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and convicted, on two counts of possessing and exhibiting an obscene film in direct violation of section 2905.34 (repealed in 1974) of the Ohio Revised Code, which stated: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

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I Know It When I See It

A few days ago, we said farewell to two American friends who are moving back to the United States after living here for two years.  To celebrate their departure, a group of us met at a local bar, where we drank heartily and, as might be expected of inebriated academics, engaged ourselves in loud and non-sensory debates about the definition(s) of religion.

At one point, I interrupted a colleague, well into his animated defence for some sort of non-normative stipulation concerning the acts and actions of the religious individual, with a rather slurred (and, so I thought, final) argument:

‘Religion’ is like pornography.  I can’t define it, but I know it when I see it! 

A day or so later, I was reminded of my impressively theoretical comparison of ‘religion’ with ‘pornography’ whilst watching an episode of Parks and Recreation.  Throughout the episode, Leslie Knope, the kind-hearted, passionate, and frighteningly meticulous protagonist of the show, finds herself defending a painting, within which a female centaur (that happens to look like her) is shown topless.  Because the painting is to be placed within City Hall, there is an almost immediate objection to the art as ‘pornography.’

Here’s an important clip from the episode:

So, aside from the fact that in my drunken brilliance I had, rather than determine an astute means of defining ‘religion,’ merely plagiarised a hilarious television show, I still think there is some value to my comparison.

Here’s what I mean.


The origin of Justice Potter Stewart’s expression, “I know it when I see it,” comes from his concurrent opinion on the 1964 Supreme Court case, Jacobellis vs. Ohio.  The case itself dealt with the conviction, and fining, of Nico Jacobellis, the manager of the Heights Art Theater in Cleveland Heights, Ohio.  Jacobellis had played a film, Louis Malle‘s The Lovers, which both the Cuyahoga County Court, as well as the Supreme Court of Ohio, had found to be ‘obscene’ and ‘pornographic.’

Here’s the trailer of the film, for those curious:

While the United States Supreme Court reversed the conviction, and thus found the film, and Jacobellis’ showing it, to be protected under the First Amendment’s permission of free speech, they struggled to present a definition of ‘pornography,’ against which they could determine the obscene from its opposite, whatever that might be.

In his short concurrence, Justice Stewart tried to sum up, as simply as possible, his reasoning for the decision.

He stated:

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.

In a curious backstory, shared to Yale Law School librarian, Fred Shapiro, by fellow alumnus, Ray Lamontagne, Justice Stewart’s claim that he would ‘know it when he saw it,’ actually came from his clerk, Alan Novak:

You might be interested to know that the Potter Stewart quote was actually provided to him by his law clerk, Alan Novak ’55, ’63 LLB. Justice Stewart was a great justice and I do not want to take anything away from him. But he was stuck on how to describe pornography, and Novak said to him, “Mr. Justice, you will know it when you see it.” The justice agreed, and Novak included that remark in the draft of the opinion. 

Regardless, Stewart’s simple test became somewhat standard, until the 1973 case of Miller vs. California, when the Court created a three-pointed test for gauging obscenity:

  1. The average person, applying local community standards, looking at the work in its entirety, must find that it appeals to the prurient interest.
  2. The work must describe or depict, in an obviously offensive way, sexual conduct, or excretory functions.
  3. The work as a whole must lack “serious literary, artistic, political, or scientific values.”

So, what does all this have to do with my conversation at the bar?

Part of our debate that night picked up on the old standard argument about not only what religion is, but how we might determine the difference between something religious and something that is not religious.

We did the rounds of the usual theoretical conclusions: the biased failures of substantive approaches, the broad implications of functionalist definitions, the trouble with comparisons when categorising, and the de facto determination of just about anything as religious when considering the dimensions that make up one’s religious beliefs and actions.

After concluding our short journey through the standard method and theory syllabus, we ended up back where we started: how do you tell the difference between something that is religious (religion), and something that is not (secular)?

How, we might have phrased the question, do we tell the difference between the ‘sacred’ beliefs of someone who is sitting in a church, speaking to their ‘God,’ and someone who is sitting in a stadium cheering on their local team?

My answer, thanks to the confidence one finds after his or her second pint, was:

I don’t know how to tell the difference, but I know it when I see it.

Is this a bad answer?

It’s leans perhaps a bit too precariously toward the substantive side of the debate, essentially arguing that what I think is religious is defined as such for no other reason than my own convictions, yet it’s also rather clarifying in its simplicity.

Yes, while I do indeed accept that my opinion on the matter is biased by my purview, I also believe there is definite value in the fact that what I think is ‘religious,’ by means of knowing it when I see it (a young boy reading the Torah vs. a young boy attaining the rank of Eagle Scout), dismisses much of the ambiguous, dare I say, often unhelpful, discourse on which we tend to focus perhaps a bit too much of our time.

That is, while deconstructing and theorising the limits and layers of the two rites of passage listed above, it’s rather obvious that these are not identical things.  One is religious, and one is not.

In other words: while my argument here that we might simply ‘know’ the difference between these two rituals isn’t perfect, and though it is biased by means of its dependency on one’s opinion, at least it isn’t mired in years and years of theoretical debate.

After all, just like how I might be able to determine something as ‘religious’ when I see it, this methodological approach seems to me that much better than the theoretical discourse of the last century, merely because I know it is.