All this month, we are hosting an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In today’s post, Corey Brettschneider (Brown) responds to Muñoz. For other posts in this series, please click here.
It is my pleasure to reply to Professor Muñoz’s fine article and excellent post. It is also a pleasure to join such a robust conversation about the Founders’ ideas about religious freedom and their implications for contemporary jurisprudence. Muñoz argues that the Founders held a jurisdictional view of religious freedom that divided the divine authority over religious worship and protected it against secular authority. The jurisdictional view would also protect a wide terrain of secular authority from religious intervention. So far, commentators have focused on the implications of Muñoz’s jurisdictional view for the Court’s contemporary Free Exercise jurisprudence. I want to refocus on the implications of Muñoz’s account for Establishment jurisprudence. While Muñoz might be correct that the Founders’ vision pushes toward Smith rather than Sherbert, and thus suggests doctrine on the weaker end of free exercise, I suggest why his account recommends an expansive reading of the Establishment Clause.
In his article, Muñoz argues the Founders understood the Free Exercise Clause to ban the state from regulating worship. It follows that the limits on secular authority in matters of worship provide government a very expansive authority over secular matters. The flip side of the limited jurisdiction government has in matters of worship is a vast limit on religious influence over secular lawmaking. This limit has important implications for the breadth of the Establishment Clause. I want to push Munoz to think about how the jurisdictional view would address two fundamental jurisprudential problems. The first concerns third party harm and the second concerns the Establishment Clause requirement of secular purpose.
In Burwell v. Hobby Lobby, the Supreme Court held that the Religious Freedom Restoration Act required an exemption to a federal requirement that closely held for-profit corporations provide birth control coverage to their employees even when those corporations object to providing it on religious grounds. Jack Rakove rightly suggests that the notion of third party harm might be directly relevant to the Founders’ view. In the Hobby Lobby case, he argues, the rights of a potential beneficiary of birth control might be violated by the imposition of a religiously-based refusal to provide a benefit by an Read more
For much of its modern history, a combination of deep nervousness and profound lack of interest seemed to inhibit or even prevent regular political conversations in the Arab World. Public spaces were devoid of political discussions: public squares in major cities showed no signs of assemblies for political purposes. If one picked up a newspaper, one was more likely to read about the comings and goings of officials rather than any sort of comprehensive political coverage.
As has been well documented, the printed word was an essential vehicle for the transmission of reformed theology, and one that has left a tangible record for historians to explore. Yet as contemporaries well recognized, books were only a part of the process. It was the spoken word – and especially preaching – that created the demand for printed works. Sermons were the plough that prepared the ground for Lutheran literature to flourish. In order to better understand the relationship between oral sermons and the spread of protestant ideas, Preaching and Inquisition in Renaissance Italy draws upon the records of the Roman Inquisition to see how that institution confronted the challenges of reform on the Italian peninsula in the sixteenth century. At the heart of its subject matter is the increasingly sophisticated rhetorical skill of heterodox preachers at the time, who achieved their ends by silence and omission rather than positive affirmations of Lutheran tenets.