If Religious Liberty Does Not Mean Exemptions, What Might it Mean? The Founders’ Constitutionalism of the Inalienable Rights of Religious Liberty

Abstract

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?

This 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.