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, Jack Rakove (Stanford) responds to Muñoz. For other posts in this series, please click here. 

I agree substantially with the arguments that Professor Muñoz presents in his post and the essay from which it is drawn—so much, in fact, that I believe some of his points deserve further elaboration.

The first and arguably most important of these relates to the rationale for identifying the exercise of religious conscience as a natural right over which the state can claim no plausible jurisdiction. Why is this a legitimate claim? In my view, the founding era’s understanding of this claim rests on a fundamentally (but not fundamentalist) Protestant view of the essential nature of religious activity. The essence of religious conscience is a matter of interior conviction and persuasion, pivoting on conceptions of soteriology and ecclesiology that each of us—male and female the deity created them both, and parents and children, too—must come to individually. The exercise of religious conscience is is a natural right in the proper sense of the term, because it depends primarily on the interior nature of human belief, properly understood. The right to exercise that power can never be sacrificed to another person or institution, nor do the state or religious institutions possess any authority superior to the moral capacity each of us retains as individuals. Of course, applying the doctrine of compelle intrare might force willful individuals to consider religious beliefs they would otherwise ignore or renounce; but compulsion alone can never secure belief.

The corollary of this is that the dominant religious experiences of eighteenth-century Americans were neither legalistic nor liturgical in nature; they thus varied, in significant ways, from the religious experiences of adherents of the Church of Rome, as well of course from those of Jews and Moslems. This is not to deny the extent to which religious values infused significant chunks of American law. It only suggests that the experience of religiosity was primarily about the inculcation of faith. When founding era Americans thought about the essential nature of religious experience, this was their dominant concern. And the conviction that the right to make decisions of conscience belonged solely to individual, free from the regulatory power of the state, was (as Chris Beneke argues, I think persuasively, in his book Beyond Toleration) widely accepted before the Revolution. Advanced thinkers like Thomas Jefferson and James Madison—drawing on John Locke but also consciously going beyond him—provided a powerful constitutional rationale for this belief in the 1770s and 1780s, but they were providing an enlightened justification for a common attitude.

It was this conception of the essential nature of religious activity that Madison had in mind when, in the opening item of his Memorial and Remonstrance Against Religious Assessments, he argued that the duty we owe to God “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” My colleague Michael McConnell, in his seminal article on “The Origins and Historical Understanding of Free Exercise of Religion,” gives this claim an expansive reading that I still find incredible I (103 Harvard Law Review at 1452-1455 [1990]). Issues of religiously-based exemptions from civil laws were not widely discussed in the founding era; the exemptions that mattered, the claims that make the free exercise of religion the most radically liberal right of all, were concerned with protecting the confessional authority of individuals and their freedom from any obligation to worship as someone else wanted them to or to pay for the support of churches.

So my historical position, then, is very close to that of Professor Muñoz. The one way in which I would extend his argument, in terms of its contemporary implications, relates to the problem of “third party” effects—that is, the way that claims for religious exemptions invoked under the Religious Freedom Restoration Act have significant consequences for the beneficiaries of employee-funded insurance plans. The principal realm of controversy involves benefits that can be described as supporting either contraception or abortion. Let us assume that moral and religious concerns of one kind or another enter into how a woman would think about either of these choices. Given the radical emphasis that eighteenth-century Americans placed on the individual right of conscience, how could they possibly alienate that right from the woman (the beneficiary) who has to exercise it to the party legally obliged to fund her insurance (the benefactor). Whatever religious scruples and qualms the benefactor may feel, how could he or she possibly exercise a moral choice than belongs to the beneficiary?

— Jack Rakove