Constitution Day speaker: Founding Fathers wanted active legislative branch in religious freedom cases

For decades, judicial decisions from the Supreme Court have demonstrated the fragile balance within the U.S. Constitution’s First Amendment addressing the establishment of religion. 

And yet, for author and political scientist Vincent Phillip Muñoz, the Supreme Court, whether it held a liberal or conservative leaning, has continually issued rulings contrary to the intended wishes of the Founding Fathers. 

The Hauenstein Center for Presidential Studies welcomed Muñoz to headline its Constitution Day program on September 19 at the DeVos Center on the Pew Grand Rapids Campus.

Muñoz’s appearance continued the Hauenstein Center’s fall series focused on empowered citizenship. Throughout the fall semester, the Hauenstein Center will host authors, lecturers and scholars who will explore the responsibilities facing citizens on national and global scales.

Muñoz, the Tocqueville Professor of Political Science and Concurrent Professor of Law at the University of Notre Dame, discussed the intent of the Founding Fathers when it came to the First Amendment and the Establishment Clause. 

“The founders have much to teach us, but the lessons they offer do not neatly fit into our current political categories,” Muñoz began. “Freedom from religion and freedom for religion are both aspects of the founders’ understanding of religious freedom. 

“But, the freedom our founders secured for us was more limited and democratic than either contemporary progressives or conservatives will admit,” he said.

Muñoz drew attention to two recent Supreme Court decisions: Kennedy v. Bremerton School District and Masterpiece Cakeshop v. Colorado Civil Rights Commission. The two cases illustrate the debate between contemporary progressives and conservatives and the modern interpretations of the Establishment Clause. 

“These cases are typical of the legal divisions in America regarding religious freedom and the Constitution,” Muñoz said. 

In Kennedy v. Bremerton School District, football coach Joseph Kennedy was dismissed by his school district for leading a prayer with his players and others on the field following games. The school district, concerned that Kennedy’s prayer group violated the Establishment Clause, asked him to move the prayer to elsewhere. When he did not, his contract was not renewed.

Kennedy’s case made it to the Supreme Court, which ruled 6-3 in his favor, saying the government, while following the Establishment Clause, may not infringe on an individual’s right to personal religious observance.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, a Colorado bakery owner refused to design a wedding cake for a same-sex couple based on his religious beliefs. The Colorado Civil Rights Commission originally ruled against the business owner on the basis of discriminating against the same-sex couple. 

Following appeals, the Supreme Court heard the case and ruled in the bakery owner’s favor, saying the Commission violated his rights to the free exercise of his religion. 

But, Muñoz said, today’s religious freedom cases rely too much on the judicial branch of the government and not the legislative, as the founders had intended. Muñoz said the founders wanted the people to decide these cases and emphasize legislative compromise. 

“Liberals would have to accept that freedom from religion means that one can not be coerced into going to church and not that one can eliminate the presence of religion in the public square,” Muñoz said, applying the founders’ principles. 

“Conservatives would have to accept that religious freedom only means that the government can not impose targeted disabilities on religious exercises and not that religious individuals are entitled to exemptions from valid laws.”