Should the religious baker have to follow non-discrimination law and bake a wedding cake for the gay couple? Should the (public) high school football coach be allowed to pray with his players on the 50-yard line after a game? According to Notre Dame Law Professor and CMC alumnus Vincent Phillip Muñoz ‘93, the Founding Fathers would have said yes, and yes.
During his lecture at the Athenaeum, Professor Muñoz said the Founders did not understand religious liberty — or any other natural right — to be without boundaries. Their understanding of natural rights did not authorize citizens to disturb the public peace or act licentiously through their exercise of religious freedoms. Likewise, the application of laws banning murder to religiously motivated killings like ritual human sacrifice does not violate the Founders’ understanding of the natural right of religious free exercise — thankfully.
In Federalist No. 10 and No. 57, James Madison argued that the equal application of law to everyone, including its signatories, would be the surest bulwark against the enactment of bad laws. At every level of government, religious people are able to advocate and compromise for laws that are not heavily burdensome on their faith, and Muñoz tells us that, in a large Madisonian republic that facilitates a multiplicity of interests, religious exemptions from generally applicable laws aren't constitutionally required. Instead, exemptions can undermine the rule of law and corrupt the coalition-building that tends to give us justly representative and moderate outcomes.
For Muñoz, the 1st Amendment’s Establishment Clause means the state cannot function like a church nor delegate its powers to a church. On the issue of school prayer, this means state officials cannot write prayers and mandate that students recite them. Muñoz would support the outcome of cases like Engel v. Vitale (1962), in which the Court struck down the “‘Regents’ prayer” prescribed for New York public school students at the beginning of the school day. He would also hold that teachers and students can pray voluntarily on school grounds so long as they don’t disrupt ordinary school functions.
Muñoz says his “common-sense” conclusion reflects the Framers’ design to protect religious freedom by limiting state authority over religious exercises and retaining legitimate state power from church authorities. In this constitutional order, the government can’t make students and teachers recite state-prescribed prayers nor can it delegate its power to religious authorities, but neither can it prohibit teachers, students, and coaches from praying when it does not interfere with their assigned responsibilities. In Kennedy v. Bremerton School District, the justices agreed the football coach could pray, while also reversing most of the existing jurisprudence on what constitutes a state endorsement of religion.
The current Supreme Court has also strayed from Muñoz’s strict natural-rights approach, getting fast and loose with granting exemptions to generally applicable laws like non-discrimination statutes. In Masterpiece Cakeshop v. Colorado, the Court ruled in favor of the religious baker, and more recently, in 303 Creative, LLC v. Elenis, in favor of a web designer in a similar predicament. The baker and web designer both argued that the 1st Amendment gave them a right to be exempt from generally applicable laws so they could deny customers in accordance with their faith.
Justice Ginsburg and Justice Scalia both warned presciently of the dangers associated with unrestrained exemptions, and their predictions have come to bear. The outcome is a country in which every person is increasingly “a law unto himself.” Muñoz underscores what Scalia could see but Alito cannot: while religious freedom is an inalienable natural right, the Court’s conservatives are badly wrong to see it as a basis for denying legally guaranteed or democratically mandated protections to others.