How did America’s founders view religious liberty? What does it mean today? And to what does the Constitution require religious exemptions from generally applicable laws? Marci Hamilton, author of God vs. the Gavel: The Perils of Extreme Religious Liberty, and Michael McConnell, co-author of Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience, join for a special Constitution Day discussion to celebrate the opening of the Center’s new First Amendment gallery. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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Today’s episode was produced by Tanaya Tauber, Lana Ulrich, and Bill Pollock. It was engineered by Bill Pollock and the Center’s AV Team. Research was provided by Samson Mostashari, Cooper Smith, Yara Daraiseh, and Lana Ulrich.
Participants
Marci Hamilton is a professor of practice in the Department of Political Science and Fox Family Pavilion non-resident senior fellow in the Program for Research on Religion at the University of Pennsylvania. She is also the founder and CEO of CHILD USA. She is the author of numerous books and articles, including God vs. the Gavel: The Perils of Extreme Religious Liberty (2014). She served on the scholar advisory board for the National Constitution Center’s new First Amendment gallery.
Michael McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution. From 2002–2009, he served as a circuit judge on the United States Court of Appeals for the Tenth Circuit. He has authored numerous articles and books, including most recently Agreeing to Disagree: How the Establishment Protects Religious Diversity and Freedom of Conscience (2023). He served on the scholar advisory board for the National Constitution Center’s new First Amendment gallery.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- National Constitution Center’s First Amendment gallery
- Marci Hamilton, God vs. the Gavel: The Perils of Extreme Religious Liberty (2014)
- Marci Hamilton, “‘Warped history’: How the U.S. supreme court justified gutting gay rights,” The Guardian (Aug 23, 2023)
- “Prof. Michael McConnell (Stanford) on 303 Creative (the Web Site Designer / Same-Sex Wedding Case),” Volokh Conspiracy (Dec. 2022)
- Michael McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience (2023)
Excerpts from the interview
On the Religious Freedom Restoration Act (RFRA) and how that has played a role in religious freedom
Marci Hamilton: So RFRA is the reason we talk about vaccines. It is inconceivable to me, as a matter of the First Amendment, that you have a right to engage in activity that is going to kill others if you don't get the vaccine. It's simply under the First Amendment. But under the Religious Freedom Restoration Act, which is hyper protection, which essentially does provide a mandate for exemption for the religious believer. We have plenty who've won. So don't be fooled by what's out there. The universe now of religious liberty, most of it that's being discussed is really about RFRA. So, the right of Tom Green, who owned Hobby Lobby, to refuse to provide three types of contraception to his female employees, that's a RFRA claim. That's a ridiculous result that he would win, that he could use his personal faith to decide that his employees cannot get contraception he doesn't approve of, right?
Those women's benefit rights were just tossed aside because of RFRA. So, pay attention. When you're reading in the news about religious liberty, sometimes you're reading about the Constitution, but a lot of time in this day and age, you're reading about RFRA, and RFRA takes this so far that I do charge it with a lot of the divisiveness in our country right now. Because the message of RFRA is this: you owe no one anything. Your religious conduct is valuable, and you should be able to do it without consideration of the harm to others. And that's why you get public health decisions going the wrong way. And that's why you get Title VII decisions going the wrong way, that are now paving the way for LGBTQ to be routinely excluded from employment places.
Jeffrey Rosen: Professor McConnell, do you agree or not that it is RFRA not the first Amendment that is responsible for these exemptions? And do you agree or not that these results are ridiculous?
Michael McConnell: So, Marci's entirely right. Most of what we talk about is religious freedom claims today at the state and local level, not the federal level. But at the state and local level are Religious Freedom Restoration Act claims, or Religious Land Use and Institutionalized Persons Act claims. I would've thought Professor Hamilton, that you would celebrate this. I could have sworn just 15 minutes ago you said that the framers did not believe in exemptions, except when they were enacted by the legislature. While these statutes were passed by overwhelming bipartisan majorities of the United States Congress, they were passed by the legislature, but they don't say that the religious side always wins.
They provide for a careful balance of the religious claim against the governmental interest. And if you look at the numbers, you know, they're... I can't remember whether it's 50%, 40/60 or 60/40, but the cases go both ways. And, you know, are these results ridiculous? They're only ridiculous if you describe them in a ridiculous way. But when you actually look at what was being claimed, I don't agree with all the cases, but I think that that the courts have actually dealt with these in a quite sensible way.
On The Importance of Protecting Freedom of Religion and the Value of the First Amendment:
Jeffrey Rosen: So I'm going to end this Constitution Day, and I would like each of you to give our friends a sense of why you think it is so meaningful to protect freedom of religion and what aspects of the religion clauses you'd like us to celebrate on Constitution Day? Michael.
Michael McConnell: Well, I'd like to end on a slightly different note, which is to say why I find so many reasons to be happy to be here. But one of them on Constitution Day is that just a couple of blocks from here is the oldest synagogue in Philadelphia. And it so happens that the only petition to the Constitutional Convention that was on the subject of civil liberties came from the leading lay member of that congregation, whose name is Jonas Phillips. And he petitioned to have the Constitution include a provision that all religious or sex would be on an equal footing.
Note that he wasn't advocating for some sort of strict separation, but an equality under which all religions would be on an equal footing. Now, as it happens, they didn't add a Bill of Rights at all at the Constitutional Convention. That comes with the First Amendment. But I also do think that this idea of an equality is fundamental to the First Amendment's religion clauses. So in a way, I think Jonas Phillips got what he was asking for. But I feel the emanations from the synagogue whenever I'm here at the National Constitution Center.
Jeffrey Rosen: Beautiful. I will fill those emanations too every time I walk by the synagogue. I'm so glad you shared that incredibly moving story. Marci Hamilton, last word to you. What should we celebrate about the religion clauses on Constitution Day?
Marci Hamilton: Well, I think the first thing we should celebrate is the National Constitution Center, to be perfectly honest.
Jeffrey Rosen:Here, here's to the National Constitution Center.
Marci Hamilton: It's been an extraordinary institution from the day it opened its doors. And I love that it just keeps expanding and has more and more debate, and is interested in both sides. That's very, very special. Here's what I'll leave you with. We are blessed in the United States that we have an absolute right to believe anything we want. It doesn't have to be from doctrine, it doesn't have to be from any religious organization. We wake up in the morning, we're going to believe something, we have the right to do that, and the courts have to be respectful of that. We also have a very strong right of religious speech, which is also extremely important, but it doesn't bar people from being harmed.
But we also, for the sake of ordered liberty, a phrase that the Supreme Court is repeatedly used - for the sake of ordered liberty - religious conduct must be regulated according to the law that applies to everybody else, unless they can make the case for an exemption. I think that is an extraordinary system. But do you know what the most distinctive element of the United States Constitution is compared to the entire world? The separation of church and state. That's extraordinary, and I do hope we'll hold onto it. Thanks.
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