Malnak v. Yogi (five parts)
Judy Stein
IV SCI/TM AS A RELIGION
Although Transcendental Meditation by itself might be defended as
appellants sought to do in this appeal as primarily a relaxation
or concentration technique with no "ultimate" significance, n54
the New Jersey course at issue here was not a course in TM alone,
but a course in the Science of Creative Intelligence. Creative
Intelligence, according to the textbook in the record, is "at the
basis of all growth and progress" and is, indeed, "the basis of
everything." Transcendental Meditation is presented as a means
for contacting this "impelling life force" so as to achieve
"inner contentment." Creative Intelligence can provide such
"contentment" because it is "a field of unlimited happiness,"
which is at work everywhere and visible in such diverse places as
in "the changing of the seasons" and "the wings of a butterfly."
That the existence of such a pervasive and fundamental life force
is a matter of "ultimate concern" can hardly be questioned. It is
put forth as the foundation of life and the world itself. n55
The Science of Creative Intelligence provides answers to
questions concerning the nature both of world and man, the
underlying sustaining force of the universe, and the way to
unlimited happiness. Although it is not as comprehensive as some
religions for example, it does not appear to include a complete
or absolute moral code it is nonetheless sufficiently
comprehensive to avoid the suggestion of an isolated theory
unconnected with any particular world view or basic belief
system. SCI/TM provides a way indeed in the eyes of its adherents
The way to full self realization and oneness with the underlying
reality of the universe. Consequently, it can reasonably be
understood as presenting a claim of ultimate "truth."
[*214] This conclusion is supported by the formal observances
and structure of SCI/TM. Although there is no evidence in the
record of organized clergy or traditional rites, such as
marriage, burial or the like, there are trained teachers and an
organization devoted to the propagation of the faith. And there
is a ceremony, the Puja, that is intimately associated with the
transmission of the mantra. The mantra is a word communicated
privately to each newly-inducted practitioner, which is said to
be vital to transcendental meditation and access to the field of
unlimited happiness.
SCI/TM is not a Theistic religion, but it is nonetheless a
constitutionally protected religion. It concerns itself with the
same search for ultimate truth as other religions and seeks to
offer a comprehensive and critically important answer to the
questions and doubts that haunt modern man. That those who
espouse these views and engage in the Puja, or meditate in the
hope of reaching the transcendental reality of creative
intelligence, would be entitled to the protection of the free
exercise clause if threatened by governmental interference or
regulation is clear. They are thus similarly subject, in my view,
to the constraints of the establishment clause. When the
government seeks to encourage this version of ultimate truth, and
not others, an establishment clause problem arises.
V THE NEW JERSEY SCI/TM COURSE AS AN ESTABLISHMENT OF RELIGION
Like the majority, I am convinced that the conclusion that SCI/TM
is a religion is largely determinative of this appeal. There is
nothing Per se unconstitutional about offering a course in
religion or religious writings. This was made clear by the Court
in Schempp:
It certainly may be said that the Bible is worthy of study for
its literary and historic qualities. Nothing we have said here
indicates that such study of the Bible or of religion, when
presented objectively as part of a secular program of education,
may not be affected consistently with the First Amendment. n56
A realistic appraisal of the course at issue here, however,
demonstrates no such objective secular program.
In applying the three-prong Nyquist test for determining whether
a particular program abridges the establishment clause, n57 the
district court credited the government with pursuing a secular
purpose of sorts, but held that the means employed in pursuing
this goal were forbidden by that clause:
Owing to the religious nature of the concept of the field of pure
creative intelligence . . ., it is apparent that the governmental
agencies have sought to effect a secular goal by the propagation
of a religious concept, a belief in an unmanifest field of life,
which is perfect, pure, and infinite. . . . These means of
effecting ostensibly secular ends are prohibited by the
establishment clause. n58
I am in agreement with this conclusion, but entertain some doubt
as to the secularity of purpose here. No federal or state agency
has taken an appeal from the judgment of the district court, so
we have not had the benefit of enlightenment as to what possible
secular purpose was served by the decisions of the New Jersey
educational authorities and the expenditure of federal tax
dollars. Although a secular purpose, however unlikely, is usually
conceded in establishment clause cases, n59 there is some
question [*215] whether one can be found in the record here.
A careful review of the transcript, and the content of the
course, reveals nothing other than an effort to propagate TM,
SCI, and the views of Maharishi Mahesh Yogi. n60 As the district
court indicated, the government may have thought some "good"
would come out of this instruction, but it is quite possible that
some good would come out of instruction in the Protestant, Roman
Catholic, Jewish or Islamic faiths. A conviction that religious
education is "good" for students does not make out a secular
purpose.
Religious observation and instruction in public schools may be
sustainable if ideas are taught in an objective fashion, or if
the overall impact of the religious observance is De minimis.
Neither was true here. Once SCI/TM is found to be a religion, the
establishment resulting from direct government support of that
religion through the propagation of its religious ideas in the
public school system is clear.
Although federal courts should be reluctant to interfere in the
judgments of educational authorities on questions of what subject
matter should be taught in the schools, our constitutional duty
to guard against state efforts to promote religion may not be set
aside out of deference to the policy choices of other officials.
Whatever its merits, the program under consideration here,
endorsed, as it is, by the State of New Jersey and the Department
of Health, Education and Welfare, is forbidden by the first
amendment. As such, it cannot stand.
=================================================================
NOTES TO MAIN OPINION
n1. For a detailed discussion of the textbook used in the course,
see Malnak v. Yogi, 440 F. Supp. at 1289-1305.
n2. For a comprehensive description of the puja, see 440 F. Supp.
at 1305-08. The district court described the activities of a
chanter at the puja ceremony:
The chanter . . . makes fifteen offerings to Guru Dev and
fourteen obeisances to Guru Dev. The chant then describes Guru
Dev as a personification of "kindness" and of "the creative
impulse of cosmic life," and the personification of "the essence
of creation," . . . .
The chanter then makes three more offerings to Guru Dev and three
additional obeisances to Guru Dev. The chant then moves to a
passage in which a string of divine epithets are applied to Guru
Dev. Guru Dev is called "The Unbounded," "the omnipresent in all
creation," "bliss of the Absolute," "transcendental joy," "the
Self-Sufficient," "the embodiment of pure knowledge which is
beyond and above the universe like the sky," "the One," "the
Eternal," "the Pure," "the Immovable," "the Witness of all
intellects, whose status transcends thought," "the Transcendent
along with the three gunas," and "the true preceptor."
Manifestly, no one would apply all these epithets to a human
being.
440 F. Supp. at 1308 (footnote omitted).
The district court concluded:
(T)he puja is sung at the direction of Maharishi Mahesh Yogi, a
Hindu monk. The words and offerings of the chant invoke the
deified teacher, who also was a Hindu monk, of Maharishi Mahesh
Yogi. In the chant, this teacher is linked to names known as
Hindu deities. Maharishi Mahesh Yogi places such great emphasis
on the singing of this chant prior to the imparting of a mantra
to each individual student that no mantras are given except at
pujas and no one is allowed to teach the Science of Creative
Intelligence/Transcendental Meditation unless he or she performed
the puja to the personal satisfaction of Maharishi Mahesh Yogi or
one of his aides. . . . Needless to say, neither Hinduism nor
belief in "the Lord" constitute a dead religion. Both of these
beliefs are held by hundreds of millions of people. 440 F. Supp.
at 1311-12.
n3. In Wood the district court's holding was technically based on
a determination that the defendant school board was not a proper
person to provide the court with jurisdiction. It was only as an
"alternate basis for reaching the same result" that the court
addressed the constitutional issue.
----------------------------------------------------------------------
NOTES TO ADAMS'S CONCURRENCE
n1. Niemotko v. Maryland, 340 U.S. 268, 273, 71 S. Ct. 325, 328,
95 L. Ed. 267, 280 (1951) (Frankfurter, J., concurring in the
result).
The importance of the result here, both in terms of future
constitutional interpretation and potential impact on government
educational programs, has already attracted the attention of a
number of commentators. Also, we have been advised by counsel
that government officials, as well as the parties before this
Court on appeal, view this case as a "test" of the constitutional
limits on public school courses in transcendental meditation.
n2. 440 F. Supp. at 1312.
n3. Id. 1320.
n4. Madison, A Memorial and Remonstrance on the Religious Rights
of Man in Cornerstones of Religious Freedom in America 84 (J.
Bleu ed. 1964).
n5. 133 U.S. at 342, 10 S. Ct. at 300.
n6. United States v. Macintosh, 283 U.S. 605, 633-34, 51 S. Ct.
570, 578, 75 L. Ed. 1302 (1931) (Hughes, C. J., dissenting).
n7. Nor am I persuaded that "textual analysis" the comparison of
wording of alleged prayers is a meaningful way to scrutinize
establishment clause cases. The actual wording of a school
exercise, for example, may be far less important than its context
and purpose. A textual analysis might well invalidate the pledge
of allegiance, the singing of "America the Beautiful," or the
performance of certain works from Handel or Bach by a school glee
club. Yet, such activities have not been held to violate the
establishment clause, even though they include references to God
or a Supreme Being, because they are undertaken for patriotic,
cultural or other secular reasons, and neither have, nor are
intended to have, a religious effect on those participating in or
witnessing them. These exercises, in other words, are not
"prayers" within the meaning of Engel or Schempp.
n8. The Regents Prayer read:
Almighty God, we acknowledge our dependence upon Thee, and we beg
Thy blessings upon us, our parents, our teachers and our Country.
n9. 374 U.S. at 208 n.3, 83 S. Ct. 1560.
n10. See id. at 278-81, 83 S. Ct. at 1600-03 (Brennan, J., concurring).
n11. But see Justice Stewart's dissenting opinion in Schempp, 374
U.S. at 308, 83 S. Ct. at 1616. Justice Stewart was unpersuaded
that the activities were not genuinely voluntary, and voted to
remand for a further hearing on that issue.
n12. See, e. g. DeSpain v. DeKalb Community School Dist., 384
F.2d 836 (7th Cir. 1967), Cert. denied, 390 U.S. 906, 88 S. Ct.
815, 19 L. Ed. 2d 873 (1968); Stein v. Oshinsky, 348 F.2d 999 (2d
Cir.), Cert. denied 382 U.S. 957, 86 S. Ct. 435, 15 L. Ed. 2d 361
(1965); Goodwin v. Cross County School Dist. No. 7, 394 F. Supp.
417 (E.D.Ark.1973); American Civil Liberties Union v. Gallatin
Area School Dist., 307 F. Supp. 637 (W.D.Pa.1969); Lynch v.
Indiana State Univ. Bd. of Trustees, 177 Ind. App. 172, 378
N.E.2d 900 (1978).
n13. A possible exception is DeSpain, supra n.12. There
kindergarten children were required to recite the following verse
before receiving their morning snack:
We thank you for the flowers so sweet;
We thank you for the food we eat;
We thank you for the birds that sing;
We thank you for everything.
The Court of appeals for the Seventh Circuit reversed a district
court determination that such was not a prayer or religious
activity.
n14. It is not meant to suggest that the Puja has no relationship
to the ultimate issue of this case. In my view, however, the
chant is only one factor to be considered in determining whether
SCI/TM itself is a religion. The Puja, because of its ceremonial
aspects, may be supportive of the answer supplied to that
question, but it does not answer it by itself. Moreover, even if
the Puja alone were found to be religious, the proper remedy
might well be to enjoin that particular ceremony only, and not to
interdict the entire SCI/TM course.
n15. See I A Supra. There is nothing in the school prayer cases
incompatible with the traditional definition of "religion." Yet,
despite their reliance on these cases involving admittedly
Theistic prayers, neither the district court nor the majority of
this Court appear to rest their result on a conclusion that
SCI/TM is properly classified as a traditional Theistic faith.
n16. 50 U.S.C. App. @ 456(j) (1970).
n17. "Religious training and belief in this connection means an
individual's belief in a relation to a Supreme Being involving
duties superior to those arising from any human relation, but
does not include essentially political, sociological, or
philosophical views or a merely personal moral code." 62 Stat.
612. This was the statutory language applicable to both Seeger
and Welsh, although Congress deleted the reference to a "Supreme
Being" in 1967, apparently in response to the Seeger case. See
Welsh v. United States, 398 U.S. 333, 336 & n. 2, 90 S. Ct. 1792,
26 L. Ed. 2d 308 (1970).
n18. Note, Toward a Constitutional Definition of Religion, 91
Harv.L.Rev. 1056, 1065 n.60 (1978).
n19. 380 U.S. at 176, 85 S. Ct. at 859. Seeger had declared his
faith to be a "belief in and devotion to goodness and virtue for
their own sakes, and a religious faith in a purely ethical
creed." Id. 166, 85 S. Ct. 850 at 854. A similar result was
reached in a comparison case, United States v. Peter. Peter based
his claim for C.O. status on a belief supported by and similar to
the somewhat pantheistic views of Rev. John Haynes Holmes, who
defined religion as "the consciousness of some power manifest in
nature which helps man in the ordering of his life in harmony
with its demands . . . (it) is the supreme expression of human
nature; it is man thinking his highest, feeling his deepest, and
living his best." Id. 166, 85 S. Ct. 850 at 856.
n20. See Wisconsin v. Yoder, 406 U.S. 205, 216, 92 S. Ct. 1526,
32 L. Ed. 2d 15 (1972) (distinguishing personal and philosophical
views from religious views). This apparent retrenchment was
sharply criticized by Justice Douglas. Id. 247-49, 92 S. Ct.
1549-50 (Douglas, J., dissenting in part).
(continued to next post)
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+ Judy Stein * The Author's Friend * jst...@cnct.com +
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Judy Stein
NOTES TO ADAMS'S CONCURRENCE (continued)
n21. 440 F. Supp. at 1314.
n22. 398 U.S. at 354, 90 S. Ct. at 1804.
n23. 398 U.S. at 356, 90 S. Ct. at 1805 (Harlan, J., concurring).
n24. Id. 357, 90 S. Ct. at 1805.
n25. In so doing, Justice Harlan was not striking out on a new
path. He relied specifically on Torcaso v. Watkins, 367 U.S. 488,
495 n.11, 81 S. Ct. 1680, 6 L. Ed. 2d 982, discussed Infra at
205-206.
n26. Id. 374, 90 S. Ct. 1792 at 1814 (White, J., dissenting).
n27. 367 U.S. at 495, 81 S. Ct. at 1683-84.
n28. Id. n.11.
n29. The Church of Scientology sought to avoid federal labeling
and regulatory requirements for its "E-meter," a device designed
to read brain imprints. Scientology is not universally conceded
to be a religion. See Missouri Church of Scientology v. State Tax
Comm'n., 560 S.W.2d 837, 842 (Mo.1977) (applying a "Supreme
Being" test to disqualify Scientology for a state tax exemption).
n30. Although the broader definition of religion has been applied
in several free exercise cases arising in different contexts, it
cannot be said to have completely carried the field. Compare
Remmers v. Brewer, 361 F. Supp. 537 (S.D.Iowa 1973), Aff'd per
curiam, 494 F.2d 1277 (8th Cir.), Cert. denied, 419 U.S. 1012, 95
S. Ct. 332, 42 L. Ed. 2d 286 (1974) With Theriault v. Carlson,
495 F.2d 390 (5th Cir.), Cert. denied 419 U.S. 1003, 95 S. Ct.
323, 42 L. Ed. 2d 279 (1974). Compare People v. Woody, 61 Cal.2d
716, 40 Cal.Rptr. 69, 394 P.2d 813 (Cal.1964) With In re
McMillan, 30 N.C.App. 235, 226 S.E.2d 693 (1976). It should be
noted that many of the cases confronting this dilemma seem to
involve the sincerity of the claimed religious view as much as
the status of that view. See, e. g., United States v. Kuch, 288
F. Supp. 439 (D.D.C.1968). See generally, Comment, The Religious
Rights of the Incarcerated, 125 U.Pa.L.Rev. 812 (1977).
n31. See, e. g., T. Altizer, The Gospel of Christian Atheism
(1966); H. Cox, The Secular City 1-2 (1966); R. Richard,
Secularization Theology (1967); G. Gutierrez, A Theology of
Liberation (1973); P. Tillich, The Shaking of the Foundations
(1972). See generally, Note, Toward a Constitutional Definition
of Religion, 91 Harv.L.Rev. 1056, 1066-72 (1978).
n32. 380 U.S. at 166, 85 S. Ct. at 854.
n33. . . . is Scientology a religion? On the record as a whole,
we find that appellants have made out a Prima facie case that the
Founding Church of Scientology is a religion. It is incorporated
as such in the District of Columbia. It has ministers, who are
licensed as such, with legal authority to marry and to bury. Its
fundamental writings contain a general account of man and his
nature comparable in scope, if not in content, to those of some
recognized religions. The fact that it postulates no deity in the
conventional sense does not preclude its status as a religion.
The Government might have chosen to contest the claim that the
Founding Church was in fact a religion. Not every enterprise
cloaking itself in the name of religion can claim the
constitutional protection conferred by that status. It might be
possible to show that a self-proclaimed religion was merely a
commercial enterprise, without the underlying theories of man's
nature or his place in the Universe which characterize recognized
religions. 409 F.2d at 1160. (citations omitted)
n34. Courts are sharply limited in any review of the content of
religious ideas. See Serbian Eastern Orthodox Diocese v.
Milivojevich, 426 U.S. 696, 96 S. Ct. 2372, 49 L. Ed. 2d 151
(1976); Presbyterian Church v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church, 393 U.S. 440, 89 S. Ct. 601, 21 L. Ed. 2d
658 (1969). Compare the earlier approach of Late Corporation of
the Church of Jesus Christ of Latter-Day Saints v. United States,
136 U.S. 1, 49-50, 10 S. Ct. 792, 34 L. Ed. 478 (1890). Some
judges have been uneasy with any content analysis whatever. See
United States v. Ballard, 322 U.S. 78, 92, 64 S. Ct. 882, 88 L.
Ed. 1148 (1944) (Jackson, J., dissenting).
n35. 409 F.2d at 1160 (emphasis supplied).
n36. 380 U.S. at 168, 85 S. Ct. at 855.
n37. P. Tillich, Dynamics of Faith 1-2 (1958).
n38. See, e. g., United States v. Seeger, 380 U.S. 163, 187, 85
S. Ct. 850, 13 L. Ed. 2d 733 (1965); Religious Liberty,
Nonestablishment, and Doctrinal Development Part I. The Religious
Liberty Guarantee, 80 Harv.L.Rev. 1381, 1424-26 (1967); Note,
Toward a Constitutional Definition of Religion, 91 Harv.L.Rev.
1056, 1066-68 (1978).
n39. 380 U.S. at 163 at 184, 85 S. Ct. 850.
n40. It should not be reasoned from this that those teachings of
accepted religious groups that do not address "ultimate" matters
are not entitled to religious status. Many religions are
sufficiently comprehensive to include rules or views on very
ordinary matters such as diet, periods for rest, and dress. These
are not themselves "ultimate concerns," but they are intimately
connected to a religion that does address such concerns. Once a
belief-system has been credited as a "religion" through an
examination of its "ultimate" nature, its teachings on other
matters must also be accepted as religious.
n41. It is a widespread practice in high school biology courses,
for instance, to include discussion of Darwin's theory of
evolution. This theory is offensive to some religious groups, but
it is not in itself religious. For a thoughtful discussion of
this problem, See, Note, Freedom of Religion and Science
Instruction in Public Schools, 87 Yale L.J. 515 (1978).
n42. Aquinas, Prologue to Commentary of IV Books of Sentences,
reprinted in An Aquinas Reader (M. Clark, ed. 1972) at 411.
n43. The individuals seeking draft exemptions in Seeger and
Welsh, supra, were found to be religiously motivated. But their
views were largely personal, and the conclusion that they were
religiously based could not be supported by the existence of any
formal, ceremonial organizational trappings. On the other hand,
purely personal ideas, even if sincere, may not rise to a
religious level. See Wisconsin v. Yoder, 406 U.S. 205, 216, 92 S.
Ct. 1526, 32 L. Ed. 2d 15 (1972) (dictum). It is, therefore,
possible that solely individual beliefs must look to other
constitutional provisions for protection. If this is true, formal
and organizational signs may prove to be more important in
defining religion than the conscientious objector cases would
suggest.
n44. "The really religious beliefs are always common to a
determined group which makes profession of adhering to them and
to practicing rites connected with them . . . . In all history,
we do not find a single religion without a Church." E. Durkheim,
The Elementary Forms of the Religious Life 43-44 (1915). See K.
Dunlap, Religion: Its Functions in Human Life 255-70 (1946); E.
Underhill, Worship 20-41 (1937). See generally Note,
Transcendental Meditation and the Meaning of Religion Under the
Establishment Clause, 62 Minn.L.Rev. 887, 906-08 (1978).
n45. Appellants have urged that they do not consider SCI/TM to be
a religion. But the question of the definition of religion for
first amendment purposes is one for the courts, and is not
controlled by the subjective perceptions of believers. Supporters
of new belief systems may not "choose" to be non-religious,
particularly in the establishment clause context. As the Welsh
court stated, albeit in a very different context:
The Court's statement in Seeger that a registrant's
characterization of his own belief as "religious" should carry
great weight, 380 U.S. 163 at 184, 85 S. Ct. 850, does not imply
that his declaration that his views are nonreligious should be
treated similarly.
398 U.S. at 341, 90 S. Ct. at 1797. There is some indication that
SCI/TM has attempted a transformation from a religion to a
secular science in order to gain access to the public schools.
See Note, Transcendental Meditation and the Meaning of Religion
Under the Establishment Clause, 62 Minn.L.Rev. 887, 912-13
(1978). Even if this is true, the issue of its religious nature
remains a legal question, and the judgment of the Court today
represents a conclusion, in effect, that the attempted
transformation is not complete.
n46. L. Tribe, American Constitutional Law 827-28 (1978). Tribe's
principal example is particularly relevant to the question
presented here:
Consider, for example, the curious lawsuit in Malnak v. Maharishi
Mahesh Yogi, where plaintiffs contend that the New Jersey school
system is violating the establishment clause by allowing licensed
teachers to use public school facilities to teach Transcendental
Meditation (TM) as an elective course. The TM course trains
students in a method or process of meditation. For some, it is a
religion; but for thousands of people throughout the country it
is a mental exercise, often engaged in by enthusiastic adherents
of such formal religions as Christianity, Judaism, and
Mohammedanism. Clearly, TM should be deemed a religion for
purposes of the free exercise clause: if the government sought to
forbid it as an activity, the free exercise clause would stand in
the way. But if the same definition of religion were adopted for
the establishment clause, offering the course proposed in Malnak
would be unconstitutional even though many plausibly regard it as
no more "religious" than courses in methods of concentration or
body control. Are the teaching of psychology or of self-hypnosis
forbidden by the establishment clause?
Id. Professor Tribe wrote before the facts of this case had been
developed. He views the course as one in TM, not SCI/TM. Whether
he would consider this particular SCI/TM course to be "arguably
non-religious" is not entirely clear from the above. In any
event, the teaching of this course is readily distinguishable
from instruction in psychology or self-hypnosis.
n47. Note, Toward a Constitutional Definition of Religion, 91
Harv.L.Rev. 1056, 1084 (1978). The Harvard illustration differs
from Tribe's:
For example, the Secularization movement in contemporary
Christianity is unquestionably deserving of protection under the
free exercise clause. Yet, the conclusion that Secularization
Theology is a religion for establishment clause purposes might
lead some to conclude that numerous humanitarian government
programs should be regarded as unconstitutional.
Id.
n48. Indeed, even a limited review of the commentators indicates
that a dual definition is endorsed by a substantial majority of
those who have addressed the question. See, e. g., Freund, Public
Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1686-87 n.14
(1969) ("It may be suggested that a conventional definition of
religion or religious practice is controlling in applying the
non-establishment clause, while a heterodox version is entitled
to protection under the free exercise clause, which safeguards
the nonconformist conscience."); Galanter, Religious Freedom in
the United States: A Turning Point? 1966 Wis.L.Rev. 217, 266.
n49. Sheldon v. Fannin, 221 F. Supp. 766, 775 (D.Ariz.1963)
(establishment clause definition looks to majority's concept of
the term religion, free exercise clause definition to the
minority's).
n50. Brief for Appellants at 53-56.
n51. Everson v. Board of Education, 330 U.S. 1, 32, 67 S. Ct.
504, 519, 91 L. Ed. 711 (1947) (Rutledge, J., dissenting).
Although the Court split over the comprehensiveness of the
establishment clause, Rutledge's views on the unitary definition
of religion were not disputed by the majority. A unitary
definition is also endorsed by Judge Meanor in his opinion in
this case. 440 F. Supp. at 1316 n.20, and would appear to be
implicitly accepted by the majority of this Court.
n52. The reference to "Secular Humanism" in the Torcaso footnote
appears to be to just such a group. See Fellowship of Humanity,
supra. A more difficult question would be presented by government
propagation of doctrinaire Marxism, either in the schools or
elsewhere. Under certain circumstances Marxism might be
classifiable as a religion and an establishment thereof could
result.
n53. See McDaniel v. Paty, 435 U.S. 618, 98 S. Ct. 1322, 55 L.
Ed. 2d 593 (1978) (Tennessee constitutional provision restricting
clergy from holding political office found unconstitutional).
n54. The religious significance of TM alone is disputed. It has
been defended as wholly consistent with other religious views,
and attacked by adherents of those religions as permeated with
Hinduism. Compare D. Denniston & P. McWilliams, The TM Book 14-19
(1975) With Beware of TM, 19 Christianity Today 1168 (1975). The
extent of its involvement with "ultimate concerns" might well
vary from course to course. For a comprehensive survey of the
literature for and against TM, and the distinctions between TM
and SCI/TM See Note, Transcendental Meditation and The Meaning of
Religion Under the Establishment Clause, 62 Minn.L.Rev. 887
(1978). The Minnesota commentator expresses considerable doubt
that any TM course could pass constitutional muster. Id. 938-48.
n55. Appellants have argued that Creative Intelligence is a
science, not a religion, and that their claims for it are
scientifically verifiable. But theology, too, may be regarded as
a science, and many theologians in the past have thought that the
existence of their God could be proved by reason. It is true that
some of those favoring a broad definition of religion have
suggested that one indicia of a religious nature is that such
beliefs are not based on reason alone, but are to some extent
based on faith. See United States v. Kauten, 133 F.2d 703, 708
(2d Cir. 1943); Boyan, Defining Religion in Operational and
Institutional Terms, 116 U.Pa.L.Rev. 479, 485-86 (1968). I think
it sufficient to conclude that a court cannot accept nor doubt a
believer's assertion that his views are "true" and provable
empirically. Such a controversy would involve an examination of
the truth or falsity of beliefs rather than their nature.
n56. Abington School Dist. v. Schempp, 374 U.S. 203, 225, 83 S.
Ct. 1560, 1573, 10 L. Ed. 2d 844 (1963).
n57. See Committee for Public Education v. Nyquist, 413 U.S. 756,
93 S. Ct. 2955, 37 L. Ed. 2d 948 (1973). Nyquist forbids
governmental action undertaken for primarily religious purposes,
or having primarily religious effects, or leading to
impermissible government entanglement with religion.
n58. 440 F. Supp. at 1324.
n59. See L. Tribe, American Constitutional Law @ 14-8 (1978). The
principal exception to this judicial willingness to find a
secular purpose is Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct.
266, 21 L. Ed. 2d 228 (1968) (Arkansas statute forbidding the
teaching of the theory of evolution in public schools held
unconstitutional).
n60. It is of particular note that New Jersey did not entrust the
teaching of SCI/TM to regular public school teachers, but relied
upon instructors trained by appellant WPEC, whose commitment was
not to broad based public education but to the propagation of its
views.
Although the Constitution allows "objective" courses in religion,
See Note 54 Supra, courts are unlikely to find objectivity in
courses taught by Jesuits, rabbis, or fundamentalist ministers
brought in to the public schools for the express purpose of
teaching that course. A comparable situation is presented here.
(end)
Judy Stein
==================================================================
MALNAK, Alan B. and EDWINA K. MALNAK; HARRY C. BOONE and EVELYN
M. BOONE; HARRY C. BOONE and EVELYN M. BOONE as Guardians ad
litem for their infant son David; WILLIAM E. GURY and MARGARET M.
GURY; WILLIAM E. GURY and MARGARET M. GURY, as Guardians ad litem
for their infant daughter Laura Jean; JOSEPH G. LERNER; JOSEPH M.
DUFFY; REV. DR. SAMUEL A. JEANES; AMERICANS UNITED FOR SEPARATION
OF CHURCH AND STATE, a non-profit corporation; SPIRITUAL
COUNTERFEIT PROJECT, INC., a non-profit corporation; COALITION
FOR RELIGIOUS INTEGRITY, an unincorporated association v. YOGI,
Maharishi Mahesh; SPIRITUAL REGENERATION MOVEMENT FOUNDATION;
WORLD PLAN EXECUTIVE COUNCIL - UNITED STATES AMERICAN FOUNDATION
FOR CREATIVE INTELLIGENCE; MAHARISHI INTERNATIONAL UNIVERSITY;
CHARLES F. LUTES; JEROME W. JARVIS; ROBERT B. KORY; JANET AARON;
BOARD OF EDUCATION OF MAPLEWOOD - SOUTH ORANGE, NEW JERSEY SCHOOL
DISTRICT; BOARD OF EDUCATION OF GLEN RIDGE, NEW JERSEY SCHOOL
DISTRICT; BOARD OF EDUCATION OF WEST NEW YORK, NEW JERSEY SCHOOL
DISTRICT; BOARD OF EDUCATION OF UNION CITY, NEW JERSEY SCHOOL
DISTRICT; NEW JERSEY STATE DEPARTMENT OF EDUCATION; NEW JERSEY
STATE BOARD OF EDUCATION; FRED G. BURKE, as New Jersey
Commissioner of Education; CHARLES WILSON; STATE OF NEW JERSEY;
UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE; and
UNITED STATES OF AMERICA; DAVID MATHEWS, SECRETARY OF THE UNITED
STATES DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, WORLD PLAN
EXECUTIVE COUNCIL - UNITED STATES, JEROME W. JARVIS, ROBERT B.
KORY, and JANET AARON, Appellants.
MALNAK v. YOGI
Nos. 78-1568, 78-1882
UNITED STATES COURT OF APPEALS, THIRD CIRCUIT
592 F.2d 197
December 11, 1978, Argued
February 2, 1979, Decided
PRIOR HISTORY:
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil Action No. 76-0341)
COUNSEL: Steven M. Druker, Fairfield, Iowa, Peter R. Sterling, Morristown, N.
J., for appellants, McCarter & English, Newark, N. J., of counsel.
Julius B. Poppinga, on brief, Geoffrey M. Johnson, Newark, N. J., for
appellees.
JUDGES: Before ALDISERT, ADAMS and HUNTER, Circuit Judges.
OPINION BY: PER CURIAM
OPINION: [*197]
OPINION OF THE COURT
This appeal requires us to decide whether the district court
erred in determining that the teaching of a course called the
Science of Creative Intelligence Transcendental Meditation
(SCI/TM) in the New Jersey public high schools, under the
circumstances presented in the record, constituted an
establishment [*198] of religion in violation of the first
amendment of the United States Constitution. Plaintiffs sought
injunctive and declaratory relief and, after defendants had filed
numerous depositions, answers to interrogatories, admissions, and
other affidavits, the district court granted summary judgment in
favor of plaintiffs. The court held that SCI/TM was religious
activity for purposes of the establishment clause and that the
teaching of SCI/TM in public schools is prohibited by the first
amendment. The World Plan Executive Council United States and
certain individual defendants have appealed. We affirm,
essentially for the reasons set forth by Judge H. Curtis Meanor
in Malnak v. Yogi, 440 F. Supp. 1284 (D.N.J.1977).
The course under examination here was offered as an elective at
five high schools during the 1975-76 academic year and was taught
four or five days a week by teachers specially trained by the
World Plan Executive Council United States, an organization whose
objective is to disseminate the teachings of SCI/TM throughout
the United States. The textbook used was developed by Maharishi
Mahesh Yogi, the founder of the Science of Creative Intelligence.
It teaches that "pure creative intelligence" is the basis of
life, and that through the process of Transcendental Meditation
students can perceive the full potential of their lives. n1
Essential to the practice of Transcendental Meditation is the
"mantra"; a mantra is the sound aid used while meditating. Each
meditator has his own personal mantra which is never to be
revealed to any other person. It is by concentrating on the
mantra that one receives the beneficial effects said to result
from Transcendental Meditation.
To acquire his mantra, a meditator must attend a ceremony called
a "puja." Every student who participated in the SCI/TM course was
required to attend a puja as part of the course. A puja was
performed by the teacher for each student individually; it was
conducted off school premises on a Sunday; and the student was
required to bring some fruit, flowers and a white handkerchief.
During the puja the student stood or sat in front of a table
while the teacher sang a chant and made offerings to a deified
"Guru Dev." Each puja lasted between one and two hours. n2
[*199] The district court found that the SCI/TM course
constituted a religious activity under the first amendment. In
its exhaustive and well-reasoned opinion, the court concluded its
analysis by stating:
When courts are faced with . . . forms of "religion" unknown in
prior decisional law, they must look to the prior interpretations
of the constitutional provisions for guidance as to the
substantive characteristics of theories or practices which have
been found to constitute "religion" under the first amendment.
The Supreme Court has interpreted the religion clauses of the
first amendment several times in its recent history. E. g.,
Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.
Ct. 2955, 37 L. Ed. 2d 948 (1973); Epperson v. Arkansas, 393 U.S.
97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968); Abington School
District v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d
844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L.
Ed. 2d 601 (1963); Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct.
1680, 6 L. Ed. 2d 982 (1961); Everson v. Board of Education, 330
U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947); Cantwell v.
Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).
The historical development and purpose of the religion clauses
have been elaborated in a number of these cases, especially in
Engel and in Everson. Religion, as comprehended by the first
amendment now includes mere affirmation of belief in a supreme
being, Torcaso, supra, invocation of a supreme being in a public
school, Engel, supra, and reading verses from the Bible without
comment, Schempp, supra.
Defendants argue that all of the above-discussed decisions are
inapposite to the issues in this suit because the activity in
question in each of the prior cases was represented or conceded
to be religious in nature whereas defendants in the instant
action assert that the activities are not religious in nature.
The court notes the distinction but cannot accept defendants'
conclusion that the decisions are not relevant. The cases, at the
very least, reveal the types of activity and belief that have
been considered religious under the first amendment.
Malnak v. Yogi, 440 F. Supp. at 1315.
We agree with the district court's finding that the SCI/TM course
was religious in nature. Careful examination of the textbook, the
expert testimony elicited, and the uncontested facts concerning
the puja convince us that religious activity was involved and
that there was no reversible error in the district court's
determination.
A recognition of the religious nature of the teachings and
activities questioned here is largely determinative of this
appeal because of the apparent governmental action which is
involved. Under the most recent Supreme Court pronouncement in
this area, Committee for Public Education v. Nyquist, 413 U.S.
756, 773, 93 S. Ct. 2955, 37 L. Ed. 2d 948 (1973), the Court
reiterated the three criteria within which to scrutinize the
involved governmental action. To pass muster, the action in
question must: (1) reflect a clearly secular legislative purpose;
(2) have a primary effect that neither advances nor inhibits
religion; and (3) avoid excessive government entanglement with
religion. The district court applied the Nyquist test and
determined that the SCI/TM course has a primary effect of
advancing religion and religious concepts, School District of
Abington Township v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L.
Ed. 2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261,
8 L. Ed. 2d 601 (1962), and that the government aid given to
teach the course and the use of public school facilities
constituted excessive governmental entanglement with religion.
Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745
(1971).
[*200] Appellants urge that even if the SCI/TM course and the
puja are clearly religious, the district court erred in applying
the controlling legal precept because the religious effect of the
course and the puja was not significant. In advancing this
argument, appellants rely on Grossberg v. Deusebio, 380 F. Supp.
285 (E.D.Va.1974); Wood v. Mt. Lebanon Township School District,
342 F. Supp. 1293 (W.D.Pa.1972); and Wiest v. Mt. Lebanon School
District, 457 Pa. 166, 320 A.2d 362 (1974), for the proposition
that religious effect must be substantial in order to be
unconstitutional. Grossberg, Wood, and Wiest upheld as
constitutional the delivery of invocations and benedictions at
high school graduation ceremonies. n3 We are not persuaded that
the reasoning employed in those cases requires reversal in this
case because of the factual differences between a benediction at
a non-instructional high school commencement exercise open to the
public and the teaching of SCI/TM which includes ceremonial
student offerings to deities as part of a regularly scheduled
course in the schools' educational programs.
The judgment of the district court will be affirmed.
CONCURBY: ADAMS
CONCUR: ADAMS, Circuit Judge, concurring in the result.
I concur in the judgment of the Court that the teaching of a
course in the Science of Creative Intelligence, which was offered
as an elective in certain New Jersey public schools, and was
funded, in part, by a grant from a federal agency, constitutes an
establishment of religion proscribed by the first amendment. In
contrast to the majority, however, I am convinced that this
appeal presents a novel and important question that may not be
disposed of simply on the basis of past precedent. Rather, as I
see it, the result reached today is largely based upon a newer,
more expansive reading of "religion" that has been developed in
the last two decades in the context of free exercise and
selective service cases but not, until today, applied by an
appellate court to invalidate a government program under the
establishment clause. Moreover, this is the first appellate court
decision, to my knowledge, that has concluded that a set of ideas
constitutes a religion over the objection and protestations of
secularity by those espousing those ideas. Under these
circumstances, and recalling Justice Frankfurter's admonition
that an individual expression of opinion is useful when the way a
result is reached may be important to results hereafter to be
reached, n1 I am impelled to state my views separately.
I EXISTING PRECEDENT
The district court, while conceding that the decisions of the
Supreme Court have avoided the creation of explicit criteria in
determining what is a religion under the first amendment, n2
nonetheless bases its result on those very decisions:
The (district) court finds it unnecessary to improvise an
unprecedented definition of religion under the first amendment
because it appears that this case is governed by the teachings of
prior Supreme Court decisions. Careful inspection of the facts in
this suit reveal that the novel [*201] aspects of the case
are more apparent than real. n3
It is my view that the teachings of those cases cited by the
district court do indeed suggest the result reached by that court
and affirmed today. But, as Judge Meanor's opinion amply
illustrates, those opinions involve substantially different facts
and problems than are presented here. And although the
application of such cases to the factual situation here may be
warranted, such an application is an extension of existing case
law, and thus calls for both an explanation and a justification.
For purposes of the issues posed by this controversy, the
arguably relevant decisional law may be divided into four
principal groupings: cases announcing the traditional definition
of religion, cases dealing with prayers recited in school, cases
involving the conscientious objector exemption to the selective
service laws, and cases touching on the newer constitutional
definition of religion. Although the district court, and
apparently the majority of this Court, consider these decisions
to be controlling on the question raised here, careful reflection
reveals as many differences as similarities.
A. The Traditional Definition of Religion
The original definition of religion prevalent in this country was
closely tied to a belief in God. James Madison called religion
"the duty which we owe to our creator, and the manner of
discharging it." n4 Basically, this was the position of the
Supreme Court at the end of the nineteenth century. In Davis v.
Beason, 133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637 (1890), the
Court declared:
(T)he term "religion" has reference to one's views of his
relations to his Creator, and to the obligations they impose of
reverence for his being and character, and of obedience to his
will. n5
This attitude remained unchallenged for many years. Chief Justice
Hughes, writing a dissent in 1931, could conclude without concern
that
(t)he essence of religion is belief in a relation to God
involving duties superior to those arising from any human
relation. n6
Thus, the traditional definition was grounded upon a Theistic
perception of religion. It is not clear, however, given the
absence of any concentration in SCI/TM on a "Supreme Being," that
it may be considered a religion under this traditional
formulation.
B. The School Prayer Cases
Facially, the Supreme Court decisions arguably most pertinent to
this case are those involving school prayer. This is so, as I
read the opinions of the district court and the majority of this
Court, because an integral part of the preparation of the
students for the practice of TM is the performance in Sanskrit of
a chant, called the Puja. Accordingly, we are urged to engage in
a "textual analysis" of the Puja, and then to compare that
analysis to the prayers outlawed in the school prayer cases. In
that the English translation of the Puja sounds at least as
"religious" as the New York Regents prayer invalidated in Engel
v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962),
for instance, it is suggested that this case may be properly
disposed of under that rubric.
I am not convinced, however, that the school prayer opinions
provide particularly persuasive precedents for the resolution of
[*202] the question presented here. n7 Engel concerned a prayer
n8 composed by the New York Board of Regents that had to be said
aloud in every public school classroom by order of the local
board of education, acting in its official capacity under state
law. Students could be excused from attendance in a classroom
where the prayer was said, but they needed the written request of
a parent or guardian, and, of course, would have to take the
initiative, and possible social consequences, if they chose to
leave their classrooms during the recital of the prayer. That the
prayer itself was religious in nature was not questioned. Indeed,
it was specifically recommended by the Regents as an aid in
"spiritual training" in the schools.
(continued to next post)
Judy Stein
Similar to Engel is Abington School District v. Schempp, 374 U.S.
203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963). There, the Court
invalidated a Pennsylvania statute that required the reading of
at least ten verses of the Bible, without comment, at the opening
of each school day. As in Engel, participation was voluntary in
the sense that a child could be excused from the exercise,
although Mr. Schempp had declined to have his children excused
because he feared they would suffer social ostracism by their
teachers and classmates. n9 That the reading of the verses of
the Bible was religious in nature does not seem to have been
questioned by any of the parties or Justices who heard the
appeal, although it was argued that a secular as well as a
religious purpose was served by the readings. n10
The constitutional problems in Engel and Schempp are relatively
straightforward. First, it is clear that the State, through the
edict of a state agency or by statute, may not seek to require
that school districts engage in a particular form of obviously
religious activity. Such religious partisanship, even though
nonsectarian, is forbidden by the establishment clause. Second,
the general nature of the activities raised serious free exercise
questions because they were "voluntary" only in form, not in
practice. n11 In order to avoid the official exercises,
individual students had to take specific steps that were almost
certain to draw attention to them, attention that was unlikely to
be desirable, given the majority orientation of the religious
practices. In neither case was the "wording" of the exercises of
particular importance in resolving the constitutional problem.
Lower court decisions deflecting efforts to introduce prayers
into public schools have expanded the teachings of Engel and
Schempp to reach almost any prayer recited as such on school
grounds, n12 but none has [*203] sought to label as
"religious" that which was presented as "nonreligious." n13
In contrast, appellants here unwaveringly insist that the Puja
chant has no religious meaning whatsoever and is, in fact, a
"secular Puja," quite common in Eastern cultures. And, even if we
reject this claim, we are still substantially removed from the
facts of Engel and Schempp: (a) the Puja was never performed in a
school classroom, or even on government property; (b) it was
never performed during school hours, but only on a Sunday; (c) it
was performed only once in the case of each student; (d) it was
entirely in Sanskrit, with neither the student nor, apparently,
the teacher who chanted it, knowing what the foreign words meant.
Moreover, the elements of involuntariness present in Engel and
Schempp are wholly absent here. The SCI/TM course was an
elective. No student in this case had to abandon his home
classroom at the start of each school day or in any way risk
notoriety for conscience sake. Only those students who sought a
course in SCI/TM had any contact with the chant; they were
specifically told that the chant had no religious meaning; and
they stated in affidavits that they did not understand it to have
such meaning. n14
Most important for our purposes, however a court might resolve a
challenge to the Puja under the school prayer cases, those cases
provide few insights regarding the constitutional definition of
religion. Both the prayer in Engel and the Bible readings in
Schempp are unquestionably and uncompromisingly Theist. Even
under the most narrow and traditional definition of religion,
prayers to a Supreme Being and readings from the Bible would be
considered "religious." n15 But the important question presented
by the present litigation is how far the constitutional
definition of religion extends beyond the Theistic formulation;
that it comprehends all Theistic faiths has, to my knowledge, not
been questioned. The school prayer cases, then, cannot be said to
control, or, it would seem, even to address the question whether
a particular belief-system should be considered a religion for
first amendment purposes.
C. The Conscientious Objector Cases
In contradistinction to the school prayer cases, United States v.
Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965) and
Welsh v. United States, 398 U.S. 333, 90 [*204] S. Ct. 1792,
26 L. Ed. 2d 308 (1970), the leading selective service decisions
bespeak a broader definition of religion. Seeger and Welsh, of
course, are not constitutional cases but rather concern the
proper interpretation of section 6(j) of the Universal Military
Service and Training Act. n16 This provision allowed for
conscientious objector status for those who, "by reason of
religious training and belief," were "opposed to participation in
war in any form." The statute went on to define "religious
training or belief" in Theistic terms. n17
The Supreme Court, in what has been characterized as "a
remarkable feat of linguistic transmutation," n18 recast the
language of section 6(j) in order to give the exemption a much
broader scope. Thus Seeger was granted C.O. status
notwithstanding his refusal to affirm his faith in a Supreme
Being because the Court concluded that "religious training and
belief" encompass non-Theist faiths provided that they are
"sincere religious beliefs which (are) based upon a power or
being, or upon a faith, to which all else is subordinate or upon
which all else is ultimately dependent." n19 Welsh was similarly
favored despite his assertion of only "moral" opposition to war,
but in his case the Court was sharply divided.
Although Seeger and Welsh turned on statutory interpretation, and
despite some indication that the Court has, to some degree, drawn
back from the broadest possible reading of these cases, n20 they
remain constitutionally significant. As a matter of logic and
language, if the Court is willing to read "religious belief" so
as to comprehend beliefs based upon pantheistic and ethical
views, it might be presumed to favor a similar inclusive
definition of "religion" as that term appears in the first
amendment. Such logical conclusion has considerably more force
when one considers the varying contexts of the language in
question. As the district judge perceptively observed: "the Court
defined the phrase broadly in an exercise of statutory
construction, an area in which the Court is far more
circumscribed in defining terms than it is in the area of
constitutional interpretation." n21 It can hardly be denied that
the Supreme Court's reading of the statutory language was
strained at best. The Court's willingness to depart so
drastically from the plain language of a statute in order to
produce an expansive definition almost certainly unintended
[*205] by Congress, implies, as Justice Harlan observed in Welsh,
a "distortion to avert an inevitable constitutional collision." n22
Most importantly, the constitutional values prompting such a
statutory construction can only be taken to suggest a broad
definition of religion. Only four Justices explicitly discussed
their constitutional concerns in Welsh. Justice Harlan was
forthright in stating the problem:
The constitutional question that must be faced in this case is
whether a statute that defers to the individual's conscience only
when his views emanate from adherence to theistic religious
beliefs is within the power of Congress. Congress, . . . having
chosen to exempt, . . . cannot draw the line between theistic or
non-theistic religious beliefs on the one hand and secular
beliefs on the other. Any such distinctions are not, in my view,
compatible with the Establishment Clause of the First Amendment. n23
Justice Harlan found @ 6(j) constitutionally deficient for two
reasons. First, the subsection appeared to prefer the religious
over the secular. Second, despite what the Court had said in
Seeger, Justice Harlan also argued that on its face the statute
favored Theistic religions over non-Theistic beliefs and,
therefore, "disadvantages adherents of religions that do not
worship a Supreme Being." n24 Thus Justice Harlan explicitly
recognized as "religions" various non-Theistic belief systems. n25
The three dissenters, speaking through Justice White, were
unprepared to extend @ 6(j) to those professing no more than a
philosophical or moral view. To Justice Harlan's assertion that
such a result favors the religious over the secular, they replied
that this was permissible as an accommodation of free exercise
clause values. They dissented, then, because they were willing to
read this accommodation as extending only to those with genuinely
religious views, whether Theistic or non-Theistic and not to
those with purely secular ideas to whom the free exercise clause
offered "no protection whatsoever." n26 Justice White's implicit
definition of religion, therefore, included non-Theists but
excluded economic, philosophical or merely personal opinions,
however sincerely held.
In sum, then, all four Justices who addressed the constitutional
issue concluded that "religion" should not be confined to a
Theistic definition. Although four other Justices rested on
statutory grounds and no exact definition was forthcoming in any
event, Seeger and Welsh point to a definition at least somewhat
broader than that advanced in the earlier decisions of the
Supreme Court.
D. Cases Suggesting a New Constitutional Definition
Seeger and Welsh, however, are not the only cases presaging a
broader reading of "religion" for first amendment purposes. The
district court notes other cases more directly on point in that
they concern constitutional, not statutory challenges.
The most important of these, and the only Supreme Court cases
among them, is Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct. 1680,
6 L. Ed. 2d 982 (1961). Torcaso involved a direct constitutional
challenge to a Maryland provision that required an official to
declare a belief in God in order to hold office in that state. A
unanimous Court rejected this requirement, both as a matter of
establishment clause values (the state may not favor Theism over
pantheism or atheism) and free exercise clause values (an
[*206] individual may not be barred from holding public office
on the basis of his beliefs). In striking down the Maryland law,
the Court specifically observed that neither the state nor the
federal government "can aid those religions based on a belief in
the existence of God as against those religions founded on
different beliefs." n27 The Court then added an instructive
footnote:
Among religions in this country which do not teach what would
generally be considered a belief in the existence of God are
Buddhism, Taoism, Ethical Culture, Secular Humanism and others.
See Washington Ethical Society v. District of Columbia, 101
U.S.App.D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County
of Alameda, 153 Cal.App.2d 673, 315 P.2d 394; II Encyclopaedia of
the Social Sciences 293; 4 Encyclopaedia Britannica (1957 ed.)
325-327; 21 Id., at 797; Archer, Faiths Men Live By (2d ed.
revised by Purinton), 120-138, 254-313; 1961 World Almanac 695,
712; Year Book of American Churches for 1961, at 29, 47. n28
This note, although dictum, represents a rejection of the view
that religion may, consonant with first amendment values, be
defined solely in terms of a Supreme Being. Buddhism and Taoism
are, of course, recognized Eastern religions. The other two
examples given by the Court refer to explicitly non-Theist
organized groups, discussed in cases cited in the footnote, that
were found to be religious for tax exemption purposes primarily
because of their organizational similarity to traditional
American church groups. "Ethical Culture" is a reference to the
organization in Washington Ethical Society v. District of
Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957), which held
regular Sunday services and espoused a group of defined moral
precepts. Similarly, "Secular Humanism," however broad the term
may sound, appears to be no more than a reference to the group
seeking an exemption in Fellowship of Humanity v. County of
Alameda, 153 Cal.App.2d 673, 315 P.2d 394 (1957) which, although
non-Theist in belief, also met weekly on Sundays and functioned
much like a church. In any event, the Court was willing to
concede that these groups, "and others," were religious for
constitutional purposes.
The broad reading of "religion" in Torcaso was drawn upon in
Founding Church of Scientology v. United States, 133 U.S.App.D.C.
229, 409 F.2d 1146, Cert. denied, 396 U.S. 963, 90 S. Ct. 434, 24
L. Ed. 2d 427 (1969). There, Scientology, a belief system
providing a "general account of man and his nature comparable in
scope, if not in content, to those of some organized religions,"
was found to be a religion for purposes of the free exercise
clause. n29 Judge Wright was willing to accept, as religious,
ideas that are sufficiently comprehensive to be comparable to
traditional religions in terms of content and subject matter. But
it must be added that he did so only after observing that the
government did not contest Scientology's religious nature, or
rebut the prima facie case for religious classification made by
its supporters. n30
[*207] It would thus appear that the constitutional cases that
have actually alluded to the definitional problem, like the
selective service cases, strongly support a definition for
religion broader than the Theistic formulation of the earlier
Supreme Court cases. What this definition is, or should be, has
not yet been made entirely clear.
Judy Stein
II THE MODERN DEFINITION OF RELIGION
It seems unavoidable, from Seeger, Welsh, and Torcaso, that the
Theistic formulation presumed to be applicable in the late
nineteenth century cases is no longer sustainable. Under the
modern view, "religion" is not confined to the relationship of
man with his Creator, either as a matter of law or as a matter of
theology. Even theologians of traditionally recognized faiths
have moved away from a strictly Theistic approach in explaining
their own religions. n31 Such movement, when coupled with the
growth in the United States, of many Eastern and non-traditional
belief systems, suggests that the older, limited definition would
deny "religious" identification to faiths now adhered to by
millions of Americans. The Court's more recent cases reject such
a result.
If the old definition has been repudiated, however, the new
definition remains not yet fully formed. It would appear to be
properly described as a definition by analogy. The Seeger court
advertently declined to distinguish beliefs holding "parallel
positions in the lives of their respective holders." n32
Presumably beliefs holding the same important position for
members of one of the new religions as the traditional faith
holds for more orthodox believers are entitled to the same
treatment as the traditional beliefs. The tax exemption cases
referred to in Torcaso also rely primarily on the common elements
present in the new challenged groups the Ethical Society and the
Fellowship of Humanity as well as in the older unchallenged
groups and churches. In like fashion, Judge Wright reasoned by
analogy in crediting the prima facie claim made out for
Scientology in Founding Church of Scientology, supra. n33 The
modern approach thus looks to the familiar religions as models in
order to ascertain, by comparison, whether the new set of ideas
or beliefs is confronting the same concerns, or serving the same
purposes, as unquestioned and accepted "religions."
But it is one thing to conclude "by analogy" that a particular
group or cluster of ideas is religious; it is quite another to
explain exactly what indicia are to be looked to in making such
an analogy and justifying it. There appear to be three [*208]
useful indicia that are basic to our traditional religions and
that are themselves related to the values that undergird the
first amendment.
The first and most important of these indicia is the nature of
the ideas in question. This means that a court must, at least to
a degree, examine the content of the supposed religion, not to
determine its truth or falsity, or whether it is schismatic or
orthodox, but to determine whether the subject matter it
comprehends is consistent with the assertion that it is, or is
not, a religion. n34 Thus the court was able to remark in
Founding Church of Scientology:
It might be possible to show that a self-proclaimed religion was
merely a commercial enterprise, Without the underlying theories
of man's nature or his place in the Universe which characterize
recognized religions. n35
Similarly, one of the conscientious objectors whose appeal was
coupled with Seeger, submitted a long memorandum, noted by the
Court, in which he defined religion as the "Sum and essence of
one's basic attitudes to the fundamental problems of human
existence." n36
Expectation that religious ideas should address fundamental
questions is in some ways comparable to the reasoning of the
Protestant theologian Dr. Paul Tillich, who expressed his view on
the essence of religion in the phrase "ultimate concern." n37
Tillich perceived religion as intimately connected to concepts
that are of the greatest depth and utmost importance. His
thoughts have been influential both with courts and commentators.
n38 Nor is it difficult to see why this philosophy would prove
attractive in the American constitutional framework. One's views,
be they orthodox or novel, on the deeper and more imponderable
questions the meaning of life and death, man's role in the
Universe, the proper moral code of right and wrong are those
likely to be the most "intensely personal" n39 and important to
the believer. They are his ultimate concerns. As such, they are
to be carefully guarded from governmental interference, and never
converted into official government doctrine. The first amendment
demonstrates a specific solicitude for religion because religious
ideas are in many ways more important than other ideas. New and
different ways of meeting those concerns are entitled to the same
sort of treatment as the traditional forms.
Thus, the "ultimate" nature of the ideas presented is the most
important and convincing evidence that they should be treated as
religious. n40 Certain isolated answers [*209] to "ultimate"
questions, however, are not necessarily "religious" answers,
because they lack the element of comprehensiveness, the second of
the three indicia. A religion is not generally confined to one
question or one moral teaching; it has a broader scope. It lays
claim to an ultimate and comprehensive "truth." Thus the
so-called "Big Bang" theory, an astronomical interpretation of
the creation of the universe, may be said to answer an "ultimate"
question, but it is not, by itself, a "religious" idea. Likewise,
moral or patriotic views are not by themselves "religious," but
if they are pressed as divine law or a part of a comprehensive
belief-system that presents them as "truth," they might well rise
to the religious level.
The component of comprehensiveness is particularly relevant in
the context of state education. A science course may touch on
many ultimate concerns, n41 but it is unlikely to proffer a
systematic series of answers to them that might begin to resemble
a religion. St. Thomas Aquinas once defined theology by
asserting, . . . this science commands all the other sciences as
the ruling science. . . . This science uses for its service all
the other sciences, as though its vassals, . . . . n42
The teaching of isolated theories that might be thought to
address "ultimate" questions is not the teaching of such a
"ruling science." When these theories are combined into a
comprehensive belief system, however, the result may well become
such a "ruling science" that overflows into other academic
disciplines as the guiding idea of the student's pursuits. It is
just such a "ruling science" that the establishment clause guards
against.
A third element to consider in ascertaining whether a set of
ideas should be classified as a religion is any formal, external,
or surface signs that may be analogized to accepted religions.
Such signs might include formal services, ceremonial functions,
the existence of clergy, structure and organization, efforts at
propagation, observation of holidays and other similar
manifestations associated with the traditional religions. Of
course, a religion may exist without any of these signs, n43 so
they are not determinative, at least by their absence, in
resolving a question of definition. But they can be helpful in
supporting a conclusion of religious status given the important
role such ceremonies play in religious life. n44 [*210] These
formal signs of religion were found to be persuasive proofs of
religious character for tax exemption purposes in Washington
Ethical Society and Fellowship of Humanity, discussed Supra. They
are noted as well in Founding Church of Scientology supra. Thus,
even if it is true that a religion can exist without rituals and
structure, they may nonetheless be useful signs that a group or
belief system is religious.
Although these indicia will be helpful, they should not be
thought of as a final "test" for religion. Defining religion is a
sensitive and important legal duty. n45 Flexibility and careful
consideration of each belief system are needed. Still, it is
important to have some objective guidelines in order to avoid Ad
hoc justice.
Before applying these guidelines to SCI/TM, however, a separate
question must first be examined. Even conceding the propriety of
the modern approach in certain contexts, the Court is urged to
adopt the position that a less expansive definition is required
in establishment clause cases. The broader definition has up
until now been exclusively applied in response to free exercise
clause values. Appellants contend that such broader definition is
inappropriate in the context of the establishment clause.
III A UNITARY DEFINITION FOR BOTH RELIGION CLAUSES
There has been considerable speculation whether the broader
definition of religion developed in the free exercise cases
should be applied under the establishment clause. Professor Tribe
of Harvard has advanced the argument that the free exercise
clause should be read broadly to include anything "arguably
religious," but that the establishment clause should not be
construed to encompass anything "arguably non-religious." In so
doing, he has summarized the position of those favoring a dual
definition:
Clearly, the notion of religion in the free exercise clause must
be expanded beyond the closely bounded limits of theism to
account for the multiplying forms of recognizably legitimate
religious exercise. It is equally clear, however, that in the age
of the affirmative and increasingly pervasive state, a less
expansive notion of religion was required for establishment
clause purposes lest all "humane" programs of government be
deemed constitutionally suspect. Such a twofold definition of
religion expansive for the free exercise clause, less so for the
establishment clause may be necessary to avoid confronting the
state with increasingly difficult choices that the theory of
permissible accommodation . . . could not indefinitely resolve. n46
[*211] Another commentator has come to the same conclusion,
apparently for the same underlying reasons:
To borrow the ultimate concern test from the free exercise
context and use it with present establishment clause doctrines
would be to invite attack on all programs that further the
ultimate concerns of individuals or entangle the government with
such concerns. Doctrinal chaos might well result, and with it
might come the wholesale invalidation of programs which, if
analyzed in light of the values underlying the establishment
clause, would be found benign. n47
This view is not without other academic n48 and some judicial n49
support, and appellants here urge upon us a modified version of
it. n50
Despite the distinguished scholars who advocate this approach, a
stronger argument can be made for a unitary definition to prevail
for both clauses. This would seem to be the preferable choice for
several reasons. First, it is virtually required by the language
of the first amendment. As Justice Rutledge put it over thirty
years ago:
"Religion" appears only once in the Amendment. But the word
governs two prohibitions and governs them alike. It does not have
two meanings, one narrow to forbid "an establishment" and
another, much broader, for securing "the free exercise thereof."
"Thereof" brings down "religion" with its entire and exact
content, no more and no less, from the first into the second
guaranty, so that Congress and now the states are as broadly
restricted concerning the one as they are regarding the other. n51
Although the Constitution has often been subject to a broad
construction, it remains a written document. It is difficult to
justify a reading of the first amendment so as to [*212]
support a dual definition of religion, nor has our attention been
drawn to any support for such a view in the conventional sources
that have been thought to reveal the intention of the framers.
Moreover, the policy reasons put forward by the supporters of a
dual definition, in my view at least, are unpersuasive.
The advocates of a dual definition appear to be motivated
primarily by an anxiety that too extensive a definition under the
establishment clause will lead to "wholesale invalidation" of
government programs. Behind this fear lurks, I believe, too broad
a reading of the teachings of Seeger, Welsh, and Torcaso. The
selective service case did not hold that Seeger, Welsh and the
other conscientious objectors were advancing views sufficient to
qualify as a religion or religions, only that their views were
based on religious belief. Were a school, or government agency,
to advance the cause of peace, or opposition to war, such an
official position would not qualify as a "religion" even though
some citizens might come to adopt that very view because of their
own religious beliefs. All programs or positions that entangle
the government with issues and problems that might be classified
as "ultimate concerns" do not, because of that, become
"religious" programs or positions. Only if the government favors
a comprehensive belief system and advances its teachings does it
establish a religion. It does not do so by endorsing isolated
moral precepts or by enacting humanitarian economic programs.
In this regard it should be noted that the modern definition of
religion does not extend so far as to include those who hold
beliefs however passionately regarding the utility of Keynesian
economics, Social Democracy or, for that matter, Sociobiology.
These ideas may in some instances touch on "ultimate concerns,"
but they are less analogous to religious views than they are to
the political or sociological ideas that they are. Thus Torcaso
does not stand for the proposition that "humanism" is a religion,
although an organized group of "Secular Humanists" may be. An
undefined belief in humanitarianism, or good intentions, is still
far removed from a comprehensive belief system laying a claim to
ultimate truth and supported by a formal group with religious
trappings. n52
Moreover, the establishment clause does not forbid government
activity encouraged by the supporters of even the most orthodox
of religions if that activity is itself not unconstitutional. The
Biblical and clerical endorsement of laws against stealing and
murder do not make such laws establishments of religion.
Similarly, agitation for social welfare programs by progressive
churchmen, even if motivated by the most orthodox of theological
reasons, does not make those programs religious. The Constitution
has not been interpreted to forbid those inspired by religious
principle or conscience from participation in this nation's
political, social and economic life. n53
Finally, in addition to these doubts whether "doctrinal chaos"
would in fact result from resort to the new definition in the
establishment clause context, the practical result of a dual
definition is itself troubling. Such an approach would create a
three-tiered system of ideas: those that are unquestionably
religious and thus both free from government interference and
barred from receiving government support; those that are
unquestionably non-religious and thus subject to government
regulation and eligible to receive government support; and those
that are only religious under the newer approach and thus free
from governmental regulation but open to receipt of government
support. That belief systems classified [*213] in the third
grouping are the most advantageously positioned is obvious. No
reason has been advanced, however, for favoring the newer belief
systems over the older ones. If a Roman Catholic is barred from
receiving aid from the government, so too should be a
Transcendental Meditator or a Scientologist if those two are to
enjoy the preferred position guaranteed to them by the free
exercise clause. It may be, of course, that they are not entitled
to such a preferred position, but they are clearly not entitled
to the advantages given by the first amendment while avoiding the
apparent disadvantages. The rose cannot be had without the thorn.
For these reasons, then, I think it is correct to read religion
broadly in both clauses and agree that the precedents developed
in the free exercise context are properly relied upon here.
Having reached this conclusion, two final questions remain: Does
SCI/TM qualify as a religion under the criteria discussed above
and, if it does, does the teaching and funding of this course
constitute an establishment of that religion.