Decentralizing Religious and Secular Accommodations
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Description
It is common for laws to accommodate religious practices by exempting them from otherwise generally applicable rules. Although the term accommodation is not conventionally used to refer to protections for secular belief, the law sometimes also “accommodates” secular principles by excluding religious activities (say, studying theology) from otherwise generally available benefits provided by the state (for instance, state-funded college scholarships). The first sort of accommodation is associated with the Free Exercise Clause of the US Constitution, while the second is associated with the First Amendment’s Establishment Clause. Both, however, are just as frequently the result of either express statutory language or constitutionally inflected statutory construction in which courts strain to construe apparently general laws to contain exemptions. Regardless of the form of the accommodation, such exemptions present the dilemma of defining what it means to coerce the faithful or nonreligious, because both the existence and the absence of the accommodation might be taken to be coercive. If the state enforces its laws without any religious accommodation, the constituents of religious bodies (shareholders, officers, employees, etc.) may be forced to violate their conscience. If the state makes an exception for religiously motivated organizations, then other constituents of such bodies (employees, customers, tenants, etc.) with different views will be stripped of otherwise applicable protections from those organizations’ power. The same dilemma confronts secular accommodations. If the state provides a benefit such as subsidies for religious and secular schools alike, secular taxpayers may complain that they are being coerced into paying for religious education with which they disagree. If the state excludes religious schools alone from such otherwise generally available subsidies, then religious schools may complain about antireligious discrimination. The problem of religious and secular accommodations can be understood as a species of a more general difficulty that I shall call “reasonable and deep disagreement” (or RADD, for the sake of convenience). A RADD arises whenever the enforcement of one person’s reasonable conception of fundamental liberty deprives another person of an equally reasonable and equally fundamental conception of liberty. The depth of RADDs arises from disagreement over baselines of entitlement. When social and legal consensus provides no commonly acknowledged baseline against which the disputing parties can measure their rights, one side of the dispute can plausibly claim that any resolution of the RADDs constitutes an invasion of their fundamental rights. There is no neutral ground between coercing the organization into violating its religious scruples or allowing that organization to coerce its constituents (employees, customers, contractors, etc.) into obeying the organization’s religious commitments. There is likewise no neutral ground between forcing a taxpayer to help pay for subsidies to religious organizations’ activities and discriminatorily singling out those religious organizations by depriving them of subsidies that secular organizations receive. Losers in political fights over such religious or secular accommodations, therefore, are unlikely to acquiesce in political compromise. Because they are reasonable disagreements, RADDs also present no plain, crisp solutions: each side has plausible arguments to back its position, giving it all the more reason to dig in its heels. This chapter suggests that decentralization of a federal regime can help reduce these RADD-induced maladies. Rather than assign the power to resolve RADDs exclusively to the national government, the law ought to allow subnational governments to modify or waive national rules on accommodation. The choices of such subnational bodies will inevitably leave the secular or religious side of a RADD dissatisfied in any particular case. The federal system as a whole, however, extends equal concern and respect to rival and reasonable conceptions of religious liberty by giving each conception a larger area in which it can be acknowledged as authoritative. Such federalism broadens what Jeremy Waldron calls the “right of rights”—that is, the right of citizens to say what their rights mean, where disagreement about the rights’ content is reasonably disputed. The final part of this chapter explores specific mechanisms with which some mix of constitutional law and statutory construction can safeguard subnational governments’ power to define religious and secular accommodations.
Source Publication
Institutionalizing Rights and Religion: Competing Supremacies
Source Editors/Authors
Leora Batnitzky, Hanoch Dagan
Publication Date
2017
Recommended Citation
Hills, Roderick M. Jr., "Decentralizing Religious and Secular Accommodations" (2017). Faculty Chapters. 781.
https://gretchen.law.nyu.edu/fac-chapt/781
