Accommodation and equal liberty.

AuthorBressman, Lisa Schultz
PositionExempting religious individuals and religions from legal requirements

How should legislatures respond to requests from religious individuals or institutions for exemptions to generally applicable laws? In Employment Division v. Smith,(1) the Supreme Court held that the Free Exercise Clause does not require legislatures (federal or state) to honor such requests.(2) The question remains whether they should do so on a voluntary basis. This is the problem of permissive accommodation--that is, accommodation of religious liberty as a matter of political discretion rather than constitutional compulsion. Put in the terms of this Symposium, it is the problem of accommodation in the public square.

It is not immediately apparent why permissive accommodation presents any problem at all. Because permissive accommodation is not mandatory, it does not raise the knotty issue of determining when legislatures must grant exemptions requests. Legislatures always may deny requests for permissive accommodation, but when they do grant such requests, they further a fundamental constitutional commitment to religious liberty by minimizing governmental interference with religious exercise. Why not simply encourage legislatures to grant requests for permissive accommodation to the greatest extent possible?

The problem occurs when legislatures protect religious liberty in a manner that compromises another fundamental constitutional commitment--equality. If left to their own devices, legislatures might well grant exemptions for religious claimants while denying comparable treatment to nonreligious claimants. They might even grant an exemption to one religious sect while denying comparable treatment to other sects. In either case, the legislatures implicate themselves in the unconstitutional establishment of religion.

The most straightforward and compelling example of this phenomenon concerns the exemption for conscientious objectors to the federal military draft statute. Congress enacted the federal military draft statute decades ago with an exemption for those individuals who object to war based on their "religious training and belief."(3) It would have been an intolerable violation of the principle of equal treatment between religion and nonreligion for Congress to deny an exemption to those with nonreligious but deeply held moral or ethical objections to war. Those individuals, no less than their religious counterparts, confronted the gravest prospect of killing or being killed in contravention of their fundamental values. The Supreme Court avoided a violation of equal treatment by construing the essentially religious exemption to encompass individuals who object to war based on a "sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption."(4) In other words, the Court read the exemption to include those who object to war as a result of deeply held religious, moral, or ethical beliefs.(5)

Some legislatures have carried forward the lessons of the draft cases by writing "conscientious objector" provisions broadly in other laws. For example, several states have proposed or enacted exemptions from the requirement of dissecting animals as part of the public elementary and high school science curriculum for students who oppose dissection on any grounds.(6) Like the conscientious objector exemption to the draft, these exemptions have religious roots.(7) Yet they cover students who resist dissection for both religious and nonreligious reasons. They apply to students who believe in the sanctity of all God's creatures as well as members of People for the Ethical Treatment of Animals (PETA) and other "dyed-in-the-wool animal lover[s]."(8)

But many legislatures fail to think broadly when they undertake to accommodate religious conscience. Consider some recent amendments to the federal Medicare and Medicaid Acts. These amendments do not represent typical accommodations because they lift a condition on the receipt of government benefits that conflicts with religious exercise rather than a government requirement or restriction that conflicts with religious exercise--for example, the draft or dissection requirements. Yet the same legal analysis applies. When legislatures voluntarily lift conditions on benefits that impede religion, they must abide by the same principle of equal treatment that guides them when they voluntarily lift restrictions or requirements that impede religion.(9)

The Medicare and Medicaid Acts provide reimbursement to poor and elderly patients for medical treatment they receive in a hospital or skilled nursing facility along with related nonmedical nursing care, such as bed pans and sponge baths.(10) When Congress enacted the Medicare and Medicaid Acts in 1965, it provided special exemptions for the Christian Scientists, who oppose medical treatment on religious grounds and object to paying into a system for which they could receive no benefit.(11) Congress allowed the Christian Scientists to receive reimbursement for the nonmedical nursing care normally incidental to medical treatment when received in connection with faith healing at a Christian Science sanatorium.(12) Thus, Congress effectively waived for the Christian Scientists the medical treatment requirement applicable to all other patients. In 1996, a district court invalidated the Christian Science exemptions as a violation of the Establishment Clause.(13) The court held that the provisions could not survive the strict scrutiny test applicable to sect-specific provisions even if those provisions were intended to accommodate religion.(14) The court reasoned that, whatever the limits of permissive accommodation, such accommodation cannot discriminate among religious sects by expressly singling out one for favorable treatment.(15)

With uncharacteristic speed, Congress rewrote the provisions to eliminate the sect-specific references. It permitted any patient to receive reimbursement for not,medical nursing care if that patient objects to medical treatment for religious reasons and receives such nonmedical care in a facility that also objects to medical treatment for religious reasons.(16) A district court upheld the reworded exemptions against an Establishment Clause challenge, and the Eighth Circuit affirmed.(17) The courts found that the provisions constitute permissive accommodation of religion because they relieve affected individuals of the choice between following their religious beliefs and receiving public health care benefits.(18)

The problem with the Medicare and Medicaid exemptions is not that Congress wished to accommodate the Christian Scientists or religious objectors to medical treatment. Indeed, one might think it entirely appropriate for Congress to recognize and respond to the dilemma encountered by religious individuals like the Christian Scientists. Rather, the problem is that Congress failed simultaneously to consider the similar interests of nonreligious individuals. Initially, Congress also failed to consider the interests of other religious individuals. The district court condemned this defect, and Congress quickly repaired it. But just as it is possible to imagine individuals other than Christian Scientists who have religious objections to medical care, it also is possible to imagine individuals who have moral or ethical objections to medical care. Members of PETA might object to certain medical procedures or medications because they depend on extensive animal research and testing. These PETA members may seem less sympathetic than their student counterparts in the dissection example because their animal-rights-based objection to medical treatment seems less plausible than a similar objection to cutting up animals. They certainly seem less sympathetic than their nonreligious counterparts in the draft example because they seek to avoid denial of a relatively small monetary benefit rather than forced military service. Regardless, these PETA members face exactly the same dilemma that Congress sought to alleviate for their religious counterparts in this example--to accept medical treatment in order to qualify for the nonmedical nursing care benefit. Such differential treatment violates the principle of equality between religion and nonreligion.(19)

Equality violations may occur not only with respect to exemptions for individual conscience but with respect to exemptions for religious institutions or religious conduct. Suppose a state provides an exemption from its restrictive zoning laws for religious institutions that want to expand their facilities, but denies an exemption to comparable nonreligious institutions, such as nonprofit or community service-oriented institutions.(20) Suppose a state provides an exemption, as many do, from its drug laws for individuals to ingest peyote as part of a religious worship service,(21) but denies an exemption for nonreligious individuals to smoke peyote for equally weighty purposes, such as medical purposes.

As these examples demonstrate, the problem of permissive accommodation tracks a larger problem in the law: how to respond when efforts to promote one important constitutional value (religious liberty) interfere with another (equality).(22) One sensible answer is to devise a way to preserve both values to the maximum extent possible. Yet, as the Medicare and Medicaid example demonstrates, we cannot depend upon legislatures and courts to take this approach. Nor have many commentators advocated it, preferring instead simply to elevate religious liberty above equality.(23) Although some commentators have attempted to harmonize religious liberty and equality, even they have found themselves taking sides, generally discouraging legislatures from voluntarily accommodating religious liberty in order to safeguard equality.(24) Moreover, these commentators have fallen short of articulating an approach that addresses the precise issue of how legislatures may respond to...

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