First Things: “No ‘Wall of Separation'”
By Vincent Phillip Muñoz
“A number of years ago I gave a visiting lecture at a large state university. At the faculty dinner afterward, my hosts asked who I thought was the most thoughtful and intellectually interesting Supreme Court justice. They probably expected me to answer ‘Justice Scalia,’ which would have been defensible and acceptable among the dozen or so professors present, all of whom were on the political left.
‘That’s easy,’ I said, ‘Justice Thomas.’
They were stupefied. ‘You have got to be kidding,’ remarked a senior philosophy professor. ‘He doesn’t even speak at oral arguments.’ ‘He just votes how Scalia tells him,’ another professor proclaimed. The remarks were as outrageous as they were ignorant. ‘When Thomas retires,’ I said, ‘he will be known as the justice most faithful to the Constitution, he will have transformed originalism, and when he dies will be a great American hero.’ My dinner companions’ good opinion of me instantly evaporated.
I recalled that conversation after reading the opinions in Espinoza v. Montana, the religious freedom decision handed down last week by the Supreme Court. The Court held, 5-4, that the state of Montana violated the First Amendment’s Free Exercise Clause when it excluded religious individuals from participating in a tax-exempt scholarship program. As explained by my Notre Dame colleague Richard Garnett, the decision continues the movement by the Rehnquist and Roberts Courts to ‘steadily steer the relevant [church-state] doctrines in the direction of neutrality and even-handedness, reminding citizens and litigants alike that cooperation with religious institutions does not constitute an unlawful ‘establishment’ of religious authority…'”
Vincent Phillip Muñoz is the Tocqueville Associate Professor of Political Science and Concurrent Associate Professor of Law at The University of Notre Dame. He also serves as Director of Notre Dame’s Tocqueville Program for Inquiry into Religion and Public Life and the Potenziani Program in Constitutional Studies.
Dr. Muñoz writes and teaches across the fields of political philosophy, constitutional studies, and American politics. His research has focused on the theme of religious liberty and the American Constitution. His first book, God and the Founders: Madison, Washington, and Jefferson (Cambridge University Press, 2009), won the Hubert Morken Award from the American Political Science Association for the best publication on religion and politics in 2009 and 2010. His First Amendment church-state casebook, Religious Liberty and the American Supreme Court: The Essential Cases and Documents, was published in 2013 (Rowman & Littlefield, revised edition 2015) and is being used at Notre Dame and other leading universities.
Professor Muñoz is a JMC faculty partner.
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