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 post, Gerard V. Bradley (Notre Dame) responds to Muñoz’s arguments. For other posts in the series, please click here

One need not be a hide-bound originalist to delight in Phillip Munoz’ attentiveness to the letter of the Constitution. He is quite right to say that the First Amendment enacts “an absolute ban” on something, that its character is “categorical”; after all, “Congress shall make no law.” Munoz is right again to count this character as probative evidence of the “jurisdictional” understanding of the Free Exercise Clause which he defends. He is right also to see that any such “categorical” liberty has to be limited to a set of specific acts, such as worship and confessions of faith, lest letting the spirit roam where it wills (recall: no law!) does not produce anarchy, even as it limits government in favor of each individual’s direction of his or her religious life.

Munoz is also right about the Smith case and thus the original understanding of the Free Exercise Clause. The Court in Smith spent most of its time arguing against the “exemptionist” (Munoz’ term) interpretation of Free Exercise, minted 27 years earlier in Sherbert v. Verner. But without quite identifying it as such, the Court hit upon the meaning of Free Exercise apprehended by the  ratifiers:

[A]ssembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation . . . [A] state would be “prohibiting the free exercise [of religion]” if it sought to ban such acts . . . only when they are engaged in for religious reasons, or only because of the religious belief that they display.

The decisive feature of Free Exercise, then, is not exemptionism’s idealized “neutrality of effect,” but rather what might be called “neutrality of reasons.” John Locke provided a useful illustration of it, long before the founding of the Constitution, and even longer before Smith. It also eerily anticipates the facts of Lukumi case, of 1993:

[I]f any people congregated upon account of religion should be desirous to sacrifice a calf, I deny that that ought to be prohibited by a law. Meliboeus, whose calf it is, may lawfully kill his calf at home, and burn any part of it that he thinks fit. For no injury is thereby done to any one, no prejudice to another man’s goods. And for the same reason he may kill his calf also in a religious meeting. Whether the doing so be well-pleasing to God .or no, it is their part to consider that do it . . . . But if peradventure such were the state of things that the interest of the commonwealth required all slaughter of beasts should be forborne for some while, in order to the increasing of the stock of cattle that had been destroyed by some extraordinary murrain, who sees not that the magistrate, in such a case, may forbid all his subjects to kill any calves for any use whatsoever? Only ’tis to be observed, that in this case the law is not made about a religious, but a political matter; nor is the sacrifice, but the slaughter of calves, thereby prohibited.

One need not be a devotee of “living” constitutionalism to delight as well in Munoz’ attentiveness to the Constitution’s philosophical spirit. He is surely right that a natural – indeed, an inalienable – rights understanding of Free Exercise prevailed at the founding. He is right about the core content of that right: “the individual has a duty to worship God with conviction [and so] he has a right among men to do so according to conscience.” Not coincidentally, this is at the core of the Gospels, and of the Christian tradition since, including the Second Vatican Council’s teaching about religious freedom in Dignitatis humanae.

Munoz is right once more to identify free-exercise exemptionism with a doctrine about “moral autonomy” which, despite a superficial verbal resemblance to the great natural right of religious liberty, is as different from it as, well, belief from unbelief. Munoz identifies this modern conception of freedom, not with the social space needed to discharge an objective moral duty to Almighty God, but with a more existentialist assertion of each one’s mental mastery over what there is. Hence the “Mystery Passage” of Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Anyone who does not see, and reckon with, the fact that religious liberty has become an aspect of this broader power (sic) of world-creation – species, as if within a genus – has not been paying attention to civil liberties for the last twenty years.

Munoz also supplies much of an answer to the common accusation that Smith is to blame for the recent decline – now, showing signs of becoming a rapid eclipse – of religious liberty. The answer is no; Smith is not to blame. Though he does not spell it out, the elements of the following explanation of that answer are all in Munoz’ excellent paper. Ironically, the moral autonomy with which religious exemptionism has wrapped itself is largely to blame. Today, religious people and institutions stand in the way of achieving ostensibly secular goals, such as “gender equality,” full “dignity” for “sexual minorities,” universal access to the means of “reproductive health,” and so on. But most fundamentally in these cases, one encounters two species of the same genus, at odds with each other.

There stand two parties – let’s call them “plaintiff” and “defendant” – each exercising the one right of self-definition, albeit under their “religious” and “sexuality” sub-headings. Think of Stormans Pharmacy, Elane Photography, or even Kim Davis. These frank conflicts between exercises of the Casey mega-right are not so much the framework of the present crisis. They are the crisis. Nothing in pre-Smith Free Exercise law was geared to deal with it. That “compelling-interest, least-restrictive-means” test was conceived, and operated for a quarter century, to deal with dispensations for individuals and small groups from administrative rules and regulations, to give believers a break from bureaucratic inertia and from uniformity for uniformity’s sake. It was not geared up to resolve conflicts of individual rights to moral autonomy.

In fact, the strongest signal of where the law here might have gone absent Smith’s course change is probably Thornton v. Caldor, decided five years before Smith and with a lone dissent by Justice Rehnquist. The heart of the Court’s reasoning there has a very contemporary ring to it. The flaw in the Connecticut law which gave Sabbatarians the day off was, the Court said, that it favored them and their religious leisure over employees eager for a different sort of leisure, such as those who (in the Court’s words) “would like a weekend day off, because that is the only day their spouses are also not working.” This sentiment is pretty close to ground zero of the winning hand in Stormans, Elane, and Kim Davis, namely, the right of everyone not to be inconvenienced – or to face an unwelcome intervention – due to the religious beliefs of another person.

— Gerard V. Bradley

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