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, Matthew J. Franck (Witherspoon Institute) responds to Muñoz. For other posts in this series, please click here. 

In his most recent work, Vincent Phillip Muñoz continues to make his mark as one of our most thoughtful and searching students of the American founding, of the constitutional principle of religious liberty, and of the meandering course of the Supreme Court’s jurisprudence on the free exercise of religion. In his latest articles in the American Political Science Law Review and the Notre Dame Law Review, and in his briefer essay for the Law and Religion Forum to kick off this symposium, he writes with his characteristic verve and clarity, as well as his usual familiarity with a wealth of relevant sources in the founding era.

I propose in this response to discuss Muñoz’s most significant contributions to our understanding of the constitutional law of religious freedom, and then to enumerate some more problematic features of his argument, along the way posing some questions. In some cases these questions will be real questions—that is, the kind to which I do not claim to have the answer, but to which I think Muñoz has not supplied one either. Attentive readers should be able to tell which those are.

The Good Stuff

Muñoz is right to remind us that, in the thought of the founding generation, religious freedom is a natural right, not merely a species of toleration granted or withheld at the government’s discretion. From the founders’ perspective, religious liberty is pre-political, grounded in our duty to God as we understand it, and taking precedence over the competing claims of the state, or even of the civil society that exists prior to the state and is responsible for creating it.

For multiple purposes, not just for understanding religious freedom, we do well to understand, as Muñoz does, that the founders’ social compact theory entailed two crucial but distinct steps in the creation of political authority. First is the formation of civil society itself, by the mutual and unanimous compact of natural persons with one another. Second is the establishment of government, by the choice of a majority of those persons in that society. What those individuals surrender, and what they retain—including those things not even in their power to surrender—will determine the boundaries of power that constrain a limited government.

Among the things identified by many of the founders—and implied in many of their public documents declaring rights, and establishing and limiting governments—as never surrendered, nor subject to being surrendered, is what Muñoz calls the individual’s “natural right to religious liberty.” It follows that there is a “core” of religious freedom, says Muñoz, into which government simply cannot legitimately penetrate, for it has no “jurisdiction” there. What is that “core”?  The consensus at the founding is that it is at least the freedom to worship as one sees fit as an expression of one’s duty to God. How much more there is to that core, Muñoz does not confidently opine, in these recent writings anyway.  This is a point to which we will return below.

Another signal contribution of Muñoz’s scholarship is his rehabilitation of a traditional mode of judging, in which courts of law adjudicate the rights and duties of the parties before them, rather than “balancing” the competing claims of “interests” that present themselves to be weighed. Free-exercise “exemptionism”—the preferred mode of the Supreme Court from Sherbert v. Verner to Employment Division v. Smith, which survives today in litigation under the Religious Freedom Restoration Act—treats every claim as subject to a trump of some kind. Even in a case such as Church of Lukumi Babalu Aye v. City of Hialeah, in which the Court concluded that a thinly veiled direct attack had been made on the practices of a religion, rather than a mere “burden” resulting from a neutral and general law, the Court incredibly, in Muñoz’s view, treated the very core of free worship as negotiable: “under the exemptionist balancing approach, the state can directly prohibit specific forms of worship, or the worship of specific religious sects, if it has a compelling reason to do so.”

It may seem improbable, but this mode of judging, as Muñoz compellingly argues, is the result of what seems like judicial solicitude for religious freedom, expressed in the doctrine that judges have constitutional authority to grant exemptions from general legal obligations. A case like Church of Lukumi suggests that this authority is not so friendly to religious freedom as it might appear at first glance. And, as Muñoz argues, the exemptionist doctrine has widened the ambit of judicial solicitude while making it simultaneously shallower, as we can see in the Vietnam-era draft cases, in which “religion” was dissolved in a larger, shallower pool of important moral commitments of autonomous individuals, themselves analogized to religion but grounded on quite a different conceptual foundation.

For all of the above, I commend Muñoz for setting some very real problems in front of us, and for inviting us to consider the founders as guides who can show a path out of our present quagmire of confusion. But—my friend Phillip knew there’d be a but:

Problems and Questions

Here I will resort to numbered points, since there may at times be a disjointed character to what follows.

1. Does “unalienable” mean something as “precise” as Muñoz urges us to think it does?  Unquestionably it means that there is something about our natural rights that is inseparable—inextricable—from our own nature as human persons. But does that mean that the government has “no jurisdiction” over anything pertaining to our unalienable rights? The Declaration of Independence identifies three such rights—life, liberty, and the pursuit of happiness—and the government unquestionably has “jurisdiction” over all three, within principled limits. All three of these unalienable rights—taking one instance of the pursuit of happiness, namely the acquisition of property—may be forfeited by our conduct under perfectly just laws, so long as the government supplies us with “due process of law” before depriving us of them. If the government has some jurisdiction over this famous trio of unalienable rights, what reason do we have to believe that government has zero jurisdiction or authority over the core “natural right of free exercise of religion”? Reason there may be, but parsing “unalienable” will not of itself supply it.
2. Turning from the realm of zero jurisdiction to the realm where Muñoz sees rightful jurisdiction and authority, consider the much discussed example of the Quakers and their eschewal of military service. If, for a member of the Religious Society of Friends, worship simply means pacifism, why is a requirement to enlist in the military service not an attack on the core of his religious freedom? It is not self-evident that because (as Muñoz says) “the common defense . . . clearly falls within the state’s legitimate authority,” therefore the state may impose on every individual a share of the “common burden” of defense in exactly the same way as every other individual bears it. It may instead be due the Quaker, in strict justice according to a natural right of religious liberty, that he be asked to bear his share of that burden in a way that does not call on him to commit violence contrary to his conscience. Hence it may not be so easy to distinguish between what Muñoz calls the “natural right to religious liberty” and the “other matters pertaining to religion” that fall outside that “core.”
3. If that difficulty is more intractable than Muñoz suggests, then by the same token it is not perfectly clear—on the basis of a distinction between a “core” religious freedom and more peripheral “religious interests,” without more—why courts should be principally entrusted with protecting the former and legislatures with “balancing” the latter. In his APSR article, Muñoz argues that “other facets of religious freedom” besides worship (over which no institution has “jurisdiction,” in his account) “were to be protected through the democratic political institutions established under the Constitution”—including, inter alia, “an independent judiciary.”  This raises a couple of questions:
   1. Why isn’t “core” religious freedom equally a concern for all political institutions, legislatures as well as courts?
   2. If our political institutions under the Constitution include an independent judiciary, why are its functions not in play where “other facets of religious freedom” are concerned?
4. In the same article, Muñoz says that “the framers explicitly had left discretionary authority over matters of ‘religious persuasion’ in the hands of the legislature.” The warrant for this claim is the episode he relates concerning the decision not to include an exemption from military service for pacifists in what became the Second Amendment—a decision that, tellingly, came after the House of Representatives settled on its proposed text for the First Amendment. But Muñoz’s claim seems to overstate what can be gleaned from the evidence of this one episode. What the framers explicitly did was just one thing: they left the question of military exemptions to future legislatures, and did not see fit explicitly to constitutionalize the question. More than this cannot, I think, confidently be said. For it is much harder to say how much we may hang on this one episode by way of analogy or as standing for a more general principle of divided responsibility, let alone of the boundary between “core” and peripheral religious liberty questions.
5. On the matter of that core, again, consider Muñoz’s argument in his APSR article that “natural rights free exercise . . . extends only to those beliefs and actions that flow from those duties” we owe to divine authority. Taking this statement at face value, why did Smith not deserve to win his case against the Oregon government agency that denied him unemployment benefits because of his religious practice of ingesting peyote?  From his perspective, that conduct flowed from a conscientious religious duty.  And again, why don’t religious pacifists who conscientiously understand themselves to have a duty not to fight have a “core” free exercise right not to do so?

Sympathy for the Bedeviled

Make no mistake: I do the sort of mischief I have just committed in order to push Professor Muñoz to refine and improve an argument with whose conclusions I am largely sympathetic. I too believe “exemptionist” doctrine in free exercise constitutional jurisprudence is largely misguided—while also believing that an exemptions regime under a statutory framework such as RFRA is constitutionally permissible and may have great value. I too think we need to recognize the limits on what courts can properly do, and the great good that responsible legislatures can and should do in contributing to the settlement of boundary disputes between religious liberty and state power.

I am less certain, however, that concepts such as “jurisdiction” and distinctions such as core versus periphery can do all the work that Professor Muñoz has assigned to them in his argument about what the founders can teach us.

Here is not the place to advance any alternative approach of my own—itself very much a work in progress as I think through questions of freedom and coercion in the context of religious liberty. I expect I have already given L&R Forum readers, and my friend Phillip Muñoz, enough to chew on for now.

— Matthew J. Franck