13 What is “Religion”?

Sincerity of Belief as the Threshold Test for Free Exercise Cases

In one respect, religion and pornography raise similar problems for constitutional analysis: they are fairly easy to recognize but surprisingly hard to define. Unlike pornography, of course, religious exercise is entitled to full constitutional protection, so delegating the decision to local juries isn’t an acceptable solution. Supreme Court Justices have frequently expressed their hesitancy to create guidelines for defining religion but are aware that they can’t let legislatures do it for them.

Consider some seemingly reasonable indicators for religion and some examples of religions that those indicators would exclude. One might argue that religion requires worshipping a God or gods, but this definition would exclude Buddhism and likely some forms of Hinduism. Or one might suggest that “real” religions have a long history of existence (like Judaism), but in the 19^th century, this criterion would have excluded Mormons, Seventh-day Adventists, and Jehovah’s Witnesses, all of whom today are clearly genuine faiths.

The Court’s basic approach to this problem has been to sidestep it, focusing not on the characteristics of the religion, but on the sincerity of the believer making a constitutional claim. While this does not resolve every potential definitional problem (as the cases below will illustrate), it does shift the nature of the inquiry to something more manageable. In short, if a plaintiff making a Free Exercise claim is shown to sincerely hold their religious beliefs, (or in practice, if the government lacks evidence demonstrating the plaintiff is not sincere), they will pass the threshold test needed to begin constitutional analysis of their claim.

This position is most famously articulated in United States v. Ballard (1944). The Ballard family led a spiritual renewal group called I AM. Prior to Guy Ballard’s death in 1939, the family had raised millions of dollars in donations from their followers. Federal authorities prosecuted two members of the Ballard family for mail fraud—essentially alleging that the religion was fake and served as a vehicle for soliciting donations. At trial, the district judge instructed the jury that they could only assess the sincerity of the Ballards’ beliefs and not the “truth” of the religion itself. After the Ballards appealed their conviction, the Ninth Circuit reversed on other grounds but held that the trial court judge’s restrictions regarding sincerity were legal error. The Ballards appealed this holding to the Supreme Court.

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United States v. Ballard

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322 U.S. 78 (1944)

Facts: the Ballard family led a religious renewal or spiritual group called I AM. The group held to the teachings of Ascended Masters, a historical group of religious leaders (and perhaps supernatural beings) such as Christ, George Washington, and French Count Saint Germain, which primarily held that believers could become saints or Ascended Masters through a process of purification. Ballard himself claimed powers to heal the sick and communicate with prior Ascended Masters.

The movement was popular in the late 1930s, with hundreds of thousands of followers who gave over three million dollars of donations around the time of Guy Ballard’s death in 1939. Members of the Ballard family were charged with mail fraud by federal authorities for knowingly making misleading statements (e.g. possessing the ability to heal the sick) to solicit donations.

Question: Should inquiry into an individual’s religious beliefs be limited to an assessment of their sincerity, rather than the truth of the beliefs themselves?

Vote: Yes, 5-4

For the Court: Justice Douglas

Dissenting opinion: Justice Stone

Dissenting opinion: Justice Jackson

JUSTICE DOUGLAS delivered the opinion of the Court.

Respondents were indicted and convicted for using, and conspiring to use, the mails to defraud. The indictment was in twelve counts. It charged a scheme to defraud by organizing and promoting the I Am movement through the use of the mails. The charge was that certain designated corporations were formed, literature distributed and sold, funds solicited, and memberships in the I Am movement sought “by means of false and fraudulent representations, pretenses and promises.” The false representations charged were eighteen in number. It is sufficient at this point to say that they covered respondents’ alleged religious doctrines or beliefs…

Each of the representations enumerated in the indictment was followed by the charge that respondents “well knew” it was false. After enumerating the eighteen misrepresentations the indictment also alleged:

At the time of making all of the afore-alleged representations by the defendants, and each of them, the defendants, and each of them, well knew that all of said aforementioned representations were false and untrue and were made with the intention on the part of the defendants, and each of them, to cheat, wrong, and defraud persons intended to be defrauded …

… There was a demurrer and a motion to quash, each of which asserted, among other things, that the indictment attacked the religious beliefs of respondents and sought to restrict the free exercise of their religion in violation of the Constitution of the United States… At the request of counsel for both sides the court advised the jury of that action in the following language:

As far as this Court sees the issue, it is immaterial what these defendants preached or wrote or taught in their classes. They are not going to be permitted to speculate on the actuality of the happening of those incidents. Now, I think I have made that as clear as I can. Therefore, the religious beliefs of these defendants cannot be an issue in this court.

The issue is: Did these defendants honestly and in good faith believe those things? If they did, they should be acquitted. I cannot make it any clearer than that…

The Circuit Court of Appeals reversed the judgment of conviction and granted a new trial, one judge dissenting. In its view the restriction of the issue in question to that of good faith was error…

The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented…

As we have noted … we do not agree that the truth or verity of respondents’ religious doctrines or beliefs should have been submitted to the jury. Whatever this particular indictment might require, the First Amendment precludes such a course, as the United States seems to concede. “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” The First Amendment has a dual aspect. It not only “forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship” but also “safeguards the free exercise of the chosen form of religion.” … Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man’s relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position…

… So we conclude that the District Court ruled properly when it withheld from the jury all questions concerning the truth or falsity of the religious beliefs or doctrines of respondents…

CHIEF JUSTICE STONE, dissenting.

I am not prepared to say that the constitutional guaranty of freedom of religion affords immunity from criminal prosecution for the fraudulent procurement of money by false statements as to one’s religious experience, more than it renders polygamy or libel immune from criminal prosecution. I cannot say that freedom of thought and worship includes freedom to procure money by making knowingly false statements about one’s religious experiences. To go no further, if it were shown that a defendant in this case had asserted as a part of the alleged fraudulent scheme, that he had physically shaken hands with St. Germain in San Francisco on a day named, or that, as the indictment here alleges, by the exertion of his spiritual power he “had in fact cured . . . hundreds of persons afflicted with diseases and ailments,” I should not doubt that it would be open to the Government to submit to the jury proof that he had never been in San Francisco and that no such cures had ever been effected. In any event I see no occasion for making any pronouncement on this subject in the present case…

JUSTICE JACKSON, dissenting.

I should say the defendants have done just that for which they are indicted. If I might agree to their conviction without creating a precedent, I cheerfully would do so. I can see in their teachings nothing but humbug, untainted by any trace of truth. But that does not dispose of the constitutional question whether misrepresentation of religious experience or belief is prosecutable; it rather emphasizes the danger of such prosecutions.

The Ballard family claimed miraculous communication with the spirit world and supernatural power to heal the sick. They were brought to trial for mail fraud on an indictment which charged that their representations were false and that they “well knew” they were false. The trial judge, obviously troubled, ruled that the court could not try whether the statements were untrue, but could inquire whether the defendants knew them to be untrue; and, if so, they could be convicted.

I find it difficult to reconcile this conclusion with our traditional religious freedoms.

In the first place, as a matter of either practice or philosophy I do not see how we can separate an issue as to what is believed from considerations as to what is believable. The most convincing proof that one believes his statements is to show that they have been true in his experience. Likewise, that one knowingly falsified is best proved by showing that what he said happened never did happen. How can the Government prove these persons knew something to be false which it cannot prove to be false? If we try religious sincerity severed from religious verity, we isolate the dispute from the very considerations which in common experience provide its most reliable answer.

In the second place, any inquiry into intellectual honesty in religion raises profound psychological problems. William James, who wrote on these matters as a scientist, reminds us that it is not theology and ceremonies which keep religion going. Its vitality is in the religious experiences of many people. “If you ask what these experiences are, they are conversations with the unseen, voices and visions, responses to prayer, changes of heart, deliverances from fear, inflowings of help, assurances of support, whenever certain persons set their own internal attitude in certain appropriate ways.” If religious liberty includes, as it must, the right to communicate such experiences to others, it seems to me an impossible task for juries to separate fancied ones from real ones, dreams from happenings, and hallucinations from true clairvoyance. Such experiences, like some tones and colors, have existence for one, but none at all for another. They cannot be verified to the minds of those whose field of consciousness does not include religious insight. When one comes to trial which turns on any aspect of religious belief or representation, unbelievers among his judges are likely not to understand and are almost certain not to believe him…

All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such matters is to a very different plane of credulity than is invoked by representations of secular fact in commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop’s fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges. It is hard in matters so mystical to say how literally one is bound to believe the doctrine he teaches and even more difficult to say how far it is reliance upon a teacher’s literal belief which induces followers to give him money.

There appear to be persons — let us hope not many — who find refreshment and courage in the teachings of the “I Am” cult. If the members of the sect get comfort from the celestial guidance of their “Saint Germain,” however doubtful it seems to me, it is hard to say that they do not get what they pay for. Scores of sects flourish in this country by teaching what to me are queer notions. It is plain that there is wide variety in American religious taste. The Ballards are not alone in catering to it with a pretty dubious product.

The chief wrong which false prophets do to their following is not financial. The collections aggregate a tempting total, but individual payments are not ruinous. I doubt if the vigilance of the law is equal to making money stick by over-credulous people. But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in their humdrum lives. They live in mental confusion or moral anarchy and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.

Prosecutions of this character easily could degenerate into religious persecution. I do not doubt that religious leaders may be convicted of fraud for making false representations on matters other than faith or experience, as for example if one represents that funds are being used to construct a church when in fact they are being used for personal purposes. But that is not this case, which reaches into wholly dangerous ground. When does less than full belief in a professed credo become actionable fraud if one is soliciting gifts or legacies? Such inquiries may discomfort orthodox as well as unconventional religious teachers, for even the most regular of them are sometimes accused of taking their orthodoxy with a grain of salt.

I would dismiss the indictment and have done with this business of judicially examining other people’s faiths.

As a threshold test, sincerity is one almost every plaintiff meets, either because only a sincere religious belief would drive someone to navigate the legal system or because it’s difficult for the government to provide evidence of insincerity. In the vast majority of Free Exercise disputes, sincerity is a given, often conceded by the state.