Accommodation and Equal Liberty
Bressman, Lisa Schultz
How should legislatures respond to requests from religious individuals or institutions for exemptions to generally applicable laws? In Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause does not require legislatures (federal or state) to honor such requests. The question remains whether they should do so on a voluntary basis. This is the problem of permissive accommodation-that is, accommodation of religious liberty as a matter of political discretion rather than constitutional compulsion. Put in the terms of this Symposium, it is the problem of accommodation in the public square. It is not immediately apparent why permissive accommodation presents any problem at all. Because permissive accommodation is not mandatory, it does not raise the knotty issue of determining when legislatures must grant exemptions requests. Legislatures always may deny requests for permissive accommodation, but when they do grant such requests, they further a fundamental constitutional commitment to religious liberty by minimizing governmental interference with religious exercise. Why not simply encourage legislatures to grant requests for permissive accommodation to the greatest extent possible? The problem occurs when legislatures protect religious liberty in a manner that compromises another fundamental constitutional commitment-equality. If left to their own devices, legislatures might well grant exemptions for religious claimants while denying comparable treatment to nonreligious claimants. They might even grant an exemption to one religious sect while denying comparable treatment to other sects. In either case, the legislatures implicate themselves in the unconstitutional establishment of religion.