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This week the Supreme Court heard oral arguments in the case of Groff vs. Dejoy, involving a Post Office mail carrier named Gerald Groff, who, for religious reasons, wished not to work on Sundays. Previously the postal service had granted this accommodation, which was easy back when the Post Office didn’t do mail delivery on Sundays. But a few years ago the Post Office started contracting with Amazon and other package delvery services to do Sunday deliveries, though they still granted Groff his religious accommodation. But then the Post Office changed its mind and compelled Groff to work Sundays. Hence this case, raising again an aspect of the First Amendment’s free exercise clause.
You would think after all these decades of both religious liberty cases and employment law cases that such a situation would be well-settled, but you would be wrong. In fact the First Amendment’s clauses related to the establishment and free exercise of religious remain highly contested and unsettled.
One person who has a deep grasp of the broader issue is Vincent Phillip Munoz, who is the Tocqueville Associate Professor of political science and law at the University of Notre Dame. His most recent book is “Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment’s Religion Clauses.” Phil’s work has been cited in several Supreme Court opinions on the issue.
Phil sat down recently with John Yoo and me to discuss the issue, and the wider issue of how constitutional originalism should be understood today. You could think of this episode as a “two-whisky happy hour,” as we wanted to have Lucretia Zoom in, but she wasn’t able to, so Phil got off the hook.
Note: We apologize for the static on this episode. We had our communal mic set incorrectly, and we couldn’t do much to fix it in post-production.
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Really interesting podcast. To the extent that I had an understanding of natural law, this challenged my perception of it. In particular, describing natural law as “narrow, but deep” both makes sense to me and disturbs me. I noted that Professor Munoz said that the natural right to free exercise of religion means that no government has the power to dictate how people worship. This reminds me of the current progressive sense that religion is just what you do inside your preferred funny looking building. Deeply religious people (of which I do not necessarily count myself) understand all parts of their days as having religious meaning and act accordingly. I have an instinctive belief that a good society should respect rights of conscience wherever possible. So, for example, I would leave the cake baker alone to make cakes in accordance with his beliefs. On the other hand, I wouldn’t permit child sacrifice even if your religion says it’s imperative. Overall I prefer a fairly expansive interpretation of religious freedom. I also believe that free speech should be viewed broadly when it comes to the right to hold and express all kinds of opinions. But, I think I’m somewhat ok with limiting free expression to speech, and not all forms of entertainment. We used to understand the need for limiting certain things to red light districts. Obviously these are judgment calls that I’d hope could be made locally.
I like the notion that the law is grounded in natural rights. It seems right to me that there is a moral order to the universe. The devil, as they say, is in the details.
Notre Dame is a disgrace. It needs to be stripped of its “Catholic” label. And if Yoo truly thinks nude dancing is protected speech under the original meaning of the Constitution, and not just under the ridiculous Supreme Court First Amendment jurisprudence, then it’s all over. Please say it’s not so, John, but that account of common law development you gave is crazy.
Can you have him on again? Particularly so @lucretia can ask questions or rant against :)
Got his book on the way.
I think a good exercise for John would be to come up with 3 or so questions to ask people on the streets of America as he is traveling around. Not “what do you think about natural law?”. But things like “do you think you have the right to protect yourself whether the government says you can or not?”. Questions like that posed not to academics, but to randoms. Questions that are derived from natural rights type things.
I’m pretty sure that would change his mind a bit.
My suspicion about John is, he works for the state and natural rights often conflicts with his “client”. They really should be informed not by what the government wants, but to protect what rights people naturally have.