In 1890 the Supreme Court knew exactly what religion was, which should have been the first warning. Certainty on a question like this is usually the sound of a man who has stopped looking. Justice Stephen Field wrote the definition down in Davis v. Beason with the calm of a fellow describing the weather. Religion, he said, has reference to one’s views of his relations to his Creator, and to the obligations those relations impose. The sentence reads like scripture and statute at once. It assumes a Creator. It assumes the relation runs upward, from the small soul to the large God. The case concerned Mormons in the Idaho Territory and a loyalty oath built to keep them from the ballot box, so the lofty definition arrived already doing grubby political work. Hold onto that. The Court has never once defined religion in the cool air of the abstract. It defines religion when it must decide who eats and who goes hungry.
For seventy years the Creator held the center. Then the center moved.
The first crack came in 1961, and it came quietly, the way the important cracks usually do. Torcaso v. Watkins struck down a Maryland rule that made officeholders declare a belief in God. Roy Torcaso wanted to be a notary public and refused to mouth the words. The Court agreed he could keep his mouth shut. Then Justice Hugo Black did a curious thing in a footnote, almost while reaching for his coat. He listed religions in this country that get along fine without any teaching about the existence of God. Buddhism. Taoism. Ethical Culture. Secular Humanism. The footnote carried no doctrinal weight at all. It did something far odder. It admitted the word could survive the loss of its oldest assumption. God walked out of the definition and the definition kept right on breathing, which ought to tell you how much the word ever needed God to begin with.
By the middle of the decade the war finished the job, because the war finishes most jobs. The draft has always been the laboratory where America runs its experiments on conscience. In 1965 United States v. Seeger took up three men who refused to fight and could find no church to vouch for them. The statute spared those who objected by reason of religious training and belief, and it pinned that belief to a Supreme Being. The Court could have read the words like a clerk and shipped the men off to die. Instead it performed an act of interpretive grace that edged right up to sleight of hand. The test, the Court announced, is whether a sincere and meaningful belief occupies in the life of its possessor a place parallel to that filled by the orthodox belief in God. Parallel. Marvel at that word. The believer could skip the deity altogether. He had only to stand where a believer stands, and the law would squint and call it close enough.
Welsh v. United States carried the thought home in 1970, and carried it past the point of comfort. Elliott Welsh took his draft form and crossed out the word religious with his own hand. He said his objection grew from conscience, shaped by history and sociology. The Court exempted him anyway. Consider the shape of that. A man could claim a religious exemption while flatly denying his belief was religious, and the law would bless the claim on the strength of how deeply he meant it. Depth had become the measure. Sincerity had become the test. The content drifted off toward the margins like a guest nobody invited.
You can read all this as triumph, and many good people do. The state had learned a little humility. It quit demanding that conscience wear a collar and tip its hat toward one particular heaven. The Quaker and the godless pacifist stood at last on the same patch of ground. If you believe the First Amendment exists to keep a man’s inner life safe from the government’s auditors, this is the arc bending the way you prayed it would. There is mercy in it. A weary mother who pulls her boy back from the recruiting line because her bones tell her killing is wrong should never have to produce a baptismal certificate to prove her bones. The law, for once, listened to the bones.
But look hard at what the bending cost. To widen the door the Court kept one hand clamped on the latch. Somebody still got to decide which beliefs ran deep and which were mere opinions a man could shrug off. Wisconsin v. Yoder dragged the danger into daylight in 1972. The Court shielded the Amish and their refusal to send children to high school, and to do it the justices drew a line in the dirt. Religious conviction earns the shield. A way of life built on purely secular reasoning earns nothing. Then Chief Justice Warren Burger reached for Henry David Thoreau as his example of the wrong kind of belief. Thoreau, the Court sniffed, went to Walden for reasons philosophical and personal rather than religious. Read that twice. The man who wrote the founding American gospel of conscience against the state got hauled out as Exhibit A for the kind of conscience the Constitution leaves standing in the rain.
That is the trouble that refuses to lie down. A government founded on disestablishment, a government expressly forbidden to write down a definition of God, has spent a century and a half writing down definitions of religion. It cannot help itself. Every exemption forces the question. Every accommodation demands a line. The instant the law hands one neighbor something the atheist next door goes without, the law has to say out loud what a believer even is. The Establishment Clause was supposed to walk the state gently out of the sanctuary. The Free Exercise Clause keeps hauling it back to the threshold to inspect everyone’s papers.
And the threshold is more crowded now than ever. A quarter of the country claims no religion at all, and a great many of the nones carry convictions every bit as binding as any creed. They assemble their ethics from sources the Seeger Court could never have dreamed. Online communities. Secular meditation. A bone-deep obligation to the planet or to a sense of justice that shows up with no god attached. So the courts inherit a test machined for the pacifist Quaker and get asked to run it on a young woman whose deepest loyalties live on a screen and answer to no congregation. The Welsh standard says depth is enough. The cruelty lies in proving depth to a stranger in a robe. A sincerity gap yawns open. The exemption rolls downhill toward those who already speak the old grammar of faith, who know how to perform reverence on cue and dress conviction in words a judge was raised to recognize. The believer brought up inside a tradition walks in fluent. The believer who built his faith alone walks in holding the very same depth and a vocabulary the law strains to hear. Both feel the full weight of the thing. Only one of them gets believed. That is a poor way to run a sanctuary, and a worse way to run a republic.
The definition stays open. That openness is a kind of mercy, and we should be honest enough to say so. It is also the sound of the state standing square in the middle of the temple it swore on its life to stay clear of, pulling out a tape measure, deciding what the sacred is on our behalf. The men who wrote the religion clauses wanted the government nowhere near that room. The cases are the long, patient record of its failure to leave.
