The Justices Find Religion: Why the Supreme Court Ought to Expand Religious Accommodation Rights
43 Pages Posted: 7 Apr 2008 Last revised: 17 Mar 2009
Religion matters to people. It matters a great deal to religious believers who wish to be free from discrimination and who believe the law should protect them from harassment and allow for accommodation of their religious requirements. It matters to those who do not ascribe to any religion because they want to be assured that religion is not encroaching on their rights and wish to remain free from harassing believers. This tension plays out most forcefully in two places in American society: the public sphere (e.g., public property and public schools) and the workplace. The public sphere is the forum where communities gather and express certain (often majority but also sometimes controversial) viewpoints. Yet the workplace is where most people spend most of their waking time, and therefore bump up against others of different views most frequently.
There is reason to believe that the Supreme Court, with its recent personnel changes, will be supportive of more accommodation for religious expression in the workplace. If the Justices expanding public religious expression (such as Ten Commandments displays on public property) are to be consistent, they must revive the largely dormant religious accommodation clause of Title VII. The current statutory rule, that employers need undertake only de minimis accommodations of employee religion, flies in the face of the Court's recent pronunciation, in expanding religious expression under the Establishment Clause, that morality [is] essential to the well-being of society and that encouragement of religion [is] the best way to foster morality.
This article urges greater judicial recognition of workplace religious expression rights as the only result both consistent with the Court's Establishment Clause jurisprudence and consistent with the legislative intent of statutory religious accommodation provisions. Respectful religious pluralism in the workplace should become the norm, through judicial requirements of best practices in the workplace. Such a view should be wholly supported by the current Court because it is consistent with the Establishment Clause case law stating that religion fosters moral good and that in a pluralistic society religious expression cannot automatically be deemed threatening to those with different views.
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