January 7, 2013

ANN ALTHOUSE: “The school district will surely say that Kwanzaa is not a religious holiday, but what constitutes religion for Establishment Clause purposes? It’s not an easy question.”

No, it’s not. That’s the topic of my never-finished law review article: The Elvis Problem: Defining Religion Under The First Amendment. It grows out of something I use in Constitutional Law class: What if I told you that there was a man who was worshipped by millions before he died, who’s often sighted by followers today, post-death, whose home is a shrine and whose relics are eagerly sought and traded? Whose acolytes take on his attributes before adoring and transported crowds? Whose followers attribute miracles to him? Isn’t that a religion? (That’s when I tell them it’s Elvis). If needed, I guess I could show this Alannah Myles video, with the line “a new religion that will bring you to your knees,” but that would probably be overkill — and now there’s a documentary on the theme).

Then, of course, to illustrate courts’ unwillingness to get involved in intra-church disputes I posit a schism in The Church Of Elvis, between those who believe that the King’s commandment is “Love Me Tender,” and those who favor “Don’t Be Cruel,” followed by a further split between the “Don’t Be Cruel” crowd and those who insist it’s “Don’t Be Cruel — To A Heart That’s True!” Splitters!

All fun aside — and it is fun — the issue is serious and it’s one of the arguments in favor of the path the Supreme Court took in Smith, which is that it’s hard to define a religion for purposes of the First Amendment. Of course, you don’t escape it where public schools are charged with sponsoring a religious ceremony.