Against Accommodation. Religious accommodation, as noted, has never been uncontroversial, but over the last decade or so it has been subjected to more vigorous and sustained opposition than in the past. Not only is religious accommodation not constitutionally required, critics argue; it is also profoundly objectionable and constitutionally problematic.62 At present, the outcome of this conflict is very much in the balance.
The opposition to religious accommodation has become conspicuous and pervasive; for now, one illustrative instance may be sufficient. In the spring of 2015, Indiana enacted a law mandating presumptive accommodation of people whose religion was burdened by state laws unless the state had a “compelling interest” in requiring their compliance. And, as they say, all hell broke loose. The law was virtually word-for-word identical to statutes adopted some years earlier in approximately twenty other states and also to the federal Religious Freedom Restoration Act that, as described above, was enacted in 1993 with virtually unanimous congressional support and with the effusive praise of President Bill Clinton. But in the twenty-plus years since that momentary feel-good effusion of national consensus, the political climate had changed, drastically. This time around, Indiana’s religious freedom law had its supporters, to be sure, but it was vehemently denounced by a veritable legion of politicians, pundits, government officials, scholars, CEOs, late night talk show hosts, athletic directors, and major corporations. Boycotts were threatened. Governors and mayors announced that public officials would not be reimbursed for travel to do business in the Hoosier state. And Indiana promptly issued its “mea culpa” and amended the offending law into ineffectuality.63
The deluge of denunciation was remarkable for its ferocious, almost frantic, quality, so foreign to the cool pragmatism that supposedly distinguishes Americans, especially those of a “secular” disposition. The campaign was notable as well for its apparent mendacity: the law provoked, as Douglas Laycock observes, “a massive, and massively false, propaganda campaign from the opponents.”64 Although the Indiana law was routinely castigated as granting an open license to discriminate against gays—or was simply described as Indiana’s “antigay” law—defenders pointed out that the law provided no such license and that none of the dire consequences confidently predicted for the Indiana law had occurred with the federal law or with the substantially similar laws in other states.65 In fact, these laws had not been interpreted to license discrimination against gays, and very few claimants had even tried to use them in this way.66
But this sort of sober appeal to facts appeared to have no impact at all on the critics. It was hard to avoid the conclusion that their campaign was only secondarily about remedying real, concrete deprivations likely to be suffered by real people. Its primary purpose was different, larger, more evangelical, and it was being pursued with an evangelical zeal. The campaign was about affirming righteousness and stamping out wickedness, and the Indiana law provided a convenient symbol or focal point; the law was more important for what it symbolized—or for what, construed with an advocate’s ample license, it could be made to symbolize—than for its actual legal and practical effects.
This motivation was strikingly manifest in the massive public reaction to a reported statement by the owner of a pizza shop, Memories Pizza, who said that his religious convictions would preclude him from catering a same-sex wedding reception. One can imagine a calmer world in which the reaction to such a statement would be “What’s the big deal?” As it happened, this particular pizza shop had reportedly not catered weddings anyway. Nor are pizza providers in short supply; television commercials for aggressively competitive pizza vendors seem almost as ubiquitous as commercials for automobiles, beer, or remedies for erectile dysfunction. And yet in the overheated context of the Indiana controversy, the pizza owner’s statement provoked a torrent of outrage and protest, forcing the business to close temporarily—but also an outpouring of support, as sympathizers raised over $800,000 for the beleaguered business.67 Evidently, the disagreement was not about access to pizza. It was about a conflict between justice and injustice, between good and evil—as (differently) understood by the opposing partisans.
The conflict generated by the Indiana law has been replayed again and again since then—with generally similar results—in other states that have attempted to enact religious accommodation requirements. Similar conflicts have arisen around applications of the federal Religious Freedom Restoration Act, as in the much-discussed Hobby Lobby and Little Sisters of the Poor cases.68 As all these conflicts reflect, the idea that government ought if reasonably possible to accommodate people’s religious commitments, which as recently as 1993 appeared to enjoy almost universal support, is now deeply contested and fiercely resisted—at least when the substantive policy at stake involves contraceptives or nondiscrimination. (When the substantive issue is further removed from “culture war” controversies—involving, for example, the desire of a Muslim prisoner to wear a short beard—accommodation can still command an almost effortless consensus.)69
The Constitutional Arguments. In the popular debate, as the Indiana experience indicates, the opposition to particular religious accommodations may be expressed in aggressively critical characterizations (or mischaracterizations) of the legal provisions that the critics oppose. In the courts and academic journals,70 by contrast, the opposition has typically been framed in terms of variations on two partly overlapping71 objections, which we can call the “nonestablishment” objection and the “equality” objection. The first of these objections, drawing on modern establishment clause doctrine that forbids government to act in ways that have “a principal or primary effect of advancing religion,”72 contends that accommodating religious believers, or exempting them from burdensome laws, has the impermissible effect of advancing religion. The second objection argues that the religious accommodation violates the fundamental American commitment to the equality of citizens by treating religious dissenters more favorably than nonreligious dissenters.
Whether one finds these arguments persuasive seems to depend mostly on whether one antecedently favors the conclusion to which they lead. Neither argument is at all compelling; conversely, either is sufficiently plausible to justify rejection of accommodation of religion if that is the conclusion one wants to arrive at. Thus, with respect to the nonestablishment objection, it is surely possible as a matter of semantics to describe accommodation as a way of “advancing” religion. And yet the claim that the establishment clause forbids this sort of accommodation—or, if you like, of “advancing”—is far from compelling, and quite alien to the American tradition, as discussed above. Thus, recent scholarship persuasively shows that modern establishment doctrine goes well beyond anything contemplated for the clause by its enactors, who likely thought of themselves as simply keeping the national government out of the domain of religion.73 And even if we accept modern doctrine forbidding government to “advance” religion, the courts for decades distinguished between “advancing” and “accommodating” religion; the latter, courts maintained, was not forbidden and indeed was up to a point constitutionally commanded. To be sure, an accommodation might go too far, in which case it could impermissibly advance religion.74 But accommodation per se was not unconstitutional; indeed, it was to be encouraged.75
The equality argument, likewise, can seem persuasive and even compelling if you start off agreeing with its implicit premise and with the conclusion it seeks to support; if you are not antecedently so predisposed, the argument will seem blatantly question begging. The most famous kind of accommodation—an exemption from military conscription for religious pacifists—can serve to illustrate the objection, its rhetorical force, and its question-begging character. Suppose the government exempts Jacob, a Quaker, from serving in Vietnam because he has a religious objection to war. Meanwhile, Peter, who has a carefully considered moral but not religious objection to war, is required to serve (and, possibly, die). Doesn’t this preferential treatment of Jacob over Peter treat the two m
en unequally, or “discriminate” against Peter (as Ronald Dworkin puts it)?76 More generally, doesn’t the differential treatment of religious and nonreligious conscientious objectors violate American commitments to treating citizens equally?
Upon a little reflection, however, the initial rhetorical force of the straightforward “equality” objection dissipates. Equality means that “like cases should be treated alike”; it obviously cannot mean that all citizens must be treated in the same way.77 In fact, virtually every law inevitably and necessarily treats people differently—or, if you want to put it that way, “discriminates.” Virtually every law, that is, defines a class of people (e.g., people who are over age eighteen, people who suffer from a disability, people who earn more than or less than a certain income, etc.) to define a status, impose a penalty, or confer a benefit; those within the legally defined class gain the benefit or incur the burden, while those not in the defined class do not. That is how laws work and achieve their purposes—by distinguishing (or “discriminating”) among classes of people and treating them differently. The question, always, is whether there is sufficient justification for a classification drawn by the law. Equality means, and can only mean, that the law must not classify people for different treatment for no good reason, or without adequate justification. Or, as lawyers say, laws must not treat “similarly situated” people differently.78
With respect to religious accommodation, therefore, the crucial question is whether there is any good justification for treating people with a religious objection to complying with a law differently from people with a sincere but nonreligious objection. Maybe there is, maybe there isn’t: the question is surely debatable. The fact that the First Amendment explicitly singles out religion as a special legal category suggests that differential treatment does not in itself violate constitutional equality requirements. In any case, the straightforward argument that exempting religious believers violates equality because it treats them differently, or because it “discriminates,” is merely a conclusory form of begging the essential question.
Still, what is the answer to that question? (Because “The Constitution—or the statute—says so; we don’t know why” is not a very satisfying or powerful response.) People’s conflicting answers to the question will naturally reflect their underlying conception of what kind of community we live in, or aspire to live in.
Thus, in a political community that recognizes the reality or at least the possibility of a transcendent authority, it will seem that someone who thinks God forbids him or her to do something is differently situated from someone who has some other, sincere but nonreligious reason for not wanting to do something. Similarly, a government that defies what a transcendent authority is thought to command would be in a different and more unsatisfactory position than a government that merely declines to recognize some other sort of potentially meritorious objection.79
And in fact, as we have seen, Jefferson’s and Madison’s arguments for religious freedom were explicitly grounded in the recognition of such a higher authority, thus implicitly reflecting the transcendent assumption in their conception of the American political community. A similar conception of the community as under or subject to a higher authority has been reiterated repeatedly through the course of American history. The Declaration of Independence invoked the authority of “Nature, and nature’s God.” In his revered Gettysburg Address, Lincoln contended that this is a nation “under God” (although, in faintly Orwellian fashion, contemporary progressives have sometimes tried to excise the phrase).80 “We are a religious people whose institutions presuppose a Supreme Being,” declared Justice William O. Douglas for the Supreme Court as recently as 1952.81 “In God we trust,” proclaims the national motto, printed on all our dollar bills. Over and over and over again, the nation’s acknowledgment of a higher authority has been expressed.
So long as this conception was widely accepted, the equality objection to religious accommodation carried little force, including in the courts; reasonable accommodation of religion was not only permissible but constitutionally mandated (although, as noted, it could go too far and thereby amount to an “establishment” of religion). Conversely, as that older conception of the community as grounded in an acknowledgment of transcendent authority has come to seem increasingly problematic, there has seemed to be little reason to distinguish or favor objections grounded in an appeal to such an authority; and the equality argument has accordingly come to seem more compelling. Hence the recent, vigorous opposition to religious accommodation, as evidenced in Indiana and other situations.
A Law unto Himself? The altered conception of community away from the transcendent conception is reflected in a curious comment tossed out by the Court in Reynolds, the polygamy case, and taken up more earnestly over a century later in Employment Division v. Smith, the peyote case that repudiated the idea of constitutionally mandatory religious accommodation. In Reynolds, the Court remarked that it would be unacceptable to exempt religious conduct from a law burdening such conduct because to do so would make the religious objector “a law unto himself.”82 The comment may be understandable in a context in which the Court had rarely declared federal laws unconstitutional and was unfamiliar with the idea of “balancing” or “weighing” interests to declare partial exemptions from enacted laws.83 By 1990, however, over a century later, when Smith was decided, that idea had become commonplace. Nonetheless, in rejecting the idea of mandatory religious accommodation, the Court excavated the language from Reynolds and declared that mandatory accommodation would effectively and unacceptably make every man “a law unto himself.”84 Indeed, the majority opinion repeated the claim three times.85
On its face, this claim—namely, that religious accommodation renders the accommodated religious believer “a law unto himself”—seems patently and indeed doubly spurious. From the believer’s standpoint, the Court’s claim gets the situation exactly backward. After all, the believer is asserting precisely that he is not a law unto himself, but rather is bound by a higher law or obligation—something like the law of God—that is independent both of government and of his own preferences. If instead we look at the matter from the Court’s perspective, or the government’s, the claim again seems mistaken. If the Court were to recognize and grant the exemption, in other words, the believer would be excused not because he is a “law unto himself” but, on the contrary, because the Court itself chose to craft or interpret the community’s own law—in these cases, the free exercise clause of the First Amendment—to authorize the exemption.
From either the believer’s or the government’s perspective, in short, a “law unto himself” is precisely what the conscientious objector is not. He is, rather, subject at least to the law of the land (which the Court retains the authority to construe and apply) and, in his own eyes, to the law of God as well.
More generally, both legislatures and courts routinely create exceptions or exemptions to laws, without any apparent concern about rendering people who come within the exceptions “laws unto themselves.” A legislature creates an exception to a minimum wage law, or to an antidiscrimination law, for small employers with fewer than some specified number of employees.86 Or the legislature enacts a homicide statute but creates an exception for self-defense.87 Or the Supreme Court interprets the Constitution to forbid particular kinds of official conduct—unwarranted detentions, perhaps, or entrapments by police that induce suspects to commit crimes—but also creates an exception of “qualified immunity” shielding from liability some officials who violate the constitutional standards.88 Critics are unlikely to attack these exceptions on the ground that they make people covered by the exceptions “laws unto themselves.” And if that criticism were raised, the answer would be obvious: “No, the characterization is simply and flatly wrong. The exceptions themselves are as much ‘law’ as the general rules are, and people within the exceptions are as much subject to the law as people not within the exceptions.”89
The same response should
be available, it would seem, if the law, adopted by “we the people” or by Congress and interpreted by the courts, authorizes an exemption for religious believers whose religion is burdened by a particular legal requirement or prohibition.90 Religious objectors would be exempted under that law. No one would be “a law unto himself.”
Why, then, would both the Reynolds Court and the Smith Court express a profound concern about making a religious believer a “law unto himself”? Looking more closely at the question, though, we may discern a (somewhat strained and scholastic) sense in which the Courts’ characterization can seem almost correct.
After all, the religious objector is asserting that he is subject to a higher law not made by the government. And he is asking the court to recognize and defer to that higher law—not in general, to be sure, and not for the government itself (the religious pacifist, for example, is not saying that the government is legally forbidden to wage war), but at least to the extent of excusing his own compliance with the government’s law in deference to that higher law. Perhaps most importantly, the objector is asking the court and the government to defer to the higher law as interpreted and understood by him (the objector).
In a very loose sense, acceptance of this sort of claim might be described as rendering the dissenting religious believer a “law unto himself.” But whether or not that description is apt, the important point is that this kind of claim for an exemption is significantly different from other sorts of requests for exemptions. When a legislature chooses to create an exception for small businesses, or for people who kill in self-defense, the legislature is acting on the basis of this-worldly interests or values that it (the legislature) can assess, and it is creating an exception whose scope and content it fully defines. The legislature is not deferring to some higher authority or transcendent jurisdiction; much less is it deferring with the understanding that individual objectors, rather than the government, will get to determine what that higher authority or transcendent jurisdiction demands.
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