Brett G. Scharffs is Director of the International Center for Law and Religion Studies and Rex E. Lee Chair and Professor of Law for the BYU Law School. Brock Mason is Student Fellow for the International Center for Law and Religion Studies and PhD Candidate at Fordham University.
Our age is one of increasing diversity. We rub shoulders with those who believe differently, act differently, and look differently. Many countries that historically were religiously or ethnically homogenous have changed. People of every religion, or no religion, live together under common laws and political institutions. This diversity is a strength, but it also produces challenges. One challenge is how to deal with those whose religious beliefs may put them somewhat at odds with cultural and legal norms. For example, real challenges arise, such as when a Muslim woman wants to wear a hijab at work despite a dress code forbidding it, or a Seventh-day Adventist seeks to avoid conscription into a combat role despite a universal military draft. Should such religious accommodations be allowed? And if so, why?
In his contribution to the new volume, Freedom of Religion or Belief: Creating the Constitutional Space for Fundamental Freedoms, Brett G. Scharffs helps advance how we think about questions like these by exploring the different ways we can conceive of religious accommodations. In his chapter, he sketches three ways of understanding religious accommodations, each with different legal and cultural implications. How we understand religious accommodations will affect when (and how) such accommodations should be made; articulating these three models gives us a set of lenses through which we can bring into focus other difficult legal questions that will arise when communities must decide how to accommodate those who are different.
As Scharffs notes at the beginning of his chapter, these three ways of looking at religious accommodation are not mutually exclusive. There will be many instances of religious accommodation that will be hybrids, rather than pure examples of one model or the other. But articulating these various perspectives helps sharpen our focus as we seek to understand the nature of religious accommodations.
The first perspective understands religious accommodations as (perhaps unfortunate) exceptions to general rules. From the perspective of the state, the laws provide general, neutral rules that apply to everyone—thus ensuring equality. But when a person seeks an accommodation or exception to those rules, they are seeking special treatment; they desire to be relieved of the demands made on other citizens. From this perspective, an accommodation may be warranted, but the exception comes at the cost of giving up equality. The accommodation is an exception—a concession—that may be justified, but could also be unfortunate. The law might allow for a religious accommodation, but they are “an exception that we make begrudgingly or with some reservation.”[1]
Things look different from the perspective of the person seeking an accommodation. For them, the exception is not a concession by the state, but a natural right of the individual. The state has a duty to protect the right to freely exercise one’s faith, and a religious accommodation ensures that this right is not disregarded. From this perspective, the “general” and “neutral” character of the state’s requirement might be a mirage or even a lie.
For example, in the 1940s when school’s adopted laws targeting Jehovah’s Witnesses who refused to salute the flag, in a disgraceful act of deception, the U.S. Supreme Court upheld these laws in the Gobitis case on the grounds that they were general and neutral laws, disregarding the facts surrounding their enactment. After the decision sparked widespread vigilante and state-tolerated violence against Jehovah’s Witnesses, the Supreme Court did something it rarely does—reversed itself only three years later in the Barnette case.
Given these two competing interests, this perspective of religious accommodation tends toward a cost-benefit analysis. On the one hand, there is the state’s interest in equality, in treating all citizens alike. On the other hand, there is the individual’s interest in freedom of conscience and the free exercise of religion. The court’s job is to weigh these interests against each other to provide the right outcome. This trade-off analysis is a familiar feature of U.S. jurisprudence. Under the U.S. approach, when the state has a sufficiently compelling interest that is promoted by general law, a burden on religious exercise may be justified. But when the state’s interest is insufficient or it could pursue that interest in a less-restrictive way, the burden is unjustified. A real risk of this approach is the aggrandizement of the state’s needs to the detriment of individuals, but the overall aim is to find some sort of balanced equilibrium between the state’s interests and individual rights. The way to understand religious accommodations, in this picture, is as a kind of trade-off between competing interests—the goal of the law is to hit the right balance.
The second perspective understands religious accommodation as an adaptation made by the individual to the state. In this view, religious accommodation refers not to an exception by the state for an individual, but to a concession by an individual for the state. In other words, religious individuals must make changes to their own life for the benefit of the state; they must change their practices as the price of living in a pluralistic community. The accommodation, then, is “an adjustment” made by individual citizens “to accommodate the state’s interests or needs.” One prominent example of this perspective comes from the ban on “burkinis” (Muslim swimwear for women) in many French cities. The justification for such bans was that they were reasonable adaptations individuals could be expected to make in order to live in a secular community. By limiting the ability of some to wear burkinis, all people purportedly benefited from the secular public space it fostered.
With its focus on the state’s perspective or that of the majority, this model suggests that a legal approach to religious accommodation should focus on the limits of the state’s interests. The question of religious accommodations has to do with the boundaries of “what we have to give up as individuals in the interest of the group” or the reasonableness “of the burden required of individuals.” A reasonable accommodation is what it would be fair to ask citizens to sacrifice in return for the benefits of living in a secular state.
The state-orientation of this model reflects a striking presumption. Instead of beginning with a starting point that prioritizes freedom and requires state interference to be explained, this view of accommodation “begins with the presumption of regulation and requires the justification for freedom.”[2] By beginning with a presumption in favor of the state, we run the risk of overshadowing the concerns of individuals and minimizing the importance of their claims to freedom of religion or belief. As economists, cognitive psychologists, and other social scientists have come to understand, the starting point for our analysis can have a significant effect on the conclusions we reach.
The final model presents religious accommodation as providing a place of refuge and safety. Drawing on the metaphor of an inn, religious accommodation entails providing a place where weary travelers and strangers can feel cared for and safe. The goal of the community is to find ways to allow all of its members to find refuge and a space to live peaceably. The question is not about what rights the individual has against the state or what the state can demand of its citizens, but rather what the state and community can (rather than must) do to protect and provide for the special needs of its citizens.
With this view, “reasonable accommodation is something that the state does for its people—positive measures where the state might incur a hardship or expense in order to allow people to participate in society and to enjoy all of their rights equally.”[3] In other words, the focus is on what the state and the community can do to care for all, especially minorities or strangers, regardless of whether such accommodations can be demanded by right. Religious accommodation reflects what we might call an ethic of care—of what the community can do to be accommodating—rather than an ethic of right.
There is something very appealing about this approach to religious accommodation. It focuses on how the community can serve those with the most need. But as Scharffs points out, it is difficult to translate this value into workable legal rules, especially when religious accommodations run up against other important community values (like preventing dignitary harm). How this ethic of care should handle such conflicts is not easy to answer. This final view comes more as a “mindset of accommodation,” than a user-friendly formula for writing the rules in advance.
Each approach to religious accommodation has its virtues and shortcomings. As noted above, many accommodations will be hybrids, combining aspects of each perspective. But which conception we start with will impact how we approach the vital question of religious accommodation. As we seek to create cultures that create “constitutional space” (see Neville G. Rochow’s introductory note and another Brett G. Scharffs and Brock Mason’s post in this series) where we can live out our visions of the true, the right, and the good, whether we view accommodation as an exception, an adaptation, or a refuge will shape the way that religious minorities figure into our communities. As Scharffs reminds us, “we can usefully ask ourselves which of these three ways of thinking about reasonable accommodation should be our dominant or preeminent framework.”[4]
[1] Brett G. Scharffs, ‘Conceptualizing Reasonable Accommodation’, In Paul T. Babie, Neville G. Rochow QC and Brett G. Scharffs (eds.), Freedom of Religion or Belief: Creating the Constitutional Space for Fundamental Freedoms (Edward Elgar, 2020), p. 167.
[2] Brett G. Scharffs, ‘Conceptualizing Reasonable Accommodation’, p. 174.
[3] Brett G. Scharffs, ‘Conceptualizing Reasonable Accommodation’, p. 181.
[4] Brett G. Scharffs, ‘Conceptualizing Reasonable Accommodation’, p. 184.