Bargaining for Religious Accommodations

Abstract

In the blowback over Hobby Lobby, nothing has figured more prominently than the implications for same-sex marriage and the rights of lesbian, gay, bisexual and transgendered (“LGBT”) individuals. Critics now challenge all concessions to religious believers — whether generalized religious freedom protections, like the Religious Freedom Restoration Act, or specific exemptions to particular statutes — as “licenses to discriminate.” Both, critics charge, hamper social change, create unfair surprise, and tread on the interests of third parties. This chapter contends that general accommodations and specific exemptions are quite different in their burdens and impacts. A generalized protection, by its nature, relieves successful litigants from otherwise applicable duties under a challenged statute, opening it up to the criticism that the public is caught unaware and that religious believers alone are permitted to impose costs on others. Specific exemptions, which reach a limited universe of situations, often are written as specific rules, making them more predictable. Specific exemptions usually describe in straightforward terms specific acts that fall outside the law’s intended scope, ex ante —. Much as small employer exemptions do not place small employers “above the law,” specific exemptions clarify the government’s intent not to impose a legal duty on everyone. They create little risk of unfair surprise and can be tailored to avoid hardships to third parties. More fundamentally, specific exemptions can smooth the way for the realization of new civil rights. Indeed, modest religious liberty protections in voluntary same-sex marriage laws played a pivotal role in securing same-sex marriage in much of the country prior to Obergefell v. Hodges, bringing same-sex marriage to couples years before it would have been democratically adopted. This chapter then explores whether well-crafted specific exemptions for those who adhere to a traditional, heterosexual view of marriage are feasible after the U.S. Supreme Court recognized a constitutional right to same-sex marriage in Obergefell. While gay rights advocates no longer have an incentive to bargain around marriage equality, specific exemptions can be married to the general endeavor of securing sorely needed protections against discrimination for LGBT individuals in housing, hiring and public accommodations. Using the recent Utah Compromise as a case example, the chapter argues that religious liberty protections facilitate great social change rather than impede it.