Posted on by L&R Forum · 2 Comments

Munoz: Justice Scalia was Right about Religious Free Exercise

All this month, the Law and Religion Forum hosts an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this leadoff post, Muñoz summarizes his argument. For other posts in the series, please click here. 

“[I]t is proper to keep in mind, that all power in just & free Govts. is derived from Compact . . .”

– James Madison, “On Sovereignty,” (1835)

In the wake of Antonin Scalia’s untimely passing earlier this year, originalists and conservatives praised the Justice’s legacy with one notable exception—his majority opinion in the Free Exercise Clause case, Employment Division of Oregon v. Smith (1990). Stanford Law Professor Michael McConnell identified Smith as his least favorite Scalia opinion. Michael Stokes Paulsen went even further, writing an entire essay about Smith titled, “Justice Scalia’s Worst Opinion.” Calling it a “constitutional disaster,” Paulsen, who holds a Distinguished University Chair at the University of St. Thomas, claimed that Scalia overturned the only interpretation “that makes sense of the decision to have a free exercise clause in the first place” and overthrew the “understanding [that] accords with the founding generation’s understanding of religious freedom as a ‘natural right.’” Even for a “fainthearted” originalist, as Scalia once labeled himself, that is harsh criticism.

I certainly agree that Scalia’s Smith opinion has significant shortcomings (including everything about “hybrid rights”), but from an originalist perspective, its basic conclusion is correct. I’ll go even further: Justice Scalia’s non-exemptionist reading of the Free Exercise Clause is the only construction consistent with the American founders’ natural rights political philosophy and their attendant social compact constitutionalism. As much as I admire the scholarship of McConnell, Paulsen, and other originalist defenders of the Sherbert approach, they are simply wrong when they claim the founders’ natural rights constitutionalism supports a constitutional right to exemptions.

Let me start, however, with a point of agreement. I applaud Professors McConnell and Paulsen for emphasizing the founders’ understanding of religious liberty as a natural right. Recovering the idea of natural rights is essential to contest the idea that the state grants religious liberty and can limit it according to its own interests and preferences.

The founders rejected the language of toleration, because toleration presumes that the state possesses legitimate authority over religious exercises. Instead, the founders recognized that the right of religious liberty inheres in the individual prior to state recognition. Individuals possess a right of Read more

Posted on by Mark Movsesian

Online Symposium: Two Concepts of Religious Liberty

The Law and Religion Forum is delighted to host an online symposium this month on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” which appears in the current volume of the American Political Science Review (May 2016). Among other things, Muñoz (Notre Dame) argues that, from an originalist perspective, the late Justice Antonin Scalia was correct, in Employment Division v. Smith (1990), that the Free Exercise Clause does not require the state to grant believers accommodations from generally applicable and neutral laws. The Framers’ version of natural rights constitutionalism, he contends, does not require religious exemptions. The original meaning of the clause thus confirms Scalia’s reading.

Muñoz leads off the symposium with a post today. Throughout the month of September, we will post responses from Gerard Bradley (Notre Dame), Donald Drakeman (Notre Dame), Matthew Franck (Witherspoon Institute), George Thomas (Claremont McKenna), Jack Rakove (Stanford), and Corey Brettschneider (Brown). Muñoz will return at the end to offer his thoughts on the respondents’ contributions. Enjoy!

 

Posted on by Liam Ray

Fluker, “The Ground Has Shifted”

In November, New York University Press will release The Ground Has Shifted: The Future of the Black Church in Post-Racial America by Walter Earl Fluker (Boston University). The publisher’s description follows:

If we are in a post-racial era, then what is the future of the Black Church?  If the U.S. will at some time in the future be free from discrimination and prejudices that are basedGround has Shifted, The on race how will that affect the church’s very identity?

In The Ground Has Shifted, Walter Earl Fluker passionately and thoroughly discusses the historical and current role of the black church and argues that the older race-based language and metaphors of religious discourse have outlived their utility.  He offers instead a larger, global vision for the black church that focuses on young black men and other disenfranchised groups who have been left behind in a world of globalized capital.

Lyrically written with an emphasis on the dynamic and fluid movement of life itself, Fluker argues that the church must find new ways to use race as an emancipatory instrument if it is to remain central in black life, and he points the way for a new generation of church leaders, scholars and activists to reclaim the black church’s historical identity and to turn to the task of infusing character, civility, and a sense of community among its congregants.

Posted on by Liam Ray

Heale, “The Abbots and Priors of Late Medieval and Reformation England”

In November, Oxford University Press will release The Abbots and Priors of Late Medieval and Reformation England by Martin Heale (University of Liverpool). The publisher’s description follows:

The importance of the medieval abbot needs no particular emphasis. The monastic superiors of late medieval England ruled over thousands of monks and canons, who swore to them vows of obedience; they were prominent figures in royal and church governThe Abbots and Priorsment; and collectively they controlled properties worth around double the Crown’s annual ordinary income. Moreover, as guardians of regular observance and the primary interface between their monastery and the wider world, abbots and priors were pivotal to the effective functioning and well-being of the monastic order. The Abbots and Priors of Late Medieval and Reformation England provides the first detailed study of English male monastic superiors, exploring their evolving role and reputation between the fourteenth and sixteenth centuries.

Individual chapters examine the election and selection of late medieval monastic heads; the internal functions of the superior as the father of the community; the head of house as administrator; abbatial living standards and modes of display; monastic superiors’ public role in service of the Church and Crown; their external relations and reputation; the interaction between monastic heads and the government in Henry VIII’s England; the Dissolution of the monasteries; and the afterlives of abbots and priors following the suppression of their houses.

This study of monastic leadership sheds much valuable light on the religious houses of late medieval and early Tudor England, including their spiritual life, administration, spending priorities, and their multi-faceted relations with the outside world. The Abbots and Priors of Late Medieval and Reformation England also elucidates the crucial part played by monastic superiors in the dramatic events of the 1530s, when many heads surrendered their monasteries into the hands of Henry VIII.