Online Symposium on Munoz's "Two Concepts of Religious Liberty"

Over at the Law and Religion Forum, my colleague Mark Movsesian and I are hosting an online symposium over the next month or so on Professor Vincent Phillip Muñoz's paper, "Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion." Phillip's complete paper was recently published in the American Political Science Review, but he summarizes it nicely in this opening post. Here's a bit to give a general flavor of the argument:

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 religious free exercise on account of their created nature and their pre-political obligations to God. That is why it is a natural (as opposed to an acquired) right....

That the founders understood worship according to conscience to be an inalienable natural right can be seen in the founding-era state declarations of rights, the founders’ philosophical defenses of religious liberty—including Jefferson’s Virginia Statute for Religious Liberty and Madison’s Memorial and Remonstrance—and in influential political sermons of the time....The inalienable character of the individual’s authority over worship meant that the state could never legitimately acquire sovereignty over religious exercises per se.

Religious exercises, accordingly, remain beyond the jurisdiction of government. This means that state officials lack legitimate authority to directly prohibit, mandate, or otherwise regulate religious exercises as such....[T]his lack of sovereignty also means that judges—who, too, are agents of the state—lack authority to balance elements of the inalienable natural right to religious liberty against other state interests. The act of balancing itself assumes jurisdiction: The “balancer” places competing rights and interests on a scale. Even if the scale is tilted toward religious freedom (as it is under the Sherbert Test), the act of weighing assumes an authority that the founders deny. Judges may not exercise such authority because the state itself lacks jurisdiction over religious exercises as such....

Largely because of Sherbert, we tend to think that any belief or action motivated by religion falls within the First Amendment’s protections. The founders’ understanding is more nuanced and more limited. The founders distinguished core inalienable elements of religious free exercise from what we might call religious “interests.”

The inalienable core includes the “freedom to embrace, to profess, and to observe the Religion which we believe to be of divine origin,” to use Madison’s language from Article 4 of the Memorial and Remonstrance. These core elements of religious worship remain beyond the state’s direct jurisdiction. Religious “interests” include activities of faith that fall within the state’s otherwise legitimate sovereignty. When exercising its legitimate authority and pursuing otherwise legitimate civic ends, the state may burden religious “interest.” It also may relieve burdens on religious “interests” through discretionary exemptions....

If the Free Exercise Clause only protects against direct state restrictions on and regulations of religion, what protections does it really offer?

[My response is] that the founders’ understanding does not protect against “indirect” religious burdens—that is, laws and regulations such as a military draft that do not target or mention religion as such but, when implemented, burden some religious individuals or institutions. I must acknowledge that, in the context of our modern regulatory state, the founders’ natural rights understanding may not seem adequate to protect against all the different ways the state encroaches on the lives and interests of religious individuals. This observation, I note, is what led Justice William Brennan to eschew the framers’ approach and adopt the Sherbert Test over fifty years ago.

Whether the founders’ approach is adequate for our times, however, is a different question from what the founders’ approach is. In the larger context of human history, moreover, denying the state authority over religious exercises is a monumental achievement in the service of human freedom. We often speak of “limited government.” We do not often remember that the fundamental limit the founders imposed on government was to deny it religious authority. That American governments still do not typically attempt to directly prohibit, prescribe, or regulate religious exercises is a testament to the founders’ achievement. We need only to look to the Middle East to appreciate what the founders bequeathed us....

Church-state scholars are so accustomed to assuming that the right of religious liberty means exemptions that we tend to fail to consider the obvious alternative: that the state may not prohibit or otherwise regulate religious exercises as such. The founders did not share our presumptions. At the level of constitutional design, rather than having judges protect religious liberty via the superintendence of allegedly burdensome state action, they sought to demarcate that a relatively narrow but profoundly important area of human life remained outside of the sovereignty of the state.

Stay tuned for responses from Gerard Bradley (Notre Dame), Donald Drakeman (Cambridge), Matthew Franck (Witherspoon Institute), George Thomas (Claremont McKenna), Jack Rakove (Stanford), and Corey Brettschneider (Brown), with a final reply by Phillip thereafter.