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Monday, May 09, 2005

Is a non-believer who practices as a committed Orthodox Jew protected by the Constitution?

Assume you are Jewish and that you observe orthodox strictures.  That is, you keep kosher strictly, you do not perform "work" (as defined by traditional Jewish law) on the sabbath and various holidays, and so forth.  However, your commitment is not based on religious belief and faith--indeed, maybe you are an agnostic, atheist, or deist--but rather on something else.  In other words, you practice religiously, but you do not believe religiously.

Also assume that you are employed by the federal government.

Can you be fired for refusing to eat a cheeseburger (because it is not kosher) at your boss's annual bbq?

What if your boss knows that you merely practice religiously but don't actually believe?

What if she doesn't know?

What if other true believers are fired for the same reason but subsequently reinstated?

What if your Rabbi is prepared to testify that, according to Orthodox Judaism, practice in the absence of belief is not remotely optimal, but it is better than the absence of both belief and practice?

My impression is that you are out of luck in each of these cases, unless you are prepared to lie about your religious beliefs.  I believe the Free Exercise Clause only protects actions that are undertaken as a result of religious faith, rather than religious actions that are undertaken for non-religious reasons.

Am I wrong?

Posted by Hillel Levin on May 9, 2005 at 10:25 AM in Legal Theory | Permalink


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Prawfs Blawg poses a delightfully difficult first amendment question: Can a person who practices certain religious rituals, without actually believing in the religion itself, get free exercise protection? [Read More]

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A discsussion today on PrawfsBlawg raises the question of the extent to which observance of religious ritual is protected by the First Amendment (or by laws that prohibit religious discrimination) if the person's practice of the rituals is based on s... [Read More]

Tracked on May 9, 2005 4:26:19 PM


I would be very, very concerned about the courts delving into a beliefs/practice dichotomy. It seems to me that there are a fair lot of religious people who are sitting on some sort of agnostic fence. Imagine A and B attend the same church. A believes firmly in God, and is also fairly convinced that she's going to Hell or will at least do some time in Purgatory because she's not very good at following all the rules. She tries, but the flesh is weak. B, on the other hand, really isn't sure she buys this whole God business, is quite sure that she won't go to Hell for every little infraction, or even a fair number of relatively big ones. She observes the rules of the Church very strictly because she believes the Church's lifestyle rules are very sound, and are a good route to becoming the most virtuous person she can be.

I don't think the Courts have any business making a distinction between these two people, in terms of religious accomodation.

It looks like a duck, walks like a duck, and quacks like a duck. Why are we demanding a sample of its DNA to prove it's a duck?

I do think the issue gets a lot fuzzier when a person doesn't belong to a religious community. In that case, if the person is not following rules readily identifiable as belonging to a specific religion, then the Court can look at sincerity of belief. "Morality" is an adequate substitute for "religion," if the beliefs and practices are not theocentric. The key in evaluating someone who is requesting a religious exemption, but can't point to a specific set of rules (such as keeping kosher), is whether that person sincerely believes that in the absence of such an exemption, she would be required to behave immorally.

This applies to our ostracized heretic, too:

It doesn't look much like a duck, and the other ducks don't think it's a duck, but it sincerely believes it is a duck. Who are we to tell it otherwise, when duck-ness is such a personal issue?

Posted by: Rebecca | May 10, 2005 12:38:03 PM

I don't know that I completely buy the belief/observance dichotomy.

After all, I can be a practicing member of a religion without necessary subscribing to all of the beleifs in the catechism or theology of that religion, right?

I can be a Catholic who attends Mass and says prayers, but who doesn't believe that the Eucharist is actually the body of Christ. (I'm not a Catholic, but it's my understanding that that position is a pretty serious heresy).

If I want to go to Mass because it's part of my own religious understanding and experience, that that experience draws me closer to God, then I think I can do that (and be protected by the First Amendment in my act), even if I don't believe in the actual trans-substantiation of the Eucharist.


Posted by: Kaimi | May 9, 2005 1:59:39 PM

You do not have to be religious to recieve "Conscientious Objector" status from the military.

Posted by: roy solomon | May 9, 2005 1:47:44 PM

It seems to me that "belief" is sufficient, but not necessary, to constitute religion. Either belief (the boundraries of which are admittedly fuzzy), or membership in a community that acts religious, should be sufficient: the first to catch people who act out of personal religious faith even in the absence of a community (like the heretic you mention), and people who are members of a religious community.

The constitution speaks to "religion" rather than belief, and I don't think religion can be narrowly defined to simple belief. Religion might be better understood to mean both/either (a) belief, or (b) practices as part of a religious community or with a religious character.

The communitarian aspect of religion has some historical support. For example, the Catholic tradition holds that the church as community is the body of Christ.

Likewise, any number of the framers were Unitarians (Adams comes to mind), and Unitarian religious practices are notoriously inclusive of different belief sets and absence of belief.

And then there's religions like Zen Buddhism. I don't think it's going too far off the reservation to say that it's impossible to judicially determine the beliefs that a practitioner of Zen Buddhism may, or should, hold, since it's an aziom of Zen (to the extent I understand it) that religious insight can't be communicated by ordinary processes.

I think those examples and the dozens of others we can probably think up make it clear that "religion" does not necessarily imply belief testable in a court of law.

Unlike Scalia, I don't have a 1789 dictionary, but the compact OED online gives the following definition of religion:

"noun 1 the belief in and worship of a superhuman controlling power, especially a personal God or gods. 2 a particular system of faith and worship. 3 a pursuit or interest followed with devotion."

The really difficult case is your other example, that of the person who isn't a member of the Jewish community, and doesn't have a personal faith in the Jewish god, but chooses to comply with Jewish law for some obscure personal reason. I don't have an answer there. I'd be inclined to draw the line there and deny such a person the right to religious accommodations, but I'm not completely comfortable with that position, because I'd like to make sure that doesn't start a slippery slope leading to disenfranchisement of individual religious practices that are on the borders of conventional "belief." (e.g. Discordianism)

Posted by: Paul Gowder | May 9, 2005 1:11:27 PM

Interesting thought. But how is "feel[ing] like a member of the religious community" protected by the Constitution? Maybe the person in question observes the strictures in order to placate her spouse. Or maybe she likes getting out of work early on winter fridays and is willing to put up with all of the prohibitions in order to do so. Or maybe she thinks that keeping kosher and the sabbath are good for her health.

What if she isn't Jewish by any Jewish community's measure? That is, she wasn't born to a Jewish parent and never undertook a conversion of any kind, but began to observe Jewish law for some obscure personal reasons?

What if the religious community at issue ostracizes the person as a result of heretical beliefs, even though the person continues to practice?

I'd love to hear more thoughts on this scenario. Further, while it is farfetched, I imagine we could come up with a range of applications that are not, since there are lots of members of religious communities of all kinds who are nevertheless agnostic (at least).

Posted by: amosanon1 | May 9, 2005 12:11:01 PM

Oooh, what an interesting question! I don't completely agree, because I doubt the courts would want to get into the distinction between belief and observance. Talk about impossible-to-adjudicate...

The standard would have to be something like "religious sentiment." As opposed to "religious belief." I.e. even if you don't believe in the commands of the deity at issue, if you follow them because you feel like a member of the religious community at issue, it's an exercise of religion...

Posted by: Paul Gowder | May 9, 2005 11:06:13 AM

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