Reflections and Resources on Religious Liberty and the First Amendment
The Supreme Court’s recent ruling in the important controversial case Masterpiece Cakeshop v. Colorado Civil Rights Commission invites us to think about religious liberty and its place among American principles and in American history. Below, we offer a some reflections on the significance of religious liberty to the American political tradition, as well as a collection of our Fellows’ scholarly and popular publications on the Masterpiece Cakeshop case and related themes: religious liberty, freedom of speech, and marriage and the family.
Religious Liberty in the American Political Tradition
Freedom of conscience is at the heart of the American way of life. The free exercise of religion is of course protected in the Constitution’s First Amendment. Beyond that, it is the reason why so many came to these shores, beginning in our earliest days and after many centuries of religious wars and persecution in Europe. The American colonies provided safe harbor to fleeing Puritans, Catholics, and Portuguese and Spanish Jews.
In 1790, George Washington explained to the new republic’s religious minorities that they were welcome in this country. To the Jewish community he famously wrote, “May the children of the stock of Abraham who dwell in this land continue to merit and enjoy the good will of the other inhabitants—while every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid.”
Upon visiting the American republic in its early days, Alexis de Tocqueville remarked on Americans’ evident religiosity, and the importance of their religion in inculcating virtue and political habits important for a well-functioning democracy.
Because freedom of conscience and the free exercise of religion are so important to the character of America, there are many examples in U.S. history of religious groups being granted exemptions from laws when their convictions and the law conflict. Examples of such religious accommodation include the allowance of sacramental wine during Prohibition; permitting Amish families to prevent their children from attending high school; and making it possible for Jewish shopkeepers to operate businesses on Sundays despite Blue Law restrictions. Some of these accommodations are the work of the courts; others the legislative process.
In other cases, the state has successfully limited religious practice. The Supreme Court has upheld legal prohibitions against polygamy and the sacramental use of narcotics, regardless of religious conviction. In Employment Division v. Smith (1990), the Court ruled that a law does not violate the Free Exercise Clause of the First Amendment if it is neutral to religion—if it does not unfairly take aim at a particular set of people or beliefs. This reasoning is in line with the parameters John Locke sets out in “A Letter Concerning Toleration.”
It is important to note that in the Smith case, both the Oregon state legislature and the U.S. Congress revisited the topic after the Supreme Court issued its decision and voted to grant exemptions to laws prohibiting the use of peyote for members of the Native American Church.
The form of government set up by our Constitution offers many avenues for defending America’s founding principles. As Alexander Hamilton reminds us in Federalist 84, defending liberty ultimately falls to “the general spirit of the people.” This is why educating about liberty is of vital importance.
Below is a summary of the case and academic resources on themes related to the First Amendment, religious freedom, and other topics related to the recent SCOTUS decision.
About Masterpiece Cakeshop v. Colorado Civil Rights Commission
In July 2012, same-sex couple Charlie Craig and David Mullins requested the services of Masterpiece Cakeshop in Lakewood, CO, to design a cake for their wedding. When the shop’s owner, Jack Phillips, declined their request on grounds of religious beliefs, the couple filed charges of discrimination with the Colorado Civil Rights Division under the Colorado Anti-Discrimination Act (CADA). Subsequently, Colorado’s Administrative Courts issued an order against Masterpiece Cakeshop, which was eventually affirmed by the Colorado Court of Appeals. At this point Phillips appealed the Colorado Courts’ decision in the Supreme Court.
The question before the Supreme Court when it heard the case in December 2017 was whether the anti-discrimination law compelling Phillips to make a cake violating his sincerely held religious beliefs violates either the Free Exercise or Free Speech clauses of the First Amendment. On June 4, 2018, the Supreme Court ruled in a 7-2 decision that the Colorado Civil Rights Commission violated the Free Exercise clause. This decision, however, focused on the relatively narrow issue of the manner in which the Colorado Commission decided the Masterpiece Cakeshop case and did not go so far as to decide whether the Commission could have legitimately compelled Phillips to serve the same-sex couple had it done so differently.
Specifically, the Supreme Court ruled that the Commission’s treatment of Phillips’s case’ “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.” This hostility was indicated by public statements of commissioners who “disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” The Court also noted that Commission treated the Phillips case differently from other similar cases that did not involve a religious claim. In sum, the Court ruled that the Commission failed to maintain a “neutral” stance on religion in its treatment of discrimination cases.
JMC Fellows on the Masterpiece Cakeshop Decision
Anderson, Ryan T.: “Disagreement is Not Always Discrimination: On Masterpiece Cakeshop and the Analogy to Interracial Marriage” (Georgetown Journal of Law & Public Policy, Vol. 16, No. 1, 2018) — Scholarly article
Anderson, Ryan T.: “The Christian Baker Need Not Have Ended Up at the Supreme Court” (Heritage Foundation, 2017) — Commentary
Hall, Mark Davis: “A Missed Opportunity: Masterpiece Cakeshop v. Colorado Civil Rights Commission” (Law and Liberty, 2018) — Blog
Stoner, James: “Cake, Controversy—And the Common Law” (Law and Liberty, June 13, 2018) — Blog
JMC Fellows on the Free Exercise of Religion
Anderson, Ryan T.: Truth Overruled: The Future of Marriage and Religious Freedom (Regnery Publishing, 2015) — Book
Breidenbach, Michael D.: “Conciliarism and the American Founding” (The William and Mary Quarterly, Vol. 73, No. 3, 2016) — Scholarly article
Breidenbach, Michael D. and Owen Anderson: The Cambridge Companion to the First Amendment and Religious Liberty (Cambridge University Press, forthcoming) — Book
Corvino, John, Ryan T. Anderson, and Sherif Girgis: Debating Religious Liberty and Discrimination (Oxford University Press, 2017) — Book
Garnett, Richard W.: “Religious Accommodations And — And Among — Civil Rights: Separation, Toleration, and Accommodation“(Notre Dame Legal Studies Paper No. 1503, 2015) — Scholarly article
Garnett, Richard W.: “Accommodation, Establishment, and Freedom of Religion” (Notre Dame Legal Studies Paper No. 1424, 2014) — Scholarly article
Garnett, Richard W.: “‘The Freedom of the Church’: (Towards) an Exposition, Translation, and Defense” (Notre Dame Legal Studies Paper No. 298, 2013) — Scholarly article
Garnett, Richard W.: “Standing, Spending, and Separation: How the No-Establishment Rule Does (and Does Not) Protect Conscience” (Villanova Law Review, 2009) — Scholarly article
Garnett, Richard W.: “Religion, Division, and the First Amendment” (Georgetown Law Journal, 2006) — Scholarly article
Garnett, Richard W.: “Judicial Enforcement of the Establishment Clause” (Constitutional Commentary, 2008) — Scholarly article
Garnett, Richard W.: “Religious Freedom and the Nondiscrimination Norm” (from the book, Legal Responses to Religious Practices in the United States: Accommodation and its Limits, Cambridge University Press, 2012) — Book chapter
Garnett, Richard W.: “Conscience and Community: Understanding the Freedom of Religion” (Religious Freedom Institute, 2018) — Blog
Hall, Mark David and Daniel L. Dreisbach (editors): The Sacred Rights of Conscience (Liberty Fund, 2009) — Book
Hall, Mark David: “Religious Accommodations and the Common Good” (Heritage Foundation, 2015) — Report
Kleinerman, Benjamin: “Hobbes, Locke, RFRAs, and Wedding Photographers” (Law and Liberty, 2015) — Blog
Muñoz, Vincent Phillip: Religious Liberty and the American Supreme Court: The Essential Cases and Documents (Rowman & Littlefield Publishers, 2013) — Book
Muñoz, Vincent Phillip: God and the Founders: Madison, Washington, and Jefferson (Cambridge University Press, 2009) — Book
Muñoz, Vincent Phillip: “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion” (American Political Science Review, Vol. 110, No. 2, 2016) — Scholarly article
Muñoz, Vincent Phillip: “If Religious Liberty Does Not Mean Exemptions, What Might It Mean? The Founders’ Constitutionalism of the Inalienable Rights of Religious Liberty” (Notre Dame Law Review, Vol. 91, Iss. 4, 2016) — Scholarly article
Muñoz, Vincent Phillip: “Church and State in the Founding-Era State Constitutions” (American Political Thought, Vol. 4, Winter 2015) — Scholarly article
Muñoz, Vincent Phillip: “The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress” (Harvard Journal of Law and Public Policy, Vo. 31, No. 3, 2008) — Scholarly article
Muñoz, Vincent Phillip: “The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation” (University of Pennsylvania Journal of Constitutional Law, Vol. 8, 2006) — Scholarly article
Muñoz, Vincent Phillip: “James Madison’s Principle of Religious Liberty” (American Political Science Review, Vol. 97 Iss.1, 2003) — Scholarly article
Muñoz, Vincent Phillip: “George Washington on Religious Liberty” (The Review of Politics, Vol. 65, No. 1, 2003) — Scholarly article
Muñoz, Vincent Phillip: “Free Exercise Exemptionism and the Evaporation of the Inalienable Character of Religious Liberty” (Journal of Law and Religion, Vol. 32, Iss. 3, 2017)
Muñoz, Vincent Phillip: “The Founders and the Natural Right of Religious Free Exercise: A Response” (Law and Religion Forum, 2017) — Blog
Muñoz, Vincent Phillip: “The Religious Liberty Case Against Religious Liberty Litigation: Non-Universal Exemptions and Judicial Overreach” (Public Discourse, 2012) — Blog
Pangle, Thomas L.: “Religion in the Thought of Some of the Leading American Founders” (Notre Dame Journal of Law, Ethics, and Public Policy, No. 4, 1989) — Scholarly article
Owen, J. Judd: “Making Religion Safe for Democracy: Transformation from Hobbes to Tocqueville” (Journal of Law and Religion, Vol. 31, Iss. 1, 2016) — Scholarly article
Owen, J. Judd and John M. Owen (editors): Religion, the Enlightenment, and the New World Order (Columbia University Press, 2011) — Book
Owen, J. Judd: Religion and the Demise of Liberal Rationalism (The University of Chicago Press, 2001) — Book
Owen, J. Judd: “Locke’s Case for Religious Toleration: Its Neglected Foundation in the Essay Concerning Human Understanding” (Journal of Politics, Vol. 69, Iss. 1, 2007) — Scholarly article
Owen, J. Judd: “Church and State in Stanley Fish’s Antiliberalism” (The American Political Science Review ,Vol. 93, No. 4, 1999) — Scholarly article
Samuelson, Richard: “Jefferson and Religion: Private Belief, Public Policy” (from The Cambridge Companion to Thomas Jefferson, 2009) — Book chapter
Thomas, George: “Religious Liberty, Same-Sex Marriage and Public Accommodations” (Perspectives on Politics, Vol. 16, Iss. 1, 2018) — Scholarly article
Thomas, George: “Reframing Constitutional Law: Liberalism, Public Justification, and Same-Sex Marriage” (Polity, Vol. 49, No. 2, 2017) — Scholarly article
Zeisberg, Mariah and Christopher L. Eisgruber: “Religious Freedom in Canada and the United States” (International Journal of Constitutional Law, Vol. 4, Iss. 2, 2006) — Scholarly article
Zuckert, Michael: “Locke—Religion—Equality” (The Review of Politics, Vo. 67, Iss. 3, 2005) — Scholarly article
Zuckert, Michael (editor): The Spirit of Religion and the Spirit of Liberty (The University of Chicago Press, 2017) — Book
Zuckert, Michael: “Freedom of, Freedom for, and Freedom from Religion: The Contested Character of Religious Freedom in America” (Law and Liberty, 2016) — Blog
JMC Fellows on Freedom of Speech
JMC Freedom of Speech Resource Center
Arkes, Hadley: “Free Speech, Ordinary People, and Ordinary Judgments: Hadley Arkes responds to Robert Miller” (Public Discourse, 2018) — Blog
Miller, Robert T.: “Free Speech and the American Experiment” (Public Discourse, 2018) — Blog
Stoner, James: “The Free Speech Debate,” (Claremont Review of Books, 2018) — Article
JMC Fellows on Marriage and the Family
George, Robert P. and Jean Bethke Elshtain: The Meaning of Marriage: Family, State, Market, & Morals (Scepter, 2006) — Book
Girgis, Sherif, Ryan T. Anderson, and Robert P. George: What is Marriage? Man and Woman: A Defense (Encounter Books, 2012) — Book
Yenor, Scott: Family Politics: The Idea of Marriage in Modern Political Thought (Baylor University Press, 2011) — Book
Yenor, Scott: “The True Origin of Society: The Founders on the Family” (First Principles, 2013)—Report
Are you a JMC fellow who’s published on topics related to the First Amendment? Please send us any publications, podcasts, and lectures on your work and we will feature it in this post.
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