Religion's Legal Meaning

Via the folks at the Becket Fund, I thought I'd pass along this comment about a case in Tennessee involving the issue whether Islam is a "religion" or instead a political movement. 

Actually the question of religion's legal/constitutional meaning is an exceptionally difficult one.  The difficulty follows from the elusiveness of 'defining' religion generally, particularly after folks like Talal Asad complicated matters greatly with his formidable Genealogies of Religion.  The author of the comment at Becket, Ms. Diana Verm, argues that a system of belief qualifies as a religion when it "partakes of the transcendent–its believers feel that they are connecting to something outside and higher than themselves when they practice their faith."  Belief in the transcendent or some kind of higher reality is one possible approach among a set of views which would take some substantive component as essential, and it has found support in some case law (though there are significant difficulties with this approach -- for one, Buddhism seems to be left out).  Another possibility, much in favor in the mid- mid-late twentieth century, is the so-called "functionalist" view, a more capacious approach which considers the various social functions that religion is thought to play in people's lives, and then accepts that those belief systems which perform similar functions ought to qualify.  Emile Durkheim was one of the earliest functionalists (see his Les Formes Elémentaires de la Vie Religieuse) and the approach found favor in cases like United States v. Seeger (with reliance on the thought of Paul Tillich). 

Then there is the analogical approach, which takes as its raw material the cluster of factors that religious traditions which are unquestionably -- for historical reasons -- religious share as evidence of what should qualify as religious.  No single factor or characteristic is deemed dispositive but the more the system under consideration resembles traditions which are unquestionably religious, the more likely that the belief system itself will be deemed religious.  This approach, developed by Kent Greenawalt, is the most persuasive to me (the reasons that I favor it are not quite the same as those often given in support of it).

At all events, it seems to me that Islam rather easily qualifies under any of these views not despite the fact, but in part exactly because, it also partakes of the qualities of a political and cultural system.