muhammad would have been well-reasoned in listening to Gabriel, and surely his assertions were religious. In a similar vein, many religions extrapolate from their core faith-based truths to further truths solely through the use of reason. Would these beliefs be entitled to protection? The Offered Definition forgoes a “faith-based” component of religion and answers the question in the affirmative.

Similarly, Chopin and Professor Strang focus on “extratemporal consequences” while Professor Strang further limits religion to monotheistic faiths.²⁶⁶See id. Professor Strang’s approach and methodology were surely correct, but he failed to see exactly what element unites Jefferson’s religions. He also focused too much on qualities associated with Christianity without justifying why they are indicative of religion and not just the Christian religion. As such, monotheism is an excessively narrow view of what constitutes religion. The extratemporal consequences are very much related to the supernatural approach embraced by the Offered Definition; however, it is much narrower. Again, Hinduism arguably could have issues with the extratemporal element as their rewards and punishments are not necessarily “extratemporal” and very much take place in time.²⁶⁷See generally Charles J. Naegele, History and Influence of Law Code of Manu (2008) (S.J.D. dissertation, Golden Gate University School of Law) (on file with Golden Gate University School of Law Digital Commons) (tracing the history of an ancient Indian legal code and illustrating Hindu beliefs of divine intervention in everyday life). Furthermore, it would be unclear if “religious visions” would be seen as religious under this definition if they have nothing to do with any sense of future rewards and punishments. The Offered Definition recognizes that not all religious beliefs are independently concerned with what is beyond time per se but rather with what is beyond nature.

In practice, the Offered Definition would be effective and functional at distinguishing religion from non-religion precisely because it gets to the heart of how the Founders (and many people today) understand religion. The Offered Definition starts at the core of religion, recognizing that belief concerning truths about the supernatural is fundamental to every religion. Every religion recognizes something beyond the natural reality. The second part of the test recognizes that if there is a supernatural reality, there might be other truths that reason dictates “flow forth” from it. For example, in many Christian denominations, basic precepts of morals are laid out in the Ten Commandments and other places in scripture, but denominations vary on the correct application of these broad principles. Each uses reason to interpret “supernatural” truths and extrapolate particularities. These particular beliefs nevertheless are religious because they are informed by a supernatural reality. Finally, the definition recognizes that religion is not just belief but also action in conformance with such. As a result, an action one takes pursuant to any religious belief would be religious.

Some objections or unique cases might challenge the test’s efficacy. One might argue that Pantheism, Confucianism, and Humanism do not fit neatly into the supernatural category. Pantheism, broadly speaking, could be argued is not a religion because most pantheistic faiths believe that the natural world itself is God or “the eternal God [is] in intimate juxtaposition with the world.”²⁶⁸William L. Reese, Pantheism, Britannica.com, https://perma.cc/52BZ-N733 (last updated July 16, 2023). While every pantheistic faith differs, generally, pantheism would still satisfy this supernatural belief at the core of the Offered Definition. Indeed, while a pantheist may not believe in truth “beyond” the natural world in the sense that it is “outside” of the natural world, many do believe in a transcendent supernatural quality that is beyond mere nature.²⁶⁹See id. This is enough to satisfy the core component of the Offered Definition.²⁷⁰Some pantheists may be more fairly classified as materialist, only believing that the material world is real and that we should respect all existence. This on-the-border set of beliefs, absent any sort of supernatural transcendent quality, very likely would not be religious and would instead be philosophical.

Confucianism, much like pantheism, may or may not be a religion depending on the beliefs claimed by the individual. To many, Confucianism operates solely as an ethical system of belief with civic rituals.²⁷¹Confucianism, NationalGeographic.org, https://perma.cc/DV78-JJ48. In this context, Confucianism most assuredly is non-religious. Yet to some, Confucius is worshipped as a spirit along with traditional Chinese ancestral worship; this worship is religious.²⁷²Tu Weiming, Confucianism, Britannica.com, https://perma.cc/8P6P-U5Z3 (last updated Aug. 17, 2023). As applied to secular humanism, the Offered Definition would find the belief that there is no supernatural reality or God to be religious in that it is an assertion of a truth of and concerning the supernatural, much like natural religion. Humanism would, however, be limited in its protections because, given that all of its further assertions are built off of solely natural reason, none of its tenets are informed by a supernatural reality. Therefore, they are all non-religious except for the belief that there is no divine.

Once again, the Offered Definition of religion is a separate answer than what constitutes “establishment” of religion or “prohibiting the free exercise thereof.” At minimum, the definition only qualifies the object these two provisions act upon. In the establishment context, the federal government and states, through the incorporation doctrine, would be prevented from “establishing” any view or belief of or concerning the supernatural.²⁷³This would bar government action that would be “impermissible” in light of the historical understanding in the Founding Era. See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2429 (2022). Broadly speaking, this proscribes state coercion to engage in observing or accepting supernatural truths or in participating in solely supernaturally inspired actions. A court looking to the Lemon test for guidance might find issue with laws that (1) have a purpose or intent that concerns the supernatural, (2) have a primary effect of advancing beliefs in a supernatural assertions, and (3) excessively entangles the government with an institution designed to support particular supernatural truths. Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). But see Kennedy, 142 S. Ct. at 2428) (recognizing the futility of Lemon and the endorsement test); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2079–82 (2019) (plurality opinion) (advocating for the partial overturn of Lemon and listing contexts in which Lemon does not apply). In the free exercise context, the government could not make any law that burdens the free exercise of supernatural beliefs and actions taken pursuant to such.²⁷⁴Applying the free exercise construction in Smith (and in light of freedom of expression overlap), the protection would functionally apply only to religious actions—the third component of the Offered Definition—and not religious beliefs. Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 879–80 (1990).

Conclusion

Many jurists and scholars have tried to outline the exact contours of religion and come up short, often because of a desire to effectuate a perceived policy in the First Amendment or to bring the First Amendment up with the times. Others eschew attempts to define religion out of either a desire to not unintentionally exclude beliefs or out of a belief religion is inherently a nebulous concept. While at first glance these concerns and approaches might seem attractive, a true quest for the borders of religion starts at the text as understood by people in the Founding Era. Furthermore, our understanding of their viewpoint must be informed by the commonly accepted philosophical worldview of the time: natural philosophy. Texts from the Founders and their natural law forebearers support the idea that religion was something distinct from morality and philosophy. Simultaneously, the writings support a view that religion was broader than Christianity yet narrower than a passionate philosophy. Religion was seen as being composed of both actions and belief, with belief at the core informing further beliefs and actions. The hallmark of religious belief, setting it apart from non-religious views, is its supernatural content or source. Once a belief is qualified as religious, it then “imparts” religious status on all beliefs informed by the core religious truth and, subsequently, all actions taken pursuant to such. Concisely stated, religion, for the purposes of the First Amendment, includes (A) all assertions of truth of and concerning the supernatural, (B) all assertions of truth flowing forth from supernatural beliefs, and (C) actions taken pursuant to such beliefs. These parameters hold true to the original public meaning of the word religion. If the courts adopt such a test, it would not only provide a more precise and well-defined method for recognizing religious beliefs, but it would put to rest a preeminent remaining issue in First Amendment diction.