Exemptions and accommodations

[Douglas Laycock]

Eugene's distinction between the restaurant letting the Jewish member of the
party bring in his own kosher meal, and the restaurant changing its own
kitchen to provide a kosher meal for him, illustrates the difference between
a simple exemption from a rule and a the institution taking affirmative
steps to accommodate someone else's religious needs.  

 

This distinction is why I think it is  a mistake to talk about exemptions as
accommodations.  One who seeks only an exemption is merely asking to be left
alone, unregulated in some way. There may be reasons not to leave him alone,
if he is harming those around him. But to be left alone is all he is asking
for. One who seeks affirmative conduct by others to enable or facilitate his
religious observance is asking for something more, and accommodation would
be a good word to describe those cases, if we had not already used the word
to describe simple exemptions.  Accommodation has also been used widely and
variously to describe all sorts of other things that religious folks
sometimes want, up to and including school-sponsored prayer, and the range
of uses has deprived the word of any very precise meaning. 

 

The Court has repeatedly used "accommodation" to describe exemption cases,
and much of the scholarly literature uses it, so I suppose we are stuck with
it. But it has always seemed to me to be a mistake.

 

Part of what makes the calendar cases hard is that they so often require
active accommodation and not merely exemption. When the event must be
rescheduled for everyone, that is more complicated, and more costly, than
when the religious individual merely seeks to have his absence excused. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

     434-243-8546

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, March 05, 2012 2:55 PM
To: Law & Religion issues for Law Academics
Subject: RE: "Religious liberty" in demands that others change their
behavior to follow one's religious beliefs

 

            It may well be that intentionally discriminatory actions by
private athletic organizations are better labeled as threats to "religious
equality" and not "religious liberty"; on the other hand, sometimes liberty
rules themselves embody equality norms (see, e.g., the shape of free speech
doctrine, which treats content-based restrictions as more violative of
liberty than content-neutral ones).  In either case, such intentionally
discriminatory actions rightly arouse condemnation (at least when they
involve exclusion of some religious groups from mostly secular events or
programs).

 

            In any event, when this factor of intentional discrimination is
absent, and so is any governmental restrictions on what people can do or
even private action that dramatically interferes with people's lives and
livelihood, I don't think that "religious liberty" is the right label for an
organization's not wanting to change its behavior to make life easier for
other religious groups.  Suppose the only restaurants in a town where very
few Jews live don't serve kosher meat.  (I expect that this is a very
reasonably supposition.)  Is this really properly label an interference -
even if a justified interference, given the burden on restaurants to change
their practices - with religious liberty?  I don't think so.  

 

Perhaps a restaurant's enforcing its no-outside-food rule in a situation
where a Jewish member of a mostly non-Jewish party wants to bring in kosher
food, paper plates, and plastic utensils so that he can eat with his
friends, who'll be ordering plenty of the restaurant's food, might qualify
as a limit on liberty:  The Jewish member is simply asking to do what he is
doing, not asking the restaurant to change its cooking plans.  I don't think
there should be laws mandating restaurants to carve out exceptions from
their generally applicable rules here, but I do think one can discuss this
as a question of "liberty."  But when it comes to the patron's demanding
that the restaurant actually change its ingredients, or its food preparation
practices, I think that is much more than a demand that the restaurant
respect the patron's liberty - rather, it's the patron's attempt to restrict
the restaurant's liberty in the name of his religion.

 

I think the same is true of Alan's soccer league example.  The league isn't
violating anyone's liberty through its rules.  It might not be accommodating
Jewish players, and we can debate whether it should accommodate them further
(though, as Doug points out, such an accommodation might impose excessive
burdens on other players).  But I don't think a refusal to change its plans,
not motivated by hostility to Jews, is rightly treated as interfering with
Jewish players' liberty (though a creation of a schedule that deliberately
burdens Jews might reasonably be treated as a morally wrongful, and perhaps
legally wrongful, violation of religious equality).

 

Eugene

 

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