A Low but Solid Grounding for Religious Liberty

The Supreme Court put a formidable stake through the heart of 75 years’ worth of secularist jurisprudence with its recent decision in Carson v. Makin. Here, the Court—building on recent public aid decisions—held that a generally available school choice program cannot discriminate against religious schools that also feature religious instruction as part of the curriculum. 

The decision is not only a tremendous boost to protecting the free and equal participation of religious schools in school choice programs, but a signal that the Establishment Clause cannot be turned against the Free Exercise Clause under a “play in the joints theory.” Institutions should not lose public support simply because they have a religious character. Any purported Establishment Clause interest that a school district or state might have in protecting public education dollars from religious influence will not justify the refusal of funds to religious schools under a generally available program to schools.

There was a time when a religious school could not have exercised its institutional liberty to inculcate theological instruction if it wanted to receive public funds in a school choice program. As John McGinnis succinctly notes in this space, such a requirement would be unconstitutional in any number of other contexts, including free speech. Under the doctrine of unconstitutional conditions, public funding could not be pulled on account of a teacher saying something the government disagrees with. The choice can’t be butter or free speech. The decision in “Carson makes clear that the doctrine of unconstitutional conditions is as applicable to Free Exercise as to other constitutional rights,” observes McGinnis.

Many would argue that in light of these victories, we are recovering the Framers’ understanding of the religion clauses and their purpose of protecting religious liberty, which fosters religious practice. However, Phillip Muñoz, whose religion clauses scholarship is incredibly learned and thoughtful, now provides significant evidence of a natural rights basis for religious liberty in the American founding with a complete study in his new book, Religious Liberty and the American Founding. Muñoz contends, with deep support, that this natural rights foundation is the most historically accurate formulation of religious liberty.

Muñoz adduces a tremendous amount of data in this regard. He acknowledges the depth of originalist scholarship on religious liberty and the American Founding. But he is not satisfied with the current state of knowledge. “This book contends that we have neither grasped the Founders’ natural rights understanding of religious liberty nor accurately appreciated how it would inform First Amendment church-state jurisprudence,” he writes. In this light, Muñoz sets himself the task of “documenting and explaining the Founders’ understanding of religious liberty as an inalienable natural right.” He also attempts to demonstrate what we can and cannot know “about the original meaning of the First Amendment’s Religion Clauses.” 

Muñoz argues that many Justices have intended to root their interpretation of the religion clauses in the American Founding. From conservative originalists to the likes of Justice William Brennan, all have wanted us to know that their decisions find support in the historical record of the Founding. Perhaps nowhere has this been more apparent than in the “wall of separation” thesis advanced by Thomas Jefferson in his famous 1802 letter to the Danbury Baptist Association. The Danbury letter first appeared in Reynolds v. United States (1879), the case that ruled that the prohibition placed on polygamy was not an infringement of religious liberty. Many know the phrase from Everson v. Board of Education (1947), where it was employed on behalf of a secularist understanding of the religion clauses to undo the various ways that state and local government institutions and religious institutions were mixed through prayer, instruction, public aid, and numerous other ways.

Jefferson’s letter did not articulate the original understanding of the religion clauses, but one more particular to Jefferson himself. He distinguished between beliefs, which the government could not regulate, and actions, which it could regulate. Moreover, the state of Connecticut had an official and, at the time, lawful religious establishment in the Congregational Church. The federal government was powerless on matters of state religious regulation. Whatever Jefferson’s letter stands for, it was primarily exhortatory, offering a rendering of Jefferson’s proclivities more than an accurate exegesis of the Amendment’s text. Muñoz argues that few, if any, of the Framers accepted Jefferson’s position. In relying on the Danbury letter, both Chief Justice Morrison Waite in Reynolds and Justice Hugo Black in Everson went outside of the First Amendment to construct it, but their materials reflected what they wanted to find, not what the religion clauses were intended to do.

The underdetermined nature of the religion clauses creates an opportunity for Muñoz to enter the so-called construction zone to formulate a natural rights jurisprudence for them.

The indeterminacy of the religion clauses owes, Muñoz adds, to their very origin. Those drafting the Bill of Rights engaged in something of a concession to the Anti-Federalists, who wanted a Bill of Rights. The Federalists in the First Congress didn’t really believe in the Amendments and gave them the attention they believed they were owed, which certainly wasn’t detailed or lengthy. The wording of the First Amendment, and the relative sparseness of debate over it during drafting and approval, reflected a prevailing consensus about religious liberty. The federal government wouldn’t establish a national church, wouldn’t interfere with religious belief and activity, and wouldn’t interpose itself into the states’ pre-existing religious establishments, or any state laws that touched on religion itself. One sure understanding of the First Amendment’s religion clauses, notes Justice Clarence Thomas, is that they are a provision of federalism meant to not constrain state governments. Now that’s determinacy of a kind.

The underdetermined nature of the religion clauses creates an opportunity for Muñoz to enter the so-called construction zone to formulate a natural rights jurisprudence for them. The upshot of his method is greater certainty for both the Free Exercise Clause and the Establishment Clause. The downside is that natural rights philosophy as the authoritative understanding of the religion clauses could also leave much activity that religious institutions and their members engage in relatively unprotected. Muñoz states this forthrightly. If so, then religious believers will continue to need an array of exemptions and conscience protections at all levels of government.

Was Justice Antonin Scalia correct in Employment Division v. Smith (1990) when he stated in the Court’s majority opinion that there was no constitutional right to a religious exemption from validly enacted laws? Muñoz says yes. Absent federal and state Religious Freedom and Restoration Act legislation, many aspects of religious practice would surely be at the mercy of rapacious federal and state bureaucrats who would exploit this legal conclusion to the full in the absence of statutory exemptions. Think Obamacare’s contraception mandate, ad infinitum. This obviously does not indict Muñoz’s construction zone of natural rights as the ground of religious liberty. But it should at least give us pause.

Is there a deficit in understanding that arises from the decent but thin anthropological account of religion that Muñoz works from in arguing the natural right of religious liberty?

What is a natural right of religious liberty? Such rights “are ‘inherent’ in the sense that they inhere in the individual on account of human nature.” And “They are ‘natural’ in the sense that neither the state nor any other human authority creates them.” Muñoz cites George Washington’s powerful letter to the Hebrew Congregation in Newport, “It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights” to reflect the “Founders’ shared natural rights understanding” of how religious liberty attaches to human beings apart from any state action.

Muñoz undergirds his argument by noting how natural rights language formed the core of religious liberty in the new state constitutions and their declarations of rights. Eight states during the Founding era adopted such declarations and either noted explicitly religious liberty as a natural right or adopted religious liberty in a manner consistent with a natural rights framework. Twelve states would adopt new constitutions between 1776 and 1783. South Carolina alone refused to recognize religious liberty, opting instead for tolerance as the superintending principle between the state and the church.

Much of the book revolves around the Free Exercise Clause, but Muñoz also addresses the construction zone meaning of the underdetermined Establishment Clause. We don’t know from the record what an establishment of religion really is. On the available evidence, the author advances the view that this Clause prohibited relationships of control between institutional churches and government. Muñoz accepts that this clause has been incorporated and applies to the states. Here, it means that there should be no established state churches and no delegation by the government of its powers to a particular church. 

I want to be clear that I am not arguing that it is false, either as a matter of constitutional history or understanding, nor that it is a wrong account of religious freedom. To draw from Martin Diamond’s famous observation about the American Founding, Muñoz provides a low but solid ground defense of religious liberty, and one that we can take pride in as Americans. But we should also insist that religious liberty is not only an individual right of worship, belief, and opinion—the real exercise of such liberty requires something more. 

We might begin with what should be a common observation: religion is practiced corporately, institutionally, and relationally. We do religion with others, who are bounded by doctrine, practices, history, and the judgments of both religious authorities and their neighbors. Religious liberty surely inheres in persons, but it is exercised as part of our relational personhood. That is why religious liberty is more than just worship and religious exercise, but includes the decisions, ministries, and practices that religious institutions engage in as the practice of their faith and doctrine. 

We should argue that the school of western freedom was really the freedom of the church which gathered man into its doors, elevated his soul above the state, and provided protection and flourishing to his essential activities.

Churches must be free not only to meet and pray but to proclaim their teachings and apply them in education, healthcare, welfare, and myriad other offerings they choose to make to their congregation and to the wider public. This is religion correctly understood and one that incorporates and builds on the natural right to religious liberty that Muñoz has painstakingly documented as the consensus Framers’ doctrine. 

The completion of religious liberty is in the medieval conception of freedom of the church, which is able to employ its real and effective armature against state edicts and protect the freedom of its members to practice freely their faith. The Court has come close to saying this outright, notably in the 2012 Hosanna-Tabor case, where it unanimously upheld the ministerial exception doctrine for churches to choose their own clergy as an institutional matter. 

While not stated as such, freedom of the church is one crucial part of what the framers were protecting in not establishing a national church. They wanted congregations and churches to be free to practice their faith. They merely established articles of peace between these religious groups, in the words of John Courtney Murray.

One chapter builds on three different paths to a natural right to religious freedom as articulated by Thomas Jefferson in the Virginia Statute Establishing Religious Freedom, James Madison’s “Memorial and Remonstrance Against Religious Assessments,” and the founding era sermons of Isaac Backus. Both Jefferson and Madison stress different and contrasting aspects of the right of religious freedom. Jefferson’s and Madison’s accounts seem to exemplify the potentiality for a wide-ranging secularism.

For Jefferson, our minds are created free by God and cannot refrain from accepting the evidence put to our minds to know the supreme will of God. The mind is free but must accept evidence it finds to be true. Therefore, any attempt by the state to constrain or direct belief will fail and is, therefore, ontologically unjust. But conduct or the incidentals of religious worship, as opposed to belief, can be regulated by the government. We can wonder at the end of the day: What evidence did Jefferson think could really be adduced for us to know anything about God? His autonomous and emancipated account of religious belief leaves religious liberty as a right that survives on thin gruel.

Madison’s assessment in the “Memorial and Remonstrance” is exclusively individualistic, almost anti-clerical, as both John Courtney Murray and Gary Rosen have separately argued. Madison seems rooted in opinion formation but divorced from actual engagement with what religious belief means in the social and political sphere. We might have duties to God, but they don’t seem to mean nearly as much as political rights and duties to the lives that we live, Rosen argues. 

Rosen in American Compact (1999) observes that Madison’s document looks to “the privileges enjoyed by individuals. . . . so it discourages both collective action and deference to religious authority. . . . And it is resolutely other-worldly, so it manifests itself not in ritual observance or faith-inspired works—messy and quasi-political matters that involve our bodies—but in ‘conviction,’ in the ‘opinions’ that depend on our minds.” Madison himself found Christian revelation highly suspect. Was the duty we owe to God rigorous in any thick sense under a Madisonian conception? Probably not.

Muñoz does an admirable service on the pervasive understanding of religious liberty as an inalienable natural right present among the framers. Unfortunately, that specific understanding was not directly appealed to in the First Congress when it debated and approved the Bill of Rights that was sent to the states for ratification. Muñoz enters the originalist construction zone to show why it should be the definitive understanding of the religion clauses. His case is convincing, and given the confusion we live under, clarifying.

Rather than attempt to go into the originalist construction zone as Muñoz does, might we do even better? We should argue that the school of western freedom was really the freedom of the church which gathered man into its doors, elevated his soul above the state, and provided protection and flourishing to his essential activities. The modern democratic West tried to replace freedom of the church with freedom of conscience. That undertaking gives us, however, part of the truth about man’s worship and all the related practices and expressions of it. Rather than endless originalist understandings of religious liberty, we need to articulate that our Constitution protects the individual and corporate nature of religious liberty and then instantiate this freedom in policies and institutions that make this a living reality.