This Week’s Guest: Michael McConnell

Under the U.S. Constitution, freedom of religion is protected by two separate guarantees: a prohibition on the establishment of an official church, and an individual right to the “free exercise” of religion. The First Amendment thus protects not only the right of the faithful to believe as their consciences dictate, but also the right to live their lives in accordance with these beliefs.

Since 1990, the legal contours of the free-exercise clause have been defined by a landmark Supreme Court case, Employment Division v. Smith, which significantly narrowed the protections afforded to people of faith. In the time since, both the legal and the cultural landscape have changed significantly, and the Court will have a chance to revisit Smith’s holding in the upcoming case of Fulton v. City of Philadelphia.

In this podcast, Mosaic editor Jonathan Silver is joined Michael McConnell of Stanford University, a constitutional scholar and former judge, for a discussion on the history of religious liberty in the United States and the legal debate surrounding the free-exercise clause.

Musical selections in this podcast are drawn from the Quintet for Clarinet and Strings, op. 31a, composed by Paul Ben-Haim and performed by the ARC Ensemble.

Excerpt (14:53-16:34):

It’s curious that in the years since Smith, the left-liberals have tended by and large to shift their position. The support for religious accommodation was, at that time, a progressive-liberal tenet, and today you see it held much more by conservative people, and it’s progressive-liberals who tend to oppose vigorous protection for free exercise of religion. The explanation for that is that the sexual revolution has come along in the meantime, and so many of the cases, the most conspicious cases today, have to do with more culturally conservative religious views that come into clash with things like same-sex marriage and abortion. So that has caused a lot of people to change their minds about free exercise in general. 

I think that’s quite short-sighted, because when you actually look at the cases that are brought, these sexual revolution, cultural conflict cases are of a small minority. Prisoners are the leading example of common cases―Jewish and Muslim prisoners who have special dietary requirements, special Sabbath requirements, that sort of thing. Another very common pattern is zoning regulations that prevent things like homeless feeding programs and so forth, so free exercise litigation today no longer prevails under the Free Exercise Clause of the First Amendment, but it still exists and still is frequently successful because of statutes passed by Congress and the states protecting free exercise.