Gov't Attorneys, Negotiation, Standing on Rights

[Michael McConnell]

The point that Marci Hamilton seems to be missing about
negotiation is that negotiation proceeds in the shadow of
the law. If government agencies (or anyone else for that
matter) have no legal obligation to accommodate, then
usually they will not. If there is a risk of legal action,
there is some leverage to drive them to the bargaining
table. Under the Smith rule, there are many governmental
actions that simply cannot be challenged, and that
therefore will not be negotiated. (Within weeks after
Smith, OSHA revoked several policy statements exempting
Sikhs and Amish from hardhat rules.)

In the religion context, there is another consideration.
It is very commonly believed out in the trenches that it
would be *unconstitutional* to carve out an exception for
the benefit of a religious group. (Example: when the
sanitation inspector in a rural county in Wisconsin
voluntarily refrained from enforcing laws against
old-fashioned privies against the Amish, he was sued by the
owner of a hunting lodge who didn't want to spend the money
on a proper septic system, and who claimed the
discrimination in favor of the Amish violated the
Establishment Clause. The inspector didn't want to
litigate, so away went the exemption. The hunting lodge guy
*could* sue; the Amish could not (under Smith); so free
exercise was the loser.) One of the great virtues of RFRA
is that it made *clear* that accommodations are favored by
the law, not disfavored.

The lamentable decision in Kiryas Joel makes matters worse,
because it implies that case-by-case accommodations (which
are the only kind that can be negotiated by most government
officials) are suspect--there is "no guarantee" that other
groups would receive the same accommodation.

I hope that Marci will devote some portion of her
formidable legal imagination to fighting the obstacles to
negotiated accommodations that derive from overblown
notions of the Establishment Clause.


-- Michael McConnell (U of Utah)