Brettschneider: An Expansive Establishment Clause, Too

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, Corey Brettschneider (Brown) responds to Muñoz. For other posts in this series, please click here

It is my pleasure to reply to Professor Muñoz’s fine article and excellent post. It is also a pleasure to join such a robust conversation about the Founders’ ideas about religious freedom and their implications for contemporary jurisprudence. Muñoz argues that the Founders held a jurisdictional view of religious freedom that divided the divine authority over religious worship and protected it against secular authority. The jurisdictional view would also protect a wide terrain of secular authority from religious intervention. So far, commentators have focused on the implications of Muñoz’s jurisdictional view for the Court’s contemporary Free Exercise jurisprudence. I want to refocus on the implications of Muñoz’s account for Establishment jurisprudence. While Muñoz might be correct that the Founders’ vision pushes toward Smith rather than Sherbert, and thus suggests doctrine on the weaker end of free exercise, I suggest why his account recommends an expansive reading of the Establishment Clause.

In his article, Muñoz argues the Founders understood the Free Exercise Clause to ban the state from regulating worship. It follows that the limits on secular authority in matters of worship provide government a very expansive authority over secular matters. The flip side  of the limited jurisdiction government has in matters of worship is a vast limit on religious influence over secular lawmaking. This limit has important implications for the breadth of the Establishment Clause. I want to push Munoz to think about how the jurisdictional view would address two fundamental jurisprudential problems. The first concerns third party harm and the second concerns the Establishment Clause requirement of secular purpose.

In Burwell v. Hobby Lobby, the Supreme Court held that the Religious Freedom Restoration Act required an exemption to a federal requirement that closely held for-profit corporations provide birth control coverage to their employees even when those corporations object to providing it on religious grounds. Jack Rakove rightly suggests that the notion of third party harm might be directly relevant to the Founders’ view. In the Hobby Lobby case, he argues, the rights of a potential beneficiary of birth control might be violated by the imposition of a religiously-based refusal to provide a benefit by an employer. But the jurisdictional view also suggests an Establishment limit on third party harm. Deferring to Hobby Lobby’s religious beliefs by granting it an exemption allows religious reasoning to intrude into the jurisdiction of secular policymaking. Granting an exemption defers to religious reasons and wrongly allows religion to occupy the domain of secular jurisdiction. This understanding of the Establishment Clause would give originalist support to the argument for Establishment limits on third party harm, eloquently made by Micah Schwartzman, Nelson Tebbe, and Richard Schragger. There is a particularly strong case for an Establishment violation on the jurisdictional view when an exemption would shift a burden from one private party to another (for instance from an employer to an employee) out of a concern to defer to a religious belief of one of the parties. Does Muñoz agree that the original understanding of the Establishment Clause would place limits on the state’s deferral to religious exemptions when they would cause third party harm?

Another potential implication of the jurisdictional view is that it might reject the balance between secular and religious reasoning found in contemporary Establishment jurisprudence. In McGowan v. Maryland, the Court considered whether Sunday closing laws, which require businesses to not operate on Sunday, violate the Establishment Clause. The Court recognized the fundamentally religious origin of this law, in that it was historically intended to defer to the Sabbath as a holy day of rest and a day of church going. But it held that on balance, secular reasons over time became predominant justifications for the law. Namely, the need for one day of rest  – and the fact that the majority preferred Sunday – became a primary secular basis for the law. My second question for Muñoz is whether this kind of balancing between secular reasons and religious ones violates the absolute nature of the jurisdictional account. He argues that in Free Exercise jurisprudence, the Founders were categorical in defending the right to worship and rejected a jurisprudence of balancing. Does the jurisdictional view require a categorical exclusion of religious reasons in establishment jurisprudence and reject a balancing approach? Is it incompatible with the kind of balancing present in McGowan and arguably core to the Establishment Clause reasoning core to our jurisprudence? Was McGowan wrongly decided on the Founders’ view? Moreover, does it suggest that our Establishment jurisprudence needs to be expanded? Is public worship, such as prayers before legislative sessions, a violation of the private, not public, jurisdiction of religious worship?

In his answer to both sets of questions, Muñoz should not just defer to the practices of the Founders of the time and the existence or lack thereof of a role of religion in the public sphere. In his view, the jurisdictional view is independent of any historical practices. It would be a mistake in constitutional interpretation to merely ask about 18th Century history in interpreting the clauses. The jurisdictional view might lead to an Establishment Clause jurisprudence that is broader and that disallows many practices present at the Founding and present today.

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