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!


Last Night at First Things

me and Rusty

L-R: Movsesian, Reno

Thanks to Rusty Reno and First Things Magazine for hosting a dinner seminar last night on my new paper, Of Human Dignities. (That’s a picture of me and Rusty at the event, listening in rapt attention to one of the many insightful interventions). I greatly enjoyed the discussion and am grateful to all the participants for their careful readings of the paper. For those who would like to download a copy of the paper, which appears in the current edition of the Notre Dame Law Review, please click here.

DeGirolami on Wolterstorff on St. Paul’s View of Punishment

I’ve posted a  little reflection on Professor Nicholas Wolterstorff’s recent book, The Mighty and the Almighty: An Essay in Political Theology, which is part of a symposium to be published in the Journal of Analytic Theology. Here’s the abstract:

This short comment explores Nicholas Wolterstorff’s claims about expressivism and retributivism as justifications for the state’s punishment of criminal offenders in his book, “The Mighty and the Almighty.” It asks two questions about his account of expressivism and retributivism respectively, focusing on his interpretation of the reasons for punishment given by St. Paul in his Epistle to the Romans.

Around the Web This Week

Some interesting law and religion news stories from around the web this week:

Free Exercise by Moonlight

I have a new article in draft called Free Exercise by Moonlight. It is about the current condition of permissive religious accommodation. It is pervasively lugubrious. Here is the abstract:

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

  1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
  2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
  3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
  4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.

Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.

Aroney on Freedom of Religion as an Associational Right

The latest issue of the University of Queensland Law Journal is devoted entirely to issues of federalism and freedom of religion in Australia.  One article by Professor Nicholas Aroney, Freedom of Religion as an Associational Right, is particularly informative.  You can read the article in its entirety here.

In his article, Professor Aroney argues that the religious freedom clauses of the Australian Constitution (section 116), which were modeled after the American First Amendment, should be interpreted to protect not only individual rights, but also communal or associational rights.  In support of this contention, Professor Aroney provides an impressive textual and historical analysis of section 116.  He further shows how this interpretation is in accord with international law.

According to Professor Aroney, correctly interpreting section 116 is of fundamental importance, because to interpret it as protecting merely individual rights has the potential to severely weaken religious freedom. Here is Professor Aroney (footnotes omitted):

Efforts to impose an individualistic view of human rights … continue to be made by groups such as the Discrimination Law Experts Group, who argue that the rights of religious organisations engaging in ‘public sphere activities’ should simply be trumped by the rights of individuals ‘to be treated in a non-discriminatory way.’ The Public Interest Law Clearing House and the Human Rights Law Resource Centre have argued similarly, maintaining that permanent religious exceptions to antidiscrimination laws facilitate and condone discrimination by protecting ‘traditional social structures and hierarchies’. Although the context is that anti-discrimination laws apply only in certain ‘public’ contexts, the reasoning is not so limited. These arguments are not unlike that of Stephen Macedo, who advocates that modern liberalism must ‘constitute the private realm in its image’ by forcing citizens ‘to observe its limits’ and ‘pursue its aspirations’. Such persons are to be actively coerced, Macedo candidly asserts, ‘to help ensure that freedom is what they want’, even in ‘their most “private beliefs”’.

 The underlying individualism of this line of argument has been made clear by Margaret Thornton, who has argued that although the ICCPR protects the right to exercise freedom of religion ‘in association with others’, this right not only has to be balanced against the competing rights to equal treatment and non-discrimination, but all such rights need to be understood, fundamentally, as the rights of human beings – not of corporations – and so it is a ‘logical fallacy to extrapolate from an individual’s private beliefs to an impersonal for-profit corporation’. Thornton’s argument shows the weakness of religious freedom rights if they are conceptualised in reductively individualistic terms. This is because one would have to show, first, that certain individuals have particular religious convictions that are legally protected and, second, that these same individual rights are being expressed through the religious corporation’s rules or practices. If religious rights are conceptualised as inherently ‘private’ in this sense, it will be that much more difficult to establish that such rights are really being exercised as private rights in various domains of ‘public’ or ‘quasipublic’ life. But on the contrary, as has been seen, international human rights principles, while certainly premised on the rights of the ‘human person’, are not exclusively concerned to protect only individual rights or only private expressions of religious conviction.

Another problem with individualised conceptions of human rights in this domain is that such rights, although originally conceived as rights against the state, can nonetheless ‘double up as rights against everyone’. Accordingly, as Julian Rivers has shown, there are some for whom it is not sufficient that an individual has a right of ‘exit’ from his or her religious community. Rather, there is evidence ‘of a growing assumption that everyone who wishes should be able to join any religious body’ and that ‘membership tests are suspect’. The underlying assumption, in other words, is that ‘the preservation of religious identity on the part of civil society groups needs justification against the individual who does not share that identity’, even though to adopt such an approach ‘is potentially destructive of the identity of [all] non-State collectivities’. For if any individual can decide whether he or she qualifies for membership of an organisation, no organisation will be able to maintain its distinctive identity.

This reductio ad absurdum suggests that a radical individualist conception of religious liberty is simply incompatible with the existence of religious associations and communities as distinguishable groups within a society. Against such a view, William Galston has observed:

 It is not obvious as an empirical matter that civil society organisations within liberal democracies must be organised along liberal democratic lines… A liberal policy guided … by a commitment to moral and political pluralism will be parsimonious in specifying binding public principles and cautious about employing such principles to intervene in the internal affairs of civil associations. It will rather pursue a policy of maximum feasible accommodation, limited only by the core requirements of individual security and civic unity. That there are costs to such a policy cannot reasonably be denied. It will permit internal associational practices (e.g. patriarchal gender relations) of which many disapprove. It will allow many associations to define their membership in ways that may be viewed as restraints on individual liberty … Unless liberty – individual and associational – is to be narrowed dramatically, however, we must accept these costs.

 A reductively individualist conception of religious freedom is obviously opposed to the capacity of such groups to determine their own conditions of membership, but an excessively narrow associational conception may also have this effect, for there are many social groupings and traditional communities, including religions, in which membership does not initially arise by deliberate choice but by birth and circumstance. Whether voluntaristic or otherwise, unless such associations and communities are going to be understood, following Thomas Hobbes, as ‘worms in the entrails’ of the body politic, we need to recognise, as Harold Laski argued, that they are ‘as real, as primary, and self-sufficing as the whole [society]’. This does not mean of course that communal religious rights must always prevail. But it does mean that they ought to be treated with the same respect as the rights of individuals. As such, from a liberal point of view, what is most crucial in order to protect individuals is not the right to join (or remain) within a group, but the right to exit it. On this approach, the question of the legitimacy of a law which regulates a religious association becomes one of determining what conditions, if any, must accompany an effective exit right, understood to include the rights to associate, disassociate or not associate with a particular religious community on terms offered by that community. Alternatively, from a more communitarian point of view, what matters is that a religious group genuinely benefits its members and does not inappropriately interfere with the legitimate interests of those outside the group. These are large questions, of course, which lie beyond the scope of this article, the point of which has been to establish the associational and communal dimensions of religious freedom as a matter of principle.


Horwitz, “The Hobby Lobby Moment”

Our friend, Paul Horwitz, has just published his essay, The Hobby Lobby Moment, in the latest issue of the Harvard Law Review. The piece is well worth reading and reflecting on. It is written in Paul’s characteristically thoughtful and insightful manner, and it makes many points about the social and cultural context of the case that cut much deeper than most of the commentary on what has been, to put it mildly, a controversial decision. Even on those issues where I see things a little differently than Paul (for example, I am much more skeptical than is Paul about the degree to which there was ever consensus about the good of religious free exercise in the legal academy, and therefore about whether there is any substantial fragmentation of that consensus today), the points he makes are interesting, original, and thought-provoking.

“Constitutional Contraction: Religion and the Roberts Court”

I’ve posted a new paper, Constitutional Contraction: Religion and the Roberts Court. Here’s the abstract:

This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways. 

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors—the Rehnquist and Burger Courts—both of which exercised judicial review more regularly. 

Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases.

Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well.

Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach—logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.

Comments are welcome!

Finally, a Use for Reprints

reprintsA little end-of-summer humor for our academic readers.

Annicchino on the EU and Religious Freedom

Pasquale Annicchino (European University Institute) has posted an new paper on SSRN, Is the European Union Going Deep on Democracy and Religious Freedom. Here’s the abstract:

In recent years the European Union has begun to explicitly affirm a foreign policy role for freedom of religion or belief (FoRB). The initial reaction to this trend among many scholars and policy analysts has largely been that of caution—if not outright skepticism—regarding the practical import of the changes. However there are signs of continuing momentum. While the EU’s record thus far does not yet reflect a fully comprehensive strategy for integrating FoRB into its broader agenda for promoting deep democracy, it has been able to enlarge the role of FoRB in its external action on a step-by-step basis.

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