The Primacy of Political Actors in Accommodation of Religion

Abstract

This article focuses on the relationship between freedom of religion and the norm against non-establishment of religion in the context of government efforts to accommodate religious practices. It analyzes First Amendment doctrine in this area, and concludes that the Supreme Court has consistently been generous in permitting accommodations of religion when they are the product of judicial decisions; in other words, at least until recently the Court has been open to mandatory accommodations so long as they are ordered by judges. By contrast, the Court has long been suspicious of - and far from generous in permitting - accommodations as the result of the political process. The article argues that the Court`s approach has gotten things backwards, and that political actors should be given primacy in drawing the community`s balance between accommodation and non-preferential treatment of religious practices.