This autumn, we have been hosting an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In today’s post, Thomas Berg (University of St. Thomas (Minnesota)) responds to Muñoz. For other posts in this series, please click here.
In his excellent journal article “Two Concepts of Religious Liberty,”[1] and in a recent LRF blog post,[2] Vincent Philip Muñoz argues that the founders’ natural-rights theory of religious freedom is very different from the modern practice of protecting religious exercise through exemption from otherwise valid, generally applicable laws. The original understanding, he says, supports the rule of Employment Division v. Smith’s rejection of mandatory exemptions under the Free Exercise, rather than Sherbert v. Verner’s rule mandating exemptions unless the government can show a “compelling interest” in burdening religious exercise. And Muñoz criticizes the arguments of Michael McConnell, who concluded that while the question was close, “[t]he historical record casts doubt on [Smith’s] interpretation of the free exercise clause.”[3]
Under current law, this historical debate is of limited importance. Although the exemptions approach has been rejected for the Free Exercise Clause, it has been adopted in some form in federal legislation[4] and in the legislation or constitutional rulings of more than 30 states. As a result, the exemptions approach applies to all federal laws, to every state’s land use and prison regulations, and, in much of the nation, to the full body of state and local laws. Muñoz says that legislatures should decide whether to exempt religion from general law; many of them have decided to do so through religious freedom restoration acts (RFRAs), federal and state.
In fact, however, the exemptions approach finds considerable support in the religious-freedom tradition of the founding; it may even be the best historical reading, although that is a difficult question. Smith was not dictated by originalism; the Court should be willing to entertain modifying or overruling it; and at the very least legislatures and state courts should feel no embarrassment at adopting the exemptions approach. I will first discuss the historical issues and then turn to some of Muñoz’s other qualms about the exemptions approach.
The Original Understanding, Exemptions, and “Harms to Others”
Muñoz’s journal article focuses heavily on the natural-rights outlook of the framers, arguing that it supports a “jurisdictional” approach that simply prevents government from regulating religion as religion: that is, from targeting it with a non-neutral law. But that argument ignored the aspect of founding-era history that, for McConnell, was the Read more
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