We Americans treasure religious liberty. We’re just a bit vague on the definition of “religious.” (Actually, we aren’t too clear on what we mean by “liberty,” either.)

I still recall a conference I attended early in my academic career; I approached a religious studies scholar who had delivered what I considered a brilliant paper, and during the ensuing discussion, she shared her belief that the First Amendment should simply have protected “intellectual integrity”–that the problem with specific references to religious liberty was that they required courts to decide what should count as “religious” for purposes of constitutional analysis.

And what should count as “religious” has been–and remains– hotly contested.

Think, for example, about the awkward history of conscientious objector jurisprudence. For a long time, courts only recognized moral objections to engaging in combat if the person registering the objection belonged to a “recognized” (um..established??) pacifist church. Others claiming that status were challenged. But–as the courts ultimately came to recognize– there are many non-theists and members of other denominations and religions who have sincere and deeply-felt pacifist beliefs.

More recently, of course, we are seeing people claim religious sanction for a right to discriminate, and it is hard not to suspect that their “sincerely held beliefs” have more to do with bigotry than godliness.

The point is, it is by no means clear what sorts of beliefs and conduct can properly be labeled “religious,” as opposed to “political,” “ideological,” “philosophical” or even delusional.

I receive Sightings, a digital newsletter from the University of Chicago Divinity School, and that publication recently referenced a Massachusetts lawsuit raising precisely that issue:

But courts do get asked about “religion,” and can’t wiggle out of exchanges on this. It was easier to define in historic cultures where a manifestation of religion, e.g. “an established church” got to define religion in “we” versus “they” terms. Today, propose a parlor game in which participants have to define the term, and listen. If “established” versions you will hear are too constricted, others are too protean. One hears then: “if everything is religious, then nothing is religious.” Now, pity the people who are called to fight over religious subjects not in games but in courts… O’Loughlin’s case involves the keepers of a Massachusetts “religious” shrine whose property is tax-exempt for those parts of its workings which strike “everyone” as being focally religious: worshiping, nurturing, shaping spiritual life. But, strapped-for-tax-revenue neighbors of the shrine-keepers argue, should parts of the property used for what some would call “secular” purposes be tax-exempt because the owners or custodians of the shrine deem them and claim them to be ‘religious’?

Unsurprisingly, religious leaders of several traditions filed a brief in support of the tax-exempt status of the entire facility.

The notion that local assessors or any government actor is equipped or would presume to deem whether one use of a religious organization’s property or another falls within the definition of ‘religious worship’ is antithetical to religious freedom,” said the brief, signed by leaders representing Jewish, Christian, and Muslim organizations. Catholic bishops in Massachusetts, including Boston’s Cardinal Sean O’Malley, also weighed in, arguing in a brief that the shrine’s grounds offer “communion with nature,” which “is a core religious activity with ancient roots in Christianity’s past.”

Gee–I “commune with nature” in distinctly unChristian fashion…But I digress.

According to this argument, courts and other secular institutions are simply precluded from drawing distinctions between properties used for authentically religious purposes (whatever those are) and those simply owned by religious organizations–although to the extent properties are tax-exempt, secular taxpayers’ rates increase. (Someone has to pay for the public services such properties enjoy–streets, police and fire protection, garbage collection and the like.)

I can’t help thinking of Flip Wilson’s inspired “Church of What’s Happening Now” rants (you youngsters can Google that), or the more contemporary “worship” of the Flying Spaghetti Monster.

Despite rightwing rhetoric, it isn’t the LGBT community that is demanding “special rights.”

[Originally published at SheilaKennedy.net on May 21, 2016]

Peacock Panache readers:

Sheila Kennedy is a former high school English teacher, former lawyer, former Republican, former Executive Director of Indiana’s ACLU, former columnist for the Indianapolis Star, and former young person. She is currently an (increasingly cranky) old person, a Professor of Law and Public Policy at Indiana University Purdue University in Indianapolis, and Director of IUPUI’s Center for Civic Literacy. She writes for the Indianapolis Business Journal, PA Times, and the Indiana Word, and blogs at www.sheilakennedy.net. For those who are interested in more detail, links to an abbreviated CV and academic publications can be found on her blog, along with links to her books..

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