Law Commons^™

The Case For The Current Free Exercise Regime, Nathan Chapman

Scholarly Works

How the Supreme Court ought to implement the Free Exercise
Clause has been one of the most controversial issues in U.S. rights discourse
of the past fifty years. In Fulton v. City of Philadelphia, a majority of the
justices expressed dissatisfaction with the standard articulated in
Employment Division v. Smith, but they could not agree on what ought to
replace it. This Essay argues that focusing on whether to overrule Smith is a
distraction from the sensitive task of implementing the Free Exercise Clause.
This is not because Smith was “right,” but because (1) the history and
tradition are both …

Where's The Beef?, Stanley Fish

Stanley Fish

A key concern of the papers written for this conference is the relationship between religious beliefs and secular beliefs of the kind that carry with them deep ethical obligations. Are these systems of belief essentially the same or are they different in important respects? The question is typically posed abstractly, and I thought it might be useful to have before us an example of religious belief and the demands that attend it. The example is taken from the beginning of John Bunyan’s The Pilgrim’s Progress. Christian, Bunyan’s protagonist, has suddenly become aware that his salvation is imperiled, and he is …

Thinking Slow About Abercrombie & Fitch: Straightening Out The Judicial Confusion In The Lower Courts, Bruce N. Cameron, Blaine L. Hutchison

Pepperdine Law Review

In Abercrombie & Fitch, the U.S. Supreme Court fundamentally changed the way that Title VII religious accommodation cases are litigated and evaluated. This paper analyzes Abercrombie, explains how the Court eliminated religious accommodation as a freestanding cause of action, and suggests an altered proof framework for plaintiffs seeking an accommodation. The paper also explores the conflict between employee privacy rights and classic proof requirements for religious sincerity. The lower courts have largely failed to apprehend the change mandated by Abercrombie, with the result that their opinions are in disarray. The paper includes a chart organizing the diverse lower court opinions.

Adjudicating Religious Sincerity, Nathan Chapman

Scholarly Works

Recent disputes about the “contraception mandate” under the Affordable Care Act and about the provision of goods and services for same-sex weddings have drawn attention to the law of religious accommodations. So far, however, one of the requirements of a religious accommodation claim has escaped sustained scholarly attention: a claimant must be sincere. Historically, scholars have contested this requirement on the ground that adjudicating religious sincerity requires government officials to delve too deeply into religious questions, something the Establishment Clause forbids. Until recently, however, the doctrine was fairly clear: though the government may not evaluate the objective accuracy or plausibility …

Why Some Religious Accommodations For Mandatory Vaccinations Violate The Establishment Clause, Hillel Y. Levin

Scholarly Works

All states require parents to inoculate their children against deadly diseases prior to enrolling them in public schools, but the vast majority of states also allow parents to opt out on religious grounds. This religious accommodation imposes potentially grave costs on the children of non-vaccinating parents and on those who cannot be immunized. The Establishment Clause prohibits religious accommodations that impose such costs on third parties in some cases, but not in all. This presents a difficult line-drawing problem. The Supreme Court has offered little guidance, and scholars are divided.

This Article addresses the problem of religious accommodations that impose …

Brief For Amici Curiae Church-State Scholars In Support Of Respondents In Zubik V. Burwell, Elizabeth Boylan

Center for Gender & Sexuality Law

The Law, Rights, and Religion Project assisted the Counsel for Church-State Scholars in the preparation of an amicus brief submitted in the Supreme Court of the United States case of David A. Zubik, et al., v. Sylvia Burwell, et al.

Free Exercise By Moonlight, Marc O. Degirolami

Faculty Publications

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.

2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.

3. Hosanna-Tabor has shown itself to be feeble. It has …

To Accommodate Or Not To Accommodate: (When) Should The State Regulate Religion To Protect The Rights Of Children And Third Parties?, Hillel Y. Levin, Allan J. Jacobs, Kavita Arora

Scholarly Works

When should we accommodate religious practices? When should we demand that religious groups instead conform to social and legal norms? Who should make these decisions, and how? These questions lie at the very heart of our contemporary debates in the field of Law and Religion.

Particularly thorny issues arise where religious practices may impose health-related harm to children within a religious group or to third parties. Unfortunately, legislators, scholars, courts, ethicists, and medical practitioners have not offered a consistent way to analyze such cases and the law is inconsistent. This Article suggests that the lack of consistency is a troubling …

Religious Accommodations And – And Among – Civil Rights: Separation, Toleration, And Accommodation, Richard W. Garnett

Richard W Garnett

This paper expands on a presentation at a recent conference, held at Harvard Law School, on the topic of “Religious Accommodations in the Age of Civil Rights.” In it, I emphasize that the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in …

Muslims And Religious Liberty In The Era Of 9/11: Empirical Evidence From The Federal Courts, Gregory C. Sisk, Michael Heise

Michael Heise

In our continuing empirical study of religious-liberty decisions in the federal courts, American Muslims were at a distinct and substantial disadvantage in raising free exercise or accommodation claims between 1996 and 2005. With other variables held constant, the likelihood of success for non-Muslim claimants in Religious Free Exercise claims was 38%, while the probability of success for Muslim claimants fell to 22% (with an even higher disparity among court of appeals judges). In sum, Muslim claimants enjoyed only about half the chance to receive accommodation of their religious beliefs and practices as did claimants from other religious communities.

Drawing on …

Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk

Michael Heise

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key …

Religious Accommodations And – And Among – Civil Rights: Separation, Toleration, And Accommodation, Richard W. Garnett

Journal Articles

This paper expands on a presentation at a recent conference, held at Harvard Law School, on the topic of “Religious Accommodations in the Age of Civil Rights.” In it, I emphasize that the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in …

The Establishment Clause, State Action, And Town Of Greece, Nathan Chapman

Scholarly Works

The Establishment Clause forbids the government from engaging in the same religious exercise that the law protects when performed by a private party. Thus, an establishment case often turns on whether religious activity is "state action." Too often, however, courts ignore the state action analysis or merge it with the substantive Establishment Clause analysis. This muddles both doctrines and threatens individual religious liberty.

This Article argues that the state action doctrine should account for the government's distribution of private rights. Accordingly, the Constitution applies to the government's distribution of rights, but not to a private party's use of those rights. …

Where's The Beef?, Stanley Fish

San Diego Law Review

A key concern of the papers written for this conference is the relationship between religious beliefs and secular beliefs of the kind that carry with them deep ethical obligations. Are these systems of belief essentially the same or are they different in important respects? The question is typically posed abstractly, and I thought it might be useful to have before us an example of religious belief and the demands that attend it. The example is taken from the beginning of John Bunyan’s The Pilgrim’s Progress. Christian, Bunyan’s protagonist, has suddenly become aware that his salvation is imperiled, and he is …

Religion And Insularity: Brian Leiter On Accommodating Religion, Christopher J. Eberle

San Diego Law Review

Crucial to Leiter’s overall case is the claim that there is no credible reason to accommodate religious objectors but not secular objectors: “[N]o one has been able to articulate a credible principled argument . . . that would explain why . . . we ought to accord special legal and moral treatment to religious practices.” He reaches this skeptical conclusion, in significant part, because he takes religion to be afflicted with a troubling defect, that is, religion involves commitment to categorical demands that are insulated from scientific and commonsensical scrutiny. But, I will argue, there is no good reason to …

“Religion” As A Bundle Of Legal Proxies: Reply To Micah Schwartzman, Andrew Koppelman

San Diego Law Review

The debate among legal scholars about whether religion is special is chronically confused by the scholars’ failure to grasp a point familiar in the academic study of religion: “religion” is a label for something that has no ontological reality. Religion has no essence. If it has a determinate meaning, it is simply because there is a settled and familiar practice of applying the label of religion in predictable ways. The question of religious accommodation arises in cases where a law can allow some exceptions. Many laws, such as military conscription, taxes, environmental regulations, and antidiscrimination laws, will accomplish their ends …

Religion As A Legal Proxy, Micah Schwartzman

San Diego Law Review

In what follows, after briefly summarizing Koppelman’s position, I argue that his view is vulnerable to the charge that using religion as a legal proxy is unfair to those with comparable, but otherwise secular, ethical and moral convictions. Koppelman has, of course, anticipated this objection, but his responses are either ambivalent or insufficient to overcome it. The case for adopting religion as a proxy turns partly on arguments against other potential candidates. In particular, Koppelman rejects the freedom of conscience as a possible substitute. But even if he is right that its coverage is not fully extensive with the category …

Religion, Meaning, Truth, Life, Frederick Mark Gedicks

San Diego Law Review

I am a believer, yet I will also say that it is simply not correct that only religion can offer deep meaning to life, and I can say this out of my own experience. Ordinary activities can be crucial to the meaning of one’s life, whether or not they are experienced or defined as “religious.” Though not all such activities are as morally serious as religious belief and practice, some are, and they are surely not “nihilistic” or “nothing” because they lack the character of transcendent religious truth.

Galston On Religion, Conscience, And The Case For Accommodation, Larry Alexander

San Diego Law Review

So these are some reasons why political theory might dictate that religious dissenters be accommodated even though, by enacting the laws to which the dissenters object, government indicates that it believes the dissenters err. If political theory justifies religious accommodations, however, then when government acts on the basis of political theory, is it establishing a religion? Bill argues, in support of Seeger, that claims of conscience derived from moral theory can qualify for accommodations under the Free Exercise Clause. But the two religion clauses in the Constitution use the noun “religion” only once. So if claims of conscience derived from …

How Much Autonomy Do You Want?, Maimon Schwarzschild

San Diego Law Review

At root, the questions of special accommodation and religious adjudicatory independence arise most urgently when a government grows in its reach and ambition. After all, if most areas of life, including those that touch on religious life, are left to people’s private arrangement, then not much special accommodation will be necessary. But when government takes control over more and more areas of life, regulating who shall do what and under what rules and conditions, then clashes with one or another religious way of life are almost inevitable. The dispute over government mandates to provide abortive drugs and contraception, in the …

Religion, Conscience, And The Case For Accommodation, William A. Galston

San Diego Law Review

I do not believe that religion is an obsolete constitutional category. But I do believe that the holdings in United States v. Seeger and Welsh v. United States, the Vietnam-era draft cases that extended conscientious objector status to individuals invoking nonreligious claims, were correct. Can I consistently embrace both propositions? I think I can. My argument, in brief, is that religion is indeed special. But when we understand what it is about religion that warrants both distinctive privileges and distinctive burdens, we will see that some other systems of belief track these features of religion closely enough to warrant comparable …

Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key …

Muslims And Religious Liberty In The Era Of 9/11: Empirical Evidence From The Federal Courts, Gregory C. Sisk, Michael Heise

Cornell Law Faculty Publications

In our continuing empirical study of religious-liberty decisions in the federal courts, American Muslims were at a distinct and substantial disadvantage in raising free exercise or accommodation claims between 1996 and 2005. With other variables held constant, the likelihood of success for non-Muslim claimants in Religious Free Exercise claims was 38%, while the probability of success for Muslim claimants fell to 22% (with an even higher disparity among court of appeals judges). In sum, Muslim claimants enjoyed only about half the chance to receive accommodation of their religious beliefs and practices as did claimants from other religious communities.

Drawing on …