Decentralizing Religious and Secular Accommodations

Institutionalizing Rights and Religion: Competing Supremacies (Leora F. Batnitzky & Hanoch Dagan eds.) (Cambridge University Press, 2017, Forthcoming)

NYU School of Law, Public Law Research Paper No. 16-37

21 Pages Posted: 19 Aug 2016 Last revised: 9 Sep 2016

Date Written: August 15, 2016

Abstract

It is common for governments to accommodate religious practices by carving out exemptions to otherwise generally applicable laws that expressly or implicitly favor religion. Such exemptions, however, raise a difficult problem of defining religious (or anti-religious) “coercion.” If the state enforces its laws without any accommodation, the constituents of religious bodies (shareholders, officers, employees, etc.) may be forced to violate their conscience. If the state makes an exception for religiously motivated organizations, then the constituents of such bodies (employees, customers, tenants, etc.) will be stripped of otherwise applicable protections from those bodies’ power.

This chapter argues that the decentralization of religious accommodations to subnational governments can be a way to extend equal concern and respect to rival and reasonable conceptions of religious liberty. Analyzing the American version of federalism epitomized by the U.S. Supreme Court’s decisions in Hobby Lobby and City of Boerne v. Flores, as such a form of equal concern and respect, the chapter, the chapter suggests that American federalism protects equality in the allocation of the right to resolve reasonable disagreements over the content of liberty and equality in the context of religion. One can understand such a right as an instance of what Jeremy Waldron has called the “right of rights” – that is, the right of individuals to enjoy an equal share of power to define rights.

Keywords: Federalism, Individual Rights, First Amendment, Establishment Clauuse, Free Exercise Clause

JEL Classification: D70

Suggested Citation

Hills, Roderick Maltman, Decentralizing Religious and Secular Accommodations (August 15, 2016). Institutionalizing Rights and Religion: Competing Supremacies (Leora F. Batnitzky & Hanoch Dagan eds.) (Cambridge University Press, 2017, Forthcoming), NYU School of Law, Public Law Research Paper No. 16-37, Available at SSRN: https://ssrn.com/abstract=2823484

Roderick Maltman Hills (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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