What Counts as “Religion”?

Last month, a grotesque little display popped up in the Iowa Capitol: a shrine to the horned god Baphomet, erected by the “Satanic Temple.”[1] To be clear, the Satanic Temple doesn’t revere a literal Satan. It’s a secular-progressive organization with a 1980s edgelord aesthetic, swiping at conservative appeals to religious liberty.[2] You say you want religious freedom? Well, that means freedom for us Satanists too. See how you like it now!

The display didn’t last. Ex-fighter pilot Michael Cassidy tore it down (and was later arrested).[3] Since then, much of the conversation surrounding the incident has focused on whether Cassidy did the right thing—and whether any legal rationales for the Temple’s use of the space can justify having a Satanic display set up in the halls of governance.

Those debates are noteworthy. And yet, beneath the surface of these arguments is a much deeper question: what is a “religion,” and who gets to define it?

Most people naturally intuit that to the extent it exists solely to mock other faiths, the Satanic Temple isn’t a bona fide “religion.” Its “fundamental tenets” are nothing more than banal left-liberalism, such as the claim that “[b]eliefs should conform to one’s best scientific understanding of the world. One should take care never to distort scientific facts to fit one’s beliefs.”[4] There is nothing here of divinity at all, and decidedly no affirmation of an actually existing Satan to whom one swears fidelity.

But the category of “religion” becomes slippery whenever such notions are invoked. For instance, insisting on belief in “a Supreme Being” as the sine qua non of religiosity would seem to exclude traditions widely understood to be “religions.” Could such a definition extend to the “emptiness” lying at the core of Theravada Buddhism, or the theologies of immanence that characterize modern neopaganism?[5]

Plenty of academics have thrown up their hands and declared the question simply hopeless. As Jason Ānanda Josephson Storm notes, “most scholars trained in Religious Studies today now consider it naive to presume ‘religion’ as a concept. . . . in many quarters the rejection of ‘religion’ as an analytical object approaches the consensus view.”[6]

Such a rejection, though, is a discipline-specific luxury. The First Amendment flatly declares that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. The category of “religion,” for all its conceptual instability, is firmly embedded in American constitutional law (and echoed in a myriad of statutes). Justices and judges can’t simply make the postmodern move and refuse to answer the question—at least not if they want to keep their jobs. Somehow, “religion” must be defined—and yet, supposedly, it cannot be.

To be clear, this is not a theological-philosophical problem that can be resolved in the space of a single article. What this piece aims to offer is something far more modest: a direction of inquiry that judges and Justices might consider when (inevitably) they are forced to reassess the matter. As appeals to “religious liberty” grow more and more contested, the Satanic Temple, or its imitators, will keep coming, pushing at the boundaries of the concept. The ultimate goal seems to be that scandalized Christians eventually settle for some sort of laïcité and a sterile public square. Christians ought to seek a better world than that.

* * *

Begin by clearing away some jurisprudential brush. Some might argue that the question of defining “religion” can be deferred indefinitely through consistent application of originalist methodology—that is, by pointing to historical examples of what counted as “religion” at the time of the Founding, which the First Amendment clearly protects.

The point is well taken. Courts can in practice make this move and avoid the deeper question. The Supreme Court, with its power of discretionary review, need not entertain cases likely to disrupt its existing precedents.[7] (The same is true of many state supreme courts.) From a public-order perspective, there are probably good reasons not to reopen the issue.

But from a theoretical standpoint, this is not especially satisfying. And it leaves questions unanswered that are not clearly resolvable within a narrow historical frame.

It is widely accepted today that the First Amendment’s protections are not limited to Christian (or even Abrahamic) faiths.[8] But there is ample reason to believe that the eighteenth-century drafters of the Constitution, like most other Westerners of the time, would have superimposed Western Christian conceptual frameworks upon religious traditions that in principle diverged sharply from the Jewish-Christian tradition. For example, assuming arguendo that Native American religious practices were originally cognized by the First Amendment, when these traditions speak of a “Great Spirit,” are they referring to a transcendent Creator (e.g., the God of the Abrahamic faiths), or referring to an immanent life-giving power not metaphysically distinct from the world?[9] If the latter, would those Native traditions count as “religions” at all? In the same vein, John Adams’s remarks on Hinduism suggest that he interpreted the tradition through a decidedly Western/Abrahamic lens.[10]

Hence, the deeper question can itself be transposed into an originalist key. To what, exactly, does the First Amendment’s protection for free exercise extend: a religious tradition as such, or the Founders’ inapt understanding of that religion? Is there principled room in the First Amendment for “religion” that does not in fact fit an implicitly Abrahamic paradigm?[11]

In general, the Founders were not what are today called “theologians of religions” or “comparative religionists.” Their use of a familiar theological-philosophical category (that is, religion) was an unanalyzed use (though understandable given the limits of the time). But now, when confronted with more challenging cases and the benefit of deeper knowledge of theological traditions, judges are not exempted from the responsibility to think through this question more systematically.

And that is, in fact, what the Supreme Court has tried to do—for better or worse.

* * *

Today, the vast majority of religious liberty cases heard by the modern Supreme Court do not involve fringe groups. The highest-profile court battles usually involve clashes between defenders of traditional Christian commitments and advocates of contemporary views on sex and gender. These cases are selected precisely because they offer clear opportunities for unsettled legal questions to be resolved and (for the most part) avoid getting bogged down in messy procedural issues or questions of disputed fact.[12] In this context, there is simply no reason to reopen questions regarding the nature of religion as such. Nobody seriously contends that Christianity (or Judaism, or Islam) is not a religion for First Amendment purposes.

But in at least two particular contexts, the question becomes much more difficult: cases involving the Religious Land Use and Institutionalized Persons Act (RLUIPA), and determinations of conscientious objector status. As relevant here, RLUIPA (enacted in 2000) protects the rights of prisoners to their free exercise of religion while incarcerated. In practice, this often looks like providing special diets or other exceptions to standard prison practice (such as, in the case of a Muslim prisoner, the privilege to grow a short beard).[13] In making such determinations, courts must evaluate whether a prisoner’s supposed religious practice is in fact religious at all.

And the matter becomes even more fraught when questions of the military draft—questions of risk of death—are involved. That’s why, during the Vietnam War, the Supreme Court was required to address directly the sort of belief that properly counts as “religious” for purposes of conscientious-objector status.

In 1965, the Court issued its opinion in the case of United States v. Seeger. Seeger consolidated the cases of three men—Daniel Seeger, Arno Jakobson, and Forest Peter—who were each prosecuted for refusing to be drafted into the U.S. military, and who had previously claimed religious exemptions pursuant to the Universal Military Training and Service Act.[14] The Act granted a military service exemption to individuals who “by reason of their religious training and belief” were conscientiously opposed to joining war in any form.[15] “Religious training and belief” was statutorily defined as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but (not including) essentially political, sociological, or philosophical views or a merely personal moral code.”[16]

These three men each held quite different metaphysical views. For his part, Seeger was a philosophical humanist, admitting “skepticism or disbelief in the existence of God” alongside “belief in and devotion to goodness and virtue for their own sakes.”[17] At trial, his counsel argued that Seeger’s belief “was not in relation to a Supreme Being as commonly understood,” but fell within “definitions of religion which have been stated more recently.”[18]

Jakobson affirmed a belief in “Godness” as “the Ultimate Cause for the fact of the Being of the Universe,” a “Supreme Reality” who could be called “Creator” as the entity “ultimately responsible for the existence” of human beings.[19] Unlike Seeger, Jakobson stressed that—on his understanding—his commitments fell squarely within the language of the Act. He was prosecuted, however, on the theory that his claim was “based upon a personal moral code” and that he was not sincere in his overall claim.[20]

Peter affirmed “the consciousness of some power manifest in nature which helps man in the ordering of his life in harmony with its demands”—specifically, “the supreme expression of human nature,” or “man thinking his highest, feeling his deepest, and living his best.”[21] Like Jakobson, Peter alleged that his views fell within the meaning of the Act: while conceding that “you could call [my views] a belief in the Supreme Being or God . . . [t]hese just do not happen to be the words I use.”[22]

From a theological perspective, characterizing these positions is not particularly difficult. Seeger, Jakobson, and Peter could be classified as an agnostic, a vaguely Spinozist mystic, and a (very) liberal Protestant, respectively. But which, if any, should benefit from an exemption for religious belief?

Writing for the Court, Justice Thomas Clark stressed that the legal task was clear (if not simple): whether the term “Supreme Being” in the statute refers to “the orthodox God” or “the broader concept of a power or being, or a faith, to which all else is subordinate or upon which all else is ultimately dependent”?[23] The Court stressed the theological diversity of religion in contemporary America: “Some believe in a purely personal God, some in a supernatural deity; others think of religion as a way of life envisioning as its ultimate goal the day when all men can live together in perfect understanding and peace.”[24]

In reaching its judgment that all three men were entitled to a draft exemption, the Court considered and rejected a formulation by Chief Justice Charles Evans Hughes, in his dissenting opinion in the 1931 case of United States v. Macintosh: “The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.”[25] Against this, the Seeger court concluded that by substituting “Supreme Being” for “God” in the text of Act, Congress had deliberately intended to broaden the scope of the exemption.[26]

But broaden how far? Potentially quite far indeed: the Court invoked theologians Paul Tillich and John A.T. Robinson as proof of the “ever-broadening understanding of the modern religious community.”[27] In particular, Tillich’s identification of God “not as a projection ‘out there’ or beyond the skies but as the ground of our very being” would fall within the statute’s definition of religious belief, as even the government conceded.[28]

Ultimately, the Court determined that for purposes of the draft exemption, “the test of belief ‘in a relation to a Supreme Being’ 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[.]”[29] The operative definition of “religion,” in short, collapses into conviction.

Before going forward, it is worth looking more closely at Chief Justice Hughes’s definition in Macintosh, which the Seeger Court declined to adopt. Virtually no person of faith, of course, would deny that their creed entails transcendent obligations. But Chief Justice Hughes’s claim is not merely a recognition of transcendent obligation; in good Kantian fashion, it seems to be a reduction of religion to the existence of transcendent obligation.

This theme comes through more clearly in the original Macintosh dissent, which the Seeger Court only excerpted. As Chief Justice Hughes writes:

The term “religion” has 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. One cannot speak of religious liberty, with proper appreciation of its essential and historic significance, without assuming the existence of a belief in supreme allegiance to the will of God. . . [P]utting aside dogmas with their particular conceptions of deity, freedom of conscience itself implies respect for an innate conviction of paramount duty.[30]

Note how powerfully the themes of obedience and duty—rather than participation, or contemplation—predominate. In the same vein, writing in 1943, a panel of the Second Circuit Court of Appeals—later referenced in Seeger—described the essence of religiosity as “a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets.”[31] Once again, religion is collapsed into duty.

This is a consequential, and not theologically neutral, characterization. If the essence of religion is merely the recognition of transcendent obligation, then it seems to follow that religion is not properly basic to the structure of reality as such. After all, one can always choose to die for any cause one likes. Rather, “religion” must be taken to supervene on a complex of preexisting human relations, imposing additional duties over and beyond the social order. The metaphysical truth-claims of religion qua religion lie essentially beyond the horizon of reasoned discourse.

The Seeger Court was correct to recognize that the meaningfulness of the category “religion” must extend beyond its crabbed, Kantian definition in Macintosh. But the Seeger court then attempted to resolve this problem by going in precisely the wrong direction: denaturing religious language even more thoroughly.

As previously noted, Seeger’s logic entails that religious belief is functionally equivalent to deep conviction about anything. Beliefs rooted in deeply held personal opinion are just as “religious”—and so worthy of protection—as traditional beliefs about the ultimate source and end of reality. The truth-value of those beliefs does not even matter in principle.

This result was, in fact, the goal. Significantly, the appellate court that heard Seeger prior to its consideration by the Supreme Court rejected any distinction between “internally derived” and “externally compelled” beliefs, on the theory that operationalizing such a distinction would tacitly require a “governmental determination of what is a ‘true’ or ‘acceptable’ religious belief.”[32] The Supreme Court in Seeger agreed.[33]

And yet the distinction is clearly an important one. To put the point in George Lindbeck’s terms: after Seeger, the government may not treat religious claims as even potentially cognitive-propositional—as referring to reality as such.[34] Rather, the government must treat religious claims as (in Lindbeck’s idiom) experiential-expressive—saying something about the speaker rather than about the external world.

There is something of a Faustian bargain here. Treating religious claims as strictly experiential-expressive can help carve out a space for religious free exercise, over against its cultured despisers. But this is a profoundly unstable space. For one thing, it generally abandons the possibility of giving a normative account of the good of religion as such. One can point to the meaningfulness of religion in the lives of its adherents, but it is denied any possibility of relevance to reality itself.

And, of course, one forfeits any principled reason to claim that the Satanic Temple is “not a religion”—even though, by any standard definition, it clearly is not.

* * *

Thus far, the predicament. What would it take to chart a new course?

At bottom, it would take a sea change in the judicial understanding of what religious language actually means. Denying recognition of “religious” status to bad-faith actors like the Satanic Temple, while simultaneously making sense of the expansive protections for religion in the First Amendment, demands recognition of an architectonic validity of religious claims as such—that is, a recognition that religious claims can be in principle cognitively-propositionally true.[35]

Contra the courts involved in Seeger, there is an obvious, and defensible, distinction between “internally derived” and “externally compelled” beliefs: one’s deep-rooted private conviction that the earth is flat is simply not the same sort of belief as rational assent to the reality of the earth’s curvature. Denying the possibility of this distinction would deny courts the possibility of adjudicating between sanity and insanity—which virtually all judges take for granted.

This is not to say that interpretive paradigms do not matter, or that law courts are equipped to resolve questions of technical theology. At issue here is merely the prefatory claim that theology as such is rationally related to the world of experience. And that is what religious traditions have historically asserted.

It is possible to see here how the Seeger case might have been resolved differently: Jakobson and Peter, whose “religious” beliefs were in principle cognitive-propositional, should have won their case. Seeger, whose beliefs appear to have been strictly experiential-expressivist, should not. At the same time, the Court might have taken the opportunity to dispense with Macintosh’s Kantianism while retaining its deeper truth: in his relation to the source and end of reality as such, human beings stand within a horizon of givenness, one that imposes an ontological obligation of gratitude beyond mere obedience to divine diktat.

Ordinary human life in community will inevitably lead to debates over the appropriateness and limits of particular religious practices—that is, debates over the proper modes of expression of that gratitude. Religious liberty is never absolute religious liberty. And yet it is worth preserving because religious language aims—ultimately—at saying true things, and the ground of such truth is more than mere sentiment.

Courts are unlikely to shift course from Seeger and draw this conclusion anytime soon. But it is the principled resolution to the problem they confront—and that “Satanists” are likely to keep forcing upon them.

John Ehrett is a Commonwealth Fellow, and an attorney and writer in Washington D.C. His work has appeared in American Affairs, The New Atlantis, and the Claremont Review of Books. He is a graduate of Patrick Henry College, the Institute of Lutheran Theology, and Yale Law School.

  1. James Farrell, “Why a Satanic Holiday Display at the Iowa Capitol Building Has Been Allowed to Stay Up Despite Backlash,” Forbes (Dec. 13, 2023), https://www.forbes.com/sites/jamesfarrell/2023/12/13/why-a-satanic-holiday-display-at-the-iowa-capitol-building-has-been-allowed-to-stay-up-despite-backlash/?sh=4ad81cf45bac.

  2. Hannah Wimberley, “Satan and the Law: How the Satanic Temple Is Fighting Christian Hegemony in Reproductive Healthcare,” Houston Journal of Health Law & Policy 22 (2023): 12–13.

  3. James Bickerton, “Who Is Michael Cassidy? Man Who Beheaded Satanic Statue in Iowa Charged,” Newsweek (Dec. 15, 2023), https://www.newsweek.com/who-michael-cassidy-man-who-beheaded-satanic-statue-iowa-charged-1852749.

  4. Wimberley, “Satan and the Law,” 14.

  5. See, e.g., Margot Adler, Drawing Down the Moon: Witches, Druids, Goddess-Worshippers, and Other Pagans in America Today (New York: Penguin Books, 2006) (emphasizing immanence as a critical aspect of neopagan theologies).

  6. Jason Ānanda Josephson Storm, Metamodernism: The Future of Theory (Chicago, IL: University of Chicago Press, 2021), 49–50.

  7. See Amy Coney Barrett, “Stare Decisis and Due Process,” University of Colorado Law Review 74 (2003): 1016 n.14 (“The discretionary nature of certiorari means that the Supreme Court need not (and usually does not) take cases that can be decided comfortably by its existing case law.”).

  8. County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 589–90 (1989).

  9. See, e.g., James Maffie, Aztec Philosophy: Understanding a World in Motion (Denver, CO: University Press of Colorado, 2015), 34–35 (for Mesoamerican religions, “[t]he divine is indistinct from the cosmos as well as immanent within the cosmos. . . . Native North American scholars attribute similar views regarding the singularity, uniformity, immanence, and vivifying potency of reality to indigenous North American philosophies.”).

  10. See, e.g., Syama Allard, “Adams, Emerson, Thoreau: How Hinduism Influenced Some of America’s Greatest Thinkers,” Hindu American Foundation (Oct. 22, 2021), https://www.hinduamerican.org/blog/adams-emerson-thoreau-how-hinduism-influenced-some-of-americas-greatest-thinkers.

  11. Cf. Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003), 35 (discussing “the essentialization of ‘the sacred’ as an external, transcendent power . . . connected with European encounters with the non-European world, in the enlightened space and time that witnessed the construction of ‘religion’ and ‘nature’ as universal categories.’”). Vastly more, of course, could be said on this historical-sociological theme.

  12. Cf. Karen O’Connor and Lee Epstein, “The Rise of Conservative Interest Group Litigation,” Journal of Politics 45 no. 2 (1983): 482–84.

  13. See, e.g., Holt v. Hobbs, 574 U.S. 352 (2015).

  14. United States v. Seeger, 380 U.S. 163, 164–65 (1965).

  15. Seeger, 380 U.S. at 166.

  16. Seeger, 380 U.S. at 172–73 (cleaned up).

  17. Seeger, 380 U.S. at 166.

  18. Seeger, 380 U.S. at 167 (cleaned up).

  19. Seeger, 380 U.S. at 168.

  20. Seeger, 380 U.S. at 168.

  21. Seeger, 380 U.S. at 169.

  22. Seeger, 380 U.S. at 169.

  23. Seeger, 380 U.S. at 174.

  24. Seeger, 380 U.S. at 174.

  25. United States v. Macintosh, 283 U.S. 605, 633–34 (1931) (Hughes, C.J., dissenting).

  26. Seeger, 380 U.S. at 175.

  27. Seeger, 380 U.S. at 180–81.

  28. Seeger, 380 U.S. at 180.

  29. Seeger, 380 U.S. at 165–66.

  30. Macintosh, 283 U.S. at 634 (Hughes, C.J., dissenting) (cleaned up).

  31. United States v. Kauten, 133 F.2d 703, 708. (2d Cir. 1943).

  32. United States v. Seeger, 326 F.2d 846, 853 (1964).

  33. Seeger, 380 U.S. at 186.

  34. George A. Lindbeck, The Nature of Doctrine: Religion and Theology in a Postliberal Age (Louisville, KY: Westminster John Knox Press, 1984), ebook ed. (articulating this multifaceted understanding of doctrine).

  35. Cf. Kevin Seamus Hasson, Believers, Thinkers, and Founders: How We Came to Be One Nation Under God (New York: Penguin Random House, 2016) (advancing a version of this argument).


Related Articles


Other Articles by

Ivy Envy?

Will conservative and Christian alternatives to Ivy League universities ever match them?

Beyond Schmitt

Does Schmitt's "friend-enemy" distinction hold up to Christian exegetical and doctrinal scrutiny?

Christendom After Comcast

Christian political retrieval has yet to reckon with how digital technology affects authority.

Join our Community
Subscribe to receive access to our members-only articles as well as 4 annual print publications.
Share This