It’s not every day that the United States Department of Justice has to remind people that a religion is in fact, a religion. However, the increasingly heated controversy surrounding a proposed mosque in Murfreesboro, Tennessee has forced its Civil Rights Division lawyers to intervene and counter plaintiffs working to stop its construction on the grounds that Islam is not a religion but rather a “political or ideological movement.”

It was this proposed mosque that provided the context for a question posed to a prominent Tennessee politician at a campaign event last summer, who then made headline news musing about whether the protections afforded in the First Amendment extend to Muslims. Specifically, said politician said, “Now, you could even argue whether being a Muslim is actually a religion, or is it a nationality, way of life, cult whatever you want to call it.”

Apart from being a pointless rumination (Of course Islam is a religion”it is the globe’s second largest), it is an unfortunately familiar one.

In fact, governmental attempts to delegitimize a minority or unpopular religion and undermine the rights of its adherents by labeling it a cult, political system, or ideology is a tired ploy that dates back to before the American Founding and colors much of American history.

This is not to say that concerns about religiously motivated violence are not, and have not been, grounds for valid concern about incorporating new religions into American democracy. As with certain schools of Islam (see, Osama bin Laden), certain strands of seventeenth Century Puritanism (see, Oliver Cromwell) and particular interpretations of Founding-era Catholic thought (see, Cardinal Richelieu) were threats to the established political authority and proper rule of law. Just as the recollection of 9/11 is still painfully raw , at the time of the American Founding, the colonists remembered the bloody religious wars in Great Britain.

As a result, many colonists viewed Catholicism not as a religion, but rather as a hierarchical, political system that demanded an allegiance to a foreign monarch, making it incompatible with a free and democratic system. This led to efforts to undercut the rights of American Catholics and fomented anti-Catholic sentiment in American society.

In New York, John Jay, the first Chief Justice of the United States, led an unsuccessful campaign to prohibit Catholics from holding political office. In 1768, Samuel Adams famously wrote in the Boston Gazette , “I did verily believe, and I do so still, that much more is to be dreaded from the growth of POPERY in America, than from the Stamp-Act, or any other Acts destructive of men’s civil rights.” John Adams wrote in a letter to Thomas Jefferson, “Can a free government possibly exist with the Roman Catholic religion?”

Early colonial charters and laws specifically targeted Catholics, one in Massachusetts going so far as to threaten with death, “all and every Jesuit, seminary priest, missionary or other spiritual or ecclesiastical person made or ordained by any authority, power or jurisdiction, derived, challenged or pretended, from the Pope or See of Rome.”

In short, there was a time in American history when Catholicism was not seen as an ancient religion, but rather a political system at odds with the one colonists were fighting to establish.

Americans then turned their attentions to the Mormons, whom they quickly labeled not a religion, but a cult that required extermination. In the 1838 Missouri Executive Order issued by then Governor Lilburn Boggs, General John Clark was commanded to eliminate the Mormons from American territory. The order read, “The Mormons must be treated as enemies, and must be exterminated or driven from the State if necessary, for the public peace-their outrages are beyond all description.”

Many acts such as Poland Act (1874) and the Edmunds Act (1882) followed, dissolving the corporation of the Mormon Church, confiscating property, and reducing the legal rights and authority of Mormons in the territories on the basis that the Mormon “cult” threatened the American way of life.

In the 1940s, it was the Jehovah’s Witnesses who came under fire as a supposed non-religion. Their refusal to say the Pledge of Allegiance, stemming from their religious belief that saluting the flag amounted to idol worship (leading to a lawsuit that wound its way all the way to the Supreme Court), quickly earned them status as a subversive political movement corroborating with the Nazis. They were suspected to be “Fifth Columnists” who had infiltrated the United States for Hitler, and they became the target of much hatred and even violence. Ironically, they were concurrently being persecuted by the Nazis in Germany for their refusal to salute Hitler.

Stripping religions of their label as a religion by distinguishing religions from cults, associations, and other groups goes on in other parts of the world, from West to East, and it’s not a path the United Sates wants to follow. In France, the About-Picard Law of 2001 restricts the activities of “cults,” and many religious groups are forced to gain status either as an association cultuelle , whose legal activities are limited to worship, or as a “cultural association,” which has yet a different legal status.

In other words, your religion is taxed and its legal status is based on how cultish the government finds you to be. Just a few years ago, Jehovah’s Witnesses were forced to cough up approximately $51 million in taxes, because in France they are not considered a religion.

Similarly, in Jordan, an interfaith council of clergy advises the prime minister as to whether a new denomination or church is a “real” church or religion, or whether it is a “society,” which comes with a different legal status. Some centuries-old religions receive no recognition as a religion at all, such as the Bahá’ís or the Druze.

In China, Article 300 of the criminal law outlaws cults, including the Falun Gong (whose membership is estimated as high as 70 million). The Chinese government reportedly spent $53 million in 2004 alone to “eliminate” unregistered religious activity considered cult activity, targeting among others Catholics, Protestants, Muslims, and Tibetan Buddhists.

France, Jordan, and China are just three examples of the legal implications of government officials ruminating about whether a religion is, in fact, a religion. Governments categorizing religions into religions, cults, associations, political ideologies, and similar categories at some point catches everyone in the net of religious discrimination.

None of this is to say that the claim to be a “religion” translates into an absolute right. Governments do have a compelling interest in outlawing or targeting specific religious practices that violate fundamental human rights. (No sacrifices to Moloch!) Furthermore, the government may discern that a claim to religious belief lacks sincerity (a fraternity cannot have marijuana as a “sacrament”!). The effort to secure true religious freedom in the concrete and not just in the abstract requires a continual process of balancing rights against compelling state interests.

This balancing act forms the melody of religious liberty’s tune in American history, though the verses may change with the passing centuries. As Professor Douglas Laycock noted in the Rutgers Journal of Law and Religion , “The history of religious liberty in America is a history of an ever expanding circle of inclusion, both of social acceptance and legal protection.” Members of every faith have a stake in standing up against cheap efforts to circumvent the First Amendment.

Ashley Samelson McGuire works in International Programs for the Becket Fund for Religious Liberty . She writes about her personal views on faith, feminism, and politics at Rogue in Rouge .

RESOURCES

Douglas Laycock’s The Religious Exemptions Debate .
Asma Uddin’s What’s Behind the Negative Characterization of Muslims? .
The Becket Fund’s How can we view Muslims as Americans? and Words Matter: Freedom of Worship is Not the Same as Freedom of Religion .
Richard John Neuhaus’s A New Order of Religious Freedom .
Richard W. Garnett’s Religious Freedom and the Supreme Court (behind the paywall).

Articles by Ashley Samelson McGuire

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