Flaws of Thornton

[Eugene Volokh]

Marty Lederman writes:

> Just curious -- what are the "flaws of Thornton" to which Eugene
> was referring?  Merely Burger's (undue?) emphasis on Connecticut's
> singling out of Sabbatarians for accommodation?  If so, I agree
> that that "favoring" of one religious practice over other religious
> practices for "accommodation" does not appear sufficient to
> invalidate the statute.

    That was the only point I was trying to make in my most recent
post:  That to the extent Thornton stands for the proposition that
such accommodation of individual practices is unconstitutional, I
believe it to be wrong.

> But what about the more prominent emphasis in Thornton on the fact
> that *private* employers were required to favor religiously
> motivated days off to nonreligiously motivated days off, in a
> manner that significantly burdened nonreligious employees? Isn't
> that enough for an Establishment Clause violation?

    Well, since we've gotten onto the broader question of the
correctness of Thornton, I just don't see why this would violates the
Estab Cl.  Many accommodations of religious people may sometimes
significantly burden nonreligious people (or, more specifically,
people who don't engage in the religious practices that are being
accommodated).  Consider the clergy-penitent privilege, which
significantly burdens nonreligious litigants.  Or consider religious
discrimination law itself, which may sometimes significantly burden
employers, for instance if the employers end up losing money because
their customers or coworkers dislike employees of the religion at
issue.  Or imagine that the government exempts sacramental uses of
wine, even in the face of evidence that this exemption does end up
costing lives to drunk driving accidents (both because of excess
during properly conducted sacraments, and because of evasion of the
law facilitated by the existence of the exemption) -- certainly a
significant burden on nonreligious motorists.

    Nor do I see any powerful theoretical reason why such schemes
should be seen as violating the Estab Cl.  Sure, I can see an
argument why they should -- "any accommodation of religious practices
that imposes a substantial burden on others `establishes' the
relevant religion."  But I could see an equally reasonable argument
why they shouldn't -- "an accommodation of religious practices has as
its primary purpose and effect the expansion of religious freedom,
not the advancement and therefore the `establishment' of religion."

    Of course, if I saw some persuasive theoretical argument for the
former position, and saw some plausible proposed test that would tell
us when an accommodation is unconstitutional and when it's not, that
would be a different story; but Thornton itself didn't seem to do a
very good job on this score.

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                                              Eugene Volokh
                                              UCLA Law School
                                              (310) 206-3926
                                              fax (310) 206-7010