Whose Belief Counts as Religion

Muslims, Jews, Mormons, and progressive believers keep hearing the same thing: that isn’t really religion

In May, I was on 1A talking about the country’s 250th birthday and a question the show put plainly. What does America’s relationship with faith look like now? As the conversation went on, I kept noticing how easily certain people get left out of the story we tell about religious freedom. Muslims, progressive believers, anyone whose faith doesn’t match a narrow picture of what religion is supposed to look like. They get treated as if they are not quite part of the American story, and not quite covered by the protections the rest of us take for granted.

I have spent years writing about one version of this. In my work on Islam, I showed how the most effective way to take away a community’s rights is not to attack those rights head on. It is to argue that the thing in question is not really a religion at all. Call Islam a political movement, a foreign legal code, a program of conquest, anything but a faith, and the whole framework of protection quietly disappears. If it is not religion, there is no religious freedom question to answer. The community is left exposed, and the people doing this can say with a straight face that they never touched anyone’s religious liberty.

What surprised me is how many people recognize the move once you name it. After I speak, they come up to tell me they have seen the same thing aimed at their own beliefs.

• A Jewish man tells me he has been informed by non-Jews that his support for Israel is not really part of Judaism, just politics in religious dress.
• A Mormon friend tells me he is used to hearing that his church is not really a religion at all but a cult, or that whatever it is, it does not count as the real thing.
• A woman tells me she has been told that her belief that her faith permits, and sometimes calls for, abortion in certain situations is not religion but ideology she has wrapped in sacred language.

The accusation always has the same shape. Your belief may be sincere, but it is not the kind of thing the law was built to protect.

This same idea showed up, in a more careful form, in the fight over Indiana’s abortion ban. A group of plaintiffs, including a Jewish organization and several women of different faiths, argued that the ban violated their religious freedom under a state law, because their faith directs them to end a pregnancy in circumstances the ban makes a crime. The law professor Josh Blackman, writing with two colleagues, built the case against them. Soon after the Supreme Court overturned Roe v. Wade, he suggested in a post he called tentative thoughts that many non-Orthodox Jews could not really claim a religious obligation about abortion, because their branch of Judaism does not treat religious law as binding in the strict sense.

Blackman later said he did not mean that liberal Jews can hold no sincere beliefs, but the core idea survived. People who do not believe a higher power is commanding them, he argued, people for whom faith is more personal, hopeful, cultural, or traditional, do not fit the kind of case the law was meant to protect. That one line does a great deal of work. It splits faith into real religion, which orders you to do things, and a lesser thing that merely inspires or comforts. And it puts a lot of believers on the wrong side of the line.

Here is where it gets revealing, and where the trap snaps shut. The same logic that says Muslims and progressive believers are not doing real religion does not lead its users to leave those communities alone. It leads them to attack from both directions at once. They do not want religious freedom to cover a Muslim’s prayer or a progressive’s conscience. But when a public school teaches a unit about Islam, or runs a program meant to push back against anti-Muslim prejudice, suddenly those same voices discover a deep concern about the separation of church and state, and they sue to shut it down as an unlawful establishment of religion. So Islam is too political to count as a religion when a Muslim wants protection, and too religious to be allowed in a public school when a Muslim might benefit. The category bends whichever way leaves the community with less. That is the tell. This was never an honest question about what religion is. It is a tool, and the tool always cuts the same people.

I want to be fair to Blackman. He is making a real legal argument about a hard question, and lawyers can disagree in good faith about how the law should treat beliefs that recommend something rather than strictly command it. He is not running the crude project of calling a whole faith a fraud. But the logic he sharpens is the same logic I have chased for years in its uglier forms. It lets an outsider decide what counts as real faith, and it treats the ordinary variety inside any religious tradition as proof that the believer is faking. Critics warned early that this reasoning would not stay parked on abortion. The same groups using it for their own members would find it turning back on them.

The Indiana appeals court took a different path, deferring to the women’s own account of what their faith asked of them. I will not pretend this settles everything. If the believer decides what her faith requires, a court still has to ask how it can test that without becoming the very arbiter I have been warning against. Where the line sits, and who can police it, is a real problem, and one I mean to take up later.

But the difficulty of drawing that line is not a reason to hand the pen to whoever happens to distrust a given faith.

The lesson I keep coming back to is that religious freedom cannot be sliced up. Once we let someone outside a faith decide whether a believer’s commitment is the real thing, we have given away the principle that protects all of us.