Legally Defining Real Religious Communities
By The James Wilson Institute • Posted on Sep 21 2023

In one of a series of letters published in First Things, Prof. Hadley Arkes reviews Prof. Mark Movsesian's recent article, “Defining Religion in the Court,” published Summer 2023. Movsesian's thoughtful article provides a proposition for how to answer the question: What counts as religion in U.S. law? He argues that religion should be considered legally valid as long as the religion has built up a "serious community of adherents." In his review, Arkes agrees that this important question needs to be resolved, but he highlights two points of which Movsesian should be cautious. First that the legal concept of sincere religion was undermined in 2014 with the Town of Greece v. Galloway case, and second that the definition of a "real community" of a religious movement has not yet been qualified.

Arkes utilizes the Church of the Flying Spaghetti Monster to exemplify the types of religions that would currently fit into Movsesian's definition of a "real community." Despite the group's self-declared insincerity, their maintenance of a community of believers would include them in the Movsesian's definition of religion. Arkes goes on to say that the reason such insincere groups as the Pastafarians are allowed in the legal definition of religion is because of the Town of Greece v. Galloway case, where the constitutional bar to any religious invocations was removed.

"[O]nce there was no bar even to serious Christian invocations, the authorities thought themselves obliged to make the honor available to all religions. And then, in the reflex of our own time, they fell into the groove of seeing no serious moral or philosophic standard for judging between religions that were legitimate or illegitimate."

In his final comments, Arkes addresses the "real community" by pointing out a simple empirical question that Movsesian needs to answer: "When does any nascent religious movement begin to qualify as a 'community'?" He details how the early Christian movements of St. Paul reached outside of the Old Testament and focused instead on natural moral conscience to appeal to people outside of the Jewish community.

"[W]ould this Christian movement have qualified yet as a “community”?" Asks Arkes. "One that would constitute now, in our understanding, a vibrant, real “community” and therefore a real religion in the eyes of the law?"

Read Prof. Arkes's letter here.


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