In the second of two articles in Anchoring Truths, Ted Hirt describes the policy and jurisprudential implications of the thesis advanced by Prof. Vincent Phillip Muñoz in his book Religious Liberty and the American Founding, Natural Rights and the Original Meanings of the First Amendment. While Prof. Muñoz contends that the government can furnish aid to religious institutions in some circumstances and can engage in religiously-inspired public displays, it goes too far when it opens its public meetings with prayer or employs chaplains. In addition, Muñoz argues that religious freedom should not necessarily be construed as to grant wide exemptions from religiously neutral laws. While Hirt takes issue with some of the implications that spring from Muñoz’s interpretation, he nevertheless concludes on a laudatory note.
Below are a few excerpts. The full article can be read here.
“Finally, Muñoz advocates a distinct jurisprudential approach to the Religion Clauses. That approach “produces neither liberal nor conservative results in the contemporary political sense, because it does not focus on mandating a particular relationship between church and state,” such as “neutrality.” Nor does it produce particular outcomes by applying principles such as “separation” or “accommodation.” Muñoz notes that courts apply “strict scrutiny” of government actions that explicitly target religion or religious worship, but he would go further, asserting that no law can directly do so. His recommendations on limited judicial review would eliminate the “balancing” of a “compelling” state interest against circumstances that support the religious practice. That conclusion is derived from his premise is that natural rights are inalienable.”
“I note my concerns about Muñoz’s conclusions on the unconstitutionality of state-sponsored chaplaincies and legislative prayers. I am not convinced that Muñoz’s originalist thesis requires us to reject the Founders’ acceptance, and embrace, of those historical customs, inherently linked to civic virtue.
Nevertheless, Muñoz has produced a very thought-provoking book, a useful “road map” for the Religion Clauses, and how lawmakers and judges should apply them. His book should help us refine the legal relationships of government and religion as we proceed in this ever-controversial area of public debate.”