What counts as “religion” for constitutional provisions and for various statutory exemption schemes is a complex and unsettled question; the Supreme Court has said that Secular Humanism qualifies, though lower courts have doubted how broadly this sweeps, and some courts have said the same about the Society for Ethical Culture; the government has also treated Scientology as a religion. The Court has also treated the statutory draft objector provision, which spoke in terms of religion, as covering sufficiently deeply held conscientious beliefs even if they are not defined as conventionally religious, but a few years later said that the Free Exercise Clause does not apply to philosophical beliefs that aren’t religious. Lower court decisions have likewise not reached any clear consensus.

The most recent decision involves Objectivism. Jeremy Zielinski, who had been convicted of federal fraud offenses, and (before that) state child pornography offenses, was required as a condition of federal probation to participate in a mental health program for sex offenders. He objected, among other things arguing that the mental health program requirement violated his rights under the Religious Freedom Restoration Act. Here’s the magistrate judge’s analysis, approved by the district court (United States v. Zielinski (N.D.N.Y. June 11, 2013)):

The RFRA prohibits the federal government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government demonstrates that the the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” … Under the RFRA, the term “exercise of religion” is defined by cross-reference to the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000–cc–5(7)(A). In the context of the First Amendment, the Supreme Court has held that “only beliefs rooted in religion are protected by the Free Exercise Clause,” and that “[p]urely secular views do not suffice.” Frazee v. Ill. Dep’t of Emp’t Sec., 489 U.S. 829, 833 (1972). However, because “a determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question,” Wisc. v. Yoder, 406 U.S. 205, 215 (1972), the Second Circuit has explained that courts are “singularly ill-equipped to sit in judgement of the verity of an adherent’s religious beliefs,”Patrick v. LeFervre, 745 F.2d 153, 157 (2d Cir.1984). Courts are limited to determining whether a claimant’s beliefs are “‘sincerely held and whether they are, in his own scheme of things, religious.’“ Patrick, 745 F.2d at 157 (quoting U.S. v. Seeger, 380 U.S. 163, 185 (1965)).

To find sincerity, a court examines whether a claimant has a “good faith in the expression of his religious belief.” Patrick, 745 F.2d at 157. “This test provides a rational means of differentiating between those beliefs that are held as a matter of conscience and those that are animated by motives of deceit and fraud.” Id. A court should examine the claimant’s “inward attitudes towards a particular belief system,” and afford “great weight” to his claim that his “belief[s][are] an essential part of a religious faith.” Id. at 158.

To find that a set of beliefs amount to a religion, rather than a philosophy or way of life, courts have considered a number of factors including (1) ultimate ideas, (2) metaphysical beliefs, (3) moral or ethical system, (4) comprehensiveness of beliefs, and (5) accoutrements of religion that include consideration of the founder, important writings, gathering places, ceremonies or rituals, the organizational scheme, holidays, diet or fasting, appearance and clothing, and propagation. U.S. v. Meyers, 95 F.3d 1475, 1483–84 (10th Cir.1996). The Second Circuit has defined the term religion as “‘the feelings, acts, and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine.’“ Patrick, 745 F.2d at 158 (quoting U.S. v. Sun Myung Moon, 718 F.2d 1210, 1227 (2d Cir.1983)). The Supreme Court has warned, however, that “an asserted belief might be so bizarre, so clearly non-religious in motivation, as not to be entitled to protection[.]” Frazee, 489 U.S. at 834 n. 2(internal quotation marks omitted); accord U.S. v. Manneh, 645 F.Supp.2d 98, 109 (E.D.N.Y.2008).

The RFRA prohibits government conduct that substantially burdens a sincere exercise of religion. Under that provision, “a substantial burden is a situation where the state ‘puts substantial pressure on an adherent to modify his behavior and to violate his beliefs.’“ Forde v. Baird, 720 F.Supp.2d 170, 176 (2d Cir.2010) (quotingJolly v. Coughlin, 76 F.3d 468, 477 (2d Cir.1996)).

… In this case, defendant does not claim to be either an atheist or a member of any established religion. Instead, he ascribes to an array of beliefs identified as “Objectivism,” and maintains that those beliefs are incompatible with the sexual disorder treatment program offered by FMHA. Zielinski describes Objectivism as “a belief system based on observation, logic, reason, and individual autonomy first articulated by Ayn Rand.” According to defendant, “[i]ts ideal is complete coherence between reality, belief, and action. Objectivisme ncompasses every aspect of human existence addressed by traditional ‘religions’ including metaphysics, epistemology, human nature, ethics, politics, and asthetics [sic].” Id. (footnote omitted). Zielinski’s habeas petition also includes the following observations regarding Objectivism:

72. Objectivism is a hierarchal belief system that holds foundationally that reality exists as an objective absolute, independent of man and his consciousness. It holds that man’s consciousness perceives reality, and rejects any belief in the supernatural and any claim that reality flows from human consciousness, whether individual or group. 73. Objectivism further holds (a) that man’s consciousness is fully competent to perceive reality correctly; (b) that reason is man’s only means of knowledge; (c) that a single fundamental decision—the choice between existence (life) and nonexistence (death)—underlies all other decisions; and (d) that ‘values’ are those objects, actions and beliefs that man judges preservative of his individual consciousness, with such judgment arrived at through the application of reason to perceptual data in a specific context. 74. Objectivism’s most fundamental tenet is that one maintain absolute, unfailing loyalty to one’s own sovereign independent judgment in all matters. It demands that one relentlessly root out incoherencies and contradictions in any assertion or claim and objectively evaluate it in the context of the entirety of one’s knowledge before accepting it; and that any assertion which cannot survive this process of evaluation be rejected. In Objectivism, to suspend independent judgment and accept an assertion—any assertion, no matter its proponent and no matter its alleged importance or triviality—on faith or blind trust is equivalent to mental suicide. 75. Objectivism further holds that that [sic] no person can think for another, that subordination of one’s mind to the conclusions of another is the worst form of self-abasement possible, and that suspending one’s own judgment or acting contrary to it abandons reason and judgment at their roots and leaves a man without principles to guide his life by and without any means to recover them. 76. Objectivism further holds that since reason is the means of human knowledge and knowledge is necessary for survival and the achievement of values, the preservation and protection of reason is necessary to man’s survival. 77. Objectivism holds that the use or threat of force to obtain a value from another against his or her will neutralizes the practical effect of his or her reason and judgment. Therefore, Objectivism holds as a fundamental tenet that the initiation of force in any form, whether directly by physical force, or indirectly through threats or fraud,[ ] is contrary to reason and thus, evil. (The use of force in self-defense against others who have initiated it, however, is not evil provided it is limited to that necessary to remove the threat.) 78. As the initiation of force is contrary to reason, Objectivism holds that the only type of human behavior consistent with reason and man’s nature is individual liberty and voluntary cooperation and trade. It requires that every man hold his own rational self-interest as his highest end and morally live by his own effort and achievements, whether individual or in cooperation with others for mutual benefit; respecting the rights of all others to do the same, neither sacrificing himself to others nor sacrificing others to him. It rejects any social system that attempts to subjugate or sacrifice the individual to the group, and rejects any attempt to define people by their race, sex, tribe, sexual orientation, nation, class, or any other quality or characteristic.

Despite a thorough search, I have been unable to identify any case in which a court has recognized Objectivism as a religion for any purpose, and defendant failed to cite any cases so holding either prior to or during the evidentiary hearing. Although the court does not question the sincerity with which Zielinski believes in Objectivism, there is nothing in the record to suggest that defendant’s beliefs are related to anything remotely divine. See Patrick, 745 F.2d at 158 (defining religion as “the feelings, acts, and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine” (internal quotation marks omitted)). Indeed, defendant has describedObjectivism in a way that suggests Objectivists would reject the Second Circuit’s definition of religion. Specifically, defendant explains that “Objectivism’s most fundamental tenet is that one maintain absolute, unfailing loyalty to one’s own sovereign independent judgment in all matters.” Dkt. No. 42 at ¶ 74. The definition of religion that guides the court suggests that religion requires a relationship with some divinity, Patrick, 745 F.2d at 158, while Objectivism demands complete independence, emphasizes reason, and rejects anything supernatural, Dkt. No. 42 at ¶¶ 72, 74, 75. In addition, Leonard Peikoff’s published work related to Objectivism, submitted by defendant as evidence, describes it as a “philosophical system” and analogizes it to “a computer operating system.” Dkt. No. 42 Exh. B at 41.

Based on my review of defendant’s evidence concerning Objectivism, I conclude that it is a manner of processing information that is more appropriately considered a philosophy, rather than a religion. Again, although I do not challenge the sincerity of defendant’s beliefs in Objectivism, I cannot find that its characteristics reflect areligion that is protected by the RFRA. See Yoder, 406 U.S. at 216 (“Thoreau’s choice [to reject the social values of his time and isolate[ ] himself at Walden Pond] was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.”); see also Meyers, 95 F.3d at 1484 (explaining that the defendant “is, of course, absolutely free to think or believe what he wants. If he thinks that his beliefs are a religion, then so be it. No one can restrict his beliefs, and no one can begrudge him those beliefs. None of this, however, changes the fact that his beliefs do not constitute a ‘religion’ as that term is uneasily defined by law”).

In any event, however, even assuming, without agreeing, that defendant’s beliefs related to Objectivism amount to a religion, I nonetheless conclude that defendant has failed to establish, by a preponderance of the evidence, that the FMHA program substantially burdens his beliefs. All of defendant’s complaints about the FMHA program are vague and generalized, complaining that the program requires participants to consider thinking differently, and to view their behavior from a certain perspective. For example, defendant accuses the Road to Freedom of teaching Judeo–Christian ideology by asking participants to love others unconditionally and accept others without judgment. Aside from this allegation, there is no evidence in the record that the Road to Freedom is based on any religion or religious ideologies. Indeed, Dr. Rossy-Millan expressly denied this allegation during his testimony at the evidentiary hearing. In addition, defendant has failed to prove how loving others unconditionally, for example, violates his Objectivism beliefs. Defendant also accuses the FMHA program of requiring him to suspend independent judgment and replace it with approval of society. Even after carefully reviewing all of the evidence in this case, however, I am unclear how the FHMA program attempts to do this, or, even assuming that it does, which of defendant’s Objectivism beliefs are challenged by such a teaching. Finally, although defendant complained that a practice described in the Road to Freedom encourages participants to sniff ammonia to deter sexual impulses, Dr. Rossy-Millan testified that FMHA does not promote or teach that practice in its programs.

In summary, defendant’s allegations regarding the contents of the FHMA program have not been substantiated by any evidence, other than defendant’s own testimony, and defendant has failed to prove by a preponderance of the evidence that the FMHA program substantially burdens any of his Objectivism beliefs. Accordingly, I recommend that defendant’s petition to modify his conditions of supervised release pursuant to 28 U.S.C. § 2241 be denied….