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Franck: Religious Liberty–Cores and Peripheries, Courts and Legislatures

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, Matthew J. Franck (Witherspoon Institute) responds to Muñoz. For other posts in this series, please click here. 

In his most recent work, Vincent Phillip Muñoz continues to make his mark as one of our most thoughtful and searching students of the American founding, of the constitutional principle of religious liberty, and of the meandering course of the Supreme Court’s jurisprudence on the free exercise of religion. In his latest articles in the American Political Science Law Review and the Notre Dame Law Review, and in his briefer essay for the Law and Religion Forum to kick off this symposium, he writes with his characteristic verve and clarity, as well as his usual familiarity with a wealth of relevant sources in the founding era.

I propose in this response to discuss Muñoz’s most significant contributions to our understanding of the constitutional law of religious freedom, and then to enumerate some more problematic features of his argument, along the way posing some questions. In some cases these questions will be real questions—that is, the kind to which I do not claim to have the answer, but to which I think Muñoz has not supplied one either. Attentive readers should be able to tell which those are.

The Good Stuff

Muñoz is right to remind us that, in the thought of the founding generation, religious freedom is a natural right, not merely a species of toleration granted or withheld at the government’s discretion. From the founders’ perspective, religious liberty is pre-political, grounded in our duty to God as we understand it, and taking precedence over the competing claims of the state, or even of the civil society that exists prior to the state and is responsible for creating it.

For multiple purposes, not just for understanding religious freedom, we do well to understand, as Muñoz does, that the founders’ social compact theory entailed two crucial but distinct steps in the creation of political authority. First is the formation of civil society itself, by the mutual and unanimous compact of natural persons with one another. Second is the establishment of government, by the choice of a majority of those persons in that society. What those individuals surrender, and what they retain—including those things not even in their power to surrender—will determine the boundaries of power that constrain a limited government.

Among the things identified by many of the founders—and implied in many of their public documents declaring rights, and establishing and limiting governments—as never surrendered, nor subject to being surrendered, is what Muñoz calls the individual’s “natural right to religious liberty.” It Read more

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Drakeman: The Free Exercise Clause, State Constitutions, and Natural Rights

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, Donald Drakeman (Notre Dame) responds to Muñoz. For other posts in this series, please click here. 

Phillip Muñoz has again brought us back to the Framers in a way that makes us think about First Amendment questions in an important new light. This alone is extremely difficult to do in contemporary church-state scholarship. Better still, he has done so with such a clear and persuasive style, even in the in-depth APSR version, that it deserves to be carefully read and widely discussed.

Since the article has been so clearly summarized, I will move directly to focus on areas where I think Phillip’s arguments will be highly influential, and a couple of points where he might fruitfully expand this line of thinking.

Originalism

The Framers have been the religion clauses’ nearly constant companions ever since Everson, when Justices Black and Rutledge ushered in the modern church-state era with a focus on Madison and Jefferson. But the Framers are no longer in vogue for originalists. Over the last few decades, Justice Scalia inspired a generation of originalist scholars to maintain their focus on the founding era, but to shift constitutional debates away from the Framers themselves. Concerns about Supreme Court justices cherry-picking quotations from their favored Framers, as we can see in Everson, have largely banished the Framers from the search for original meaning. With dozens of members of the First Congress, and many more ratifiers, how can we pretend that they all had the same thing in mind?

For many “new originalists,” solving this problem requires us to concentrate not on what particular individuals may have thought about a constitutional topic, or on what specific Framers intended it to mean, but on the objective public meaning of the words − what the average, or perhaps well-informed, ratifier would have understood them to mean. Samuel Johnson and Noah Webster have thus taken the place of James Madison and Thomas Jefferson in the search for constitutional meaning.

Yet, looking up “prohibiting,” “free,” “exercise” and “religion” in either dictionary can only take us so far, especially in addressing difficult questions along the lines of whether the Constitution demands religious exemptions. On this point, Phillip’s paper is Read more

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Bradley: Religious Liberty vs. Moral Autonomy

All this month, the Law and Religion Forum hosts an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this post, Gerard V. Bradley (Notre Dame) responds to Muñoz’s arguments. For other posts in the series, please click here. 

One need not be a hide-bound originalist to delight in Phillip Munoz’ attentiveness to the letter of the Constitution. He is quite right to say that the First Amendment enacts “an absolute ban” on something, that its character is “categorical”; after all, “Congress shall make no law.” Munoz is right again to count this character as probative evidence of the “jurisdictional” understanding of the Free Exercise Clause which he defends. He is right also to see that any such “categorical” liberty has to be limited to a set of specific acts, such as worship and confessions of faith, lest letting the spirit roam where it wills (recall: no law!) does not produce anarchy, even as it limits government in favor of each individual’s direction of his or her religious life.

Munoz is also right about the Smith case and thus the original understanding of the Free Exercise Clause. The Court in Smith spent most of its time arguing against the “exemptionist” (Munoz’ term) interpretation of Free Exercise, minted 27 years earlier in Sherbert v. Verner. But without quite identifying it as such, the Court hit upon the meaning of Free Exercise apprehended by the  ratifiers:

[A]ssembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation . . . [A] state would be “prohibiting the free exercise [of religion]” if it sought to ban such acts . . . only when they are engaged in for religious reasons, or only because of the religious belief that they display.

The decisive feature of Free Exercise, then, is not exemptionism’s idealized “neutrality of effect,” but rather what might be called “neutrality of reasons.” John Locke provided a Read more

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Munoz: Justice Scalia was Right about Religious Free Exercise

All this month, the Law and Religion Forum hosts an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this leadoff post, Muñoz summarizes his argument. For other posts in the series, please click here. 

“[I]t is proper to keep in mind, that all power in just & free Govts. is derived from Compact . . .”

– James Madison, “On Sovereignty,” (1835)

In the wake of Antonin Scalia’s untimely passing earlier this year, originalists and conservatives praised the Justice’s legacy with one notable exception—his majority opinion in the Free Exercise Clause case, Employment Division of Oregon v. Smith (1990). Stanford Law Professor Michael McConnell identified Smith as his least favorite Scalia opinion. Michael Stokes Paulsen went even further, writing an entire essay about Smith titled, “Justice Scalia’s Worst Opinion.” Calling it a “constitutional disaster,” Paulsen, who holds a Distinguished University Chair at the University of St. Thomas, claimed that Scalia overturned the only interpretation “that makes sense of the decision to have a free exercise clause in the first place” and overthrew the “understanding [that] accords with the founding generation’s understanding of religious freedom as a ‘natural right.’” Even for a “fainthearted” originalist, as Scalia once labeled himself, that is harsh criticism.

I certainly agree that Scalia’s Smith opinion has significant shortcomings (including everything about “hybrid rights”), but from an originalist perspective, its basic conclusion is correct. I’ll go even further: Justice Scalia’s non-exemptionist reading of the Free Exercise Clause is the only construction consistent with the American founders’ natural rights political philosophy and their attendant social compact constitutionalism. As much as I admire the scholarship of McConnell, Paulsen, and other originalist defenders of the Sherbert approach, they are simply wrong when they claim the founders’ natural rights constitutionalism supports a constitutional right to exemptions.

Let me start, however, with a point of agreement. I applaud Professors McConnell and Paulsen for emphasizing the founders’ understanding of religious liberty as a natural right. Recovering the idea of natural rights is essential to contest the idea that the state grants religious liberty and can limit it according to its own interests and preferences.

The founders rejected the language of toleration, because toleration presumes that the state possesses legitimate authority over religious exercises. Instead, the founders recognized that the right of religious liberty inheres in the individual prior to state recognition. Individuals possess a right of Read more

Posted on by Mark Movsesian

Online Symposium: Two Concepts of Religious Liberty

The Law and Religion Forum is delighted to host an online symposium this month on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” which appears in the current volume of the American Political Science Review (May 2016). Among other things, Muñoz (Notre Dame) argues that, from an originalist perspective, the late Justice Antonin Scalia was correct, in Employment Division v. Smith (1990), that the Free Exercise Clause does not require the state to grant believers accommodations from generally applicable and neutral laws. The Framers’ version of natural rights constitutionalism, he contends, does not require religious exemptions. The original meaning of the clause thus confirms Scalia’s reading.

Muñoz leads off the symposium with a post today. Throughout the month of September, we will post responses from Gerard Bradley (Notre Dame), Donald Drakeman (Notre Dame), Matthew Franck (Witherspoon Institute), George Thomas (Claremont McKenna), Jack Rakove (Stanford), and Corey Brettschneider (Brown). Muñoz will return at the end to offer his thoughts on the respondents’ contributions. Enjoy!

 

Posted on by Mark Movsesian

Thanks to Barak Richman and Dan Crane

Thanks to Barak Richman and Dan Crane for participating in our first online debate at CLR Forum, “Are Conservative Rabbis a Cartel?” You can follow the posts by scrolling to the “Debates” category over on the right. We’re very grateful for the thoughtful and fun exchange. Come back soon!

Posted on by Dan Crane · 1 Comment

Establishment Clause Creep and Antitrust Creep

This will be the end of the line for the back-and-forth between Barak and me, so let me thank Barak for his very thoughtful and cordial correspondence on these interesting questions.  This is not a moment to say “see you in court,” but to hope that our dialogue has furthered our respective understanding of the issues.

In earlier posts, I hinted that application of the antitrust laws to rabbinical or pastoral hiring practices would run afoul of the Establishment Clause, particularly in light of the Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church, which recognized a “ministerial exception” to the application of antidiscrimination law to the hiring of religious ministers.  In my view, a fair reading of Hosanna-Tabor would prevent an antitrust suit involving rabbinical hiring.  However, for purposes of this post, I would like to respond more generally to Barak’s claim that “entanglement” concerns lead to “Establishment Clause creep,” insulating from legal review the harmful decisions of religious organizations.

Barak’s concerns over “creep” fall into two categories.  One concerns the externalization of costs from religious organizations to others–his example of people cutting across the neighbor’s lawn to get to church.  This is an easy case for me, because religious organizations should not be allowed to justify externalizing costs onto others in the name of religious independence.   Of course,  one could argue that all purely private activities end up externalizing costs or benefits onto others (i.e., functional families make for happy neighborhoods, dysfunctional ones for unhappy neighborhoods), but I’m confident that sensible lines can be drawn between what is mostly internal and what is significantly external.

What about cases where the harms, if any, are all or mostly internalized within the religious organization or by its members?   Consider two examples:  ritualistic human sacrifice of willing victims and regulations applied to require churches to install wheelchair ramps.  In neither of these cases is the Establishment Clause or free exercise defense plausible.   In the human sacrifice case, the act is  morally abhorrent and the legal prohibition clear.  Any ostensible free exercise interest is outweighed by the state’s legitimate interest in preserving human life and there is no danger of entanglement.  In the wheelchair ramp case, the legal requirement concerns a physical structure far enough removed from the purposes and values of the religious organization that there is little risk that enforcing the building code would require civil authorities to inquire into the existential purposes of the church and their relationship to the civil law.

Not so for antitrust law (and perhaps other business torts as well).  Antitrust is not justified on the grounds that collaboration among rivals is inherently immoral or  injurious.  Rather, it is justified on instrumental grounds–that competition among business firms tends to increase output and decrease prices to the benefit of consumers.  As I said in earlier posts, it’s awkward to apply this assumption wholesale to religious organizations, since many such organizations would resist the idea that they are ordinary economic actors or exist in order to achieve a better deployment of society’s scarce social resources.  And most religious groups would strongly deny that they would function better if they fostered internal economic rivalry.

For example, for mendicant orders like the Franciscans, the “employees” are bound to an oath of poverty.   They are expressly prohibited from being Chicago School “rational profit-maximizers.”  If the Franciscan order put in place rules to prevent local parishes from trying to attract Franciscan monks through promises of higher compensation, that would run counter to the Sherman Act’s assumption that economic rivalry results in an optimal allocation of resources.  But I’m doubtful that the Sherman Act’s assumption generally holds in the religious organization context.  And, even if it sometimes might hold, it would be  troubling to ask courts to sift through the evidence on different religious organizations to determine when it does hold and when it doesn’t–when the existential purposes of a particular sect would be furthered by greater economic rivalry and when they would not.  That, in my view, would raise serious entanglement problems.  Do we want courts deciding what degree of poverty is appropriate for Franciscan monks?

[I’m amending my post from last night to add a further anecdote from the Christian tradition that illustrates the problem.  In the gospel accounts, when Jesus enters the temple he finds merchants engaging in commerce and drives them out with a whip, saying that God’s house should be one of prayer, not of thievery.  Many churches today are reluctant even to sell sermon tapes or Christian books in the church foyer because of this and similar admonitions.  That this is a concern in the Christian tradition does not make it universally a concern, but it does suggest an entanglement problem if courts were to undertake an inquiry into when commercial transactions are permissible, and when not, within a particular religious tradition.]

In short, I’m less concerned about Establishment Clause creep than about antitrust creep.  Economic rivalry is good sometimes, but not always.  Unlike Barak, I wouldn’t start with the assumption that antitrust law should apply universally to all human endeavor unless a special exception is warranted.  I would start with the assumption that antitrust should apply to business and commerce and only extend it to other endeavors if the case for extension were clear and unencumbered by competing religious, social, or moral values.  As to rabbinical collusion, I’m not persuaded that case has been made.

Posted on by barakrichman · 1 Comment

Organizational Values, Neutral Principles, and Economic Power

Dan Crane, again with great eloquence, concludes his insightful and personal post by asking, “So where does it leave us if bargaining over money is an unavoidable aspect of much religious hiring but that rivalry over finances is contrary to the principles and self-understanding of many religious organizations?”  This is indeed a foundational problem in nations (like ours) that do not rely on state support for religious activity, but I respectfully submit that this is not a new problem.  Indeed, as I wrote in my earlier posts, the suggestion that religious and nonprofit organizations pursue non-pecuniary objectives — as they clearly do — has often been invoked to shield them from antitrust and regulatory scrutiny, which has led to both economic harm and legal confusion.

It has also led to a mistaken expansion of First Amendment defenses.  Some commentators have spread the mistaken fear that applying neutral principles of law to religious organizations requires, as Dan suggests, an inquiry into “the values of each organization.” Michael Helfand, a rising star in the field, has called this fear “Establishment Clause creep” and has contributed to a growing immunity for religious organizations from general laws.  The Supreme Court’s endorsement of the Ministerial Exception this past year codified this immunity from employment and other discrimination laws, which is a decision I support (disclosure: I authored an amicus brief for Hosanna Tabor that articulated a position that did not contradict with either the petitioner or the respondent in the case).  But if Dan means to extend this immunity to protection from the antitrust laws, would he also extend it to other economic torts?  Or contract actions?

Without doubt, religious organizations and committed religious individuals do an enormous amount of social good.  Dan’s parents are paradigmatic cases in point.  But there needs to be a realistic appreciation that the road to good intentions often strays from the beneficent path, and the law is designed to protect the parties injured from actions motivated by these otherwise well-intended actions.  If a pastor who signed an employment contract that included a severance package is dismissed (perhaps the pastor’s and the congregation’s ideologies parted ways), the church is obligated to pay severance.  If they refuse and the pastor sues, there is no need for a court to inquire into the values underlying the religious motivations or values of either the congregation or the pastor.  Applying neutral principles, the court should enforce the contract.  If a church becomes so popular that its members, to gain entrance to the church, pass over a neighbor’s yard and cause damage, the church would be subject to a tort and should pay compensation. Again, no need to inquire into the church’s mission.  These situations extend, especially, to intra-denominational disputes between large and small parties.  What if the neighbor to the large church is a small church?  The smaller congregation relies on neutral law for protection, otherwise an expansive First Amendment could allow an “entanglement” defense to preclude a court’s intervention into the trespass dispute.

The same logic applies to the antitrust laws.  Neutral principles can and should take a court a long way to resolving a dispute over what essentially is an economic tort.  It is true that the Rabbinical Assembly’s control over the labor market infringes upon a congregation’s Free Exercise rights, but a court need not inquire into either those rights nor the  Free Exercise interests of the Rabbinical Assembly as it implements its cartel.  Neutral principles works very well here, and a court that proceeds along this path would succeed in not interfering with religious organizational values much better than a court that refuses to intervene.  Refusing to intervene would allow the economically powerful to infringe on the mission of the weak.

Although my primary area of expertise is antitrust, I know enough about the First Amendment and the Religion Clauses to appreciate how central they are to American life and American law.  But if the First Amendment prevents courts from enforcing secular law according to neutral principles, then it can defeat its own mission (see Saving the First Amendment from Itself).  The law should not and cannot be dogmatic in its refusal to adjudicate disputes between religious organizations because that would remove protections from organizations that need and rely on the law. And it would — again, contrary to the best of intentions — enshrine the powerful and undermine the religious values of those without power.

Posted on by Dan Crane · 1 Comment

More Thoughts on Harmony and Competition

Thanks, Barak, for very thoughtful and illuminating comments. Our differences are becoming crystallized, and I wonder how much of it has to do with the differences between our respective religious traditions.

It’s interesting that Barak and Harry, who are infinitely more qualified than I am to opine on the issue, understand the hiring of rabbis as a clearly commercial transaction. I can only counter with an idiosyncratic example from my own experience. Until their recent retirement, my parents served their entire adult lives as evangelical Protestant missionaries in Europe. Their income came entirely from money raised from U.S. churches. I think that both they and their supporting churches would have most surprised to hear these transactions described as commercial. The money was incidental to the mission, in the same way that an athlete drinks gatorade incidentally to running a marathon. It may be true that without the gatorade she will collapse, but no one would understand the drinking of the gatorade as the point of the marathon.

This is the major distinction from Barak’s examples from the professions. Doctors, lawyers, teachers, and many other professionals may choose their vocation because of altruistic motivations–the desire to heal, promote justice, or mold young minds. But it is still a vocation–a way to earn a living–that they are choosing. Earning their keep is not incidental to their moral vision. If it were, professional salaries would be far lower than they are.

My point that ordained ministers are differently situated from “the professions” is perhaps as much aspirational as empirical. There are no doubt clergy of all religions who bargain hard to maximize their income based on market factors. But the overall effect is quite different than in the professions. Consider the 2012 Large Church Salary Report conducted by the Leadership Network. The study found that the average salary for a megachurch pastor (one with at least 2,000 attendees) was around $150,000, with an average increase of $8,000 for every 1,000 additional attendees. True, this suggests some market forces at work in setting compensation–pastors who attract more congregants get paid more. But, on the other hand, the effect is very small. The incremental income brought into the church by an additional 1,000 congregants is probably several million dollars. Megachurch pastors are comparable in talent, managerial responsibility, and labor intensity to the top professionals, yet their direct compensation is relatively modest (and yes, indirect compensation would need to be explored as well). In most congregations, it would be considered appalling for a pastor to try to justify his salary based on his value to the church (“I’ve saved thirteen souls this year so I should get a bonus”) as opposed to his needs.

Even conceding that bargaining over money plays a role in the hiring of clergy, there remains the question of fit between the existential purposes of the antitrust laws and the existential purposes of religious groups. When it comes to business firms, we believe that the profit motive is exactly what drives firms to deliver the goods and services we value. As Adam Smith observed, “[i]t is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” Competition principles channel this self-interest to maximize our collective well being. But I would not want to attend a church that followed such a principle–one where others gave of their time, money, and friendship only because of self-interest. Although I am of course self-interested (blame original sin), when I participate in my church I aspire to something different–to Jesus’ admonition that it is more blessed to give than to receive, that the widow’s mite was far more valuable than the rich man’s donation.

So where does it leave us if bargaining over money is an unavoidable aspect of much religious hiring but that rivalry over finances is contrary to the principles and self-understanding of many religious organizations? Should courts sift through the evidence on each religious organization, trying to craft antitrust rules that respect the values of each organization while obtaining the benefits of competition where they are warranted? In my view, that would raise serious questions of entanglement between church and state that justify a categorical decision not to apply antitrust law to ministerial hiring–just as the Supreme Court recently declined to apply antidiscrimination law to religious hiring. Barak and I have agreed to debate that issue next.

Posted on by barakrichman

On Productive Disagreements and Theological Harmony

It’s an honor to engage with Dan Crane on this, and I deeply appreciate his kind remarks.  But our very cordial disagreement perfectly illustrates a problem with his reasoning:  unity and harmony is perfectly compatible with disagreement and competition.

Let me first counter one point, a minor one to Dan’s cogent reasoning but a critical one for antitrust-in-action (and the realist question of whether a court would view this cartel to be within antitrust’s domain).  Dan says “Producing and selling food is a commercial transaction; hiring rabbis or pastors is not.”  To quote Harry First, an antitrust giant, a co-author on my amicus brief on this topic, and a former synagogue president, “If you’ve ever negotiated with a rabbi, you’ll know it’s commerce.”  There is an essentially commercial element to the rabbinic market–synagogues work hard to raise funds to pay rabbinic salaries; rabbis sign heavily-negotiated employment contracts with synagogues, often with the aid of advocates; and both synagogues and rabbis are highly aware of market wages.  Yes, rabbis do lots of very good things, but they receive compensation for them — as they should! — and are squarely engaged in commercial transactions with their employing synagogues.

To make a larger point:  lots of professionals are dedicated to the public interest, and some even define “professionals” as those whose careers are designed to advance the public interests — see “A Community Within A Community: The Professions”, a seminal 1957 work in sociology.  Consider a physician’s dedication to health & healing, a lawyer’s commitment to advocacy & justice, and an engineer’s devotion to science & safety.  To be sure, these commitments to public service do a world of good and motivate conduct (charity, research, government service, other) that both markets and governments have difficulty providing. But these aspects of professionalism also make professional cartels particularly pernicious.  Precisely because their conduct is premised on noble spirits, they feel entitled to maintain their market dominance; because their attachment to their fellow professionals is so core to their identity, exit or defection becomes unlikely, making their cartel much more stable than other cartels; because they are motivated by paternalist concerns, they easily justify usurping choice, freedom, and efficiencies from consumers. Although professionals do not need to apologize for seeking compensation for their services, their professional zeal often leads to commercial excesses and abuses, and these excesses and abuses are routinely justified in the language serving the public interest.

But my primary point is my first, that both antitrust the First Amendment — and both pluralism and democracy — are premised on a civil exchange of ideas and the freedom to choose among them.  Just like the virulent debates between osteopaths and allopaths, between Bayesian and non-Bayesian statisticians, and (to use a provincial example) between the Mitnagdim and the Hasidim, there are disagreements among Jewish organizations.  Antitrust readily permits agreements to emerge from a competition of ideas — we call them setting standards — and it applauds osteopaths and allopaths when they achieve harmony and unite around a common course of treatment.  But it appropriately would condemn any agreement that is antithetical to a productive clash of ideas.  The rabbis are welcome to disagree among themselves or disagree with congregational choices, but they are not permitted to impose their will though their collective economic dominance.

Dan hit on a very foundational idea.  There is a deeply-felt inclination among religious communities, and perhaps among all ethnic communities, to avoid visible disputes and to seek theological and political unity.  These inclinations have motivated many of my own co-religionists to urge me not to seek legal action and, more generally, to stop talking about this issue publicly.  To be sure, there is an obvious response to that argument, and I submit that voicing disagreement with legal, economic, and moral reasoning is much more squarely within the American tradition.  Fortunately for me, it is this tradition that supports the Sherman Act and the American legal system.  More generally, there is a long and proud history of theological disagreements in America where the resolution is to permit each community to pursue its own beliefs.  This distinguishes the horrors of religious disagreements expressed through force from the benefits of religious disagreements expressed through reason.