Flaws of Thornton

LoAndEd LoAndEd at AOL.COM
Fri Jan 16 09:24:58 PST 1998

I start from the general premise, repeatedly invoked by the Court, that the
government violates the Establishment Clause by giving religious adherents a
benefit or "preference" to which nonreligious adherents are not entitled.  (I
recognize that this premise is not accepted by everyone on this list; but it
does reflect established doctrine.)  The Court has carved out what is, in
effect, an "accommodation" exception to this prohibition in cases where the
government is lifting a *government*-imposed burden.  (The Court, and O'Connor
in particular, principally justifies this accommodation doctrine as an
emanation of the Free Exercise Clause, which applies only to state actors.)
In all of the examples Eugene cites, the burden being lifted is one imposed by
the government itself.  In such cases, the only real question is the degree of
burden to third parties; some Justices think that a substantial burden on
third parties invalidates the accommodation (e.g., Harlan in Welsh, Brennan in
Amos); others are willing to tolerate a more severe burden on third parties.
But in Thornton, the burden being lifted was privately imposed.  Hence, as
O'Connor pointed out in concurrence, accommodation doctrine (as the Court has
developed it) is simply inapposite.  The burden on private parties might not
be, in some absolute sense, greater than that imposed in some accommodation
cases, but it is more direct, i.e., they are not "third" parties at all.  The
very directive of the government is to require some private parties to act so
as to facilitate other private parties' religious exercise.  Does Eugene think
there is nothing problematic about that; and if so, is there no limit to which
the government may require some private parties to facilitate others'
religious exercise?

Eugene Volokh writes:

> 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.

Marty Lederman -- DoJ Office of Legal Counsel
(writing in my personal capacity -- nothing herein necessarily reflects the
views of OLC, the Department of Justice, or the U.S. Government)

More information about the Religionlaw mailing list