- Various programs on religious exemptions
- We the People episode, "The Future of Church and State at SCOTUS"
- On Fulton v. City of Philadelphia (2021): We the People episode, "Religious Groups, Foster Care, and the First Amendment"
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Jackie McDermott: Welcome to Live at the National Constitution Center, the podcast sharing live constitutional conversations and debates hosted by the National Constitution Center. I'm Jackie McDermott, the shows producer. Last week, we partnered with the University of Notre Dame, Center for Citizenship and Constitutional Government to host a conversation on religious exemptions under the constitution. Religious exemptions allow individuals and organizations to be exempt from following certain generally applicable laws that they say burn in their religious beliefs. Religious exemptions have been at the heart of some recent high profile Supreme Court cases as the court continues to vigorous debate what the scope of religious exemptions should be and in what instances they should be granted.
This conversation highlights those current and the historic debates over religious exemptions. It features Douglas Laycock, author of the five-volume series, the Collected Works on Religious Liberty, Vincent Phillip Muñoz, author of God and the Founders, and Kathleen Brady, author of the Distinctiveness of Religion in American Law. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. This panel was streamed live on September 30th, 2021. Here's Jeff, to get the conversation started.
[00:01:17] Jeffrey Rosen: Ladies and gentlemen, welcome to the National Constitution Center and to the first program in the new season of America's Town Hall. It is wonderful to reconvene after the summer and to see all of you again, through the magic of Zoom and let us inspire ourselves for the learning ahead today and all year by reciting together the National Constitution Center's mission statement. Here we go, I know you remember it by heart. The National Constitution Center is the only institution in America, chartered by Congress to increase awareness and understanding of the US constitution among the American people on a nonpartisan basis. And now I'm so excited to introduce you to three of America as greatest scholars of religious freedom and the free exercise clause to debate one of the central questions in American constitutional law today; to what degree does the first amendment to the constitution create a presumptive right to exemptions from generally applicable laws for religiously motivated groups and individuals?
To introduce the show, I'm delighted that we're presenting it in partnership with the University of Notre Dame's Center for Citizenship and Constitutional Government. And I wanna thank Philip Muñoz, who's the founding director of the Center for Citizenship and Constitutional Government and who's one of our pound today for helping us put together such a great panel. So let me introduce Philip and his other panelists and then we will dive right in.
Vincent Phillip Muñoz is the Tocqueville Associate Professor of Political Science and Concurrent Associate Professor of Law at the University of Notre Dame, where he serves as the faculty director of under- undergraduate minors in constitutional studies. Congratulations to Phillip for recently winning a national endowment for the humanities fellowship to support his forthcoming book on the Natural Right of Religious Liberty and the original meaning of the First Amendment, Religion Clauses that's scheduled to be published by Chicago, the University of Chicago press in 2022 and it's the subject of our panel today. And Phillip's first book is God and the Founders: Madison, Washington, and Jefferson and he's written other great books as well.
Kathleen Brady, a senior fellow and McDonald Distinguished Fellow with the Center for the Study of Law and Religion at Emory University. Her book, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence was the recipient of a book award from the Catholic press association in 2016. And she has also taught at Villanova and the University of Richmond School of Law.
And Douglas Laycock is Robert E. Scott distinguished professor of law, class of 1963, research professor in honor of Graham C. Lilly and Peter W. Low and professor of religious studies at the University of Virginia, School of Law. He's widely regarded as one of America's leading authorities on Religious Liberty and his many writings have been republished in a five-volume collection, the Collected Works on Religious Liberty. He's also the author of the leading case book, Modern American Remedies and the award-winning monograph The Death of the Irreparable Injury Rule, and many articles in leading law reviews.
Welcome Philip, Kathleen and Doug. Philip, I'm gonna begin with a quotation from James Madison which you cite in your writings about natural law and the framers. Madison said that the opinions of men reflecting the evidence presenting, presented to their own minds cannot be compelled by other men. And for that reason, he said that freedom of conscience was an unalienable right. I can't alienate to you the power to control my thoughts, 'cause I can't entirely control them myself. They're the product of my reason and reflection. Tell us more about Madison's original understanding of the rights of conscience as a natural right and why you believe that Madison and the other framers did not think that the free exercise clause of the first amendment created a presumptive right of religious exemptions from generally applicable laws.
[00:05:23] Philip Muñoz: Well thank you, Jeff. Thank you to the National Constitution Center. It's and let me speak just for a second in my capacity as director of Notre Dame center for Citizenship and Constitutional Government. I mean, we're just thrilled to co-sponsor this event and thrilled to be here with Kathleen and Doug. I mean Kathleen's book is really just a phenomenally good book for those interested in this subject. I would encourage you to start with her book. And then Doug of course is one of the, the nation's leading scholars on, on the subject. When you asked if I would participate, I was eager to do so just so I could actually l- listen to them. So I'm gonna try to speak shortly and let them speak at length.
You ask about Madison and the, and the framers and the idea of, of natural rights. And so this is something I've been trying to understand the founders called religious Liberty, a inalienable natural right. We see this in their, in their documents, the me- the Memorial and Remonstrance, which Madison wrote in 1785 Jefferson's Virginia Statute for Religious Freedom with Virginia adopted in 1786. But we, you see it all the same language throughout the founding era and especially in the State declarations of rights. Not every State had a declaration of rights, but m- most of the founding era States did and starting with Virginia's and then finishing with New Hampshires in 1784.
So the language was the same. You could say, this is a common understanding religious Liberty is a natural right, and a inalienable natural right. So the question is what, what does that mean? It's not all together, self-evident what what it means to have an inalienable natural right.
In my understanding and, you know, ve- very, very prominent scholars disagree with me here, but my understanding the founders thought was something like this. Because of the nature of how our religious opinions are formed as you, as you mentioned through persuasion and evidence alone and also because we have superior obligations to God through the nature of religious obligation when we create a social compact, when we Institute a government, we don't give to that government jurisdiction over our religious exercises. So the, the rights of religious Liberty, the natural rights of religious liberty are inalienable in a, in a literal sense. We, we do not alienate authority over those rights to the government.
Now, how does that translate into constitutional law and constitutional doctrine? I think it means that in the founders understanding that that government lacks jurisdiction over religious exercises as such. A couple examples, that's, that's a little bit abstract. We don't give authority to government to issue preaching licenses. I mean, you have to have a license to do many things, many professions, a teaching license, a law license, a marriage license cosmetology license but we don't have preaching licenses. And why don't we give, why can't the government issue preaching licenses? You know, you are certified to preach to gospels or preach to scriptures or whatever they are. Because government doesn't have authority to, to issue such licenses.
Government doesn't have authority to issue such licenses because we, the people never gave it authority over our religious exercises. So you can't make laws for religious exercises, you can't punish religious exercises. You can't punish the absence of religious exercises.
So it's a jurisdictional concept, I think. What that means when they wrote the first amendment would be that Congress and within corporation in the States can't make laws that target religious exercises for prohibition or even promotion. But it's a very limited and narrow right. And it doesn't mean that when government is exercising, its legitimate authority, raising a military or passing taxes or making general laws for the conduct of society, those laws impact religious individuals. As long as it's within the original or the proper jurisdiction of government, other than religious freedom, doesn't give you a right to be exempt from those laws.
So I, I, the, the way I like to talk about it is the I, founder's idea of religious Liberty is a narrow but deep concept. And it really protects the core exercise of religious, religious worship.
[00:09:06] Jeffrey Rosen: Thank you so much for that. Kathleen, Phillip's work is significant as he said, not all agree. And he is arguing that as a matter of original understanding, the first amendment does not create a presumptive right to exemptions from general laws, as long as the law has a valid civic purpose. Do you agree or disagree and, and why?
[00:09:28] Kathleen Brady: Thank you. Thank you very much. And thank you for the opportunity to, to be here. I agree with Phillip that the first amendment should be construed to prohibit the government from directly interfering with religious beliefs, worship choices. And to that extent, it is a, there is a li- there is a distinction of jurisdictions between government and religion. But I, but I, when I look, when I [constru 00:10:41] the constitution, I look both at what the founders and those who ratified it may have understood it to mean at that time and more broadly, what were the principles that they had in mind.
And I think the fundamental principle. And this is connected to a number of things that, that Philip said the fundamental principle is that government should not interfere with the choices of individuals with respect to their religious professions and, and practice. And for those in the founding era, that meant primarily not intentionally interfering with those matters by directly compelling or suppressing religious belief in practice. That was after all their experience. That was the experience in the colonial era. That was the experience in, in Europe. And that is primarily what they had in mind.
But the reason, the reasons that they were concerned about that go deeper than just that expectation. And part of the reasons are related to what Phillip said with respect to the primary importance of religious convictions for religious believers. Believers have a primary obligation or allegiance to, to the divine. That's how religion works in the lives of believers.
And in his Memorial and Remonstrance, James Madison mentioned that the duty to the creator takes precedence in terms of time and degree of obligation to the claims of civil society. And Thomas Jefferson, when he was on the board for the new University of Virginia was part of the authors that wrote a report that called the relations between individuals and, and their makers the most interesting and important thing in their lives.
And for in the founding era, that connection, that possibility of connection between people and their creator or the divine more broadly understood as we would understand it today, not just in theistic terms gave people a, a a special dignity by virtue of that ability to, to ponder into relate to, to the origin or source of all being, and it, and Madison actually called conscience a sacred castle. So it, it was a, a sacred matter. And that meant that there was, there was a jurisdictional divide of sorts.
Government did not have a role in religious matters, but I think that it, it went deeper than that, whether they had an expectation with respect to what the constitution meant at the time is a matter of debate, but they certainly expected governments to to be solicitous when conflicts arouse.
And as a matter of fact, governments in the founding era were quite solicitous when pacifists didn't want to fight in the, in the revolutionary war or, or in general, accommodations were made. When religious groups didn't want to take oaths, affirmations were allowed at the State level. And in the first congress, you see a debate over whether or not the, the first amendment s- or the bill of rights should include a protection for religious pacifists. Everyone agreed that religious pacifists should be protected.
The question was whether or not the protection needed to be part of the constitution, whether it should be a matter of legislative responsibility or benevolence instead, whether the protection should be understood as part of that core idea of the rights of conscience or whether or not, again, it was a matter of legislative right. But everyone agreed and protecting conscience because there was a shared idea that individuals that relationship with the di- divine was primary that people should follow where conscience led. Not that there were no limits, there were certain limits in State, State, constitutions. It was not an unlimited right.
But when you asked today, how should we understand the constitution? I don't think we should just count heads in terms of what would people have expected in the founding era, the constitution to have meant then. Philip May be right. That it just, they just primarily had in mind intentional interference, but they certainly we're solicitous of conscious in general. And in today, when we can no longer count on the kind of benevolence that they counted on, that those who debated that protection for conscientious objection for the bill of rights, by the way, is not in the bill of rights. They expected legislative benevolence. They expected it because the moral divide were not as deep then. Conscientious objection was a matter of moral perfection. It was not a matter of real, genuine moral pluralism.
We don't, we can't expect that kind of benevolence today. We don't, we have huge fights about these issues. So today respecting conscience requires, I believe us to interpret the first amendment in light of the principles and the reasons that that would, that, that underlie that principle of respecting conscience, that relationship between individuals and, and the government.
And as a matter of fact, as you know, shortly after the adoption of the bill of rights, you see a liberalization in the States about what the, the idea free exercise meant. Time that the nation began, you had a lot of restrictions on who could hold office religious tests for office holding. Those quickly were removed.
And in Picasso versus Watkins in the 1960s, the Supreme court held that, that kind of imposition on civil disability on office holding was a violation of free exercise, even though those in the, those who drafted the first minute, probably wouldn't have understood it that way, because that kind of restriction was, was commonplace, but it was inconsistent with their principle of non-interference with matters of faith and the underlying reasons for that, which was a respect for conscience. And, and also a concern about civil, civic divisiveness. If you don't respect conscience, it's just such an important matter to individuals.
[00:15:56] Jeffrey Rosen: Thank you so much for that nuanced and, and, and thoughtful response. Philip, you say, you see the question of the fact that Quakers were sometimes exempted from military service as a point in your favor, 'cause you note that these exemptions were not granted as a result of several federal State or federal constitutional religious free exercise provisions-
[00:16:15] Philip Muñoz: No.
[00:16:15] Jeffrey Rosen: . but just under the authority of State constitutional provisions that specifically recognized a right of conscientious exemption for military service or through ordinary legislation. And just to put point sharply on the table so our friends who are watching understand this, your argument about Quaker exemptions, Philip, suggests that the conservative justices on the Supreme court are wrong when they cite these Quaker religious exemptions as a point in favor of a broad constitutional right in favor of religious exemptions 'cause you say that they were granted at the time of the framing as a matter of State constitutional law or as a matter of legislative grace, not in terms of the understanding of the federal constitution. Tell us more about, about that argument and why you think the Quaker exemptions do not cut in favor of broad exemptions under the first amendment.
[00:17:02] Philip Muñoz: I- Sure. Right. Those are very thoughtful questions. Let me, let me back up maybe just a little bit and just try to clarify I mean there's actually two debates or two questions we're wrestling with. The first is more historical you know, what is the original understanding of, of the free exercise clause? And that's a matter of history and the philosophy that animated the drafting of the constitution and the bill of rights. But that's primarily a historical question.
And then there's a, a, a related, but really a separate question, what what's required or what's necessary or what's the best constitutional way to protect religious free them today? Now they could have, you could have the same answer. You might have different answers. Those scholars and justices who are originalists are particularly interested in the original understanding o- of course my work is to try to articulate the original understanding. But that's prefatory, I think, and you have to figure out what the original understanding is. I mean, I guess if you're an originalist and a judge, you, that's binding on you.
M- my work as a scholar is to say, "Well, this is the original understanding." once we have that knowledge, then we have to think about, "Well, should we follow the original understanding? Is it, is it relevant today? Is it not relevant? Is it, does a work still work?" And those are really separate questions, I think.
So let me focus on the original understanding, but recognizing that things Kathleen said this is really Justice Brennan, the great liberal justice of the second half of the 20th century. You know, he, he's really the modern author of the excemptionist approach to the first amendment. And he was very clear whatever the original understanding is really Kathleen was articulating his position quite nicely to protect religious freedom today requires a, a more robust understanding than the founders he thought more, more judicial protection.
So, so there are really two questions here. What is the original understanding? And then what makes most sense today? What would be the best constitution today? So let me just for focus on the first one for a second addressing the question you asked about Quakers. So Quakers of course are pacifists and they don't want to fight. They, they beli- Let me rephrase that. They believe that religious commitments do not allow them to engage in warfare.
Obviously the, America was born ou- out a revolutionary war. And so George Washington you know, our president face this directly as, as Commander-in-chief. I mean, Quakers were. A group of seven Quakers were marched with guns tied to their backs because they wouldn't carry them to Washington and, and, and Washington did what I think any good general would do. He said, look to the Quakers, go, you know, go home. He wasn't going to make them fight and, and violate their conscience.
Now that said, that does, so what, what Kathleen says is exactly right, Quakers were accommodated both in practice by George Washington by the first Congress by State legislatures but these were always done legislatively. The question for the first amendment is do, do individuals like the Quakers have a right to be exempt, a constitutionally guaranteed right to be exempt. And here, I actually think the record from the original record is pretty clear. As Kathleen mentioned they debated this question the first Congress, the first Congress drafted the first amendment. So in the, in the middle of the drafting of the first amendment, some people said. Let me rephrase that. In the middle of the drafting of the bill of rights, some people said, "We need a provision to exempt Quakers."
That draft that debate actually occurred when they're drafting the second amendment, relating to militia, not, not the first amendment, which is interesting in revealing, I think. They adopted the text of the first amendment and then they do- had a debate over drafting an amendment about Quakers. I think that implies it wasn't an exemption, wasn't in the first amendment, scholars disagree on that.
But nonetheless, they had this debate in the first, "Should we have an amendment to protect Quakers and other pacifists for religious conscious reasons?" at one point the house of representatives adopted a provision that would've extended a constitutional right to exemptions, but when they actually adopted the text, they rejected that proposal. So I actually think this is sort of definitive evidence. They proposed an exemption amendment and they rejected it. A- and if that's not clear evidence for what the original meaning of the bill of rights is, I, I don't really know what is.
Now again, that's just what the original meaning was and, and maybe when, we shouldn't follow that today, that's another question but it does seem to me that's definitive evidence and, and that would mean, I mean, if I'm right, it means Justice Alito and Justice Gorsuch and Justice Thomas are wrong, at least in a historical perspective. Again, recognizing that there is more than one, who, one issue in this question.
[00:21:27] Jeffrey Rosen: Kathleen, could I ask for your thoughts on that specific point, do you agree or disagree with Vincent that Justices Alito, and Gorsuch, and Thomas are wrong on the specific question of religiously compelled exemptions? And if, for example, there were no exemption from military service for Quakers today do you agree with him that the first amendment would not compel it?
[00:21:48] Kathleen Brady: I, I agree with Philip about out the original meaning of the first amendment, although. And I, I have written to that effect. We, we agree that the, those who drafted the first amendment and, and those who ratified it would not have expected the free exercise clause to include a right of exemption protecting religious pacifists. Although I I'll make a little counterargument here Justice Alito in in Fulton, he does point out that maybe conscientious objection was a s- was a special case where there were questions of national edge agency at, at stake, right? Having enough fighters for a war is certainly a matter of, of great importance.
So perhaps this was debated the particular protection for religious pacifists was debated because it wasn't certain whether or not a limit on religious exemptions or right of exemption already in the free exercise clause would've applied.
So maybe they, maybe they, they understood the free exerc- the principle free exercise to include a right of exemption, but this is a hard case, so they're gonna debate it. And, and, and that's all that means. I, I, I, I, I find the argument interesting justice leader's argument interesting, but not convincing. I'm, I'm with Philip. But for me, I guess I have a slightly different understanding of what a historical interpretation of the first amendment means.
I, I- in my view, you can't, you shouldn't end with what the original meaning or expectation was with respect to something like the f- the free exercise clause which is sort of a, I- I- it's not so specific that it's, that there's no matter of interpretations. It free exercise sort of general general idea to be in with, obviously I'm not gonna change say, "We should change something like the age of 35 to be president."
But in any event, going back to what does, what is a historical understanding mean? I still think I have a historical understanding. My view is that an understanding of history has to look look towards what the, what the concerns, what the principles and concerns were of those who drafted and adopted the constitution. Because if you don't have that deeper historical understanding your interpretation over time might become disconnected from those concerns, from those, those, those principles that I believe are so so important.
And to give you an example from the organizational context, 'cause after all Fulton did involve a question of organizational religious freedom in 2012, the Supreme Court recognized a ministerial exemption to neutral, generally applicable employment discrimination laws. So neutral, generally applicable employment discrimination laws cannot interfere with the choice of clergy by religious institutions and the court pointed to particular history in England and, and America where the government was directly interfering with, with the choice of clergy.
But in 2020, the court expanded that understanding of ministerial exemption to be a broader understanding of key employees. And then it started talking in terms of a principle, what it called a broad principle of church autonomy and underlying that broad principle. And it, the essence of that broad principle was the, that certain matters of church government that are critical to religious mission and, and interference of which would impact the development of religious faith and doctrine. Those have to be protected from government interference too.
So the, the court itself the conservatives on the court moved from just you know, what were those in the founding era thinking of, what were their concerns at the time to an understanding of their principle. What was the principle behind saying, the government can't directly interfere with the choice of ministers? Well, the principle is you don't wanna interfere with a development of doctrine in a religious institution and what might that require today. So that's the kind of historical analysis that I'm doing. It's not that I'm not doing historical analysis, it's just a slightly different kind of. Though I'm interested in original meaning, it's just that I say, "Well, let's get, what are the concerns that lay behind that, the broader principles?"
[00:26:17] Jeffrey Rosen: Well, Doug, I want you to adjudicate this crucial, the important question. So Philip and Kathleen have agreed on, on something important, although they have different perspectives that Justices Alito, Gorsuch and Thomas are wrong to say that the first amendment as originally understood would have required broad religious exemptions. On that particular point do you think they are correct or not?
[00:26:45] Doughlas Laycoc. I don't think there's an answer to that question. I, I think in some ways it's, it's a question based on a mistake in premise. The, the general right to exemptions was not a serious issue in their time and it wasn't where their attention was focused. Their attention was focused on how to finance the church what to do about church taxes, what to do about establish churches, how to go through the process of disestablishment. They dealt with exemptions one issue at a time, and, 'cause they had much more religious homogeneity than we have and much less government regulation than we have. So the issue arose only occasionally, but it did arise and regularly legislatures granted exemptions and it wasn't just military service.
The Quakers were also exempted from certain laws and a couple colonies. They were exempted from removing their hat in court that stem from a famous incident with Wayne Penn. The Jews in Rhode Island were exempted from the Christian incest, incest rules and allowed to apply their own rules. And every colony that still had a church tax exempt dissenters from it from paying it eventually.
So when confronted with issues of religious Liberty their conclusion was exemptions are necessary to implement it. And that was true. Even in the colonies with the most intolerant histories like Massachusetts to Connecticut, where there was hanged Quakers for being in the State. Once they said Quakers can live here, they pretty quickly followed up with and they don't have to serve in the military and they don't have to swear else because the, the declaration that lived here didn't accomplish any of its purpose, if they couldn't also practice their faith when they were there.
Now as Professor Muñoz says, these didn't come from courts, they didn't have judicial review yet in colonial courts. So that didn't tell us much of anything. But the societal reaction of that generation was, when faced with these exemption questions, you should exempt if, if, if workable and feasible the issue of exemption from military service tells us almost nothing about the general issue, because that is absolutely the hardest exemption question.
On the one hand whether you agree with it or not, everyone understands the moral weight of a conviction that I cannot kill, right? We all believe that shall not kill just some of us make more exceptions than other people. So it's a powerful claim to exemption, but it's also a powerful claim to government compelling interest, right? That granted the Quaker's exemptions during the revolution when national existence was on the line, when Philadelphia was an occupied city. But do you put that in the constitution specifically military exemptions? Well actually, you know, they, they didn't, but a refusal to guarantee exemption from military draft, doesn't tell you whether the constitution requires an exemption from giving communion wine to minors, doesn't tell you whether it requires an exemption from letting minister serve their churches cases where there's not nearly the same kind of government interest on the other side.
So so the, they didn't have a formed intent one way or the other is my view, but, but certainly the second amendment debate about military exemptions, I don't think begins to answer the broader question.
[00:30:06] Jeffrey Rosen: Thank you very much for that. And it's great to have your perspective and I'm, I'm glad you can join the discussion. So Philip, to, to sum up where we are so far two, two of you think that the framers didn't clearly require judicially created exemptions. And a third, Doug says that you it's hard to answer the question 'cause there were legislatively granted exemptions, but they didn't clearly address the question of whether court should create these exemptions. Let's talk about the modern controversies. All of the most controversial questions before the Supreme court now involving religious exemptions have to do with their scope.
So from the masterpiece cake case to the Fulton case involving foster care in Philadelphia, the court so far has avoided squarely addressing how broadly the constitution requires religious exemptions. Although several justices have suggested that they're they're broad. When it comes to the modern cases, Philip, for an originalist justice, h- how, how broadly do you sweep? For example, to take the cake case, do you believe that's a fair construction of the free exercise clause-
[00:31:19] Philip Muñoz: Yeah.
[00:31:20] Jeffrey Rosen: . you know, as originally understood and would require an exemption for the baker? And tell us about other cases involving exemptions from laws, forbidding discrimination against LGBTQ people are, h- how broadly should an originalist say that those exemptions sweep?
[00:31:37] Philip Muñoz: No, these are, these are good questions and I, I'm, I'm glad Professor Laycock was able to join us at this, as I said one of the nations, real authorities on this. I, I, so there's a couple interesting threads. Let me try to pick up on all of them. One Professor Brady has a had said something which I very much agree with. So there are different types of constitutional texts. There are rules and she mentioned the president must be 35 years of age. That's a rule, but then there are other constitutional texts which are principles the free exercise of religion, think as a principal. And and, and, and then she said, well to there, there's what the founders might have expected the principal to mean.
But really let's go if we really wanna interpret these texts intelligently in the modern world, we should look to the un- to the underlying meaning of the principle or the, the principal itself which she under or stands to be non interference with religious choice. And I think Professor Laycock has written about autonomy autonomy and deeply held beliefs or autonomy and religious choice. And I think that makes a lot of sense. I actually think the principal is different though than what they're saying. So that, there's a, there's a real difference here.
I really think the founders were trying to articulate a jurisdictional principle. And I disagree with Professor Laycock. I think they thought about this quite a lot because they thought about the social compact quite a lot. And they thought about the meaning of natural rights, quite a lot. I think he depreciates how intentional they were about trying to articulate the idea of an inalienable right to religious Liberty and what this means. And for them, it meant a jurisdictional concept. We don't give government authority over this slice of our natural Liberty over our religious exercises.
I think that's very important. I think that was very thoughtful. I think it's very intelligent, whether that's still a, a worthy principle to follow today is a different question, but, but I do think they were considered. You just looked at Madison's Memorial and Remonstrance, you looked at Federalist 10, you look at Washington's letter to the Quakers.
I mean, Washington writes to the Quakers after he's elected resident. Quakers write to Washington saying, "We're so happy you're president someone who respects religious Liberty." And Washington writes back to the Quakers, you know, "You're terrific citizens except in your refusal to take up arms in the common defense." I mean, he scorns them for not performing the obligations of citizens. I think we forget that. He does say his wish and desire is that the law be accommodated, accommodate them, but he doesn't agree with them. And he lets them know that because citizens should fight in defense of their country. Right?
And the general principle of the rule of law is the s- the law should apply to everyone the same. Right? And I think that was a considered understanding of the founders central to their constitutional project, right? The law is not perfect. So sometimes you have exemptions, but for the law to really be the rule of law, I think the founders really did think that the law should apply to everyone. I, and if a law can't apply to everyone, we ought to really think of whether we should have that law at all. And I think that's the way they would've thought about it primarily.
On these modern cases, I mean you know, there, the masterpiece case shop justice Kennedy said, look the, the, the cake maker didn't get a fair hearing. It was clearly religious and they were targeting this guy for his religious beliefs and you can't do that. And I think there the, the record, I mean, that, that case is a singular case. And the record seems to suggest that, and there was similar things in Fulton though.
You know, my general position is at least according to the original meaning every want ought to follow the law. I mean, if, if you don't like the law, you find it oppressive, you should try to repeal the law and maybe wanna have a conversation of what tolerance should look like and how do we let people live and let live in a pluralistic society, but those are different than the, the, than the original legal question of what the first amendment provides.
[00:35:23] Jeffrey Rosen: Thank you very much for that Mr. Phil. So clearly putting that principle, "If you don't like the law, you should repeal it, and if it can't apply to everyone, then it shouldn't apply at all." k- k- Kathleen, what are your thoughts about the modern cases? You have a nuanced test for evaluating exemption claims just to get concrete in the, in the cases that everyone will know about the, the ca case and Fulton involving Catholic social services, as well as perhaps some of the vaccine cases or, or others. Give us specific examples of, of, of what your te- test is and, and how it would apply in the case the court is considering.
[00:35:59] Kathleen Brady: One of the, I, I'm gonna sort of maybe split a tiny hair between ph- Philip and, and Doug with respect to what, what were those in the founding era thinking about? Doug mentioned that they didn't have a formed intent about the exemption question although they did consider, you know, certain issues that, that did arise and as they arose were, they were s- they were solicitous.
And what, I think they definitely didn't have a formed intent about was the types of conflicts that were seeing today, where, as I mentioned earlier, it's not a matter of moral perfectionism, like pacifism, it's a matter of deep moral disagreement over issues like, you know, related to family and sexuality. And in current circumstances, we can see that where there are these sort of deep divisions. There's not near the solicit to that, that you had in, in the founding era.
And, and I thought, I, I just pulled up George Washington's full quote, Philip mentioned this, and, and I think you can hear the solicitude. And I, I agree with, with Philip that he was exasperated by, by the pacifist but here's, here's the solicitude, it is my wish and desire that the laws may always be as extensively accommodated to them as a due regard to the protection and essential interests of the nation may justify and permit. So, you know, as extensively accommodated to them as basically is, is possible w- outside of, you know, for the survival, the s- the, the state central interests of, of the nation.
So that's pretty solicitous, even though he was frustrated with, with pacifist, but we, we would, we don't have that as a broad matter today. And we have a lot of conflict because government is broader, and there's a broader understanding of what government purposes are. It's not the minimalist State of Thomas Jefferson, where he inva- image. He, he envisioned government as a matter of protecting people from injury from, from others and like. It's a much broader State. Conflicts are much more common.
So as you point out our biggest hot button issues today over matters of family and, and sexuality. Though, there are plenty of little button issues that we often don't, don't think about where it may not be that it's you know, people are not necessarily solicitous. They may just not notice what truly minority face or, or are facing. There may be bureaucratic and flexibility that doesn't have to do with not caring and all of these things, you know, have to have to be put in into the picture of how should we interpret the con- how should we interpret the principle that the founders enacted today.
So how would, how would I look at it? I, as I mentioned, I would interpret the first amendment to include A right of exemption to be consistent with the founding, founding era principle. But specifically I would, I would look and I would see what are the limits that their exist in the founding era both as a historical matter, because I think they make sense. So there were two types of limits that you saw in, in State constitutions, there were limits where religious practice interfered with the rights of others. And there were limits where the peace safety of the State was at stake like George Washington mentioned, or basic conditions of, of public order.
Really, you know, this isn't the compelling State interest test I would use. That's very vague. These are sort of more specific things I think would be would be limits. So when it comes to a question of the, the baker in, in masterpiece cake shop the questionnaire is the rights of others. And I, and I, I do think that the rights of others are not just life, Liberty, and property, but economic, but civil rights government benefits that ensure economic opportunity.
But the, the question is, if something is important, like the rights of conscience like free exercise is it's not just a question of whether that interest is at state, whether there are third party rights at state, but whether or not you need to impinge upon religious conscience in order to protect those rights. That's the, that's the specific question.
And when you get to the the COVID restrictions que- question there, it's a matter of also the rights of others in this case the right to, to health and life. So again, I think that's certainly an interest that limits a right of exemption, but the question then becomes what kind of restrictions are truly necessary to, to protect those, those interests. There has to be a tight tailoring between what the government does and what these interests are.
And I think a lot of the, a lot of the problem is, is that we don't really look for solutions, compromises that really can exist or can be created if people were more solicited just on both sides of the issue. But that's where I think when you put a right of exemption into operation, what court should be looking for it, is it necessary to impose upon religious Liberty in order to protect the rights of others or important matters of, of State security, peace and order.
[00:40:59] Jeffrey Rosen: Thank you so much for for, for that very thoughtful response and for addressing issues ranging from the K case to COVID vaccinations. That's a great response to one of our questioners Cindy Burman Monroe, my college classmate. Hi, Cindy, who asks on a practical level, can schools and businesses deny religious exemptions for the COVID vaccine? Doug would love you share your nuanced approach for how to identify whether religious exemptions are required in your Amicus briefs, in the masterpiece cake shop case and the Fulton case. You argued in those two cases, free exercises did require religious exemptions, but you say that religious exemptions are not required in the case of COVID vaccines.
So give us a sense of what principle you are applying and you think the court should apply to distinguish among these various cases and whether or not you think the court should overturn the Smith case, which says that generally applicable laws don't generally require religious exemptions.
[00:41:59] Doughlas Laycoc. I'll answer those questions. Lemme say just a word about some of the 18th century quotations that that Philip and Kathleen were talking about. Yeah. They didn't directly address the question, right? What can we infer from George Washington noting his reservation about the Quakers well, encouraging exemption or, you know, what did Madison say in the Memorial and Remonstrance? It's actually said our duties to God are prior to our duties to civil society and can't be waived.
But none of the, there was no square debate on a general right to exemptions, right? We're trying to tease out implications of, of rather isolated statements that weren't directly addressing the question. On the modern cases sure, the rights of others are important, but, but you gotta say what kind of rights or how important rights. There are people who think they have an absolute right to the shade of white paint they approve of on their neighbor's house.
So, you know, there, there rights that really protect people and there are rights that are really more sort of preferences. In the gay rights cases, which get all the publicity, but are really quite atypical. So le- let start with the typical cases. The cases that get no publicity are about beards and long hair and grooming rules about Amish buggies, about Saturday Sabbath observers, both Christian and Jewish. There are about a whole range of things that aren't very controversial and don't get much publicity. And if there's no right to exemptions in the free exercise clause, then none of those things are protected either.
We do have deep disagreement about sexual morality and that drives much of this conflict and both sides, both through religious conservatives and the gay rights movement are deeply intolerant of the other. They want total wins for their side and total suppression for the other side, the, you know, the many of the outspoken conservative and, and I'm generalizing here, obviously their tolerant exceptions on both sides, but many of the outspoken leaders of the conservative Christian movement don't want gay marriage, don't want laws protecting against LGBT discrimination. 24 or so States don't have such laws because of opposition from that quarter.
And on the gay rights side, they don't want any of exemptions at all. Or maybe the minister doesn't have to do the wedding ceremony, but that's it, no exemptions beyond that. And that makes compromise impossible. You have to either suppress the, this huge religious movement, or you have to suppress this much smaller, but very important group of people with different sexuality orientation. Exemptions make compromise possible. They allow both sides to live by their own deepest values.
If we imagine wedding cake baker in an isolated rural community, and he's the only one around then, I think he has to make the cake. You know, the, the right to, for the gay community to access the market the government probably has a compelling interest in protecting that. The exemption for the wedding cake baker, who's not a local monopolist is also about his right to access the market without surrendering his deepest values.
The other issue that arises much more commonly the issue in the masterpiece cake shop case is not access to the market. They were immediately offered a free cake by another good baker. It's, "I'm insulted, I'm offended. You turn away my business because you disapprove of my moral and that's deeply offensive." And I understand that. That that's a harm but it's no greater harm than the harm to the baker of saying, "You know, you have to get out of business or surrender your moral commitments because everyone else disapproves of what you believe." That's not, you know, protecting people from offenses, never been a compelling interest. In the free speech cases, the court has said that over and over, and it's no more compelling in the free exercise cases.
The vaccine cases, I think are very different. There's point and courts, there've been a couple of preliminary decisions lately in joining vaccine commitments. I think those are deeply wrong is clearly a compelling interest in protecting the public health and every court to have addressed the issue before the last month has said that has upheld vaccination requirements against challenge on religious grounds. I think that is clearly right.
The, the other COVID cases church's meeting, I, you know, "Can you hold a worship service as about as close to the core of three exercises you can get?" But I think the answer had to be no for some of those time periods. Those cases were argued on grounds of discrimination that some of the, some of the commercial operations that were allowed to be open in May were no more dangerous in a church service.
I think, I think the church service was more dangerous because people sit together in close proximity for long periods of time. You have to be very careful and very cautious and make sure you're not limiting worship more than absolutely necessary, but it was absolutely necessary for time. And I think there was a compelling interest in saying no live services with large, large groups of people.
So, yeah, you have to kind of go case by case you have to be cautious, but religious exercise involves conduct and conduct creates more occasions in which it is really important to, to regulate than, than speech does. So sometimes the parties seeking religious exception should lose.
[00:47:12] Jeffrey Rosen: Thank you very much for that Doug. Well, it's time for closing thoughts in this deep and significant discussion. I just on a note two pieces that caught my eye on line this morning. One is that in Ohio, the legislature has recently adopted a law that says that health providers and insurance companies have the freedom to decline to perform participate in our pay for any healthcare service, which violates the practitioners or payers, conscience as informed by the moral ethical or religious beliefs.
And on the other side of the exemption scale, there was the pi- a piece on the post arguing that if someone believed in good conscience, according to the dictates of their reason that life did not begin at conception, but instead began around viability, they should have the ability to opt out of a, a Texas spam, which f- forbade abortions after six weeks.
So recognizing that a strong presumption of religious exemptions can cut in both of these directions, I'd like each of you to give us your closing thoughts in just a few sentences and tell us if the court continues to adopt a strong presumption of exemptions from generally applicable laws under the first amendment, where do you think this is going. Phillip first thoughts to you?
[00:48:32] Philip Muñoz: Yeah. Le- and lemme just say thank you again to Jeff and to the National Constitution Center to Kathleen and Doug, and it's a privilege to be a part of this conversation. So two, two closing thoughts. I mean one, we should, we should, I, I, I, if Doug was the whole Supreme Court, I mean, his judgment, I think is very good in the nuance on exemption in this case and exempt- and non exemption in that case and all the factors on how close are people sitting, how many the bakeries are in the town. Those those are all very reasonable considerations, I think.
I suppose my problem with that is it's not clear to me how you get that out of the first amendment. That the first amendment means one thing, if there are several bakeries in town, it means something else if there's only one bakery. That just doesn't, that's just not how I think a constitution is supposed to work. I think these are legislative judgements. I would certainly vote for Doug as my State legislature, legislator and his judgements very sound, but I, I just don't think that's the rule of law to be, to be candid.
On Kathleen's point about, look, our society is more regulated the, the law does more now, and therefore there's more conflict with religious organizations, especially given the polarization and deep moral divisions in our society. I think that's all obviously true. She's exactly right. One way is we have lots of regulation of private conduct and lots of exemptions to, to, for us to get along.
Another possibility is we have less regulation of private conduct and fewer exemptions, and we learn to go back to that old fashion value of tolerance, and we just let people live their lives and try not to interfere with them. That's sort of my favorite policy position. I, I wish we would all just be more tolerant and let people live their own lives and, and not try to regulate or legislate them out of existence.
I think that's still the common sense America. And I think if we did more of that, we'd need fewer exemptions, but those are legislative considerations. I actually think not about legal considerations, not, not constitutional considerations.
[00:50:25] Jeffrey Rosen: Thank you so much for that. Kathleen, your final thoughts.
[00:50:28] Kathleen Brady: Yeah, I'm my final thought is gonna take off from your question, but turn it in a slightly different, different direction. And what you raised was the issue of if we have a presumptive right of exemption for, or claims of religious conscience under the first amendment you know, what about moral claims of moral conscience that aren't religiously based where, where, where, where are we heading? Should we incorporate freedom from moral conscience more generally, not just religiously based conscience and, and if, if we're heading in that direction, I, you know, how broad is it gonna be?
And, and I, I, I actually think that it's important to respect non-religious moral conscience for a number of, of reasons, but it. Religiously based claims of conscience are different and that's one of the, I think the, the thing I wanna, you know, le- leave with they're, they're different because they involve the relationship between individuals and the divine and the divine is as Thomas Jefferson mentioned in that, in that board report for the University of Virginia the most interesting and important thing for, for human beings.
And, and one of the reasons that, that the ca- Smith case in the court, which held no exemptions hasn't stuck all of these years is because it doesn't fit with, with human nature. It doesn't fit with the fact that many Americans are religious, probably always will be religious because there is that capacity to, to question our existence, to think about the idea of a divine, at least, and to Stripe for really relationship with the divine. And being as important as that is for people, I, I believe that something like the Smith will just won't stick, it doesn't fit with human I- nature, it doesn't fit with human human history and what will continue, they likely are unlike are very likely to be the makeup of American society that there'll be a lot of religious people.
And the other thing, it, that that happens when you have a rule like Smith that doesn't stick is, and it doesn't stick, it doesn't fit re- really ve- very well. With human nature is it's destabilizing. And I think that our fights about religious exemptions have become so destabilizing in our, in our country and see the dangers of not not accommodating conscience, of course, with limits in mind, always have to be limits. Otherwise there'd be destabilizing on the, on the other side, but these sort of fights have have fed civic distrust they've they've fed polarization, they've fed the politicization of religion on very, very I think dangerous ways.
And I think understanding the distinctiveness of religion and the importance of the claims of religious conscience to people and having a rule that fits what the founders understood about that importance fits with the reasons behind their principle would be more stabilizing and also better fit human dignity.
[00:53:05] Jeffrey Rosen: Thank you so much for that. Doug, last words to you.
[00:53:09] Doughlas Laycoc. Yeah, it it's, it's fatuous to tell deeply unpopular religious minorities in a highly polarized society to go to the legislature. Considering Christians cannot win a legislative battle in blue
