Religious Accommodation in the Welfare State

55 Pages Posted: 2 Nov 2014

See all articles by Thomas C. Berg

Thomas C. Berg

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law

Date Written: October 31, 2014


The Hobby Lobby contraceptive litigation reflects, and may accelerate, a trend in which Americans’ divisions over economic regulation reinforce their divisions over cultural matters. If Americans further separate into religious opponents of regulation and secular, progressive proponents of regulation, polarization is likely to become increasingly unhealthy. This article continues a project I have begun of defending strong protection of religious freedom based on premises that are sympathetic, rather than hostile, to government regulation in general. This Article defends government accommodation of religious objectors as a valuable component in a well-functioning regulatory state.

Accommodation — the exemption of religious conduct in certain cases from generally applicable laws — is a valuable and flexible resource for maintaining religious freedom in the regulatory state without undercutting the foundations of modern regulation. Accommodation of religion, whether constitutionally compelled or statutory, provides the means for balancing welfare-state regulation and religious freedom. It allows religious exercise to remain free while the regulation accomplishes its goal in the large majority of cases.

Part I argues that religious freedom is important enough to merit strong protection, relying on the kinds of arguments that have served as constitutional priorities for the post-New Deal Court. Part II then turns to the proper scope of accommodation in a state that is active in regulation but that also gives religious freedom serious weight. This Part focuses in particular on the Supreme Court’s Hobby Lobby decision, arguing that although the decision correctly gives religious freedom strong weight and recognizes religious-freedom claims by for-profit businesses, it should not lead to broad exceptions to commercial regulation.

Part III then integrates these observations about the scope of accommodation into a general framework for assessing when accommodation of religious conduct should be denied in order to prevent harms to others. Finally, Part IV recaps and summarizes the Article’s themes by distinguishing religious accommodation — a limited challenge to the regulatory state — from the far more fundamental challenges that succeeded in the era of Lochner v. New York but were abandoned after 1937. Religious accommodation relies in part on the workings of markets to show that a particular accommodation will not cause unacceptable harm to others, but it does not treat the market as a natural mechanism or a conclusive factor. Its reliance on markets is qualified and instrumental, for the purpose of giving reasonable room to religious freedom while not undercutting government’s regulatory power in general.

Keywords: Religious freedom, religious accommodation, free exercise of religion, Establishment Clause, welfare state, regulatory state, Lochner v. New York, New Deal

Suggested Citation

Berg, Thomas Charles, Religious Accommodation in the Welfare State (October 31, 2014). Harvard Journal of Law and Gender, 2014, Forthcoming; U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-35. Available at SSRN:

Thomas Charles Berg (Contact Author)

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law ( email )

1000 La Salle Avenue
Mail # MSL400
Minneapolis, MN 55403-2015
United States

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