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

Is religion special, and does it, accordingly, deserve unique constitutional protections? A number of leading scholars 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." (1) Christopher Eisgruber's and Lawrence Sager's conception of "Equal Liberty" similarly "denies that religion is ... a category of human experience that demands special benefits and/or necessitates special restrictions." (2) Jocelyn Maclure and Charles Taylor espouse what is probably the prevailing position among contemporary political and legal theorists: "Within the context of contemporary societies marked by moral and religious diversity, it is not religious convictions in themselves that must enjoy a special status but, rather, all core beliefs that allow individuals to structure their moral identity." (3) Other scholars have responded with various arguments to defend religion's special status and the practice of exemptions that they contend follows from it. (4) This latter group would seem to have at least one distinct advantage on its side: the First Amendment's text, whatever the Establishment Clause might mean, clearly gives special status to the "free exercise" of religion. (5) This obvious point leads Schwartzman to conclude that "if the Religion Clauses are interpreted according to their original meaning, then they should be criticized as morally defective." (6) Schwartzman's verdict, like the entire debate in which he participates, presumes that religion's special status means religious individuals and institutions deserve special consideration for exemptions from burdensome laws. But what if religious liberty does not mean exemptions? Would we still find the Constitution morally defective? 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, (7) that attempts to distinguish the Founders' natural rights constitutionalism from what I call modern moral autonomy exemptionism. The Article is divided into three Parts. Part I documents the Founders' shared understanding that religious liberty is a natural right possessed by all individuals. Part II explains what the Founders meant when they labeled aspects of religious liberty an "unalienable" natural right. The inalienable character of the core of religious liberty reveals what the Founders found special about religion. It also accounts for religion's special constitutional status, which for the Founders primarily meant specific jurisdictional limits on state sovereignty rather than exemptions. Part III further clarifies the Founders' constitutionalism of religious freedom by explaining how the Founders understood natural rights to have natural limits. The Founders' theory of religious liberty included within itself reasonable limits on religious exercise. A more thorough understanding of the Founders may or may not help us resolve our current debate over the proper scope of religious exemptions. But should we seek to recognize the special character of religious liberty without committing ourselves to First Amendment exemptionism, the Founders offer an alternative approach, one that, at least arguably, animated the Founding's original natural rights constitutionalism. …