Can the Accommodationist Achieve Pluralism?

• Jurisdiction: United States,Federal
• Citation: Vol. 32 No. 02
• Publication year: 2008

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 2WINTER 2009

Can the Accommodationist Achieve Pluralism?

Lisa Shaw Roy(fn*)

In March of 2008, Seattle University School of Law hosted an engaging conference on Pluralism, Religion, and the Law. The theme of the conference-religion and pluralism-is not only unavoidable but is probably one of the most important issues of our times. This paper is based on my brief remarks on a panel dedicated to "reimagining the relationship between religion and law" and focuses on the U.S. Supreme Court's church and state jurisprudence. In particular, I ask whether an approach to the Establishment Clause known as accommodation is consonant with the larger concept of pluralism, particularly in the context of public religious symbols and displays, and offer some proposals and tentative conclusions. I propose two alternatives, signs and disclaimers, and tentatively conclude that the use of either might relieve the perceived tension between accommodation and pluralism.

I. Why View Pluralism through an Accommodationist Lens?

First, the easy question: What is meant by the term pluralism? It is a (relatively) easy question because most of us have a sense of what pluralism means. Webster's defines pluralism as, among other things, "a state of society in which members of diverse ethnic, racial, religious, or social groups maintain an autonomous participation in and development of their traditional culture or special interest within the confines of a common civilization."(fn1) In fact, to recite this definition is to do no more than simply make an observation about society as we know it. But the common civilization identified in the last part of that definition seems to be at odds with the society described in the first part, particularly in the case of religion. At the point at which we begin to recognize a common religious character we are confronted by the danger that e pluribus unum ("out of many, one"), will become an oppressive state-sanctioned establishment of religion. Thus, the conventional wisdom has been that pluralism requires a strict separation of church and state, or perhaps neutrality between religion and nonreligion, and not a more flexible religious accommodation,(fn2) to survive and to thrive.(fn3)

It might seem strange, then, to think of pluralism in terms of whether an accommodationist approach to the Establishment Clause can achieve it. There are very practical reasons for looking at these two ideas together. The current composition of the U.S. Supreme Court suggests that the general trend for Establishment Clause cases is toward acknowledgment and accommodation of religion and away from strict separation.(fn4) Moreover, religious accommodationists prefer a public square with a rich religious vibrancy that reflects the religious pluralism of the populace, and they therefore likely would argue that there is no disharmony at all.(fn5) An obvious point of tension exists, however, between the group I have been describing in this paper, whom I will refer to as "religious accommodationist pluralists," and another group whom I will refer to as "religious multiculturalists." While both pluralists and multicul-turalists appreciate the connection between religion and identity, multiculturalists would tend to view majority manifestations of religion with distrust, perhaps viewing them as symbols of dominance rather than as group expressions of identity. This particular strand of argument presses the question of whether accommodationism can indeed promote pluralism.

II. Accommodation and Pluralism: Symbols and Displays

In the case of religious symbols and displays, the multiculturalist's concerns are reflected in the doctrinal skepticism about the compatibility of accommodation and pluralism. A prominent example is the line of U.S. Supreme Court cases involving holiday displays and featuring Justice O'Connor's endorsement test that focuses on whether a citizen is made to feel like an "outsider."(fn6) Justice Breyer's...