NEH Lecture with University of Notre Dame Prof. Vincent Phillip Muñoz


“A constitutional disaster.” Swirling amongst originalists’ outpouring of praise for Justice Antonin Scalia following his death in February 2016 was this critique, issued by University of St. Thomas Distinguished Professor of Law Michael Stokes Paulsen, of Scalia’s ruling in Employment Division of Oregon v. Smith (1990). And Paulsen was not alone in this sentiment. Stanford Law Professor Michael McConnell, for example, deemed the Smith ruling his least favorite of Justice Scalia’s opinions and one that was wholly out of touch with the Founders’ ideas regarding the First Amendment’s free exercise clause. As University of Notre Dame Tocqueville Associate Professor of Political Science Vincent Phillip Muñoz set out to demonstrate in his October 5 talk at the MU Law School, Scalia’s non-exemptionist ruling in Smith was anything but a constitutional disaster. In fact, and contrary to Prof. McConnell’s reading, he argued that it is the only construction consistent with the Founders’ natural rights philosophy and social compact constitutionalism.

Proving this, Prof. Muñoz went on to explain, first requires a brief foray into the history of religious exemption-related case law in the U.S. Supreme Court. The initial precedent came in Reynolds v. United States (1879), when the Court denied George Reynolds’ claim that a bigamy conviction against him be vacated because, as a member of the Mormon Church, it violated his First Amendment right to free religious exercise. Citing, among other documents, Jefferson’s “Letter to the Danbury Baptists,” the Court denied Reynolds’ petition, arguing that the free exercise clause protected beliefs, not actions, and thus did not provide constitutional grounds for mandating that individuals be granted exemption from generally applicable laws. The ruling in Reynolds, Prof. Muñoz went on to outline, stood until 1963 when, in Sherbert v. Verner, the Court ruled that a compelling state interest had to be demonstrated before individuals’ claims for religious exemption were denied.

Which brings us, he continued, to Employment Division v. Smith, which in many respects resembled Sherbert v. Verner. Like Adell Sherbert, Alfred Leo Smith and Galen Black were seeking the restoration of their unemployment benefits on the heels of being fired for failing drug tests after each had ingested peyote as part of a Native American religious ceremony. In contrast to the decision in Verner, however, the Court returned to the precedent established in Reynolds, with the majority arguing that states were not required to demonstrate compelling interest in denying religious exemptions to individuals who were found to be in violation of generally applicable laws.

While a return to Sherbert followed shortly thereafter, with the passage of the Religious Freedom Restoration Act in 1993, Prof. Muñoz noted that this did little to answer the larger question of whether or not exemptions were consistent with the Founders’ intentions for the free exercise clause. For his part, Prof. McConnell argued in the Harvard Law Review that the ruling in Smith flew in the face of the Founders’ intentions. Pointing to “Memorial and Remonstrance Against Religious Assessments” (1785), McConnell suggested that Madison in particular believed that when religious and political duties came in conflict with one another, it was the government’s obligation to accommodate the higher of the two. And while Prof. Muñoz conceded that certain early American documents—the 1777 New York Constitution, for example—did create standards for balancing free exercise and state interest, he argued that they were by no means rule-proving exceptions.

To truly understand why this is the case—and why McConnell is wrong—he traced the question of religious exemptions through the social compact theory that shaped the Founders’ constitutionalism. In outlining the basic tenets of this theory, Prof. Muñoz showed how, for the Founders, religious freedom was so fundamental—so inalienable—that it could not be counted among the rights that individuals ceded to the government in order to secure natural liberties. He went on to show how, with the inalienability of religious freedom in mind, the First Amendment was thus crafted to be categorically prohibitive, stripping the government of any authority or jurisdiction over religious practice as such; which is to say that it prevented the establishment of balancing standards, like exemptions, which weighed religious practice against state interest. And he concluded by noting that, while a pragmatic argument can certainly be made that a little protection might promote a greater scope of liberty, this doesn’t change the fact that exemptions eviscerate the First Amendment’s categorical prohibition of state intervention and, in this, would have been a shocking conclusion for the Founders to witness.


The lecture was made possible in large part by a major grant from the National Endowment for the Humanities and was conducted in partnership with the Missouri Humanities Council. Any views, findings, conclusions, or recommendations expressed during or in response to the lecture do not necessarily represent those of the National Endowment for the Humanities.