Religion-only accommodation question
mnewsom at law.howard.edu
Fri Apr 1 11:49:51 PST 2005
Actually, the situation is worse than you suppose. Some might argue
that religious speech is entitled to a higher level of protection,
because it is "speech," than is religious "action" such as the use of
communion wine. (The "belief-action" distinction, which found
expression in Reynolds, and which is different from a "speech-action"
distinction, does not help matters either. The difference, of course,
is clearly seen in situations where the state requires the citizen to
take an oath on or subscribe to a particular position on matters of
If religion has a unique constitutional status, which it does, if we are
to give the Religion Clauses any sensible meaning, then it is
problematic, to say the least, to suppose that one can analyze FE
exemptions by strained analogy to speech, or to some other
constitutionally protected value or interest (1st A or otherwise). It
is but a short step to the indefensible claim that religion is really
nothing more than speech (or even belief).
I am not sure why some commentators cannot accept the fact that religion
is unique, that it has cultic and ethical dimensions, among others, and
that there is textual warrant for this claim of uniqueness. Having said
that, there is little doubt that some believe that the imperatives of
the modern welfare-administrative state, a polity deeply committed to a
broad and expansive understanding and exercise of the police power,
require that the claims of religion need to be reined in, restrained,
made to accommodate the needs of the modern state.
What is distressing is that open and candid discussion and analysis of
these claims seldom happens, certainly at the Court. (Although
Blackmun, J. gave it a good try in his dissenting opinion in Smith.)
Any standard less exacting than strict scrutiny necessarily implies that
religion just needs to adapt itself to the uses of the police power, if
religion (or a particular religion) cannot persuade the legislature to
protect the free exercise of that religion.
It is at this point that one can see that the "speech" analogy is
devastating. It shrinks or brackets the claims of religion and its free
exercise, by defining religion in such a way as to force it into one
particular mode, or at least to protect it only in one mode (i.e. "word
religion"). And then, once religion is essentially reduced to mere
speech, then, religion is no different from debating societies and
organizations devoted to rhetoric of any kind or sort, and religion
comes to stand or fall on it words, and its words alone.
I agree that the division into two categories is not feasible. But I
don't think that non-speech based accommodations are as well rprotected
as your email supposes.
From: Derek Gaubatz [mailto:dgaubatz at becketfund.org]
Sent: Friday, April 01, 2005 11:42 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religion-only accommodation question
The problem I see is that it seems to me that many (if not all)
religious accommodations can be characterized as involving some
expressive component that will have a secular expressive counterpart.
Thus I question the feasibility of an approach that seems to divide
religious accommodations into two categories--those that implicate
religious speech (impermissible unless nonreligious folks get the
accommodation also) and those that don't (presumably permissible).
Derek L. Gaubatz
Director of Litigation
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW, Suite 605
Washington DC 20036
202 349-7208 (phone)
202 955-0090 (fax)
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