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Steven D. Smith Reviews Phillip Munoz on Religious Liberty
Michael Ramsey

At Public Discourse, Steven D. Smith (San Diego): Bare-Bones Religious Freedom.  From the introduction:

Notre Dame professor Phillip Muñoz’s “natural rights” account of religious freedom generates prescriptions that will be satisfying to nobody—not even, it seems, to himself. The minimalist First Amendment defended in Muñoz’s Religious Liberty and the American Founding (2022), would forbid governments to act like or delegate power to churches or to interfere with “worship as such.” No meddling with the Mass “as such.” Beyond those strictures, governments would be constitutionally free to fund and favor religion, or to restrict and discriminate against religion. The Christian baker who objects to celebrating a same-sex wedding would find no protection in Muñoz’s First Amendment. Indeed, the Constitution would not even protect the Catholic Church from liability under a general antidiscrimination law for its male-only priesthood.

Hardly anyone will find these outcomes attractive, and Muñoz himself seems not especially happy with them either. Muñoz is not at all hostile to religion or religious freedom, and his interpretation allows legislatures to provide broader protections. He embraces the constitutional prescriptions because he believes a faithful interpretation of the Constitution compels them. Muñoz’s central premise is that the Constitution should be interpreted according to the “natural rights” logic that was prevalent in the Founding period; and he tries to follow this logic to its conclusions, come hell or high water. His unappealing prescriptions reflect a kind of courageous integrity.

I admire that integrity, but I also think it is profoundly misguided. In a short review, there is no way to do justice to the scope and intricacy of Muñoz’s account, so I will try only to explain in simplified terms where I think the central error lies. Before undertaking this mostly critical discussion, though, I must acknowledge (too summarily, alas) the book’s considerable virtues. Muñoz’s account exhibits impressive scholarship; it provides a lucid explanation of the Founders’ natural rights thinking; and the examination of constitutional texts is methodical and informative. The analysis of the legislative history of the Establishment Clause is as meticulous as any I have seen.

These are notable accomplishments. And yet . . .

And from later on:

Muñoz believes, however, that there is a kind of natural-rights logic that leads to his minimalist version of religious freedom. Here is the logic, as I understand it: Some rights that would exist in a state of nature are inherently inalienable, because it would simply be impossible for contracting parties to relinquish them. So any social contract would necessarily recognize these particular, impossible-to-relinquish rights. And religious freedom—albeit in an exceedingly narrow conception—is, or was, or would be, one such inalienable right.

And why would it be impossible for hypothetical contracting parties to relinquish this right of religious freedom? Citing seminal statements by Jefferson and Madison, Muñoz suggests that all of us necessarily believe, and cannot help believing, whatever the evidence seems to us to support. Even if you wanted to, therefore, you could not transfer power over your beliefs to government. In that sense, your aboriginal right to believe whatever you actually do believe is literally inalienable. Because this right could not be ceded away in any government-creating social contract, government accordingly can have no jurisdiction in the realm of religious belief– a realm that Muñoz quietly extends to worship.

Conversely, according to Muñoz, you could grant to government the power to regulate conduct– even religiously-motivated conduct. In a pre-political situation you might enjoy a right to conduct yourself according to your religious convictions, but that right is not inalienable. So the natural-rights logic of religious freedom provides no basis for concluding that hypothetical contractors would reserve a free exercise right covering religious conduct.

There is much that might be said about this argument. But even within the artificial confines of a social-contract thought experiment, the argument, if I have understood it correctly, seems doubly infirm. It does not support even Muñoz’s narrow categorical right covering “worship as such.” Suppose we stipulate that people have no control over their religious beliefs (a contestable point, actually), and hence could not relinquish a right to believe as they see fit. The right would cover beliefs, but it is not clear why this right would extend to worship. Governments cannot dictate what people believe in their minds and hearts, let us say; but governments surely can regulate—and often have regulated—how people worship.

On the other hand, even if a broader religious freedom right extending to conduct would not meet the impossibility-of-relinquishment requirement for inalienability, contracting parties who placed great value on religion might nonetheless choose to protect their ability not just to worship but also to live in accordance with their religious beliefs—even if such protection could not be absolute. This is not merely an abstract possibility: Muñoz explains that proponents of an “expansive liberalism” version of natural rights (including Madison) did hold that “religion itself, not just religious worship, lies beyond the legitimate jurisdiction of government.” Given the fictional nature of the social contract, who can say they were wrong?

Professor Munoz responds here: Before Critiquing the American Founding, We Should First Understand It.

Professor Smith has this reply: Minimalist Religious Freedom as a Self-Inflicted Wound.