In his introduction of vaccine-mandates among education staff last week, my state governor made an interesting distinction between kinds of disagreement one might have with the mandate — one which would be respected, and one which would not:
Now there will be some exemptions. Someone with legitimate medical reasons that are shown and demonstrated, or sincerely held religious reasons for not getting the vaccine will be able to seek an exemption. These exemptions do not include personal or philosophical objections.
Jay Inslee, August 18, 2021
Where the Second Amendment is concerned, I remember once hearing Eugene Volokh dismantle the usual distinction made between defense of self and defense of a free state. Legally speaking, a tyrannical government constitutes a personal threat, and there is no functional difference between owning a firearm for the purposes of defending oneself against a mugger or a rapist and owning a weapon of war for opposing a domestic threat.
I think a similar dismantling might need to be made in the domain of the First Amendment, where freedom of thought and freedom of religion have somehow separated as distinct concepts where the law is concerned.
For starters, how does one define “religion?” Where is the line drawn between religious beliefs and non-religious beliefs?
As it turns out, the Supreme Court has clumsily attempted to draw such a line. This line is derived primarily from United States v. Ballard et al (1944)–wherein members of the “I AM” cult were indicted for conspiracy to commit mail-fraud for claiming in brochures to possess supernatural healing powers. But of course, the nature of these beliefs in healing powers was connected with their metaphysical and spiritual beliefs, which put them under the umbrella of the First Amendment. The opinion of the court — delivered by Justice Douglas — was framed as follows:
Whether that is true or not is not the concern of this Court and is not the concern of the jury — and they are going to be told so in their instructions. As far as this Court sees the issue, it is immaterial what these defendants preached or wrote or taught in their classes. They are not going to be permitted to speculate on the actuality of the happening of those incidents. Now, I think I have made that as clear as I can. Therefore, the religious beliefs of these defendants cannot be an issue in this court.
‘The issue is: Did these defendants honestly and in good faith believe those things? If they did, they should be acquitted. I cannot make it any clearer than that.
‘If these defendants did not believe those things, they did not believe that Jesus came down and dictated, or that Saint Germain came down and dictated, did not believe the things that they wrote, the things that they preached, but used the mail for the purpose of getting money, the jury should find them guilty. Therefore, gentlemen, religion cannot come into this case.’
If “sincerity” seems like a strange metric for measuring the religiosity of a belief, the legal dictionary offers a clarification for us laymen by adding — and then subtracting — God from the equation:
The Supreme Court has interpreted religion to mean a sincere and meaningful belief that occupies in the life of its possessor a place parallel to the place held by God in the lives of other persons. The religion or religious concept need not include belief in the existence of God or a supreme being to be within the scope of the First Amendment.
Here I think the problem with clarity becomes a bit more glaring, and particularly glaring in the context of Mr. Inslee’s distinction. By United States v. Ballard, the phrase “sincerely held religious reasons” is legally synonymous with “sincerely sincere reasons.” If the legal dictionary is to be believed, is there any doubt that millions of otherwise agnostic Americans value personal freedom to a degree parallel to many religious adherents’ devotion to God? Does anyone doubt the sincerity of such persons?
If so, we might have some collective explaining to do to the dead at Arlington, who were under other impressions. One would be hard-pressed at least to doubt their sincerity in valuing freedom even above life itself.
It goes without saying that this belief in the value of freedom is to many explicitly religious. The Declaration of Independence summarizes the sentiment by attributing the unalienable right of liberty to a Creator. But in the context of today’s religious landscape, full as it is with non-deific religions like Buddhism, the legal relevance is somewhat irrelevant. The sincerity of belief seems to be enough.
And how does one judge sincerity?
This was another problem that the court in United States v. Ballard had to wrangle with.
But there is a deeper problem with the sincerity metric, which is that many people associated with mainline religions are in fact not sincere in their belief (this is a subject I explored at length in Holy Nihilism). Their religiosity is less a matter of belief and more a matter of cultural identity… but does this make their religious beliefs not “truly” religious? Or does this simply reveal a failure in our legal conceptualization of what constitutes religion?
The simple answer to all of this is that the Founding Fathers were not trying to distinguish religious opinion from non-religious opinion in the First Amendment. Legally speaking, there can be no distinction between freedom of religion in particular and freedom of thought more generally, nor between action grounded in religious reasoning and action grounded in “personal or philosophical objections,” simply because there isn’t any line between religion and not-religion where matters of personal beliefs and values are concerned.
It seems as if the distinction we have somehow accepted is a byproduct of Title VII of the 1964 Civil Rights act, which prohibits discrimination on the grounds of religious affiliation, but not personal or philosophical beliefs. This essentially sanctified religious beliefs as protected. But because of the absoluteness of this decree — not merely limiting congressional power, but constraining citizens rights to choose their own grounds for decision-making! — it has essentially forced government into the business of deciding what constitutes religion. Paradoxically, this may actually violate the first clause of the First Amendment concerning religion: Congress shall make no law respecting an establishment of religion.
By prohibiting individual discrimination (decision-making) based on religion, does the Civil Rights act force Congress to respect an establishment of religion? It certainly forces Congress to distinguish between religious opinion and non-religious opinion, because discrimination is permitted in the latter case, but not the former. If any individual’s claims to sincere religious beliefs might be doubted because they do not conform to the orthodoxy of a larger religious institution (which seems to be the case), then the answer appears to be “yes.”
When we look at the text of the First Amendment, we see a kind of list of examples: the free exercise of religion; the freedom of speech; the freedom of the press; the freedom of assembly; the freedom of petition. These are explicit protections, but these points paint a constellation of other freedoms, if we can see the pattern in the stars and not merely the lone specks. Insofar as any intent is visible in the spirit of the Constitution, that intent is precisely against such distinctions as that between religious and non-religious opinion. This spirit was aptly summarized by Justice Robert Jackson in a Supreme Court case decided just one year before Ballard:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion[,] or force citizens to confess by word their faith therein.
West Virginia State Board of Education v. Barnette (1943)
At the end of the day, “religion” is just a word. It connotes deeply held beliefs about the nature of this world and what is important in it. The premise of Natural Law compels the government to respect such beliefs, and to give way before them, or else risk illegitimacy. But such beliefs can be, and are, arrived at by personal and philosophical means too. Indeed, one might consider “religion” merely to be a ritualistic and cultural means of passing on such beliefs to future generations, having been arrived at in the first place through personal experiences and philosophical contemplation. This means that while it is a valuable illustration of the kinds of free thought that the Constitution sought to protect, it is of no legal value to distinguish between “religious” opinion and “personal or philosophical” opinion, since these two are in fact similar in kind and often identical in origin… and the only way to distinguish the two is to violate the very Amendment which sought to protect this freedom of thought in the first place.
