(Originally published by Civitas Institute on April 28, 2025)

What is the original meaning of the Free Exercise Clause? Does that original meaning support religious exemptions from generally applicable laws?

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Three scholars who work on religious liberty issues share their electronic conversation on the topic.

Michael McConnell, a former judge of the United States Court of Appeals for the Tenth Circuit, has argued for many years and with significant influence that the First Amendment’s original meaning sometimes requires religious exemptions.

Vincent Phillip Muñoz, a non-resident senior fellow at Civitas and professor at the University of Notre Dame, has challenged the claim of religious exemptions on originalist grounds.

‍Andrew Koppelman—professor of law, political science, and philosophy at Northwestern University—has argued for religious exemptions on non-originalist grounds.

Not originally intended for publication, we present the exchange here as we believe it clarifies some of the underlying philosophical and constitutional issues about which we disagree. Our engagement became detailed enough that others may find it of interest. 

‍The exchange was initiated by Koppelman, who emailed McConnell a question about his review of Muñoz’s 2022 book, Religious Liberty and the American Founding. In his response to Koppelman, McConnell cc-ed Muñoz. Muñoz then responded to McConnell and Koppelman point by point, which led to the following discussion. Muñoz’s points appear interstitially within McConnell’s. To clarify to the reader who is speaking, Muñoz’s part of the conversation appears in italics. The exchange has been lightly edited for clarity and typos but remains as drafted in the original email exchange.  

McConnell’s review of Muñoz’s book, Religious Liberty and the American Founding, appeared in First Things (Feb. 2023). Koppelman also published a review of Muñoz’s book, “Madison’s Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty and the American Founding,” in American Political Thought: A Journal of Ideas, Institutions, and Culture 12, no. 3 (2023). ‍

Dear Michael [McConnell],

You write in your review of [Vincent Phillip] Muñoz that his conclusion about free exercise exemptions “seems incompatible with his central thesis that religious freedom is a natural right.” I don’t understand the incompatibility. Locke thought religious freedom was a natural right, but he bounded it in the same way Muñoz did. What am I missing?

Thanks.

Andy [Koppelman]

McConnell included Muñoz in his email response to Koppelman. This elicited a long response from Muñoz, who quoted McConnell’s response in its entirety and interspersed reactions to what McConnell had written. Here is McConnell’s email, with Muñoz’s interstitial comments in italics: 

[Here McConnell’s response begins]

1. The natural right of free exercise of religion is the right to act in accordance with conscience, bounded only by the law of nature. The law of nature’s bounds are not an exception to the right, but define the right’s scope. (Muñoz and I are in agreement about this.)
2. The law of nature, at its core, is the equal right of others to their own natural rights. (Again, Muñoz and I agree.)
3. Essentially, early state constitutions’ “peace and safety provisos” were attempted codifications of natural liberty’s scope as so bounded. (Again, a point of agreement.)
4. Not every state constitution contained such a proviso, though most did. These provisos were not necessary because the the law of nature was already understood to define and limit the natural right of free exercise. The provisos were explanatory and declaratory in nature. (I think Muñoz may disagree with part of this.)

[Here Muñoz wrote: I agree with this.]

5. The federal provision basically replicates the state provisions, but as applied to the federal government. It does not contain a proviso, but because of point #4 it did not need to; the natural limits on the natural right were presumed. (I think, but am not positive, we agree on this.)

[Here Muñoz wrote: I agree with this.]

6. Thus, the free exercise right’s logical structure is as follows: people have a right to act in accordance with conscience, so long as this does not interfere with others’ rights or the public peace. All this is defined (as a matter of logical structure) without reference to how the state’s positive law is framed. (Here is where I think Muñoz and I begin to disagree.)

[Here Muñoz wrote: I agree with this. I would only clarify that point #6 articulates the nature of the right of free exercise in the state of nature.] 

7. The Smith rule’s logical structure, which Muñoz supports, is nothing like this. It holds that the state’s positive law prevails over individual conscience whenever that law is framed in neutral and generally applicable terms.ⁱ

[Here Muñoz wrote: See my comments to #8 and #10 below]

8. Obviously, the natural right could not have been anything like the Smith rule, because in the state of nature there is no positive law, which means that the law’s legal form cannot possibly determine the right’s scope. Instead, substance determines the scope, and the substance is the effect exercising the right has on others.

[Here Muñoz wrote: I agree with this but would formulate it slightly differently. Like all natural rights, the law of nature (which is the law of reason) bounds the natural right of religious free exercise. In the state of nature, in other words, reference to one’s individual conscience does not establish subjectively the right of free exercise’s boundaries. Rather, what is objectively reasonable (the law of nature) establishes them. An action’s effect on others in large part determines whether it is objectively reasonable (according to the law of nature), so I think I am in basic agreement with what McConnell writes here.]

9. Some variation of the Sherbert/Yoder rule is a reasonable translation of the natural right, because the effects on others rather than the law’s legal form determines the limits on the right’s scope.ⁱⁱ

[Here Muñoz wrote: See my comment to #10 below.]

10. Muñoz agrees that the Free Exercise Clause carries forth the substance of the natural right of religious free exercise. It follows that we should apply some variant of the Sherbert/Yoder rule rather than the Smith rule to interpret the Free Exercise Clause.

That concludes McConnell’s email. Muñoz’s response follows:

‍I believe where Michael and I disagree is on the transition from the state of nature to political society and what this means for the natural right of religious free exercise. I explain my reasoning below. 

The essence of our disagreement involves two related disagreements about the Founders’ social compact theory, specifically about (1) the nature of “inalienable” rights and (2) what authority we give to the state when we alienate a right. These differences are related to a third (and perhaps the most important) disagreement: what is the right of religious free exercise’s scope and meaning? I hold the right to be “narrow” and “deep”—narrow in that it only covers what I deem “worship as such,” deep in that this right can never be abridged (i.e. is not subject to compelling state interest or least-restrictive means analysis). Michael holds the scope and meaning to be, relatively speaking, broader but also shallower (in the sense that it can be limited by compelling state interests). 

Let me explain my thinking. 

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