Accommodation

RLUIPA

In speaking about the 10 Commandments cases, Mike brought up a point with which I have some sympathy. It has also been raised by Stephen Carter of Yale Law School; to wit, what are normally called the Establishment and Free Exercise Clauses are in fact one clause...shall we say, the religious clause. Grammar supports this line of thinking, as the prohibition of Congress establishing religion and the ensured free exercise thereof are separated by a comma, not a semi-colon. While my embrace of proper grammar might have different interpretive results than Mike (and I know they differ from Professor Carter), it is a point that is, sadly, too seldom made.

For now, I will use Mike and Professor Carter's important point as a means to bring up another important religion case argued recently before the Court. And to assure this post is a short and earnest one, I will give away that I am more posing a question than posing my soundly reasoned opinion. The question(s), so we can all read attentively, is: what is accommodation, and under what Constitutional test/structure do we think about it?

Several years ago, in Smith, Justice Scalia made the lives of local, state, and federal governments a great deal easier. Until his majority opinion in that case, these government bodies would pass laws. And then, naming various religious reasons, various citizens would achieve exception from those laws. If, for instance, the Tillich-ian ground of your being opposed war, you needn't point to any particular creed in order to avoid the draft. (draft cases are the representative cases in most con law books.)

In Smith, the Court faced a law addressing peyote, and a group that believed smoking peyote to be central to their religious beliefs. The Court had had enough of seeking out, for each of these cases, the truth of whether this and that practice constituted genuine religious exercise, thus meriting the protections of free exercise. Rather, said Scalia, if a law has general applicability, and does not have as its purpose the effect to drive out a particular religion, that law passes under the first amendment(the Court maintained some well established protections that are not pertinent here).

The effect of all this was to ease the burden on government and their enforcement of laws. Before Smith, if someone raised a successful religious claim, the government could only enforce the law against that person if is was absolutely necessary to fulfill a compelling government purpose. After Smith, as long as the law was generally applicable, the government need only show the law reasonably relates to some government purpose, even if it infringes on your religion.

All this turned out not to sit so well with certain groups; and Congress tried to overturn Smith with the Religious Freedom Restoration Act, led by Sens Hatch and Kennedy. The Court, though, overturned Congress' dissent with Boerne, reminding Congress that, since Marbury v. Madison, the Court is the final word on things Constitutional.

Congress went back to the drawing boards, and found a way, via the post-civil-war amendments to exempt some religious activity from general laws. In the Religious Land Use and Institutionalized Persons Act, Congress asserted, after holding some hearings, that religious buildings and prisoners suffered a particular history of religiuos persuction from the government. Thus, the law (RLUIPA), was remedial, and passed not to overturn Smith, but to correct a pervasive pattern of government persecution.

That is the law that was heard before the Court recently. But, with all this buildup, I will not go into the facts of the cases. Rather, I will say simply that the cases were analyzed, in the briefs, as "Establishment Clause" cases. Namely, the argument is that, in allowing exemptions for non-persecutory laws because of a claim that such laws invade religious activity, the government is offering special benefit to religion; thus, violating the establishment clause.

The arguments for these exemptions did not bring up "accommodation." They did not ask the Court to accommodate religious practice. Thus, my confusion. When we talked about the 10 Commandments (traditionally an establishment clause conversation), Mike responded that we need to accommodate religion. And many commentators took similar positions. But, in what seems to me a return to the fights of Smith, and what would seem to be free exercise scenarios, nary a word of accommodation.

Perhaps I am merely laying down some history that will feed later discussion. For what it's worth, though, I wonder if I maight gain some insight on what you all mean when we talk about accommodation. I think of it from a free exercise perspective. From what angle do you come?