by Igor Slamoff
The following are merely brief notes and do not explore the issues broached in any detail. The author is not a lawyer and some passages may be a trifle naïf. However the subject is well worth pursuing by people better prepared for the task than he.
The constitutional requirement of religious freedom renders it necessary to define the term “religion”. If an entity counts as a religion, it enjoys very broad freedom of action.
In recent litigation over the proposed construction of a mosque in Tennessee, the US Department of Justice submitted an amicus curiae brief, which states among other things, that about 1996, the Court of Appeals for the Tenth Circuit ruled on how a religion is legally defined, by providing a “detailed schematic for determining whether a system of belief is a religion, identifying five factors, with subparts.”
These criteria are the following:
(1) Ultimate ideas: fundamental questions about life, purpose, and death;
(2) Metaphysical beliefs: beliefs addressing a reality which transcends the physical and immediately apparent world;
(3) Moral or ethical system: proscription of a particular manner of acting or a way of life that is moral or ethical;
(4) Comprehensiveness of beliefs: an overarching array of beliefs that coalesce to provide the believer with answers.to many of the problems and concerns that confront humans; and
(5) Accoutrements of religion: the presence of various external signs of religion, including
(a) a founder, prophet or teacher,
(b) important writings,
(c) gathering places,
(d) keepers of knowledge,
(e) ceremonies and rituals,
(f) structure or organization,
(h) diet or fasting,
(i) appearance and clothing, and
Critique of the 10th Circuit's approach to defining religions
This definition of religion proposed by the 10th Circuit mentions a moral or ethical system, but fails to say anything about the content of that system. Presumably a religion can preach the need to kill certain people (or all people, for that matter), and this would not affect its standing as a constitutionally privileged religion.
Likewise a group may preach hatred of government or of certain governmental institutions, and indeed threaten to supplant them with a totalitarian system designed on its own cultish principles, without its constitutional privileges being revoked.
This definition of religion does not consider relevant the issue of whether a cult is engaged in political, military, commercial, etc, activities. This is an important objection because an organization may have a religious aspect that is completely subordinated to political, military or commercial goals, and still count as a religion.
This might in principle permit an organization professing to be a religion to evade laws on political activity, on military organization, etc.
This same argument can be applied to individual items, e.g., “(c) gathering places”, which presumably means mosques, churches, etc. The fact that a “gathering place” may at the same time be also a gun-storing place, a military training place, an imprisonment place and a torture place is apparently irrelevant.
Religions are supposed to have “founders”, but the founders aren’t even expressly required to be human beings. According to the 10th Circuit’s definition, a religion can be founded by a crocodile, or by a computer! Or, what is more relevant, a religion can be founded by a human, but an evil human, an arch-murderer, a gangster.
The noted German genocide artist Heinrich Himmler (1900-1945) got in touch with the Nazi party in the 1920s because he was a devotee of a Germanic neo-pagan cult. Even as a Nazi bigwig, Himmler remained involved in neo-pagan religious shenanigans whenever he could find time for them. He was a busy man, being at the same time the head of the Gestapo and the SS, while micro-managing the murder of millions of people.
|The goddess Kali|
What status do the remnants of Himmler’s neo-pagan sect currently possess? Are they a religion in the sense of the 10th Circuit?
One of the signal accomplishments of British imperialism in
suppression of the Thugs. Thugs were devotees of the Hindu goddess Kali, whose spiritual
beliefs required that they waylay and murder travelers and plunder their
possessions. And waylay and murder they did, for centuries on end, making
Indian roads exceedingly perilous -- until the Brits got on their respective
cases, that is. India
What would the status of Thuggee be, according to 10th Circuit?
 James Estes, et aI., vs. Rutherford County Regional Planning Commission, et aI., Civil Action 10CV-1443, Chancery Court for Rutherford County at Murfreesboro, TN, Motion for leave for permission for the United States of America to submit a brief as amicus curiae [murfreesboro_amicus_10-18-10.pdf], p 12 (available on the DOJ web site).