Law, critical religion, and the importance of semantics

By Gabrielle Desmarais
3 Dec 2012

I often hear it said that the contributions of scholars in critical religion are “merely semantic”; that problematising the category of religion and the meaning of the word 'religion' an academic context has no bearing on the understanding of religion 'on the ground'. The meaning of 'religion', many argue, is fluid and dynamic, and so the definition and approach of scholars studying it must reflect this. No single definition applies to 'religion', nor should there be, as people use the word to mean different things. In short, many argue that studying the idea of 'religion', and the implications of the word itself, have no real practicality beyond the academy.

I would like to offer a brief rebuttal to that argument, using as an example laws concerning 'freedom of religion'. Provisions for freedom of religion have become the norm for Western democracies and their bills of rights (such as in the Canadian Charter of Rights and Freedoms and the First Amendment to the United States Constitution), but there are several reasons why these provisions might warrant re-examination. Below, I will draw from my knowledge of North American case law to demonstrate how critical religion may be invaluable to moving towards a more nuanced understanding of the issue.

If a citizen presents a case to Canadian (or American) courts claiming their right to freedom of religion was infringed, either by another citizen or by an institution, one of the first steps in the legal process is to determine if the claim is legitimate. If the plaintiff is not a member of a recognised religion, the court must first determine if their practices qualify as 'religion'. Otherwise, a case for rights infringement cannot be made. How does the court determine whether the plaintiff’s religion qualifies as such in the eyes of the law? It does so by looking at the definition of the word 'religion'.

One of the main problems lies in the fact that constitutional documents which proclaim freedom of religion in North America do not describe or define 'religion'. In both Canada and the United States, the interpretation of 'religion' has been left to the courts. These rely on two sources of information to form this interpretation. The first consists of previous and pertinent case law, if it exists. Secondly, the court calls upon expert witnesses who can attest to the legitimacy of a claim based on their academic knowledge of religion. It is the academic understanding, and not a common or 'lay' understanding, of the category 'religion'that is privileged.

Still, the Supreme Court of Canada has done its best to use expansive definitions; in the landmark 2004 case Syndicat Northcrest v Anselem, it ruled that religion “is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment [sic], the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.” The issue here is that, despite their best efforts to be inclusive, courts fail to realise that using vague language does not divest the concept of 'religion' from its Christian and colonial history. Even the words 'beliefs' and 'faith' stem directly from a Christian rhetoric.

That the definition of 'religion' is left up to the interpretation of courts has not shown to have a substantial impact on traditional religions like Protestant Christianity, because they are easily recognisable as 'religion'. However, the question of whether religious practices are considered official or acceptable can still be disputed, as Winnifred Sullivan demonstrated beautifully in her book The Impossibility of Religious Freedom. The narrowness of the definition may present problems for new groups that identify themselves as 'religion', but are not recognisable as such to the court.

An example that comes to mind is Wicca. A tradition that emerged in the 1950s and spearheaded by retired civil servant Gerald Gardner, Wicca is an un-institutionalised earth-based new religious movement that focuses on the immanence of the divine in nature. Wicca has no official tenets of faith, no designated clergy or standard ritual format, and no fixed location of worship. Wiccan groups have had considerable difficulty proving to the government (Canadian or American) that they are legitimately religious, for these reasons.

When determining whether Wicca is a religion in the eyes of the law, the semantics of 'religion' are incredibly important. The large majority of Wiccan groups who qualified for tax exemption in the United States designate themselves 'churches', or describe themselves using words like 'faith' and 'beliefs'. In Roberts et al. v Ravenwood Church of Wicca, the granting of tax exemption for religious reasons was delayed by Justice Jordan, dissenting, who stated:

While the majority opinion states that the Wiccan church does not believe in the devil, I do not believe it conforms to the traditional concept of a religion as embraced in the preamble of our State Constitution and as expressed in the Pledge of Allegiance to the flag of the United States. This nation was founded “under God,” not the “karmic circle.”

If guarantees to 'freedom of religion' are granted only if a person’s religion is recognised, yet the definition of 'religion' relies on Christian rhetoric, are the provisions really ensuring freedom of religion? Should provisions for 'religion' exist at all? These are questions I will examine in more detail in my upcoming Master’s thesis.

The work of scholars in critical religion may indeed concentrate on the semantics of 'religion', but it is far from being 'merely' an academic issue. The meaning of the word 'religion' and the language used to regulate that definition are at the forefront of the constitutional cases about new religious movements. While it is perhaps unlikely that critical religion will prompt an amendment of provisions for 'freedom of religion', the continued work of scholars in the field may inform those expert witnesses called to consult in these cases, and thus help shape the legal understanding of human rights in the process.

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© Gabrielle Desmarais is undertaking postgraduate work in religious studies at the University of Ottawa in Ontario< Canada. Her research interests include 'religion' as a Western ideological concept and its impact on contemporary North American religious movements, the concept of 'religious authenticity' in the legal system, and the emergence and impact of Neopagan ideologies on contemporary society. http://uottawa.academia.edu/GabrielleDesmarais


This article is one of a continuous series appearing on Ekklesia through our association with the Critical Religion Association (CRA), developed out of the University of Stirling Critical Religion Research Group. CRA is bringing together academics from a wide range of backgrounds to explore the way 'religion' is employed as a a marker, construct and category in public and intellectual discourse. You can also follow Critical Religion on Twitter: http://twitter.com/CriticoReligio (@CriticoReligio).

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