Posted on by Mark Movsesian

Barclay on Religious Exemptions and Hate Speech

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Stephanie Barclay (Notre Dame) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

One enduring question of liberal democracies is how to reconcile the tension between claims to authority by the rulers and claims to liberty by the governed. [1] Debates about the validity of religious exemptions often play out as a microcosm of this larger discussion. Some, such as the late Justice Antonin Scalia, have argued that a country would be “courting anarchy” if it too generously provided exemptions to legal rules based on religious objections.[2] At the other end of the spectrum, the United States Supreme Court has also recognized that “[t]hose who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”[3] I have argued elsewhere that a legal regime which never provides religious exemptions is primed to increase human suffering and decrease human dignity by penalizing (or making impossible) actions individuals feel they must (or must not) take to comply with higher divine mandates.[4]

One standard answer to the broader dilemma of reconciling authority and liberty is what some scholars term the consent proposition,[5] also reflected in social contract theory that pervades thinking by luminaries such as Locke, Hobbes, Rousseau, and Rawls. This proposition is embodied in the American Declaration of Independence as a “self-evident truth”—that “Governments . . . deriv[e] their just powers from the consent of the governed.” On this account, consent is often emphasized as the sole source of political legitimacy of a legal regime.  Steven Smith has surveyed problems with the consent proposition as an unpersuasive fiction if we are looking for consent on the level of an autonomous individual born into a legal community.[6] But that might be looking to the wrong unit of the populace (just one lone individual) to give consent. As Richard Ekins has explained in his work on joint action theory, groups can act in purposeful ways where a body like “the people” can consent to certain frameworks—like a constitution—for self-governance. To be a free people, the people in the singular is the ruler and agent, and the people in the plural are the ruled and the principals.[7] And for the consent of the group action to be legitimate, the people must have meaningful opportunities to change the legal rules they’ve put in place in the future.

Assuming consent by the people can resolve the tension between authority and liberty generally, how can religious exemptions be provided in a way that is consistent with this type of self-governance? One obvious answer is the use of legislative religious exemptions. Through this method, the people can act jointly in a deliberative manner to protect space for religious exercise where frequent conflicts (and often high-stakes conflicts) can arise between authority and the liberty of a religious objector. In Early American history, the United States offered exemptions from the draft to Quakers who objected on religious grounds to military service.[8] Religious exemptions can be offered in more mundane contexts, like tax exemptions for churches, when the people may judge that excluding some religious institutions from some obligations provides relevant goods to society in other important ways.

While critically important, legislative religious exemptions present some shortcomings. One is that they are usually more attuned to the needs of majoritarian religious groups (or at least large and well-known religious groups) than minority religious groups. For the conflict between authority and religious liberty to have been significant enough to have garnered legislative attention, it’s reasonable to assume that those sorts of conflicts are most obvious when a significant portion of the population shares the belief that gave rise to that conflict. For example, many prisons recognize religious exemptions for kosher dietary requirements. But few recognize exemptions for a Kemetic diet required by adherents of Shetaut Neter.[9] A second limitation is that some types of religious objections result from unexpected applications of a law. These conflicts are thus unlikely to involve a legislative compromise in advance that includes a religious exemption. Third, many government policies are promulgated by agencies, rather than legislatures. Scholars like Philip Hamburger have noted that these less politically accountable institutions are often less sympathetic to the need to craft religious exemptions that would apply to new policies.[10]

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Posted on by Marc O. DeGirolami

Walsh on Juridical Post-liberalism and Ius

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Kevin C. Walsh (Catholic University of America School of Law) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

I have three goals with this set of brief reflections for our first session on “Liberalism’s Limits: Religious Exemptions and Hate Speech.” One is to suggest the possibility of a smooth transition to a form of juridical post-liberalism in societies rooted historically in political liberalism. A second is to sketch out a few distinctions that will be helpful for us in analyzing particular questions of law and right related to religious exemptions and hate speech. The third is to offer a couple of suggestions about the potential practical utility of attending to these broader theoretical considerations. Those suggestions relate to the question of how to understand the role of dignitary harm in law, a matter that sometimes arises at the intersection of religious exemptions and hate speech.

I. Overcoming liberalism through transformation from within the juridical domain

When things are coming apart, it is natural to consider what endures. We are thinking about the limits of political liberalism because it looks like liberal polities are coming apart. We are interested in how to understand and to navigate whatever change it is that we are going through. In considering the limits of liberalism in connection with religious exemptions and hate speech, I focus first on the possibility of overcoming liberalism through transformation from within the juridical domain. Are there ways that faithful (in the sense of loyal, oath-bound) participants in a liberal society’s legal justice system not only may operate entirely without reliance on foundational premises of political liberalism, but also may actively reframe those elements of the legal justice system in its practical operation that push toward reliance on such premises?

To answer this, we first need a working understanding of political liberalism. This way we can know what we are asking lawyers and judges to do without. For this, I will draw on Leo Strauss, who wrote: “If we may call liberalism that political doctrine which regards as the fundamental political fact the rights as distinguished from the duties of man, and which identifies the function of the state with the protection or the safeguarding of those rights, we must say that the founder of liberalism was Hobbes.” [1]

From this formulation, we can isolate two Fs of political liberalism. First is the Fundamental Political Fact of individual rights as distinguished from duties, with rights taking priority over duties. Second is the Function of the State as the protecting or safeguarding of each individual’s individual rights. [2]

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Pojanowski on Authenticity and Free Speech

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Jeffrey Pojanowski (Notre Dame) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

Consider two very different works of art. The first is the 1943 Norman Rockwell painting, Freedom of Speech. There, a workman in a New England town hall stands resolute amid his nattier neighbors, preparing to say his piece. The painting’s model was the Arlington, Vermont farmer, Jim Edgerton, the sole dissenter to the town selectmen’s decision to build a new school. This painting, one in a series commemorating Roosevelt’s “Four Freedoms,” links freedom of speech with republican self-governance, deliberation about a shared good, and an idea of equality that elevates the dignity of the common man to the plane of his more aristocratic fellow citizens. Edgerton’s mien is reminiscent of Lincoln.

The second is a 2002 Joseph Frederick banner, 14-feet-long and emblazoned with the message “BONG HiTS 4 JESUS.” This banner, which the Juneau, Alaska high school senior created just before he displayed it at an Olympic torch parade, was, in the words of its creator, “just nonsense meant to attract television cameras.” The Supreme Court of the United States explained that this message, displayed at a school-sponsored event, could be reasonably understood as advocating illegal drug use, but it was “plainly not a case about political debate over the criminalization of drug use or possession.” Over a vigorous dissent, the Court held that the First Amendment did not prohibit Frederick’s school from disciplining Frederick. Frederick’s claim links free speech with a bare right of self-expression, even if the message that the autonomous self seeks to assert is admittedly “nonsense.” Frederick is reminiscent of Cartman.

Frederick could be forgiven for thinking he could prevail, which he did before the Court of Appeals. The Supreme Court has interpreted the First Amendment as protecting lying about military honors, virtual child pornography, and crush films (don’t google the term). Now, this protective agnosticism in the Court’s doctrine need not reflect a deep skepticism about truth or beauty; it could flow from a sincere interpretation of the Constitution’s positive-law strictures or reflect prudential worries about empowering government to limit speech. There are many threads in American free speech jurisprudence and culture. Even so, one of the more vibrant ones is the notion that expression is good for its own sake, is self-constituting, and that interferences with, or even judgments about, such autonomous expression in the name of standards outside the self are unjustified and tyrannical.

This thread in jurisprudence and culture has given rise to powerful post-liberal critiques of free speech. Neutrality, the argument goes, is impossible because it presupposes this postmodern celebration of standard-less self-assertion and substantively demands its enforcement through law and culture. Alternatively, even if it does not share such premises, it is no defense against that worldview’s imperialistic designs. To invoke Fr. Richard John Neuhaus’s “law”: “Where orthodoxy is optional, orthodoxy will sooner or later be proscribed.” This debate about the compatibility of liberal legal forms like free speech protections and non-liberal culture is challenging, fascinating, and important, and I am hesitant to claim I have anything important to add, especially through short-form scholarship. Rather, I would like to suggest that even those who celebrate—or regard as irreversible—modernity’s departure from more fixed, prescriptive ways should pause before drawing a straight line from liberal individualism to free speech libertarianism. (A caveat: I am operating here primarily at the level of normative argument, not legal doctrine. I don’t claim, and am not qualified to claim, to offer an argument about the best reading of the First Amendment and/or its subsequent implementing doctrines.)

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Ekins on Some Features of Liberalism in a Censorious Age

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Richard Ekins (Oxford) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

Some features of liberalism in a censorious age 

The nominal promise of liberalism is political fairness and, relatedly, social peace, in which persons with different religious, moral, political, and philosophical commitments will be free to live as they please. The promise is illusory insofar as one cannot coherently exclude questions about the good from public life, including from (deliberation about) the exercise of public power. And in fact, we do not live in a golden age of freedom of conscience or freedom of speech. On the contrary, we live in an increasingly censorious age, as Jonathan Sumption puts it,[1] in which uniformity of thought or opinion is sought by way of abuse of dissenters in the press or social media, or by direct public (legal) action. This short paper reflects on some developments within liberalism, understood loosely as a tradition of political thought and practice, which may help explain the censorious temper of our times and the way in which religion and hate speech are understood.

In one influential form, political liberalism aims to bracket questions about what is truly worth acting for – questions that involve controversial substantive commitments – and instead to ground law and government on thin propositions that are fair to all comers. For Ronald Dworkin, the fundamental principle of political morality is that government should show equal concern and respect to all persons. This requirement, he says, rules out public actions that entail or presuppose the judgement that some way of life is vicious or debased and/or that some moral choices are truly better than others. Public actions of this kind, Dworkin maintains, fail to show equal concern and respect.  

This line of argument forms a main element in the jurisprudence of contempt,[2] in which a court or jurist reasons that to act on moral grounds is to act unfairly, in a way that is incompatible with the respect for persons and the freedom that equality demands they enjoy. Judicial review of legislation is justified, on this view, in order to police majoritarian legislatures, who are otherwise tempted to act unfairly, double-counting the preferences of some citizens about how others are to live, and/or reducing others to the status of second-class citizens by rejecting their commitments. The argument is unpersuasive because one cannot avoid the need for moral judgement in lawmaking and governing and to act for what one sincerely takes to be the good, including the good of the person one limits or punishes, in no way involves contempt for those who think otherwise.[3] Further, the argument wrongly frames the reasons on which a legislature acts as preferences, which have a place in collective action only insofar as fairness permits. The aim is to disbar political unfairness; the effect, even if the proscription were applied evenly,[4] would be to prevent justice.  

What is important to note, I think, is (a) the reduction of reasons to preferences and (b) the claim that in acting on (controversial) moral reasons one displays contempt for others. The upshot is that political liberalism is primed to see moral action as an insult or an unfair abuse of process. It is no surprise then that the moral significance of intention is often lost from view, with actions sometimes branded discrimination or harassment regardless of the intentions on which the person acted, per the premise that our actions are often sub-rational with real motivations hidden from us. [5] It is thus easy to frame those with whom one disagrees, or fears, as irrational and in need of correction. 

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Delsol, “The Insurrection of Particularities, Or, How the Universal Comes Undone”

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” with our longtime partner, Università di Roma LUMSA. The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers.

The distinguished political historian and philosopher, Chantal Delsol, gave a keynote address for the conference. We are delighted to publish her talk here. The address is in French, and I link to the original below. With Professor Delsol’s permission, I have translated it for our English speaking readers (the footnotes remain in the original).

Chantal Delsol’s original piece in French can be found hereDownload

The Insurrection of Particularities, Or, How the Universal Comes Undone

Rome, July 8, 2022

Chantal Delsol

1.

On October 18, 2017, the French National Assembly adopted the State Law on Religious Neutrality. Article 11 provides that an accommodation for reasons of religion may be granted if 5 criteria are satisfied: the request is serious; the requested accommodation respects the equality of men and women, as well as the principle of religious neutrality of the State; the accommodation is not excessively constraining; and the requester has actively participated in finding a solution. By the same token, there will be no accommodation with respect to the obligation of all employees of the State to work with their faces uncovered and without wearing any religious sign.

One sees here the extent to which the legislator struggles to preserve as far as possible State neutrality tied to secularism, without actually achieving it, and doing so less and less. We are today on a kind of slope, which is the subject of our conference today: that which was accorded an exception more and more becomes the rule. The Quebecois speak of “reasonable accommodations,” to underline well that one should not surpass the limits of good sense. The example is cited in France of the authorization given for prayer in the streets which stops traffic. So, too, laws forbidding the scheduling of exams for students during the holidays of various religions, which made one journalist say, “soon only February 29 will be left to schedule exams.” The question is in fact posed about the diversity and plurality of exemptions, but that is only a subsidiary question consequent on others. These concessions, which raise a vision of equality solely constituted of privileges, interrogate our vision of the universal, and finally our way of being a society.

Our societies appear more and more to be aggregations of minorities disparate in every respect (they may be social, sexual, religious, or cultural, etc.). And everything happens as if the goal of governments is nothing more than to establish equality among these groups, which, always claiming and becoming indignant about not obtaining enough, monopolize public space. At this point, leaving behind Tocqueville who feared a tyranny of the majority, we could, as Philippe Raynaud put it, [1] fall into a tyranny of minorities.

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Posted on by Mark Movsesian

Munoz: The Founders and the Natural Right of Religious Free Exercise: A Response

This past autumn, we hosted an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this post, Professor Muñoz responds to the comments of the symposium’s participants: 

It’s gratifying when scholars you respect and admire take your work seriously. I am therefore deeply grateful for the symposium hosted by the Center for Law & Religion and to its directors, Mark Movsesian and Marc DeGirolami. I am especially appreciative of the symposium’s participants for their careful readings, probing questions, and thoughtful challenges to my post and the articles on which it was based.

The primary purpose of my recent scholarship has been to recover the American founders’ understanding of the natural right of religious liberty. That investigation is itself a prologue to addressing the more fundamental philosophical question of whether individuals actually do possess by nature a right to religious liberty and, if they do, whether we should adopt the founders’ understanding of it to guide our understanding of political justice.

One can best approach these fundamental questions as they appear in our political and constitutional practice, which right now means addressing the availability of religious exemptions from laws that religious believers find burdensome. That is why my original post focused on Justice Scalia’s Smith opinion. Most of the symposium participants followed my lead and commented on the jurisprudential implications of my natural rights argument. I note this only to clarify that my underlying purpose is not to defend Justice Read more

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Berg: Free Exercise Exemptions and the Original Understanding

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

Posted on by Marc O. DeGirolami

How Rights Are Like Taffy

I have this short reflection over at the Liberty Law blog, my own contribution of sorts to the symposium on Professor Muñoz’s fine paper and the set of posts it has generated. A bit:

Exemption from laws interfering with such interests might be granted as a matter of legislative grace, but were not constitutionally compelled. The constitutional right of religious freedom was intended to protect a natural right, and like other natural rights, its authority was supreme until precisely the point where its natural limits ran out. Beyond that point, the authority of the state to protect the peace and the rights of others was supreme.

Muñoz is not the first to make this general claim, though he supports it with some important new evidence. Indeed, the claim has been made by, among others, Professor Philip Hamburger in his fine 2004 essay, “More Is Less,” and the general idea can be made to apply to rights of all kinds. The greater the coverage of the right, the more likely that the right will conflict with other interests that a government might wish to protect, and the more qualified the right may become.

As Hamburger puts it:

If a right is defined with greater breadth, will this necessarily stimulate demands for a diminution of its availability? Surely not. Nonetheless, the danger may be inherent in every attempt to expand a right, for at some point, as the definition of a right is enlarged, there are likely to be reasons for qualifying access.

The danger, moreover, is not only that more coverage means greater opportunity for conflict with governmental interests at the periphery of the right. It is that by conceiving of natural rights broadly, and as by their nature in a kind of perpetual give-and-take with governmental interests, even the core of the right becomes negotiable. By and by, we become accustomed to thinking of natural rights just in this way—as just one more set of interests to be balanced by the government as it pursues its own purposes. Rights, in sum, are like taffy. They may be chewy and tough out of the wrapper, but as you stretch them out they become ever thinner, and ever weaker.

Some have contested this general account. Professor John Inazu, for example, has argued that the rights-confinement claim ignores the cultural context within which some rights grow more powerful while others decline. Free speech, after all, seems as powerful as ever, while religious freedom declines. But the ambit of both has expanded greatly over the last century, which suggests that the latter has declined for reasons other than rights-expansion.

I wonder, though, whether rights-expansion and cultural devaluation may be mutually supportive rather than mutually exclusive explanations for the decline of a right. Free speech, for example, has both grown exponentially as a right over the last several decades and has itself come under threats of all kinds in more recent years, as the government plays an ever larger role in the life of the citizenry. In that sense, we could say that more is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state.

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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 Read more

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Rakove: Free Exercise and Interior Belief

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