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

Thomas: Religious Liberty and Jurisdictional Separation

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, George Thomas (Claremont McKenna) responds to Muñoz. For other posts in this series, please click here

Phillip Muñoz’s jurisdictional understanding of religious liberty is a powerful and persuasive challenge to the idea that religious liberty demands exemptions from otherwise valid laws. Yet I want to start with an area of agreement between Muñoz’s jurisdictional understanding and Michael McConnell’s exemptionist understanding. Both Muñoz and McConnell begin with religious liberty as a natural right that circumscribes state authority. This is altogether fitting. But it is only half the story. While civil power was a threat to religious liberty, religion itself was the source of civil disorder and religious oppression. Religious liberty was also then, particularly in the hands of James Madison, a way to limit theological authority and bring about civil peace by making religion a matter of individual choice.

Madison wrote to William Bradford, a friend from his days at Princeton, of the “diabolical, hell conceived principle of persecution” that drove those—including the clergy— who used government to enforce religious orthodoxy. Madison’s inalienable right to religious liberty, with its attendant separation of religion from civil government by way of the social compact, would keep the government out of theological disputes; yet it would just as surely prevent religious sects from using the government to enforce their beliefs. Muñoz is thus right to argue that a jurisdictional understanding of religious liberty is no small achievement. While he nods to the Middle East to make this point, he could just as easily turn to America’s history.

As America was debating the religion clauses of the Constitution, England was debating repeal of the Test Acts, which required those who held public office to take communion according to the rites of the Church of England. This was the very sort of religious test for public office that the American Constitution rejected in Article VI. The Test Acts stood alongside the Act of Toleration, so while religious dissenters were tolerated their religious liberty was conditional. They were not able to hold public office until the acts’ repeal in 1828 or to attend Oxford and Cambridge until the Universities Tests Act of 1871. Back when the free exercise clause was being framed, defenders of religious tests saw them as an essential part of having an established church (and included the likes of William Blackstone and Edmund Burke). Madison worried that such “zealous adherents” to religious hierarchy persisted in America. And they did.

A number of state constitutions required religious tests for office and otherwise favored established churches. Indeed, we might best understand the “peace and safety provisions” of state constitutions at issue between Muñoz and McConnell as remnants of Continue reading

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 Continue reading

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 Continue reading

Around the Web this Week

Here is a look at some law and religion news stories from around the web this week:

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 Continue reading

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 Continue reading

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!

 

When Death is Better than the Alternative?

My friend, Tom Berg, has this response to my post about Free Exercise Clause atrophy. He and I don’t see things too differently, though he is as usual more optimistic than I am. I think he undersells what can be read from the Stormans cert. denial. And the denial of cert. in Ben-Levi v. Brown (again with a J. Alito dissent). And the denial of cert. in Big Sky Colony, where I was also pleased to join another excellent amicus brief spearheaded by Tom himself urging review of the Free Exercise Clause issues. The Court just doesn’t want any part of these issues right now.

But Tom’s post makes me think that perhaps atrophy may actually be the best option on offer. Tom writes that “moderate-ish” liberals might be able to combine with the likes of Justice Alito to hear a case involving “state/local government action against Muslims, or against some other group that everyone agrees is a religious minority.” That is because “liberal opinion” has accepted the various third-party-harms theories being floated about, and because of the expansion of the idea of harm “that modern welfare-state liberalism regards as ‘public.'”

I think I agree with most of Tom’s description here. Tom is probably right that, e.g., Christians with certain specific beliefs about sexuality are not and will never be, in the “liberal opinion” he refers to, the sort of viable “minorities” thought to deserve FEC protection. That “liberal opinion” is powerful now, growing, and likely to influence the ideological profile of the Supreme Court directly and indirectly for years to come. If that is true, then perhaps we should root for atrophy, if not death. Better the Smith rule, which at least has the advantage of being clear and reasonably predictable, than the rule of “liberal opinion” masquerading as constitutional law. Indeed, perhaps religious accommodation has always been infected by something of this quality. We accommodate when we don’t really care–for prison beards, oddballs, and tiny, exotic sects to which nobody really pays attention. When we do care, we find ways not to accommodate (harm! third parties! dignity!). And as the ambit of the “public” increases, it becomes easier and easier to make claims about third party harms, particularly when those harms cut to the quick of “liberal opinion.”

A participant in our colloquium in law at St. John’s this spring, and a noted critic of religious accommodation (someone, as it happens, whose views in general don’t often match up with my own), suggested that if given a choice between non-discriminatory religious persecution and religious discrimination, he’d opt for religious persecution. I can’t say I agree. But this exchange makes me understand that view much more clearly.

The Atrophic Free Exercise Clause

The Supreme Court has had essentially nothing of substance to say about it over the last 23 years. The contraction of whatever rights are protected by it proceeds apace. In this article a couple of years ago, I noted that religious accommodation–

one of the most vital issues of religious free exercise that at one time implicated the Free Exercise Clause directly—has by now largely become entirely statutory. The Roberts Court has decided or issued substantive orders in 4 cases involving either RFRA or RLUIPA [excluding the nonprofit contraception mandate litigation]. In the same period it has decided only one case (perhaps) partially about the Free Exercise Clause, a case in any event that is arguably not about religious accommodation at all and that represents a carve-out from general free exercise principles. The single case that brought both statutory and free exercise claims was resolved solely on the basis of the statutory claim without any decision as to free exercise.

It is tempting to attribute the reason for this transition from the Free Exercise Clause to statute law entirely to the holding of Employment Division v. Smith, which ostensibly precluded judicial review as to laws that are neutral and of general application. To be sure, the rule announced in Smith has contracted the number of Free Exercise Clause challenges. And yet there are features of Smith—most notably the issue of the meaning of “general applicability” and the scope of what I have elsewhere described as the “individual-assessment exception” to Smith—that have suggested to several lower courts that accommodations are constitutionally required far more often than may appear under Smith. To date, however, the Supreme Court has declined to hear any cases raising a direct challenge to Smith.

The enfeeblement of the Free Exercise Clause continues. Last week, the Court denied cert. in Stormans v. Wiesman (with Justice Alito dissenting from the denial, in an opinion joined by the Chief Justice and Justice Thomas), a case about Washington State’s regulations requiring the stocking of drugs in pharmacies that provided exemptions for various secular reasons (business reasons, for example) but not for religious reasons. The case presented a golden opportunity for the Court to clarify what exactly “generally applicable” means under the test given to us a full generation ago by Employment Division v. Smith. Both Mark and I joined an excellent amicus brief urging the Court to do so.

No dice. Disappointing, but not surprising. Justice Kennedy, after all, was in the Smith majority, and while he authored the majority opinion in Lukumi-Babalu, his opinion offered a rather confused and confusing reading of general applicability (Justice Scalia’s concurrence was much better on this point). He joined four other Justices in denying cert.

But the larger point is that the Free Exercise Clause, at least as a possible source of accommodation, is increasingly a dead letter. Unless one has evidence of explicit discriminatory motivation in the making of exceptions (and it’s got to be really explicit), one should expect the Clause to offer nothing. The Court has little interest in saying anything else about the Free Exercise Clause, other than raising it as a kind of weak, pseudo-justification for carve-outs like the ministerial exception.

There are all sorts of political and cultural reasons for the atrophying of the Free Exercise Clause, of course. Some of those reasons are, I plan to argue in a new paper tentatively titled Religious Accommodation, Religious Tradition, and Political Polarization, pretty good reasons. But whatever the reasons–good or bad–they are not going away. In a generation or less, the Free Exercise Clause may well find itself in the company of the Privileges or Immunities Clause and the Third Amendment.

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