Thursday, May 5, 2016
I've posted the above-titled article on SSRN. It's forthcoming in the Notre Dame Law Review, from the excellent symposium that the Review and Rick organized on the 50th anniversary of the Declaration on Religious Freedom. My contribution doesn't mention the Declaration. But it follows in its spirit, since it deals with a crucial question about the ability of religious organizations to have freedom in their public, not just their insular private, activity. The article responds to the claim, growing in strength in the courts and academia, that there should be no legal accommodation for religious organizations in activities where they employ or serve persons outside the faith. (That, of course, was a key premise of the narrow original exception from the HHS contraception mandate.)
I present a defense of a prima facie duty to accommodate what I call "partly acculturated" religious activities, which are "'acculturated in that they reach out to the broader society to provide services of general civic value, but unacculturated in that some of their doctrines and practices clash with dominant secular values [and therefore claim religious freedom protection]." From the abstract:
The law should not force all religious organizations and activities into one of the two polar categories, acculturated or unacculturated. Part II presents several reasons why there is a strong interest in protecting the freedom to engage in partly acculturated religious activity. Among other things, I argue, relying on work in sociology of religion, that refusing accommodation to partly acculturated activity risks losing the distinctive vigor that such organizations offer in providing services to society: their countercultural positions tend to create a sense of identity and commitment, while their acculturation means they apply that identity to serve society rather than withdraw from it.
Accommodating partially acculturated activity does present distinctive challenges because of effects on non-adherents. Part III proposes addressing those, and drawing lines concerning accommodation, by relying on concepts of:(1) notice to employees and clients concerning the organization’s religious identity, and (2) alternative sources of receiving the services or opportunities in question.
And from the article's Conclusion:
Claims for the protection of partly acculturated religious activity present challenges and tensions. The scope of protection must of course take account of effects that these activities have on non-adherents, whether employees or clients. But refusing such protection has serious costs. The opposition to any accommodations for religious activity that affect non-adherents has the effect—and very possibly the aim—of marginalizing organizations that straddle the line between their own members and the broader society. It will force these organizations to deal only with their own adherents, and play less and less of a role in the broader society, if they want to adhere to their doctrinal beliefs. For all the reasons above, this would be a bad development: for religious equality, for the vigor of our educational and social service sectors, and for our ability to engage with each other across lines of disagreement.