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and convicted, on two counts of possessing and exhibiting an obscene film in direct violation of section 2905.34 (repealed in 1974) of the Ohio Revised Code, which stated: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

The Spiritual Menu: An Alternative Solution to the World Religions Paradigm

Over the weekend I came across this image on the internet:

spiritual menu

It comes from the Hotel Preston, in Nashville Tennessee.  According to a number of sources the menu on the right (though the pillow menu looks pretty nice too), is the brain-child of Howard Jacobs, the chief operating officer for Provenance Hotels, the owner of the Hotel Preston.

Among the spiritual and pillow menus, amenities of the hotel also include a pet goldfish, as well as a ‘pet spiritual menu:’

Screen Shot 2015-05-03 at 13.02.54

While this is a very clever (and more than likely quite successful) marketing scheme, the Spiritual Menu might be helpful in another way, particularly concerning how we approach and study ‘religion.’  My intention with it, then, will be to use it as an alternative methodological approach to researching and teaching ‘religion’ beyond the limits of the normative ‘World Religions Paradigm.’  To do this, however, I need to first provide some background on the latter.

The World Religions Paradigm 

When I decided to ‘return’ to school after a few years working full time, one of the first courses I took was an ‘Intro to Religion.’  Though it would become the subject to which I would devote my scholarly energies from that point on, I was a bit anxious about this course.  I had a fairly poor experience the first time I tried to attend university, and one of the first courses I took then was also on the ‘World’s Religions.’  In this version, the instructor spent most of his time showing pictures of himself standing in front of Buddhist Temples.  I ended up failing the class because I stopped attending.  My second experience was much better.  In fact, I might even go so far as to blame this course for the route that my academic interests would take.  smithFor this class we were assigned a single text: Huston Smith’s The World’s Religions.  I loved this book (and still do).  I was enthralled by Smith’s narrative, by the way he introduced ‘religion’ via stories, summarising a millennia of beliefs and practices into short and practical explanations.

The text is simple: a somewhat reflexive introduction followed by a Chapter each on Hinduism, Buddhism, Confucianism, Taoism, Islam, Judaism, Christianity, Primal Religions, and a Conclusion about the interrelatedness of religious belief told through narratives and stories across thousands of years of human cultural development.

For me, the text’s simplicity was ideal for my introduction to religion.  Here were the ‘world’s religion,’ in simple prose, presented as they occurred in the real world, almost progressively, like an evolutionary system of socio-cultural belief leading toward some sort of conclusion.

A few years later, when I was working on my first Master’s degree in Religious Studies, I was introduced to Ninian dimensionsSmart’s Dimensions of the Sacred, which also introduced me to his own The World’s Religions. world religions While the former introduced me to a theoretical world of functionalist approaches to the ‘meaning’ of religion, the latter seemed a rather more complex version of Smith’s World’s Religions.  I didn’t think much of it, but it did indeed assist me in growing my knowledge about the subject.

In fact, the trend of presenting ‘religion’ in a ‘world’s religion’ category has carried on for some time, the most recent addition being the Norton Anthology of World Religions nortonedited by Jack Miles, with contributive ‘chapters’ by Wendy Doniger, Donald S. Lopez, Jr., James Robson, David Biale, Lawrence S. Cunningham, and Jane Dammen McAuliffe.  The anthology itself is split into two books, with sections devoted to Hinduism, Buddhism, Daoism (Volume One), Judaism, Christianity, and Islam (Volume Two).  As described by the publisher, this is a “landmark work in which the six major, living, international world religions speak to readers in their own words.”

Again, this seems like a fairly straight-forward text, offering primary source ‘voices’ with which to tell the story of these ‘religions.’  However, and as I too came to realise over my years of studying religion, this is not without its faults.  For example, while this makes the job of teaching about religion slightly easier (if not more marketable), it also quite simplistically isolates the concept of ‘religion’ into a particular six-to-seven part typography.  Likewise, this presents the issue of a normative or ‘western-centric’ perspective, so that ‘religion’ is thus defined here by our isolating it to these particular cases.  This becomes even more problematic when we begin to study ‘religious beliefs and practices’ that might not fit into these typographies, such as Scientology or ‘New Age.’  Which, as we might argue from the outset, moves us outside of the realm of strict objectivity by underscoring our intentions with preconceived notions about what ‘religion means’ before we’ve even had the chance to discuss it.

This argument is made much better by others.  For example, Suzanne Owen published an article a few years back that I think quite nicely addresses the issues inherent in using the World Religions Paradigm.  First, her description:

For comparative purposes, scholars have placed the different manifestations of religion into various categories separated according to criteria chosenbeforehand. The divisions could be decided along historical lines, e.g. ‘primitive,classical, living’, or geographically. The most popular typology dividesWorld Religions from other religions. The World Religions generally includeBuddhism, Christianity, Hinduism, Islam and Judaism, with many lists includingSikhism and also Zoroastrianism and Baha’i, organized first geographicallyand then historically in textbooks and most modules covering them. Otherreligions include various New Religious Movements and the indigenous traditionsof Africa, North America, China, Japan and so on.  [Suzanne Owen, “The World Religions Paradigm: Time for a Change” (Arts and Humanities in Higher Education, Vol. 10, No. 3, 2011), 254.] 

To support this description, she cites Suthren Hurst and Zavos (2005):

This model conceptualises religious ideas and practice as being configured by a series ofmajor religious systems that can be clearly identified as having discrete characteristics.These systems are seen as existing alongside each other in a common space in the globalfields of cultural, social and political life. They apparently compete, have dialogue witheach other, regenerate themselves or degenerate within this space; a series of systems,then, with their own historical agency.  [J. Suthren Hirst and J. Zavos, “Riding a tiger? South Asia and the problem of ‘religion” (Contemporary South Asia, Vol. 14, No. 1, 2005), 5.]

As she then points out, while the World Religions Paradigm seems to be surviving the number of criticisms it has received over the last few years (decades, even), it is still thriving (exemplified by the Norton Anthology).  He are some great examples of the criticism and discussion about it that I think are worth a listen:   

A podcast interview with Jim Cox, a renowned phenomenologist discussing the use and issues of the paradigm: http://www.religiousstudiesproject.com/podcast/podcast-james-cox-on-the-world-religions-paradigm/

A roundtable discussion about the paradigm including Suzanne Owen and Jim Cox, alongside a number of academics who are quit critical of its usage: http://www.religiousstudiesproject.com/podcast/podcast-after-the-world-religion-paradigm/

Another roundtable, though perhaps not as ‘professional’ as the one above, where a group of us met a few years back to discuss it from the perspective of those in the process of working toward the PhD: http://www.religiousstudiesproject.com/podcast/roundtable-on-religious-studies-and-academic-credibility/

As well, the brilliant minds behind the Religious Studies Project (David G. Robertson and Christopher R. Cotter) have a forthcoming text on the subject set to be released in the very near future.

To conclude here, then, and thus move on to my use of the Spiritual Menu, I return once more to Suzanne Owen’s conclusion, as I think it might do a more concise job of summarising both the departmental and discursive issues in using the paradigm to teach religion:

On the whole, religious studies departments are still constrained by theWorld Religions paradigm for various reasons, such as the expectations ofstudents and institutional concerns. This affects recruitment, as they continueto advertise posts for specialists in a particular religion rather than for someonewho is a specialist in the study of religion. University undergraduate coursescontinue to teach descriptions of particular religions in turn, divided accordingto historical and geographical criteria. However, departments these dayscannot afford to have a specialist in each of the World Religions, especiallyif they have to share the department with a dozen theologians and biblicalscholars. Several departments are trying to find alternative approaches, but theWorld Religions paradigm is still growing vigorously in primary and secondaryschools and thus continues to inform the non-specialists who inhabit themedia and political arenas.  [Owen, “The World Religions Paradigm: Time for a Change,” 266.] 

As she states here, not only does it cause issues concerning the way that ‘religion’ is presented in the classroom, and is thus perceived by students (such as myself), using this paradigm also affects the discourse beyond the classroom.  In the British case (the context within which she is writing) this translates into a public perception that further normativizes the notion that ‘religion’ is something that consists of an ‘us vs. them’ binary.  What this further produces is a somewhat inherent bias that not only raises certain ‘religious beliefs and practices’ above others, but that equally denigrates others that don’t fit into this sort of typography.    

The Spiritual Menu

While the Spiritual Menu appears to be yet another example of the World Religions Paradigm, I think it also provides an outlet from the issues that arise in using it.  Here’s a quick description of my argument:

While on the surface it appears to divide ‘the spiritual,’ which we might translate as ‘religion,’ along similar lines of the World Religions Paradigm’s promotion of ‘popular religions’ (Judaism, Christianity, Islam, Taoism, Hinduism, Buddhism, Scientology), it is doing so by means of textual narratives, such as we see in the Norton Anthology.

This is similar as well to the use of narratives in Smith’s and Smart’s World Religions.

In this way, ‘religion’ is presented via narrative representations, much like Smart’s dimensions in regard to the ‘mythology’ or ‘doctrine’ that underscores a definitive aspect of religious belief and practice.

Said otherwise, these are presented via particular discourses.

Thus, rather than seeing the texts offered in the Menu as furthering the notion that the best means of presenting ‘religion’ is done though a typography divided by the World Religions Paradigm, they can instead be reflective of particular discourses pertaining to how individuals might define themselves ‘discursively’ via myth and doctrine.

What I might also argue from this line of thinking is where the contributors of the Norton Anthology might have ‘gone astray,’ beyond the idea that the religions they present have the bizarre ability to “speak to readers in their own words,” is not so much found in their using discourse as a means of allowing the ‘subject’ to speak for itself, but in their isolating this discourse within a paradigm at all.

The ‘Menu’ is thus nothing more than a discursive sampler: texts used by individuals that represent, on one end, the discourses we might see as ‘underscoring’ a ‘religion,’ that on the other are used by individuals identifying with that ‘religion.’  In the same way, these texts are not the religion itself.  The Bhagavad Gita is not Hinduism.  What is Scientology is not Scientology.  Rather, they are narrative representations filled with language used by individuals in their processes of identity construction.  Therefore, unlike where the Norton Anthology uses similar ‘primary sources’ to describe how a religion might ‘speak for itself,’ the use of the menu here gives us a much more clear and nuanced look at how individuals might use a similar source in order to shape the language they use to describe themselves ‘religiously.’  In other words: a Scientologist might use What is Scientology to describe him or herself as a Scientologist; the book is a discursive tool, not the discourse itself.

Thus, again, while the means with which those who use the World Religions Paradigm is not inherently problematic, their doing this within the confines of a paradigm that provides a normative and biased position on the meaning of ‘religion’ confuses their intentions by turning their attention to the religion describing itself, rather than the religious individually describing themselves from within the context of that religion.  This is, as well, quite contrary to the objectivity necessary of religious scholarship.

Conclusion

To conclude here, I will borrow and amend an insightful statement made by Niki Leondakis, the chief operating officer with the Kimpton Hotel chain based in San Francisco, which has equally adopted the Spiritual Menu: “offering a menu that includes as many philosophies and beliefs and spiritual perspectives was much more in keeping with the culture of our company.”

Or, as I might argue: by translating the mythological and doctrinal narratives that are used by individuals in the process of their ‘religious identity construction’ as a ‘menu,’ through which they isolate their own discursive understandings of ‘religion,’ we can form a much more complex and varied person-to-person perspective on how individuals use, and thus define, the concept for their own intentions.  Which, I believe, seems much more in keeping with the culture of religious studies.