How to Limit Accommodations

Abstract

In recent years, the United States has seen a resurgence of debates over the propriety of various religious accommodations afforded religious individuals and institutions from otherwise valid laws. The crumbling consensus over religious accommodations appears largely due to growing skepticism over whether religious accommodations, once granted, can be limited to the “right” kind of cases without bleeding into the “wrong” kind of cases. Some courts and scholars have responded to these growing worries by proposing limits on the scope of legally recognized accommodationist claims; for example, some have argued that commercial entities should, per se, be denied claims for religious accommodation and others have argued that claims for accommodation should not be granted where the theological burden is deemed by a court to be de minimis or non-existent. By limiting the types of recognized accommodationist claims, such arguments hope to prevent religious objections from trumping other important rights and values; if the claims never get off the ground, so the logic goes, there is no need to worry about their potential consequences. This tactic, however, stands on dangerous footing. At bottom, such arguments put government in the position of giving unequal weight and credence to claims for accommodation based upon religious and theological criteria, thereby creating inequalities among religious claims. As an alternative strategy, courts should avoid threshold doctrinal tests for accommodation claims; instead courts should explicitly balance religious claims against important government interests in order to determine whether or not to grant an accommodation. Such an alternative approach pulls courts out of the business of distinguishing between different types of religious claims, encouraging them instead to impose limits on religious accommodation by directly considering governmental interests, precisely the type of inquiry courts are well-equipped to address.