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, George Thomas (Claremont McKenna) responds to Muñoz. For other posts in this series, please click here.
Phillip Muñoz’s jurisdictional understanding of religious liberty is a powerful and persuasive challenge to the idea that religious liberty demands exemptions from otherwise valid laws. Yet I want to start with an area of agreement between Muñoz’s jurisdictional understanding and Michael McConnell’s exemptionist understanding. Both Muñoz and McConnell begin with religious liberty as a natural right that circumscribes state authority. This is altogether fitting. But it is only half the story. While civil power was a threat to religious liberty, religion itself was the source of civil disorder and religious oppression. Religious liberty was also then, particularly in the hands of James Madison, a way to limit theological authority and bring about civil peace by making religion a matter of individual choice.
Madison wrote to William Bradford, a friend from his days at Princeton, of the “diabolical, hell conceived principle of persecution” that drove those—including the clergy— who used government to enforce religious orthodoxy. Madison’s inalienable right to religious liberty, with its attendant separation of religion from civil government by way of the social compact, would keep the government out of theological disputes; yet it would just as surely prevent religious sects from using the government to enforce their beliefs. Muñoz is thus right to argue that a jurisdictional understanding of religious liberty is no small achievement. While he nods to the Middle East to make this point, he could just as easily turn to America’s history.
As America was debating the religion clauses of the Constitution, England was debating repeal of the Test Acts, which required those who held public office to take communion according to the rites of the Church of England. This was the very sort of religious test for public office that the American Constitution rejected in Article VI. The Test Acts stood alongside the Act of Toleration, so while religious dissenters were tolerated their religious liberty was conditional. They were not able to hold public office until the acts’ repeal in 1828 or to attend Oxford and Cambridge until the Universities Tests Act of 1871. Back when the free exercise clause was being framed, defenders of religious tests saw them as an essential part of having an established church (and included the likes of William Blackstone and Edmund Burke). Madison worried that such “zealous adherents” to religious hierarchy persisted in America. And they did.
A number of state constitutions required religious tests for office and otherwise favored established churches. Indeed, we might best understand the “peace and safety provisions” of state constitutions at issue between Muñoz and McConnell as remnants of the older understanding of religious toleration inherited from England. The New Hampshire Constitution of 1784, for example, asserted that the “RIGHTS OF CONSCIENCE” are unalienable, but qualified the “dictates of conscience” with a “public peace” provision. More tellingly, to hold public office one had to “be of the Protestant religion.” Other state constitutions required that office holders be Christian, profess faith in Jesus Christ, and recognize the “Divine inspiration” of the “holy scriptures.” Following Philip Hamburger, these state constitutions reflect the persistence of a conditional understanding of religious liberty.Yes, this was the source of much dispute. (On this struggle and how it relates to the famous Dartmouth College case see my article). And in time, such conditions, and the establishments that undergirded them, fell away.
Nonetheless, this picture complicates our understanding of original meaning: in addition to the “two concepts” of religious liberty that Munoz contrasts, a conditional understanding that smacks of mere toleration persisted. It’s also important to note that against the grain of originalist scholarship, which places the importance on ratifiers’ understanding, Munoz speaks of originalism largely in terms of the founders’ intentions. While this turn is sure to provoke criticism, it has its virtues: Munoz’s focus on founders’ intent—particularly against the conflicted historical backdrop—may point to the importance of constitutional development as understandings set in motion during the framing of the Constitution come to life over time. We might see the debates over religious tests and dis-establishment in this light. Noah Webster, for instance, argued that the “abominable prejudices” and “badges of bigotry” that persisted toward religious dissenters in some states would have to be abandoned.
Yet we don’t have to go so far back in our history to see the temptation to enforce religious orthodoxy. In Church of Lukumi Babelu Aye v. City of Hialeah (1993) defenders of a city ordinance prohibiting ritualistic animal sacrifice justified the prohibition on religious grounds. As one councilman insisted, the “Bible says we are allowed to sacrifice an animal for consumption, but for any other purposes, I don’t believe that the Bible allows that.” Others on the council called ritualistic animal sacrifice as practiced by the Santeria religion an “abomination to the Lord.” And the city’s attorney argued that the ordinance made clear the city would not tolerate religious practices that its citizens found objectionable on religious grounds.
Rather than simply rejecting the prohibition on ritualistic animal sacrifice as impermissibly aimed at a particular religious practice, Justice Kennedy’s Lukumi opinion ventures that “a law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” This sounds akin to a conditional approach to religious liberty, potentially taking us back to the days of mere toleration. Is this the natural result of abandoning the jurisdictional approach in favor of exemptions as Muñoz argues?
That’s more difficult to say. The crux of the exemptions argument, after all, is that religious believers should be given an exemption against an otherwise neutral law aimed at a legitimate state interest. A law that targets religious practices as such is neither neutral nor aimed at a legitimate state interest. But Munoz is right to note that exemptions inescapably call for judicial balancing: No political order could truly accept McConnell’s insistence that “duties to God, perceived in the conscience of the individual, are superior to the law of the land.” Even McConnell can’t accept it, which is why he argues the state can overcome individual conscience if it has a compelling governmental interest in doing so. It may be that in the modern regulatory state we need to legislatively craft religious exemptions to protect religious liberty. But this can be done within the jurisdictional framework. And Muñoz gives us good reason to recall why the direct regulation of religion is altogether off limits. Donald Trump’s insistence that we ought to target Muslims directly only adds to the timeliness of Muñoz’s analysis.
 In the article, it is surprising that Muñoz thinks that political rights might be conditioned on religious belief. This seems not only a remnant of a conditional approach to religious toleration that Muñoz rejects, but altogether at odds with a jurisdictional understanding.
— George Thomas