The Vast Universe of Religious Accommodation
By: Mark Storslee
July 9, 2018
We occupy a unique moment in the story of American religious liberty. During the founding era and again for much of the twentieth century, it was widely accepted that religious accommodation—the practice of sometimes exempting religious individuals or groups from burdensome laws—was a good thing. But that consensus is entering a new period of uncertainty, and for obvious reasons. For many people, religious accommodation is increasingly reducible to broadside attacks on causes such as women’s equality or LGBT rights. In this view, religious accommodation is just another beachhead in the culture war—one more place where “we” must defeat “them.”
The tendency to view religious accommodation in terms of the culture war is understandable, but it is also deeply misguided. For one thing, it fails to acknowledge that the overwhelming majority of accommodation cases have nothing to do with hot-button issues. They are about things like hair length, religious headgear, beard-trimming, and so on. They are about religious prisoners who need kosher meals, churches or religious schools who wish to hire members of their own faith, or employees who want to wear a headscarf or hijab on the job. In a very real way, the culture war has rendered this vast universe of accommodation cases almost totally invisible.
But there is also a more pressing problem. Put simply, the cultural controversy over religious accommodation has created a new and urgent need to reconsider the desirability of religious accommodation as a matter of first principles. For example, critics have often argued that religious accommodation unfairly privileges religious believers, and thus is simply a form of irrational prejudice. But is that criticism sound? And if it is not, how should we understand America’s longtradition of sometimes providing exemptions for religious practice?
My research intervenes in this debate to suggest that religious accommodation remains a desirable approach to religious freedom as a matter of legal doctrine and normative principle. In so doing, it explicitly attempts to widen the debate beyond its common culture war frame, by highlighting the ways that accommodation furthers rather than undermines our constitutional values.
Religious accommodation accords with our long history of protecting religious minorities and leaving religion largely to private choice. That project—which one could well describe as the project of religious liberty itself—has a number of salutary benefits. It alleviates social conflict, facilitates religious equality, and accords with the broader project of protecting conscience when possible. Even more basically, it removes government from areas over which it has limited competence and preserves a core constitutional freedom. In a real way, accommodation is but one part of our larger commitment to the idea that, as James Madison once put it, “the religion . . . of every man must be left to the conviction and conscience of every man.”
But what makes religion worthy of such distinct treatment? My essay project aims to answer that question, partly by suggesting that legal scholars may have misunderstood the nature of the problem. Our law does not treat religion specially because it possesses some singular feature that distinguishes it from other things. Rather, as the founding generation well understood, we treat religion specially because it implicates a multiplicity of overlapping values in a way that most other things do not. Religion involves claims of cosmic significance; but more than this, it has been a locus of conflict and persecution; but more than this, it is an area in which government lacks the competence to render judgments; but more than this, it involves claims central to individual and communal identity. In short, religion is not one thing—it is many things all at once.
That insight has consequences for thinking about religious accommodation, and religious freedom more generally. Put simply, it clarifies that leaving religion alone—sometimes by treating it specially—is neither irrational nor discriminatory. It is simply one way the American tradition recognizes religion as the complex phenomenon that it is.