A primer on governmental accommodation of religion.

Author:Walker, J. Brent
 
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I

Polls consistently show that nearly nine out of ten Americans say they are religious or spiritual. Along with a substantial Christian majority, our religious landscape reflects a plethora of religious traditions. Indeed, the United States is a very religious and religiously diverse nation, and our diversity is ever-increasing. According to a recent Pew Forum report, the United States has experienced a drastic demographic change in its religious population over the past three decades. Since 1974, those who identify themselves as neither Christian nor Jewish, combined with those who claim no religious affiliation, have increased from just over 7 percent to more than 20 percent of the population.

We should applaud and celebrate the growing numbers able to enjoy America's promise of religious liberty. This amazing religiosity, and plush pluralism, however, are accompanied by new constitutional, political, and cultural challenges in the area of church-state relations. New types of disputes constantly emerge as we seek to balance the majoritarian ethos of our democracy with the counter-majoritarian mandate of the First Amendment and as we grapple with the tension between the religious rights of some and the civil rights of others.

Day by day, the popular media are replete with reports of disputes over the propriety of religious accommodation. For example, many public universities, responding to requests from Muslim students and employees, have installed footbaths in public restrooms. Others schools have set aside space at specific times during the day for prayer according to certain Muslim customs, such as the separation of men and women, if they wish to remain in the room. Hundreds of parents in Massachusetts have refused some state-mandated vaccinations for their children based on religious objections to these procedures. The California Supreme Court will soon hear arguments in a case in which a doctor is refusing to prescribe fertility drugs to a lesbian patient, raising the question of the balance between the free exercise rights of the doctors and the rights of patients to receive treatment without discrimination. A recent New York state law requiring employers with group insurance policies that cover prescription drugs to cover contraceptive medication has been met with resistance by religious groups. The free exercise rights of prisoners continues to be a front-burner issue. A federal appeals court in Pennsylvania is being asked to decide whether a Department of Corrections' limitation on the number of books an inmate may possess in his cell at one time substantially burdens the inmate's religion that requires members of the Children of the Sun Church to read four different Afro-centric books per day.

For some, these accommodations represent good faith attempts to embrace diversity, while others see them as a dangerous preference of one faith over others. Critics also argue that free exercise concerns should not trump the government's interest in public safety.

How will the courts, politicians, and the culture at large address these kinds of questions? When does an effort to accommodate the exercise of religion become an establishment of religion? When does recognizing the tree exercise rights of citizens come at the expense of third parties and the larger public good?

Responding to these and similar questions, my aim in this essay is to affirm the importance of, while acknowledging the limitations on, religious accommodation. I outline three types of accommodation--mandatory, permissible, and impermissible--a typology originally coined by Professor Lawrence Tribe of Harvard University. I then discuss two recent U. S. Supreme Court cases that bear on the propriety of religious accommodation and free exercise of religion generally. I next offer what I call the "Ten Commandments of Religious Accommodation," to assist legislators and other government officials in crafting and implementing exemptions that will pass political and constitutional muster. I conclude-by noting three implications of the widespread granting of religious exemptions from governmental regulation.

II

We begin with the basics. Both of the First Amendment's religion clauses--No Establishment and Free Exercise--are essential to ensuring religious liberty. Just as the religion clauses often require government to impose constraints on state-sponsored religion, they also mandate, or at least allow, government to grant concessions to fully protect the exercise of religion. A proper understanding of the institutional and functional separation of church and state, therefore, requires government to accommodate religion but without advancing it; protect religion but without promoting it; lift burdens on the exercise of religion but without extending it an impermissible benefit.

  1. Mandatory Exemptions

    Accommodation may be required to remove government-imposed burdens on the exercise of religion. These governmental exemptions from regulation and laws are usually dispensed by the courts when the burden violates the Free Exercise Clause. Sometimes they are afforded by legislatures when they incorporate a constitutional standard into a statutory framework, such as the Religious Freedom Restoration Act (1993) and the Religious Land Use and Institutionalized Persons Act (2000).

    Along with the companion Establishment Clause, the Free Exercise Clause ensures religious liberty--often called our "first freedom." The religion clauses stand as testimony to our founders' belief that religious liberty is best protected when government seeks neither to advance nor to inhibit religion. Although government may restrict religion under certain circumstances, this should be the exception and not the rule. Accordingly, the U.S. Supreme Court historically, and certainly from 1963 through 1990, required government to show a compelling interest (e.g., an important public health, safety, or welfare concern) before it would be permitted to burden the exercise of religion, and then it could do so only if it has selected the least restrictive means available.

    In Sherbert v. Verner, (1) the Court accommodated the religious practice of a Seventh-day Adventist who, because she refused to work on her Sabbath, was denied unemployment benefits under South Carolina law. The Court found a clear, though indirect, burden on Sherbert's exercise of religion. In response to the charge that unemployment compensation was merely a "privilege," the Court wrote: "to condition the availability of benefits on this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties." (2) Finding no compelling state interest sufficient to justify the negation of that constitutional right, the Court concluded that an accommodation would not establish religion, because the exemption "reflects nothing more than the governmental, obligation of governmental neutrality in the face of religious differences, and goes not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall." (3)

    Nearly a decade later, in a case involving the Old Order Amish, the Court continued in the same vein. In Wisconsin v. Yoder, (4) the Court granted an exemption to...

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