In Search of Original Meaning — the Religion Clauses: Part II

In Part I of my review of Religious Liberty and the American Founding, I outlined Professor Phillip Muñoz’s originalist-based views on the Religion Clauses. In this part of my review, I continue that analysis, focusing on his recommendations on how his principles should be applied. I also provide my reflections on his recommendations . 

In his final chapters, Muñoz explains how his principles align with–or vary from–Supreme Court precedents, and how his principles would resolve contemporary church-state disputes. I consider these chapters to be among the highlights of the book.

Importantly, Muñoz rejects the “no aid to religion” principle that has been adopted by “strict separationists” like the late Justice Ruth Bader Ginsburg, or current Justice Sonia Sotomayor. His construction of the Establishment Clause would allow the government to fund religious individuals and institutions “as an instrumental means to further otherwise legitimate civic interests,” provided that a nexus exists between ends and means, and that state actions “do not establish jurisdiction over religious exercises as such.” Muñoz interprets the Establishment Clause as not categorically forbidding individuals and religious groups from participation in state funding programs. That would include neutral aid assistance; religious schools could participate in government-funded school voucher programs.

Muñoz asserts that the government has no jurisdiction “to preach religious doctrines for religious reasons,” but that it may “recognize the religious identities of citizens, and even to nurture and advance the religious character of the people for the purpose of inculcating the moral character that sustains a constitutional republic.” His interpretation of the Establishment Clause would acknowledge “the religious character(s) of the people.” Thus, state-sponsored crèches or Menorahs, for example, as part of holiday displays, and also religious memorials on public property, likely would be permissible.

Muñoz also contends that public schools cannot conduct prayers nor host a clergy for such purposes; that impermissibly involves the government in religion. Nor can a governmental body conduct a prayer at its official meetings. He therefore disagrees with the Supreme Court’s 1983 decision in Marsh v. Chambers in which then-Chief Justice Warren Burger, writing for six Justices. upheld the Nebraska legislature’s practice of having an opening prayer at its opening session, reasoning, in part, that “the First Congress, as one of  its early items of business, adopted the policy of selecting a chaplain to open each session with prayer.” Finally, Muñoz asserts that “[g]overnment-employed military chaplains would also violate the Establishment Clause, at least insofar as the reason for the chaplain’s appointment is to conduct religious exercises.” Muñoz  contends that “the text’s meaning ought to be informed by the underlying principles that animate the text,” even though the Founders “legislated such chaplaincies.” In other words, “the Founders’ principles are more authoritative than their practices.”

Finally, Muñoz advocates a distinct jurisprudential approach to the Religion Clauses. That approach “produces neither liberal nor conservative results in the contemporary political sense, because it does not focus on mandating a particular relationship between church and state,” such as “neutrality.” Nor does it produce particular outcomes by applying principles such as “separation” or “accommodation.” Muñoz notes that courts apply “strict scrutiny” of government actions that explicitly target religion or religious worship, but he would go further, asserting that no law can directly do so. His recommendations on limited judicial review would eliminate the “balancing” of a “compelling” state interest against circumstances that support the religious practice. That conclusion is derived from his premise is that natural rights are inalienable.

His approach also would circumscribe judicial review. He explains that his “natural rights constructions thus eschew the managerial role for the judiciary that alternative approaches permit or require.” Muñoz also rejects efforts by the courts to evaluate the effects of legislation on religious entities e.g., whether a law’s principal or primary effect might be to promote religion, as prescribed under the so-called Lemon v. Kurtzman test. Similarly, courts would not evaluate state involvement with religion for the perceptions that it might produce–for example, whether “a reasonable observer” would conclude that a government action “endorsed” religion, a test advocated by former Justice Sandra Day O’Connor in Lynch v. Donnelly.

As I noted earlier, Muñoz contends that religious believers presumptively are not entitled to exemptions from neutral laws. He argues this point, in part, from his review of the drafting of  the Second Amendment. Muñoz describes a House debate on whether that amendment would incorporate a religious exemption from military service. He concludes that the fact that the first Congress considered, but rejected, explicit language for such an exemption means that it decided not to grant any right to religious exemptions from neutral laws. A debate on conscientious objectors to military service would not have been necessary if exemptions were inherent in the Free Exercise of religion.

With the caveat that I am not an expert on the Second Amendment, my reaction is that the cited debate necessarily addressed the narrow issue of conscientious objectors, with some members of Congress apparently not convinced that there was a right as such, while some members believed that the issue was more suitable for resolution by state legislatures. I am not convinced that the broader issue of more general exemptions from neutral laws was a concrete issue for the Founders’ debate.

More fundamentally, even if the government has not “targeted” religious belief or practice for regulation, neutral laws will burden the natural right to the personal exercise of religion, e.g., government compulsion inevitably will violate the individual’s religious conscience. Is Muñoz asserting that the religious believer is without judicial review or redress under the circumstances? It appears so, insofar as he contends that “democratic republicanism,” in other words, our capacity for self-government, will be the shield against such burdens

Second, I note my concerns about Muñoz’s conclusions on the unconstitutionality of state-sponsored chaplaincies and legislative prayers. I am not convinced that Muñoz’s originalist thesis requires us to reject the Founders’ acceptance, and embrace, of those historical customs, inherently linked to civic virtue.

Nevertheless, Muñoz has produced a very thought-provoking book, a useful “road map” for the Religion Clauses, and how lawmakers and judges should apply them. His book should help us refine the legal relationships of government and religion as we proceed in this ever-controversial area of public debate.

Author’s Postscript on Other Reviews of the Book

I offer comments on two other reviewers of the book, Aaron Zubia and Michael McConnell. The writers provide incisive commentaries on Muñoz’s book. Our perspectives differ, but we all praise the book’s contribution to our knowledge of the Religion Clauses and the application of natural rights theory to them. I agree that Muñoz, in McConnell’s words, has provided “an integrated analysis of the legal texts,” and has argued “convincingly for the importance of ‘natural rights’ in understanding the Founders’ views on religious liberty.”

Both reviewers identify important points that I did not include in my review. Zubia observes that, although the Founders agreed that the government should not interfere with the free exercise of religion, some Founders (like Patrick Henry) supported the promotion of religion at the state level. Zubia contends that Muñoz’s approach, insofar as it does not “secure  robust” protection for religious exercise, may “obscure recognition of religion’s necessary role in a self-governing republic.” He cites Connecticut’s 1794 Constitution, which asserted that the civil authority should support and encourage “Pity, Religion, and Morality.” Zubia is leery of Muñoz’s decision to invoke the political theories of Madison and Jefferson, which relied on a “liberal, Lockean” understanding of liberty. Nor is Zubia comfortable with a “liberal, social-compact theory” that, by “militating against the public promotion of religion, strips the state of the ability to support one of the necessary pillars of self-government.”

McConnell focuses much of his review on Muñoz’s contention that the Free Exercise Clause, properly interpreted, does not mandate exemptions for believers from burdensome, generally-applicable laws. McConnell has criticized the late Justice Antonin Scalia’s conclusion in Employment Division v. Smith, that there no such exemptions.[1] McConnell acknowledges Muñoz’s finding that most of the early state constitutional free exercise provisions, such as Maryland, had “peace and order” provisos, i.e., the free exercise right did not extend to acts that “disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural civil, or religious rights.” McConnell contends that such language means that the free exercise of religion did protect some violations of positive law.

McConnell observes that, although Muñoz acknowledges that the drafting history of the Clause “furnishes little insights” into its original meaning, he nevertheless concludes that the Founders did not recognize exemptions to generally-applicable laws. He also discusses the debate over conscientious objectors during the drafting of the Second Amendment. Like me, he is not convinced that the debate yields clarity on whether the Founders understood that explicit exemptions from neutral laws were required for religious believers. McConnell discerns a sharp contradiction between Muñoz’s natural rights theory and his rejection of such exemptions. I am not “taking sides” here on this debate; more work should be done on this important issue.

[1] Michael W. McConnell, Free Exercise Revisionism and the Smith Decision,  57 U. Chicago L. Rev. 1109 (1990).

Theodore C. (“Ted”) Hirt is an Assistant Editor for Anchoring Truths. He is a semi-retired attorney and a member of the District of Columbia Bar. He is a Professorial Lecturer in Law at the George Washington University Law School, where he teaches Electronic Discovery & Evidence. He is a graduate of the University of Chicago Law School and Brown University. From August 1979 to March 2016, he was an attorney (Trial Attorney, Senior Trial Counsel, Assistant Director, Senior Litigation Counsel) in the Justice Department’s Civil Division. He litigated and supervised cases in its Federal Programs Branch and litigated cases in its Office of Immigration Litigation. His work included the defense of challenges to federal laws and to agency authority. His areas of expertise have included First Amendment issues, including the Religion Clauses, and internet-related issues. He has written numerous articles on constitutional and administrative law issues, the Federal Rules of Civil Procedure, pretrial practice, and electronic discovery. He is a Gettysburg, PA Licensed Town Historian/Guide.
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