Defining What Can’t be Defined

Phenomenology and the Paradox of Adjudicating the Free Exercise of Religion

The pursuit of defining religion continues to perplex academics engaged in the field of religious studies. In retrospect, some scholars in this field have come to recognize problems with the post-enlightenment roots of not only the word “religion,” but the entire academic discipline itself. Thus, as students navigate through the variety of approaches to the study of religion, they seem to come to the inevitable conclusion that any static or universal definition of religion is elusive at best. Despite the fact that this conclusion may serve a valuable purpose for the discursive curiosity of those high atop the ivory tower of academia, it leaves certain everyday dilemmas dealing with religion and the public sphere unanswered.

In fact, the social order and institutions of any given society are already operating with some answer to this paradoxical question. Nowhere is this more evident than the relationship between religion and law. Despite the diverse variety of legal systems around the world, all of their constitutional and legal frameworks must somehow negotiate how religion is defined. In the United States, the question of how to define religion became unavoidable when all citizens were guaranteed a fundamental right to free exercise in the first amendment of the U.S. constitution which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”[1]

Since this right is absolute only in terms of belief and must be qualified when it comes to conduct, the U.S. Supreme Court has grappled with how to decide which groups and individuals are deserving of benefiting from the legal exemptions possible under the free exercise of religion. The state’s attempt to define religion then raises another difficult question; what gives the distinct category of religion its ontological meaning and why does it deserve such a special constitutional status?

The phenomenological approach to religion, with its focus on effectively describing the subjective experience of the devotee, can provide a guiding framework for how to distinguish between multiplicities of what may be deemed religion. Now for many religious studies scholars, phenomenology, or any other singular approach, may never be able to provide a satisfactory definition of religion. Yet, an analysis of American first amendment jurisprudence illustrates how the phenomenology of religion may be a helpful methodological approach to deal with the unavoidable legal conundrum of defining religion.

Working to compete with popular reductionist trends about the nature of religion, the early 20th century German theologian and scholar of comparative religion, Rudolph Otto, offered one popular approach to the phenomenology of religion. He argued for the sui generis (unique/unlike any other) state of religious experience so as to constitute a valid category of meaning. He begins by replacing terms such as holy with a notion of the “numinous” which he defines as, “a special term to stand for ‘the holy’ minus its moral factor.”[2] Essentially, religion comes into being through numinous feelings which are the result of our inner a priori minds’ experiences of some objective reality.[3] According to Thomas Idinopulos, the connections between experience, mind and object affecting religion are not made clear in Otto’s writings. Thus begging the question, what in religion is a priori (valid independently of observation) and what is a postriori through experience?

Although Otto does not address this question, the significance of his approach is apparent when reflecting on the rational for giving religious beliefs and practices special constitutional status to begin with. Otto’s attempt at grounding the category of religion as manifestations of an irrational numinous reality that transcends our full comprehension is one way to make phenomenological distinctions between elements of religion and what we may label as secular worldviews. If applied to the legal context, it stills presents a grave problem for judges who must decide if a given issue addresses some metaphysical concern or claim to justify first amendment consideration.

Since Otto argued that this numinous reality in and of itself is unknowable beyond what our consciousness is able to perceive, then it is important to keep the court out of the business of judging the validity of truth claims and focused on whether that claim has legal standing. Interestingly, Otto also argued that one who has not experienced the numinous can never presume to understand it and need not dig any deeper into these complex questions.[4] Based on this approach it would be impossible for judges to adjudicate such cases since they themselves have never experienced the religious claim in question.

Rather, the Supreme Court has actually applied the general parameters of western religions such as Christianity, Judaism or Islam, to judge the legitimacy of other possible manifestations of religion. For example, in United States v Meyers (1995), while determining that Church of Marijuana did not constitute a religion, the Supreme Court developed a five prong criteria essentially derived from a Judeo-Christian perspective. It comprised of, ultimate ideas dealing with life, purpose, and death, metaphysical beliefs as mentioned earlier, moral or ethical systems that distinguish right from wrong and external signs such as writings, gathering places, rituals, etc.[5] The court argued that since the church did not fit this entire criteria, it should be denied constitutional free exercise exemption.

Here, both Otto and the Supreme Court struggle with the same problem. Although Otto’s thought is able to delineate some ontological meaning for religion, he tried to account for an objective numinous reality while still committed theologically to what he believed to be the true content of Christianity. This issue is evident in how Otto attempts to prove that what he has deemed the irrational essence of religion is more than simply a self-induced state of mind. He brings in the notion of a rational-moral component of the numinous that determines how this reality is systematically expressed in order to argue that the rational and irrational work together to purify manifestations of the numinous (religions) in an evolutionary manner.[6] This is what causes religions to evolve and grow, and for Otto, this process is maximized in the case of Christianity.[7] Since laws will already reflect the religion(s) of any given majority in the U.S., this approach to defining religion may run the threat of rendering the legal system incapable of adequately protecting the rights of minority religions.

Similar to Otto, Scottish religious studies scholar Ninian Smart begins by labeling the phenomenological object of religious practice as the “focus” so as to make it more inclusive and bereft of value judgments. Smart then develops seven dimensions or typifications of what he names “worldviews.” They include the ritual or practical, the doctrinal or philosophical, the mythic or narrative, the experiential or emotional, the ethical or legal, the organization or social, and the material or artistic dimensions.[8]

When applying Smart’s approach, there is nuanced difference between developing a criterion into which religions must fit and searching within them for the presence of the various dimensions he describes. Unlike the Meyers case, this approach at least provides broader categories that are not intrinsically grounded upon particular religious traditions. To qualify how this approach must function, Smart argues for a bracketed realism that leaves open the possibility for the student of religion, or in our case the judge, to remain agnostic with respect to the role of the supernatural in human affairs while paradoxically recognizing its power upon the individual devotee.[9] Smart also writes that phenomenology should be understood as the attitude of informed empathy which means that it tries to bring out what religious acts mean to the actors.[10]

Hence, Smart’s method restricts the study of religion to providing descriptions of the phenomenon since explaining any phenomenon would be in violation of bracketing. It must be noted that an important critique of Smart’s work is that he has ruled out any projectionist explanation of religion which one can argue is tantamount to asserting the actual existence of the “focus” itself. Nevertheless, given that it is impossible for the free exercise of religion to be an absolute legal right, this approach can be a practical guideline for judges who need only to find the best possible way to accommodate the benefits of an imperfect right to free exercise.

Smart also asserts that his methodology can easily be applied to secular worldviews, making them phenomenologically indistinguishable from religion. Thus, unlike Otto, Smart’s approach does not necessarily provide any impetus for why religion even deserves special constitutional status. In fact, it means that either religion is a lot more prevalent in society then generally thought or religion as a distinct category has no ontological meaning. If the latter is true then it calls into the question the very legitimacy of the free exercise clause but if the former is the case, then it means the Supreme Court must employ a broader understanding of religion.

This broader approach is exemplified in a second precedent found within U.S. first amendment jurisprudence. In the 1970 case Welsh v. United States, Elliot Ashton Welsh II was convicted for his refusal to join the Army since he sought conscientious objector status without a basis in any explicit religious belief. Instead, Welsh grounded his objection to war in his belief that killing anyone is morally wrong. Welsh’s case rested upon his claim that the sincerity of his beliefs qualified him for exemption under section 6(j) of the Universal Military Training and Service Act. The statute provided exemption for objectors whose claims were based on “religious training and belief,” and excluded those based on “political, sociological, or philosophical views or a merely personal moral code.”

Prior to the Supreme Court, the lower Court of Appeals actually came to the conclusion that Welsh was excluded from exemption by citing that when filling out the conscientious objector application, Welsh crossed out the word “religious” completely. Instead, Welsh later characterized his beliefs as formed by reading the fields of History and Sociology. They argued that Welsh’s views fell within § 6(j)’s exclusion of “essentially political, sociological or philosophical views or a merely personal moral code.” The lower court did not give due consideration to the phenomenological significance, in Welsh’s life, of the moral imperative not to kill. The Supreme Court on the other hand, decided that Welsh’s moral imperative must be seen in a comparative manner to how similar beliefs may function of the lives of other religious citizens.

A precedent was created that judged non-normative or minority religions not for their validity but for their phenomenology. Essentially, the court’s approach is this case is much closer in line with Smart’s thought and provides a framework that is far more accommodating then what later developed in United States v. Meyers.

[1] U.S. CONST. amend. I (emphasis added).

[2] Olson, Carl. 2003. Theory and method in the study of religion: a selection of critical readings. Australia: Thomson/Wadsworth. 108

[3] Id. 120

[4] Id. 121

[5] Griffin, Leslie. 2007. Law and religion: cases and materials. New York: Foundation Press. 31

[6] Olson, Carl. 2003. Theory and method in the study of religion: a selection of critical readings. Australia: Thomson/Wadsworth. 122

[7] Id.

[8] Id. 148

[9] Id. 154

[10] Id. 143