The Justice Potter Stewart Definition of Religion

On the night of November 13th, 1959, Nico Jacobellis, manager of the Heights Art Theater at the corner of Euclid Heights Boulevard and Coventry Road in Cleveland, Ohio, held a screening of the Louis Malle film, Lea Amants. The Lovers.

The film itself was controversial for the time, with, what some thought (particularly the state of Ohio), were graphic depictions of a sexual nature. Or, pornography.

Jacobellis was arrested, and convicted, on two counts of possessing and exhibiting an obscene film in direct violation of section 2905.34 (repealed in 1974) of the Ohio Revised Code, which stated:

Selling, exhibiting, and possessing obscene literature or drugs for criminal purposes.

No person shall knowingly sell, lend, give away, exhibit, or offer to sell, lend, give away, or exhibit, or publish or offer to publish or have in his possession or under his control an obscene, lewd, or lascivious book, magazine, pamphlet, paper, writing, advertisement, circular, print, picture, photograph, motion picture film, or book, pamphlet, paper, magazine not wholly obscene but containing lewd or lascivious articles, advertisements, photographs, or drawing, representation, figure, image, cast, instrument, or article of an indecent or immoral nature, or a drug, medicine, article, or thing intended for the prevention of conception or for causing an abortion, or advertise any of them for sale, or write, print, or cause to be written or printed a card, book, pamphlet, advertisement, or notice giving information when, where, how, of whom, or by what means any of such articles or things can be purchased or obtained, or manufacture, draw, print, or make such articles or things, or sell, give away, or show to a minor, a book, pamphlet, magazine, newspaper, story paper, or other paper devoted to the publication, or principally made up, of criminal news, police reports, or accounts of criminal deeds, or pictures and stories of immoral deeds, lust, or crime, or exhibit upon a street or highway or in a place which may be within the view of a minor, any of such books, papers, magazines, or pictures.

Whoever violates this section shall be fined not less than two hundred nor more than two thousand dollars or imprisoned not less than one nor more than seven years, or both.

He was fined $500 on the first count and $2,000 on the second. If he could not pay the fines, he would be sentenced to a stint in the local workhouse until his debt was paid.

On appeal, both the Cuyahoga County Court of Appeals and the Ohio State Supreme Court upheld his initial verdict.

And then, in 1963, the United States Supreme Court voted to hear his case.

On June 22nd, 1964 in a 6-3 decision, it reversed Jacobellis’ verdict.

Justice William J. Brennan wrote the decision for the Court.

The lead question before that it considered dealt with whether the state courts in Ohio were correct in their assessment that Les Amants was indeed ‘obscene,’ and if so, whether it was not entitled to the Constitutional protections of free speech and expression, as granted by the First Amendment.

After all, the latter clearly states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And, since the Court’s previous decisions in Cantwell v. Connecticut (1940), Everson v. Board of Education (1947), and McCollum v Board of Education (1948) declared that the First Amendment, or at least the two religion clauses of the First Amendment (disestablishment and free exercise), were federalized (applicable to the individual states) via the Fourteenth Amendment’s Due Process Clause, then so too would be the free speech one.

More specifically, and in direct reference to the dangerous complexity of America’s highest judiciary (which could overrule both state and lower federal court decisions) agreeing with one particular state’s definition of ‘obscenity,’ Justice Brennan, citing his earlier decision in the similar case of Smith v. California (1959), concluded:

[…] to sustain the suppression of a particular book or film in one locality would deter its dissemination in other localities where it might be held not obscene, since sellers and exhibitors would be reluctant to risk criminal conviction in testing the variation between the two places. It would be a hardy person who would sell a book or exhibit a film anywhere in the land after this Court had sustained the judgment of one ‘community’ holding it to be outside the constitutional protection. The result would thus be “to restrict the public’s access to forms of the printed word which the State could not constitutionally suppress directly.”

In other words, just because a law in Ohio decided Les Amants was pornographic, no other state would need to agree. Neither, of course, would the Federal Government.

Now, there are two aspects of the Court’s decision that stand out here as especially interesting.

First is the fact that though the  six Justices in agreement to reverse Jacobellis’ conviction agreed to do so, they could not agree, as a whole, as to why. Each had a different argument, and in fact, alongside Justice Brennan’s decision for the Court, three others were submitted as well. Not to mention the two dissents from Chief Justice Earl Warren and Justice John Marshall Harlan.

The second interesting aspect has to deal with Justice Potter Stewart’s concurrence, and especially his simplicity in how we might distinguish between that which is pornographic and that which is art.

He famously argued:

I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts, that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

But I know it when I see it.

Were we to replace the term ‘hardcore pornography’ here with ‘religion,’ then Justice Stewart’s following proclamation (“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so”) seems an all too familiar observation of the scholar of religion.

And that’s the point I’m trying to make here.

Religion is mysterious. It is numinous and odd and alien. And we’ll likely never get a grasp on it. We’ll never define it, at least not in any accurate essentialist way that anyone, anywhere would in any way agree with. Which means defining what constitutes ‘the religious’ will likewise also be out of reach.

Of course, that doesn’t mean we don’t try. And, boy, do we ever.

Generations of scholars have fought and fought over definitions, or worse, ways of reaching definitions, or theories of definitions. Categories of definitions. Critical definitions. Substantive. Functionalist. So on, and so forth.

And sure, while I’d agree that the debate is far better than simply sticking with one definition (let the theologians have that one, yes?), I’d also argue that there’s something a bit distracting there as well. Too often, I think, we get so wrapped up in debates about ‘unpacking’ terminology (the refrain, I’ve learned, of those scholars carrying LOTS of baggage), about the ‘politics’ involved. About making sure we stay objective and yet empathic. Dispassionate and yet ardent. Observer and yet participatory. That we stop actually doing the work. To the point, in fact, that were we to step outside and look inward, we might to our surprise suddenly view all of this as as some ridiculous pedantic circus, asking ourselves in the process: shouldn’t we take a break from all this nonsense, and just get back to work. I mean, how many times can we really discuss how our discussing things gives meaning to the things in which we are discussing? (Lots. Like, lots and lots.)

To that endeavor, I offer the Justice Potter Stewart definition of religion: I know it when I see it.

I accept that I will never know the definition of religion. Or Atheism. Or nonreligion. Or unbelief. Or any other synonymous (and yet relatable, dammit!) terminology. And I’m quite happy with that. Because I’m also confident that I’ve been trained well and have a sincere work ethic. That when I do the work I make sure that I produce quality. Detailed, heavily researched, and, yes, objective work. Work that doesn’t, in all that it does say, tell people what they should think, or how they should think, about religion. All it does is offer them information. Details. Discourse.

Because, and perhaps its the ‘theologian’ in me (or whatever) but when I see something that looks like Atheism, or religion, or something akin to either, you know what, I know it when I see it. And so do our readers. Which is why I prefer to present it that way. As discourse. As information. That way, it’s entirely up to them to decide whether or not what I have presented aligns with, or disagrees with, their opinions.

Of course, the irony is not lost on me that this, in fact, will produce the same sort of discussion that I just earlier up there decried. And that’s fine. I’m also perfectly fine with being ironic. And besides, the debates are often far too fun not to have. Right?

In Memoriam.

Yesterday, the United States celebrated Memorial Day, a federal holiday to honour and remember those who died while serving in the armed forces.  In order to commemorate the event each year, a number of service men and women place flags in front of headstones at Arlington National Cemetery.


Image borrowed from The Washington Post.

While I have my own personal connections to Arlington, one thing that I’ve always appreciated about the cemetery itself is the way in which the U.S. Department of Veteran’s Affairs and the Cemetery Administration have made efforts to ensure all individuals interred there are represented in equal fairness according to their religious beliefs.  While this is a somewhat new development, coming after a 2007 decision to permit the placement of a Wiccan symbol on Sergeant Patrick Stewart‘s headstone, the VA’s policy has become quite open to religious diversity.

This diversity comes in the form of religious emblems, etched into the top of each headstone, and painted black to match the name, the rank, and the campaign(s) in which the individual either fought, or that were fought during their time in the service, as well as the date of birth and death, any medals or honours received, and a short description of the individual (such as ‘father,’ ‘mother,’ ‘wife,’ etc).  Here is the Cemetery Administration’s ‘sample headstone:’

sample headstone

The religious emblems are chosen by either the interred, or their family, based on a list of approved symbols.  As well, the headstone may be placed with no symbol, or with one not on the list as long as it meets approval by the Department of Veteran’s affairs.  Sergeant Stewart’s Wicca symbol is an example of the latter.

Here are the 61 emblems currently on the list, which can be found on the Veteran’s Affairs website here:

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Some of the most recent additions are the Atheist symbol, the Humanist emblem of Spirit, the Infinity symbol, the Hammer of Thor (Mjölnir), and the Sandhill Crane.  This does not, of course, mean that these are ‘special’ or ‘different,’ but rather that they represent a further acknowledgment on behalf of the Veteran’s Affairs office of the religious diversity represented by all American citizens.  Additionally, it should be noted that these changes occur without announcement, and the Cemetery Administration keeps the details about the emblems displayed, and the individuals for whom they are displayed, confidential.  In fact, the information we do have about them comes from the families of those interred, via those more curious about their meaning.  Some of these sources are cited below.

I would argue, then, that the Arlington National Cemetery, as well as the 147 national cemeteries maintained by the Veteran’s Affairs office, provides for us an exemplary source with which to determine and research the religious diversity of the United States.  Upon each headstone is a list of identifying information, so that not only do these lasting memorials provide for us contextualizing data about when an individual lived and died, their rank, or the wars during which they were active, they offer us as well an insight into the way they defined themselves religiously.  Observing this personal insight affords us a number of routes through which to approach the meaning of ‘religion’ in the American context.  Whether that means that this particular data supports the theory of a distinct American religious economy, or that there is in fact a strict delineation between a ‘religious America’ and ‘secular Europe,’ as discursive devices these emblems represent a distinct language-use that signifies not only the identity of those for which they represent, but a revered acknowledgement that not all individuals in the United States identify as religiously similar.

Which further means, they discursively describe an identity in symbolic form, each image representing a signifier that we might utilise in order to make sense of their unique usage.  That is, each emblem is also a lasting monument to what each individual believed, which we might then use to guide our efforts in understanding how and why they believed, what they believed.  This does not mean, of course that these 61 approved emblems in any way represent a complete list of each and every American religious identity.  Nor that they represent the only emblems accepted by this aspect of the American government.  As we have seen, the list is growing, and as more and more individuals advocate for more and more diversity, it becomes a much more complex example of the various ways in which the signifier ‘religion’ is filled with meaning.

In a more theoretical capacity, then, these emblems serve to remind us that defining a term like ‘religion,’ beyond any well-determined context, or in a broad or general manner, is a much more precarious undertaking than it might initially seem.

For those interested, here is some more info on a few of the most recent additions, including the Hammer of Thor and the Sandhill Crane: