The Supreme Court’s Dictionary is Missing an Entry: “Religion”

Nathan S. French, Associate Professor of Religion & International Studies Miami University

When I begin to explore the idea of “religious freedom” and the U.S. Constitution with my students, I begin our conversation by asking them a straightforward question: “Where does ‘religious freedom’ appear in the U.S. Constitution?”

Assuming they have not looked online, their answers vary, although, after a few minutes, they mostly settle upon the first amendment to the Bill of Rights to the Constitution, which was ratified on December 15, 1791. That amendment reads as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

A close reader will have already noticed the intent behind my question: “Where does ‘religious freedom’ appear in the U.S. Constitution?” The answer: “Nowhere.” In fact, the only other place that “religion” is mentioned in the text is in Article VI, in which “no religious Test shall ever be required as a Qualification to any Office or Public Trust under the United States.”

Of course, this does not mean that we lack legal cases, public discussions, and public laws that deal with the question of religious freedom. Several framers of the Bill of Rights and Constitution debated “religious freedom” as a concept. As John Witte, Jr. and Joel A. Nichols observe, “religious freedom” is an ongoing, open constitutional experiment that from 1776 to 1940 was governed and observed by states and, following 1940, was brought by the U.S. Supreme Court under the oversight of federal courts through two cases, Cantwell v. Connecticut (1940) and Everson v. Board of Education (1947). However, they note, since 1940, the Supreme Court’s record on religious freedom “is vilified for its lack of consistent and coherent principles, its uncritical use of mechanical tests and misleading metaphors, and its massive pile of divided and discordant opinions.” As a result, the other branches of U.S. government have attempted to fill the void. For example, the U.S. Congress attempted to secure religious freedom through statute (e.g., the Religious Freedom Restoration Act or RFRA, 1993) and, at times, U.S. Presidents have attempted to affirm matters of religious freedom through executive orders (e.g., Donald J. Trump, “Establishment of the U.S. Liberty Commission,” May 1, 2025).

How the U.S. Supreme Court and its coequal branches of government debate “religious freedom” often involves debates over specific language forbidding the government establishment of a religion and prohibiting an individual or community’s right to the “free exercise” of their religious beliefs and practices. One aspect that often is overlooked however seems more fundamental. It’s best expressed as a question, “How does the U.S. Supreme Court define religion?”

The answer?

For those who have studied the U.S. Supreme Court, the answer is quite simple. Now well into its third century, the U.S. Supreme Court continues to rule on matters of American religiosity without having ever defined “religion.” It may never. Should that matter to us? Perhaps. For scholars engaged in the academic study of religion, that answer is, “Yes, but it’s likely the court never will settle upon a definition.”

Defining Religion

While “religion” is a foundational concept on the first amendment to the U.S. Bill of Rights, it is not an oft-studied concept for students. Though the Supreme Court argued in School District of Abington Township v. Schempp that religion may be studied for historical and literary reasons in public schools, programs of study often do not engage with history or theories of religions. In private schools, particularly those tied to a particular religious confession, the study of religion might emphasize a specific set of theological commitments. In either case, if teachers and students did engage in the academic study of religion, they would learn that scholars of religion are no strangers to the difficulty – if not impossibility – of defining religion. It’s woven into our fields and methods of study.

Consider, for example, one of the more oft-cited definitions of religion, provided by the French sociologist of religion Émile Durkheim (1858-1917):

“A religion is a unified system of beliefs and practices relative to sacred things, that is to say, things set apart and forbidden – beliefs and practices which unite into one single moral community called a Church, all those who adhere to them.”

Here, Durkheim argues that all religions involve beliefs and rituals centered upon things that are sacred and profane. These sacred beliefs and rituals are shared, socially, within moral communities that he labels “churches,” although, Durkheim would readily recognize mosques, temples, synagogues, and other sites of worship in this definition. What mattered for Durkheim was that religion was fundamentally social.

Compare this definition with that of Clifford Geertz, an American anthropologist of religion, in which a religion is defined as “system of symbols” that establishes powerful emotional responses – “moods and motivations” – in individuals and communities. These responses orient an individual or community in the world, shaping “insider” and “outsider” identities and informing how various communities understand what is true or false. In both Geertz and Durkheim’s definitions, we see a sense of the social aspects of human religiosity. Unlike Geertz, Durkheim insists upon an official institutional presence.

Over the last few decades, scholars of religion have tended to think of religion as that which orients one in the world and that which occurs outside official, recognized institutions. Charles Long, writing on African American religious history, defined religion as a matter of our physical “orientation” in the world. While Nancy Ammerman, a sociologist of religion, pursues a religion as that which is “lived” outside of the official boundaries of institutions, recognized religious authorities, and established traditions.

For each definition, we see an attempt at theorizing what a religion “is,” in its essence, as well as any possible social function that it might provide. Yet, as we see, tensions emerge. For Durkheim, religion is social and institutional. Yet, for Ammerman, no institutional affiliation is needed.

Defining “Religion” within Law

Imagine, then, that you’re seated on the Supreme Court facing a question involving a possible violation of a citizen’s rights to religious free exercise. At question is whether this individual’s practices are seen as “religious” in the estimation of petitioner, who argues that the respondent has violated her religious free exercise rights. If the court uses Durkheim’s definition, let’s say, and cannot locate a sufficient institutional affiliation – i.e., a “church” – per Durkheim’s definition, will the court be able to argue the petitioner’s claim involves a recognized “religion?” Arguably, no. Durkheim’s definition does not seem to allow for the “lived” aspects of religion as described by Ammerman, for example.

The question as to whether “religion” is a concept that is impossible to realize within the jurisprudence of the U.S. Supreme Court is central to the work of scholars of religion such as Winnifred Fallers Sullivan, David Sehat, and Tisa Wenger. Although they each offer differing critiques, all three scholars argue that the concept of “religion” as found in the U.S. Constitution and within the jurisprudence of the U.S. Supreme Court remains unsettled. Further, they note that this might result in the court making certain assumptions about religion as it attempts to remain neutral on matters of religion.

Why might this matter? One of the preponderant legal philosophies utilized by several justices on the U.S. Supreme Court over the past few decades is that of “originalism,” a stance that argues that any interpretation of the U.S. Constitution, laws, and statutes must involve an interpretation of its text on the “original” understanding, or the understanding of the authors of that law, statute, or text. Originalists will consult a variety of sources – such as contemporary dictionaries – to establish the regular usage of a term.

Imagine, for a moment, that in our case above, a judge consults with one of the more popular dictionaries in circulation in eighteenth century North America. In the Dictionary of the English Language, published by Samuel Johnson in 1755, religion is defined as “virtue, as founded upon reverence of God, and expectations of future rewards and punishments.” Or, what if we consulted the Encyclopedia Brittanica of 1771? It suggested that “to know God, and to render Him a reasonable service, are the two principal objects of religion.” If these definitions are applied by the hypothetical judge within one possible originalist reading, only those religions with “reverence of God  and “expectations of future rewards or punishments” might be considered as protected by the first amendment.

Of course, this is a simplification of the originalist approach to legal interpretation, but it opens to us just how varied the Supreme Court’s interpretations and usages of the term “religion” might be. Might this uncertainty be a good thing, however? After all, if the Supreme Court begins to decide on what is a “real” or “fake” religion, it might soon find itself defining a religion in such a way that limits the free exercise and liberties of many Americans. This might make minority religions more difficult to practice and lead to accusations of discrimination. “Religious freedom,” as a concept, then, might depend upon the freedom of the court to continually examine, evaluate, and analyze American religiosity as it continues to evolve throughout the broader society.

Questions for Class Discussion

1. Choose a famous case involving “religious freedom” within the history of the Supreme Court. How does the court appear to define religion? What assumptions does the course make about religion? What might be the origins of these assumptions?
2. Imagine your school needed a policy for clubs. Is a mindfulness club allowed? A meditation club? A music-and-meaning club? A ‘Virgos Unite’ club? Who decides what counts as a religious club? How can rules be fair to everyone?
3. A sports athlete says a small prayer before a game. Fans lineup for the release of the latest book in a popular young adult novel series. Concert-goers are excited to buy tickets for a new tour. Fans flock to an online influencer’s latest video. Some of these might look a little bit like religion. Some don’t. Who gets to decide what is and is not a religion? Why might that matter?

Documentary

Media & Videos

Andrew Mark Henry, “Ceremonial Deism: The Religion of the Supreme Court,” Religion for Breakfast, 2020 (link)

Andrew Mark Henry, “Defining Religion,” Religion for Breakfast, 2016 (link)

Andrew Mark Henry, “Should Public Schools Teach Religion?” Religion for Breakfast, 2015 (link)

Crash Course Religions, “How Many Religions are There?” Crash Course, 2025 (link)

Crash Course Religions, “What Does Religious Freedom Mean?” Crash Course, 2025 (link)

Crash Course Religions, “What Even IS a Religion?” Crash Course, 2025 (link)

Scholarship

Nancy Ammerman. Lived Religion: Contexts and Practices. New York: New York University Press, 2021.

Émile Durkheim, The Elementary Forms of Religious Life. Translated by Carol Cosman. New York: Oxford University Press, 2010.

Clifford Geertz. The Interpretation of Cultures. New York: Basic Books, 1973.

Charles Long. Significations: Signs, Symbols, and Images in the Interpretation of Religion. Boulder: Davies Group Publishers, 1999.

David Sehat. The Myth of American Religious Freedom. New York: Oxford University Press, 2011.

Winnifred Fallers Sullivan. The Impossibility of Religious Freedom. Princeton: Princeton University Press, 2018.

Paul Tillich. Dynamics of Faith. New York: Harper Collins, 2001.

Tisa Wenger. Religious Freedom: The Contested History of an American Ideal. Chapel Hill: The University of North Carolina Press, 2017.

John Witte, Jr. and Joel A. Nichols. Religion and the American Constitutional Experiment. 4^th Edition. New York: Oxford University Press, 2016.