Accommodation of Religion

The free exercise clause of the First Amendment is often interpreted as requiring the government to accommodate religion by refraining from applying to religious practitioners general laws that interfere with the edicts of particular religious faiths. This accommodation mandate has two aspects: the accommodation of religious belief and the accommodation of behavior motivated by religious belief. In Reynolds v. United States (1878), the Supreme Court’s first comprehensive consideration of religious accommodation, the Court recognized that ‘‘while [laws] cannot interfere with mere religious belief and opinion, they may with practices.’’ Even though the Court has always recognized that the law can interfere with religiously motivated conduct, it has grappled repeatedly with the degree to which the First Amendment will permit legal interference with that conduct.

The mandatory accommodation required under the free exercise clause in some contexts is augmented by several federal and state statutes requiring accommodation of religious practitioners in other contexts. These statutes raise the issue of whether the Constitution permits government to accommodate religion in situations in which the free exercise clause does not mandate accommodation. Statutory accommodations potentially run afoul of two constitutional limits. First, to the extent that federal and state accommodation statutes provide favorable treatment to individuals based solely on religious belief, the provisions may violate the Establishment Clause. Second, federal statutes that require states to accommodate religion more comprehensively than the free exercise clause requires are vulnerable to the claim that Congress has exceeded its authority to remedy violations of the Fourteenth Amendment.

The History of Accommodation

For many years, courts were reluctant to require governments to accommodate religious practitioners by granting them exemptions from generally applicable laws. In Reynolds v. United States, 98 U.S. 145 (1878), for example, the Supreme Court refused to grant traditional Mormon practitioners an exemption from a federal statute criminalizing the practice of polygamy. Permitting individuals to avoid criminal punishment because their behavior was motivated by religious devotion, the Court held, ‘‘would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.’’

This skeptical attitude characterized the Supreme Court’s general approach to the issue of constitutionally mandated accommodations of religion until the early 1960s, when the Court became much more amenable to accommodation claims by religious practitioners. In 1963, the Supreme Court effectively required governments to accommodate religious practitioners in many cases in which legal obligations and religious obligations conflicted. In Sherbert v. Verner, 374 U.S. 398 (1963), the Court held that the state of South Carolina was required to provide unemployment benefits to a Seventh-Day Adventist woman who had been fired from her job because she had refused to work on Saturday, which was her Sabbath.

The state had refused to provide her benefits because the state unemployment statute denied benefits to anyone who refused ‘‘suitable work.’’ The Court held that applying this provision to Sherbert forced her to ‘‘choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.’’ The Court held that this choice significantly burdened her free exercise of religion and could therefore only be justified by a compelling interest. Since the state had no compelling interest in refusing unemployment benefits to Sherbert while granting such benefits to others, it was required to accommodate her religious practices by providing her benefits.

The compelling interest analysis inaugurated in Sherbert prevailed on the Court until 1990. During this period the Court employed this analysis to require accommodations for Amish parents who sought to remove their children from school prior to the age designated in state mandatory attendance laws (Wisconsin v. Yoder, 406 U.S. 205, 1972), Jehovah’s Witness foundry employees who refused to work on armaments production (Thomas v. Review Board of Indiana, 450 U.S. 707, 1971), and Native American parents whose religious beliefs prohibited them from obtaining social security numbers for their children (Bowen v. Roy, 476 U.S. 693, 1986).

On the other hand, the Court also refused to protect religious practitioners in a number of cases. The Court held, for example, that despite the constitutional accommodation mandate, the government could collect social security payments from Amish employers (United States v. Lee, 455 U.S. 252, 1982), force Jewish members of the military to refrain from wearing yarmulkes on duty (Goldman v. Weinberger, 475 U.S. 503, 1986), deny tax-exempt status to a religious university whose religious precepts prohibited interracial dating (Bob Jones University v. United States, 461 US 574, 1983), and tax the sale of religious literature (Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378, 1990). In short, although the Court required the government to assert a compelling interest to override the constitutional mandate of accommodation, it found that many government interests were sufficient to satisfy this standard.

Theories of Accommodation

Although the courts have focused mostly on the practical application of the accommodation mandate, judges and legal academics have also debated the theory behind religious accommodation. Proponents of accommodation argue that accommodation provides essential protection for religious minorities in a society defined by religious pluralism. Proponents of accommodation argue that the free exercise clause of the First Amendment is designed primarily to protect this culture of religious pluralism. They also argue that the theory of accommodation and religious pluralism should inform the courts’ interpretation of the Establishment Clause. Under this approach, the need to accommodate religious practices would lead to a view of the Establishment Clause as fostering a spirit of what Chief Justice Warren Burger once labeled ‘‘benevolent neutrality.’’ Granting property tax exemptions to religious organizations and permitting religious organizations to participate in governmentfunded social services programs are two examples of benevolent neutrality.

Proponents of accommodation also argue that accommodation is necessary to preserve the authority of religious institutions, which are (in the words of Professor Michael McConnell) ‘‘mediating structures’’ that provide citizens with the civic virtue necessary for successful democratic governance. Finally, proponents argue that accommodation is an overt recognition of the possibility that a supreme celestial authority exists. If God exists, they argue, then His sacred dictates must be deemed superior to those of any secular authority.

Opposition to mandatory accommodation revolves around the perceived discrimination built into the accommodation theory, which opponents believe is contrary to the underlying principles of the Establishment Clause. A central theme of Establishment Clause doctrine is that the government must be neutral toward particular religious faiths and religion in general. Mandatory accommodation rules, however, inevitably provide different levels of benefits to members of different faiths. Nonreligious individuals are automatically excluded from any accommodation regime. Members of religious groups that do not demand absolute conformity with strict behavioral decrees also will not benefit from accommodation mandates. In areas such as employment, moreover, the accommodation of religious practitioners will often have the effect of shifting burdens from one set of employees to another solely because of the employees’ faith.

Under this view the internal contradictions of the oxymoron ‘‘benevolent neutrality’’ are evident: A system cannot be simultaneously ‘‘benevolent’’ and ‘‘neutral.’’ If some citizens are given special dispensation to avoid complying with a general legal obligation based solely on their religious faith, then the system makes compliance with the law depend on one’s religious faith. Such a system is not ‘‘neutral,’’ as required by the Establishment Clause.

The Modern Standard

The Supreme Court has not formally adopted either position on the theory of accommodation, but in recent years the Court has significantly weakened the requirement that the government accommodate practices of religious adherents that violate otherwise applicable laws. In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court held that the First Amendment does not bar the government from applying a neutral, generally applicable law to individuals whose actions are motivated by religious faith. The Court therefore abandoned the requirement that the government must establish a compelling interest to apply general statutes to religious practitioners. The case involved the state of Oregon’s refusal to grant unemployment compensation to two drug counselors who were fired from their jobs because they had used peyote in a religious ceremony conducted by the Native American Church. The Court held that the Oregon Criminal Law outlawing the use of peyote was not directed at members of the church. Violations of this law therefore justified denying unemployment benefits to anyone (including religious practitioners) using the prohibited substance.

After Smith, the Constitution requires governments to accommodate religion in only three relatively narrow circumstances: The government must (1) accommodate religion in statutes that provide benefits based on highly individualized governmental assessments of the reasons for the relevant conduct; (2) accommodate religion when the religious conduct is combined with some other constitutional right, such as free speech; and (3) still demonstrate a compelling interest before applying a statute that singles out religiously motivated practices for unfavorable treatment.

Although the Court has reduced the protection of religion through constitutionally mandated accommodation, the accommodation principle has been incorporated into several statutes protecting religious practitioners. The broadest of these statutes—the federal Religious Freedom Restoration Act—was held unconstitutional by the Supreme Court because it went beyond Congress’s authority under section five of the Fourteenth Amendment. Congress subsequently enacted a narrower federal statute requiring the government to accommodate religious practitioners in the land use and prison contexts. Many states also have enacted statutes requiring the accommodation of religious practitioners, usually by reimposing the requirement that the government must prove a compelling interest before applying general legal regulations to individual actions motivated by religion. The Supreme Court has not yet ruled on the constitutionality of these statutes.

STEVEN G. GEY

References and Further Reading

• Eisgruber, Christopher L., and Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, University of Chicago Law Review 61 (1994): 1245
• Laycock, Douglas, The Remnants of Free Exercise, Supreme Court Review 1 (1990)
• Lupu, Ira C., Reconstructing the Establishment Clause: The Case Against the Discretionary Accommodation of Religion, University of Pennsylvania Law Review 140 (1991): 555
• Marshall, William P., The Case Against the Constitutionally Compelled Free Exercise Exemption, Case Western Reserve Law Review 40 (1989–1990): 357
• McConnell, Michael W., Accommodation of Religion, Supreme Court Review 1 (1985)
• ———, The Origins and Historical Understanding of Free Exercise of Religion, Harvard Law Review 103 (1990): 1410

Cases and Statutes Cited

• Bob Jones University v. U.S., 461 US 574 (1983) 
• Bowen v. Roy, 476 U.S. 693 (1986) 
• Employment Division v. Smith, 494 U.S. 872 (1990) 
• Goldman v. Weinberger, 475 U.S. 503 (1986) 
• Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990) 
• Reynolds v. United States, 98 U.S. 145 (1878) 
• Sherbert v. Verner, 374 U.S. 398 (1963) 
• Thomas v. Review Board of Indiana, 450 U.S. 707 (1981) 
• United States v. Lee, 455 U.S. 252 (1982) 
• Wisconsin v. Yoder, 406 U.S. 205 (1972) 

See also Amish and Religious Liberty; Antipolygamy Laws; Belief–Action Distinction in Free Exercise Clause History; Conscientious Objection, the Free Exercise Clause; Exemptions for Religion Contained in Regulatory Statutes; Jehovah’s Witnesses and Religious Liberty; Mormons and Religious Liberty; Release Time from Public Schools (For Religious Purposes); Religious Freedom Restoration Act; Seventh Day Adventists and Religious Liberty