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 Read more

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