Religion.  Man's relation to Divinity, to reverence, worship, obedience, and submission to mandates and precepts of supernatural or superior beings.  In its broadest sense includes all forms of belief in the existence of superior beings exercising power over human beings by volition, imposing rules of conduct, with future rewards and punishments.  Bond uniting man to God, and a virtue whose purpose is to render God worship due him as source of all being and principle of all government of things.  Nikulnikoff v. Archbishop, etc., of Russian Orthodox Greek Catholic Church, 142 Misc. 894, 255 N.Y.S. 653, 663.

Welsh v. United States, 398 U.S. 333 (1970)

Title 42, Chapter 21, United States Code:  Civil Rights

29 CFR 1605.1 "Religious" nature of practice or belief

[Code of Federal Regulations]
[Title 29, Volume 4, Parts 900 to 1899]
[Revised as of July 1, 2000]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1605.1]
[Page 192]

TITLE 29--LABOR COMMISSION
PART 1605--GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION--Table of Contents
Sec. 1605.1 ``Religious'' nature of a practice or belief.

In most cases whether or not a practice or belief is religious is 
not at issue. However, in those cases in which the issue does exist, the 
Commission will define religious practices to include moral or ethical 
beliefs as to what is right and wrong which are sincerely held with the 
strength of traditional religious views. This standard was developed in 
United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States, 
398 U.S. 333 (1970). The Commission has consistently applied this 
standard in its decisions.<SUP>1</SUP> The fact that no religious group 
espouses such beliefs or the fact that the religious group to which the 
individual professes to belong may not accept such belief will not 
determine whether the belief is a religious belief of the employee or 
prospective employee. The phrase ``religious practice'' as used in these 
Guidelines includes both religious observances and practices, as stated 
in section 701(j), 42 U.S.C. 2000e(j).
---------------------------------------------------------------------------

1 See CD 76-104 (1976), CCH para.6500; CD 71-2620 (1971), 
CCH para.6283; CD 71-779 (1970), CCH para.6180.
---------------------------------------------------------------------------

Rector, Etc., Of Holy Trinity Church v. United States, 143 U.S. 457; 12 S.Ct. 511 (1892):

"In construing a doubtful statute the court will consider the evil which it was designed to remedy, and for this purpose will look into contemporaneous events, including the situation as it existed, and as it was pressed upon the attention of the legislative body, while the act was under consideration.

"It being historically true that the American people are a religious people, as shown by the religious objects expressed by the original grants and charters of the colonies, and the recognition of religion in the most solemn acts of their history, as well as in the constitutions of the states and the nation, the courts, in construing statutes, should not impute to any legislature the purpose of action against religion."

Torcaso v. Watkins, 367 U.S. 488 (1961)

First Amendment Law in a Nutshell, Second Edition, pp. 266-267, Jerome A Barron, West Group

A problem common to both religion clauses of the First Amendment is the dilemma of defining religion.  To define religion is in a sense to establish it--those beliefs that are included enjoy a preferred constitutional status.  For those left out of the definition, the definition may prove coercive.  Indeed, it is in this latter context, which roughly approximates the area covered by the free exercise clause, where the cases and discussion of the meaning of religion have primarily centered.  Professor Kent Greenawalt challenges the effort, and all efforts, to define religion: "No specification of essential conditions will capture all and only the beliefs, practices, and organizations that are regarded as religious in modern culture and should be treated as such under the Constitution".  Greenawalt, Religion As a Concept in Constitutional Law, 72 Cal. L.Rev. 753 (1984)

The Framers may well have intended to limit religion to the established traditional theistic varieties.  But in our highly pluralistic society, with its cults and nontheistic belief systems, any such narrow definition is unworkable.  Not surprisingly, then, the Court rejected limiting religion to theistic religions.  Torcaso v. Watkins (1961) invalidated a provision of the Maryland constitution which required appointees to public office to declare a belief in the existence of God.  Justice Black, for the Court in Torcaso, concluded that Everson command of neutrality prohibited government favoritism of traditional religions.  Government can neither "aid all religions against non-believers [nor] can [it] aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." This principle extended protection not only to the secular humanist who challenged the Maryland law but also to the adherents of other nontheistic religious beliefs such as Buddhism, Taoism, and Ethical Culture.

In a series of cases involving conscientious objection to military service, the Court again confronted the task of defining religion.  A provision of the Universal Military Training and Service Act exempted from military service any person 'who by reason of religious training and belief, is conscientiously opposed to participation in war in any form.'  At that time, the Act defined 'religious training and belief' as requiring belief in a Supreme Being.  The Act specifically excluded "essentially political, sociological, or philosophical views or a merely personal moral code"  In United States v. Seeger (1965), the Court, per Justice Clark, interpreted the Act broadly and stated that the relevant test 'is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption."

The parallel beliefs test of Seeger was taken a step further in Welsh V. United States (1970).  A claimant for conscientious objector status had deleted the word "religious" from his application and indicated instead that his belief system came from readings in history and sociology.  Justice Black, in a plurality opinion, held that "if an individual deeply and sincerely holds beliefs which are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual 'a place parallel to that filled [by] God' in traditionally religious persons"  On the other hand, in Gillette v. United States, 401 U.S. 437 (1971), the Court refused to extend the statutory exemption for conscientious objector to those opposed to particular wars.

Is it possible to define religion?  It will be recalled that the parallel beliefs test approach adopted in Seeger attempts to avoid the problem of defining religion solely in terms of the traditional and familiar by extending the protection of the religion clauses to any equivalent belief system.  The great theologians, Paul Tillich, may have captured the parallel beliefs system concept when he defined religion to encompass "matters of ultimate concern."  Tillich, Dynamics of Faith (1958).  Drawing upon this idea, it has been suggested that religion extends "to the underlying concern which gives meaning and orientation to a person's whole life."  Note, Toward A Constitutional Definition of Religion, 91 Harv. L.Rev. 1056 (1978).  The author of this Note contends that the approach requires that any such ultimate concern be protected regardless of how secular it may be.  Further, he argues that the only one capable of determining what constitutes an ultimate concern is the individual believer.

[First Amendment Law in a Nutshell, Second Edition, pp. 432-435, Jerome A Barron, West Group, 2000; ISBN 0-314-22677-X]

John Adams, Thoughts on Government, 1776

"It is the duty of all men in society, publicly, and at stated seasons, to worship the SUPREME BEING, the great Creator and Preserver of the universe.

And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping GOD in the manner most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship."

[John Adams, (Thoughts on Government, 1776); Reference: The Works of John Adams, Charles Adams, ed., 221]

Lee v. Weisman, 505 U.S. 577 (1992)

Our society would be less than true to its heritage if it lacked abiding concern for the values of its young people, and we acknowledge the profound belief of adherents to many faiths that there must be a place in the student's life for precepts of a morality higher even than the law we today enforce. We express no hostility to those aspirations, nor would our oath permit us to do so. A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution. See Abington School District, supra, at 306 (Goldberg, J., concurring). We recognize that, at graduation time and throughout the course of the educational process, there will [505 U.S. 599] be instances when religious values, religious practices, and religious persons will have some interaction with the public schools and their students. See Westside Community Bd. of Ed v. Mergens, 496 U.S. 226 (1990). But these matters, often questions of accommodation of religion, are not before us. The sole question presented is whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we have found, young graduates who object are induced to conform. No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the Establishment Clause of the First Amendment.

[. . .]

Nearly half a century of review and refinement of Establishment Clause jurisprudence has distilled one clear understanding: Government may neither promote nor affiliate itself with any religious doctrine or organization, nor may it obtrude itself in the internal affairs of any religious institution. The application of these principles to the present case mandates the decision reached today by the Court.

I

This Court first reviewed a challenge to state law under the Establishment Clause in Everson v. Board of Education, 330 U.S. 1 (1947).{1} Relying on the history of the [505 U.S. 600] Clause and the Court's prior analysis, Justice Black outlined the considerations that have become the touchstone of Establishment Clause jurisprudence: neither a State nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither a State nor the Federal Government, openly or secretly, can participate in the affairs of any religious organization and vice versa.{2}

In the words of Jefferson, the clause [505 U.S. 601] against establishment of religion by law was intended to erect "a wall of separation between church and State."

Everson, 330 U.S. at 16, quoting Reynolds v. United States, 98 U.S. 145, 164 (1879). The dissenters agreed:

The Amendment's purpose . . . was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.

330 U.S. at 31-32 (Rutledge, J., dissenting, joined by Frankfurter, Jackson, and Burton, JJ.).

In Engel v. Vitale, 370 U.S. 421 (1962), the Court considered for the first time the constitutionality of prayer in a public school. Students said aloud a short prayer selected by the State Board of Regents:

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.

Id. at 422. Justice Black, writing for the Court, again made clear that the First Amendment forbids the use of the power or prestige of the government to control, support, or influence the religious beliefs and practices of the American people. Although the prayer was "denominationally neutral," and "its observance on the part of the students [was] voluntary," id. at 430, the Court found that it violated this essential precept of the Establishment Clause.

A year later, the Court again invalidated government-sponsored prayer in public schools in Abington School District v. Schempp, 374 U.S. 203 (1963). In Schempp, the school day for Baltimore, Maryland, and Abington Township, Pennsylvania, students began with a reading from the Bible, or a recitation of the Lord's Prayer, or both. After a thorough review of the Court's prior Establishment Clause cases, the Court concluded: [505 U.S. 602]

[T]he Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.

Id. at 222. Because the schools' opening exercises were government-sponsored religious ceremonies, the Court found that the primary effect was the advancement of religion and held, therefore, that the activity violated the Establishment Clause. Id. at 223-224.

Five years later, the next time the Court considered whether religious activity in public schools violated the Establishment Clause, it reiterated the principle that government "may not aid, foster, or promote one religion or religious theory against another, or even against the militant opposite." Epperson v. Arkansas, 393 U.S. 97, 104 (1968).

"If [the purpose or primary effect] is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution."

Id. at 107 (quoting Schempp, 374 U.S. at 222). Finding that the Arkansas law aided religion by preventing the teaching of evolution, the Court invalidated it.
In 1971, Chief Justice Burger reviewed the Court's past decisions and found: "Three . . . tests may be gleaned from our cases." Lemon v. Kurtzman, 403 U.S. 602, 612. In order for a statute to survive an Establishment Clause challenge,

[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally the statute must not foster an excessive government entanglement with [505 U.S. 603] religion.

Id. at 612-613 (internal quotation marks and citations omitted).{3} After Lemon, the Court continued to rely on these basic principles in resolving Establishment Clause disputes.{4}

[. . .]

The mixing of government and religion can be a threat to free government, even if no one is forced to participate. When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs.{9} A government cannot [505 U.S. 607] be premised on the belief that all persons are created equal when it asserts that God prefers some. Only "[a]nguish, hardship and bitter strife" result "when zealous religious groups struggl[e] with one another to obtain the Government's stamp of approval." Engel, 370 U.S. at 429; see also Lemon, 403 U.S. at 622-623; Aguilar v. Felton, 473 U.S. 402, 416 (1985) (Powell, J., concurring).{10} Such a struggle can "strain a political system to the breaking point." Walz v. Tax Commission, 397 U.S. 664, 694 (1970) (opinion of Harlan, J.).

When the government arrogates to itself a role in religious affairs, it abandons its obligation as guarantor of democracy. Democracy requires the nourishment of dialogue and dissent, while religious faith puts its trust in an ultimate divine authority above all human deliberation. When the government appropriates religious truth, it "transforms rational debate into theological decree." Nuechterlein, Note, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 Yale L.J. 1127, 1131 (1990). Those who disagree no longer are questioning the policy judgment of the elected but the rules of a higher authority who is beyond reproach. [505 U.S. 608]

Madison warned that government officials who would use religious authority to pursue secular ends

exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.

Memorial and Remonstrance against Religious Assessments (1785) in The Complete Madison 300 (S. Padover, ed.1953). Democratic government will not last long when proclamation replaces persuasion as the medium of political exchange.

Likewise, we have recognized that "[r]eligion flourishes in greater purity, without than with the aid of Gov[ernment]."{11} Id. at 309. To "make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary," Zorach v. Clauson, 343 U.S. 306, 313 (1952), the government must not align itself with any one of them. When the government favors a particular religion or sect, the disadvantage to all others is obvious, but even the favored religion may fear being "taint[ed] . . . with a corrosive secularism." Grand Rapids School Dist. v. Ball, 473 U.S. 373, 385 (1985). The favored religion may be compromised as political figures reshape the religion's beliefs for their own purposes; it may be reformed as government largesse brings government regulation.{12} Keeping religion in the hands of private groups minimizes state intrusion on religious choice, and best enables each religion to "flourish according to the [505 U.S. 609] zeal of its adherents and the appeal of its dogma." Zorach, 343 U.S. at 313.

It is these understandings and fears that underlie our Establishment Clause jurisprudence. We have believed that religious freedom cannot exist in the absence of a free democratic government, and that such a government cannot endure when there is fusion between religion and the political regime. We have believed that religious freedom cannot thrive in the absence of a vibrant religious community, and that such a community cannot prosper when it is bound to the secular. And we have believed that these were the animating principles behind the adoption of the Establishment Clause. To that end, our cases have prohibited government endorsement of religion, its sponsorship, and active involvement in religion, whether or not citizens were coerced to conform.

[Lee v. Weisman, 505 U.S. 577 (1992)]

United States v. Seeger, 380 U.S. 163 (1965)

Moreover, it must be remembered that in resolving these exemption problems one deals with the beliefs of different individuals who will articulate them in a multitude of ways. In such an intensely personal area, of course, the claim of the registrant that his belief is an essential part of a religious faith must be given great weight. Recognition of this was implicit in this language, cited by the Berman court from State v. Amana Society, 132 Iowa 304, 109 N. W. 894 (1906): "Surely a scheme of life designed to obviate [man's inhumanity to man], and by removing temptations, and all the allurements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service, ought not to be denounced as not pertaining to religion when its devotees regard it as an essential tenet of their religious faith." 132 Iowa, at 315, 109 N. W., at 898, cited in Berman v. United States, 156 F.2d 377, 381. (Emphasis by the Court of Appeals.) The validity of what he believes cannot be questioned. Some theologians, and indeed some examiners, might be tempted to question the existence of the registrant's "Supreme Being" or the truth of his concepts. But these are inquiries foreclosed to Government. AS MR. JUSTICE DOUGLAS stated in United States v. Ballard, 322 U.S. 78, 86 (1944): "Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others." Local [380 U.S. 163, 185]   boards and courts in this sense are not free to reject beliefs because they consider them "incomprehensible." Their task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious. But we hasten to emphasize that while the "truth" of a belief is not open to question, there remains the significant question whether it is "truly held." This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact - a prime consideration to the validity of every claim for exemption as a conscientious objector. The Act provides a comprehensive scheme for assisting the Appeal Boards in making this determination, placing at their service the facilities of the Department of Justice, including the Federal Bureau of Investigation and hearing officers. Finally, we would point out that in Estep v. United States, 327 U.S. 114 (1946), this Court held that: "The provision making the decisions of the local boards `final' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant." At 122-123. APPLICATION OF 6 (j) TO THE INSTANT CASES. As we noted earlier, the statutory definition excepts those registrants whose beliefs are based on a "merely personal moral code." The records in these cases, however, [380 U.S. 163, 186]   show that at no time did any one of the applicants suggest that his objection was based on a "merely personal moral code." Indeed at the outset each of them claimed in his application that his objection was based on a religious belief. We have construed the statutory definition broadly and it follows that any exception to it must be interpreted narrowly The use by Congress of the words "merely personal" seems to us to restrict the exception to a moral code which is not only personal but which is the sole basis for the registrant's belief and is in no way related to a Supreme Being. It follows, therefore, that if the claimed religious beliefs of the respective registrants in these cases meet the test that we lay down then their objections cannot be based on a "merely personal" moral code.

Copyright Family Guardian Fellowship