If Religious Liberty Does Not Mean Exemptions, What Might It Mean? The Founders’ Constitutionalism of the Inalienable Rights of Religious Liberty

Vincent Phillip Muñoz*

Is religion special, and does it, accordingly, deserve unique constitutional protections? A number of leading scholars say it is not, and it doesn’t. In his recent thought-provoking article, What if Religion Is Not Special?, Micah Schwartzman contends that “religion cannot be distinguished from many other beliefs and practices as warranting special constitutional treatment.”¹ Christopher Eisgruber’s and Lawrence Sager’s conception of “Equal Liberty” similarly “denies that religion is . . . a category of human experience that demands special benefits and/or necessitates special restrictions.”² Jocelyn Maclure and Charles Taylor espouse what is probably the prevailing position among contemporary political and legal theorists: “Within the context of contemporary societies marked by moral and religious diversity, it is not religious convictions in themselves that must enjoy a special status but, rather, all core beliefs that allow individuals to structure their moral identity.”³ Other scholars have responded with various arguments to defend religion’s special status and the practice of exemptions that they contend follows from it.⁴ This latter group would seem to have at least one distinct advantage on its side: the First Amendment’s text, whatever the Establishment Clause might mean, clearly gives special status to the “free exercise” of religion.⁵ This obvious point leads Schwartzman to conclude that “if the Religion Clauses are interpreted according to their original meaning, then they should be criticized as morally defective.”⁶

Schwartzman’s verdict, like the entire debate in which he participates, presumes that religion’s special status means religious individuals and institutions deserve special consideration for exemptions from burdensome laws. But what if religious liberty does not mean exemptions? Would we still find the Constitution morally defective? And if religious liberty does not mean exemptions, what protection would the First Amendment offer? Can religion retain its special Free Exercise status while not dictating constitutional exemptionism?

This Article addresses those questions by taking a different approach to religion’s specialness, one that does not presume the Free Exercise Clause means exemptions. It attempts to set forth an alternative paradigm for the constitutional protection of religious liberty by explaining why the Founders thought religion is special and by articulating their attendant constitutionalism of religious freedom. In doing so, it continues a line of inquiry, begun elsewhere,⁷ that attempts to distinguish the Founders’ natural rights constitutionalism from what I call modern moral autonomy exemptionism.

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© 2016 Vincent Phillip Mu˜noz. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Tocqueville Associate Professor of Political Science, Concurrent Associate Professor of Law, University of Notre Dame. The author would like to thank the following individuals who provided helpful feedback and criticism on preliminary drafts of this Article: Rebecca Devine, Julieanne Dolan, Don Drakeman, Matthew Franck, James Stoner, Cole Wintheiser.

1 Micah Schwartzman, What if Religion Is Not Special?, 79 U. Chi. L. Rev. 1351, 1353 (2012).

2 Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 6 (2007).

3 Jocelyn Maclure & Charles Taylor, Secularism and Freedom of Conscience 89 (Jane Marie Todd trans., 2011).

4 See Kathleen A. Brady, The Distinctiveness of Religion in American Law (2015); John H. Garvey, What Are Freedoms For? 42–57 (1996); Thomas C. Berg, “Secular Purpose,” Accommodations, and Why Religion Is Special (Enough), 80 U. Chi. L. Rev. Dialogue 24 (2013); Michael W. McConnell, Accommodation of Religion, 1985 Sup. Ct. Rev. 1; Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 Geo. Wash. L. Rev. 685 (1992); Michael W. McConnell, The Problem of Singling Out Religion, 50 DePaul L. Rev. 1 (2000); Michael Stokes Paulsen, The Priority of God: A Theory of Religious Liberty, 39 Pepp. L. Rev. 1159 (2013); Mark L. Rienzi, The Case for Religious Exemptions—Whether Religion Is Special or Not, 127 Harv. L. Rev. 1395 (2014).

5 U.S. Const. amend I.

6 Schwartzman, supra note 1, at 1355.

7 Vincent Phillip Mu˜noz, Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion, 110 Am. Pol. Sci. Rev. (forthcoming 2016).