Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion (original) (raw)
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Is religion special, and does it, accordingly, deserve unique constitutional protections? A number of leading scholars now 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.” He thus rejects the originalist construction of Free Exercise exemptions championed by Michael McConnell, at least insofar as it extends exemptions exclusively to religious entities. But what if religious liberty does not mean exemptions? 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? My 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, that attempts to distinguish the founders’ natural rights constitutionalism from what I call modern moral autonomy exemptionism. The article, first, documents the founders’ shared understanding that religious liberty is a natural right possessed by all individuals. Secondly, it explains what the American founders meant when they labeled aspects of religious liberty an “unalienable” natural right. The article next clarifies the founders’ understanding of religion’s special constitutional status, which for them primarily meant specific jurisdictional limits on state sovereignty rather than exemptions. Finally, the article attempts to further clarify the founders’ constitutionalism of religious freedom by explaining how they understood natural rights to have natural limits.
Historical Foundations and Enduring Fundamentals of American Religious Freedom
Journal of the Society of Christian Ethics, 2020
The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced six constitutional principles for the protection of religious freedom-freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no state establishment of religion. Since the 1940s, the United States Supreme Court has upheld these religious freedom principles in more 170 cases, albeit unevenly of late. Moreover, in recent years religious freedom has come under sharp popular and academic attack, particularly as religious pathologies have come to light and religious freedom claims have clashed with sexual liberty claims. This Essay calls for a return to the first principles of religious freedom for all, at home and abroad, and for a new balance between religious freedom and other fundamental rights claims.
Free Exercise and the Resurgence of the Religious Freedom Restoration Act
SAGE Open, 2016
This article considers the development of protections of the Free Exercise of Religion, initially under the First Amendment, and later, following Congress’s discontent with the Supreme Court’s decision in Employment Division of Oregon v. Smith, under the Religious Freedom Restoration Act. The article discusses how this development resulted in the Court’s controversial split decision in the case of Burwell v. Hobby Lobby in 2014, and considers why commentators take such diverse views of that case.
Constitutional Commentary , 2008
This Article is an appreciative review of a new masterwork on religious freedom by leading constitutional scholar, Kent Greenawalt. The book crisply summarizes the full range of founding principles of religious liberty in America-liberty of conscience, freedom of exercise, religious diversity and equality, separation of church and state, and disestablishment of religion-and calls for their proper balancing still today. It then lucidly analyzes the main American cases, statutes, and regulations that bear on the free exercise of religion. Greenawalt calls on courts to accommodate maximum expressions of religious conviction that are consistent with commitment to fairness and public welfare. He rebukes the Supreme Court's reductionist reading of the Free Exercise Clause in Employment Division v. Smith (1990) to a guarantee of laws that are neutral and generally applicable. This new standard, still in place, fails to accommodate the need for religious accommodations and exemptions when general laws conflict with core claims of conscience and central commandments of the faith. While such accommodations of religion are now partly available through new federal and state statutes and free speech doctrines, Greenawalt urges a return to a more rigorous standard of free exercise review.
Religious Freedom in the United States: ‘When You Come to a Fork in the Road, Take It
2013
, for their useful comments on drafts of the manuscript. I would also like to thank Mrs. Ann Raney of the Curriculum Materials Center at the University of Dayton for her help in locating materials cited in this article, my Assistant, Ms. Elizabeth Pearn for proofreading the manuscript and helping to prepare it for publication, and Mr. Mohamed Al-Hamdani, University of Dayton School of Law, Class of 2013, for his help in researching citations and commenting on a draft of the paper. Finally, I would be remiss if I did not offer my greatest thanks to my wife and love of my life, Debbie Russo, a fellow educator, for proofreading and commenting on drafts of this article in addition to everything else that she does for me in our life together. 1 YOGI BERRA WITH DAVE KAPLAN, WHAT TIME IS IT? YOU MEAN NOW? ADVICE FOR LIFE FROM THE ZENNEST MASTER OF THEM ALL 33 (2002). 2 Bd. of Cnty. Comm'rs, Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668, 711 (1996) (Scalia, J., dissenting) (affirming that the First Amendment protects independent contractors from the termination of or prevention of automatic renewals of at-will government contracts in retaliation for exercising their right to freedom of speech). 364 UNIVERSITY OF DAYTON LAW REVIEW [Vol. 38:3 purposes without prior approval of public officials). But cf. Barron v. Mayor and City Council of Baltimore, 32 U.S. 243, 250-51 (1833) (holding that the Bill of Rights was inapplicable to the states since its history demonstrated that it was limited to the federal government). 8 Although issues associated with the practice of religion are more likely to be covered by the Free Exercise Clause, such disputes are often referred to as Establishment Clause disputes.
A Right to Religious and Moral Freedom?
International Journal of Constitutional Law, 2014
This essay develops a normative argument against Michael Perry's approach to religious freedom. According to Perry, the right to religious freedom should be expanded into a claim upon liberal democracies to religious and moral freedom. In other words, one should be free to practice one's morality, whether or not it is grounded in the transcendent. This paper argues instead that religious freedom cannot be protected by the same legal paradigm as moral freedom because religion and morality affect legal systems in different ways. Religious freedom and moral freedom are different ontological realities and therefore require different treatments under law. Religion is detachable from political communities; morality is not: political communities are by definition moral communities. Perry's expansion promotes moral permissive-ness and slows and hinders the right development of religious and moral values in political societies. His approach ultimately identifies moral freedom with free morality and coercively imposes a particular model of morality: namely, a liberal one. In place of Perry's expansion, this paper proposes a new expansion of religious liberty along different lines: a more specific legal distinction between the " right to religion, " on the one hand, and moral freedom of conscience , on the other.
"Come Now Let Us Reason Together": Restoring Religious Freedom in America and Abroad
Notre Dame Law Review, 2016
This Article challenges the criticisms of religious freedom that have emerged among recent academics and politicians, and the growing subordination of religious freedom to sexual freedom claims. In particular, we analyze recent critical scholarship that claims that religious liberty was not important to the American founders and that calls for the removal of special religious exemptions and accommodations because they are said to threaten other fundamental rights and to privilege religion unfairly. These critical arguments we find historically false, philosophically misguided, sociologically one-sided, and increasingly dangerous given the perilous state of religious freedom around the world today. We call for a return to the founders' insights that religion deserves special constitutional protection and that religious freedom must be open to all forms of religion and belief. We also call for a proper balancing of the enduring principles of freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and disestablishment of religion, which together have helped forge the unique protection of religious freedom that America holds out to all its citizens, and to the world.