Partly acculturated religious activity: a case for accommodating religious nonprofits.

• Author: Berg, Thomas C.
• Position: Religious Liberty and the Free Society: Celebrating 50 Years of 'Dignitatis Humanae'

INTRODUCTION

Many of today's most vexing problems concerning the accommodation of religious conscience involve religious groups and activities that straddle the perceived boundary of the public versus private. For example, in disputes over same-sex marriage and religious liberty, it is generally agreed that churches and clergy should be able to refuse to host or perform marriages, because these entities fall within the private sphere. (1) But religious entities that reach out to provide services to the broader public provoke much more controversy. Think, for example, of Catholic Charities adoption agencies that decline to place children with same-sex couples. (2) Or think of the intense controversy over religious nonprofit institutions--social service and educational institutions, primarily--that are seeking a full exemption from the mandate to cover contraception in employees' health insurance. (3)

To many critics, it is plainly improper to make any accommodation for religious freedom in such cases. They say that when a religious organization hires people outside of the narrow confines of its faith, or becomes a significant social-service provider, it should not be allowed to continue to act on norms that the government has determined are unjust. Once an organization reaches out to others, it must follow whatever rules the state sets, no matter what burden these rules place on religion. That tendency lay behind the original, very narrow exemption from the contraceptive mandate--an exemption that gave no relief to anyone except churches and denominations. (4) And opponents of exemptions from the mandate argue that exemptions are forbidden--in the words of Fred Gedicks and Rebecca Van Tassell--whenever a religious nonprofit "hire[s] from the general pool of applicants, rather than exclusively from a specific religious group," because such a group employs "nonadherents or adherents who understand the requirements of the affiliated religion differently." (5) Similarly, Caroline Corbin argued, in the early stages of debate over the mandate, that any exemption for religious nonprofit employers would improperly "foist[] the Catholic Bishops' religious views onto employees, whether or not they are Catholic." (6) On the other side, of course, critics of the mandate believe that exemptions for nonprofits are essential to preserve religious freedom.

This Article explores the idea that such problems involve cases of "partly acculturated" religious activity. This kind of activity falls somewhere between two poles. One pole is "unacculturated" religion: the activity of the small sect or minority faith whose doctrines are strange to the American majority or whose adherents are mostly ethnic minorities or immigrants. Think of Muslims, Sikhs, Amish, or Jehovah's Witnesses. The other pole is "acculturated" religion, usually engaged in by a larger faith, and defined primarily by the harmony between its doctrines or practices and mainstream secular norms. Acculturated groups tend to think that current secular morality helps realize the true meaning of their faith, and they tend to be deeply involved in the world. Think of mainline Protestant denominations and non-Orthodox Jewish bodies.

But as Part I of this Article discusses, many religious activities and groups have features from both poles. They are "acculturated" in that they seek to reach out to the broader society and provide services that people of all beliefs value: education, health care, social services of all kinds, from homeless shelters to adoption to job training. Their approach to these services overlaps significantly, although to a varying degree, with the approach of other providers of these services. And yet these religious providers are "unacculturated" in that some of their doctrines and practices sharply clash with the dominant secular values in their relevant sphere. These groups make a claim to be able to continue to provide services while continuing to follow their countercultural doctrines and practices, which often reflect the core values that inspire their service in the first place. Their activities are partly acculturated, and they argue that the law should respect their ability to remain so.

This Article argues that we should make real efforts to protect religious freedom for partly acculturated religious activities and organizations. We should not reject their claims broadly or per se and thereby exclude them from the efforts at accommodation that other groups receive. The law should not force all religious organizations and activities into one of the two polar categories, acculturated or unacculturated. Part II of this Article presents several reasons why there is a strong interest in protecting the freedom to engage in partly acculturated religious activity.

Accommodating partially acculturated religious activity does present distinctive challenges. In the very act of reaching out to people outside the faith--as clients or employees--can't those organizations cause harm, for example by demanding standards of conduct from those people? Because of these complications, protection for partly acculturated religious activity cannot be absolute. But in Part III of this Article, I examine how we can address those complications--and draw sensible lines concerning accommodation--by relying on two concepts. The clients and employees affected by such organizations should have (1) notice of the organization's religious identity or (2) alternative sources of receiving the services or opportunities in question.

1. PARTIAL, ACCULTURATION

   We can understand the problem posed by organizations such as Catholic Charities, or a religiously affiliated college, through the lens of "acculturation." This important and longstanding typology of religious activity distinguishes between groups (usually large) whose views harmonize with the general culture and other groups (usually small) who depart, and often withdraw, from the culture. Theologian Ernst Troeltsch, chronicling the relation of Christian denominations toward state and society, drew a famous distinction between "church" and "sect." (7) The church seeks to be "universal," and, to achieve mass membership, it "to a certain extent accepts the secular order, ... utilizes the State and the ruling classes, and weaves these elements into her own life." (8) Sects, by contrast, "are comparatively small groups [that] aspire after personal inward perfection, and ... a direct personal fellowship between the members" and accordingly "renounce the idea of dominating the world" and adopt an "indifferent" or even "hostile" attitude toward state and society. (9) The prototypical "church" was the Roman Catholic Church or the established Protestant bodies of northern Europe; the prototypical sects were the medieval monastic movements or the Anabaptists of the Reformation.

   Later, theologian H. Richard Niebuhr refined Troeltsch's two categories into five, including the alternatives of "Christ of culture"--groups that harmonize Christian ideals with the broader culture--and "Christ against culture"--groups that withdraw from culture because it is unredeemable. (10) Sociologists of religion agree "that marginal religious groups or sects are characterized by: 1) an emphasis on doctrinal purity; 2) hostility to or disassociation from the prevailing culture; and 3) a strict code of behavior." (11) Whatever the precise framework, we can speak of religious groups as relatively "acculturated," aligned with the dominant culture, or "unacculturated," antagonistic to or withdrawn from the culture. (12)

   A group may be "unacculturated" in another sense relevant to conflicts with the law. Whatever its theological relationship to secular culture in the abstract, the group may simply be small enough in a particular locality, or in America in general, that it operates as an unacculturated sect. For example, Islam and Hinduism in general seek to affect other aspects of the culture and society around them, and in the Middle East and India they are the dominant faiths; but in America they are minority groups whose social services and educational institutions do not (yet) play significant roles in the broader society.

   The polar cases--religions that are truly unacculturated or truly acculturated--tend not to present the most difficult free exercise questions. Small faiths mostly operate in their houses of worship and in the lives of individual believers who seek to live consistently with their faith in society. But we have a reasonably broad legal consensus that these groups and claims should be protected: and not just that they should be free from discrimination, but that their practices should enjoy some claim to accommodation when they conflict with generally applicable laws. (13) To take just one example, the Supreme Court was unanimous in holding in Holt v. Hobbs (14) that a Muslim prisoner, Gregory Holt, should be able to wear a beard for religious reasons even though a state prison regulation forbade it. Groups from across the political and religious spectrum also filed briefs in support of Holt's claim. (15) On the other end of the spectrum, acculturated religions raise relatively few free exercise exemption issues in the first place. They seldom stray very far, either left or right, from mainstream norms: to the extent they do, they are what I will call "partly acculturated."

   A map of religions based on their degree of acculturation is helpful for analysis of church-state legal questions, (16) but it also poses a number of complications. "'[T]he sect-church typology is a continuum'; some faiths fall in the middle (as, for example, with Jews who observe many Jewish laws but are non-Orthodox)," and "any"--perhaps most--"religious groups harmonize with the broader culture on some clusters of issues and conflict with it on others." (17)

   In particular, some of the most important religious groups and activities in America today are what...