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Religious Accommodation, and Its Limits, in a Pluralist Society

Religious Freedom and LGBT Rights: Possibilities and Challenges for Finding Common Ground (Robin Fretwell Wilson & William N. Eskridge, Jr. eds., Cambridge Univ. Press 2018 Forthcoming)

Yale Law School, Public Law Research Paper No. 625

11 Pages Posted: 1 Dec 2017  

Douglas NeJaime

Yale University - Law School

Reva Siegel

Yale University - Law School ; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: November 27, 2017

Abstract

Conflicts between religious freedom and equality are all around us. Persons of faith object to laws that require them to participate in conduct they deem sinful — such as performing an abortion or officiating a same-sex marriage. They also object to complying with laws requiring businesses not to discriminate or requiring healthcare professionals to serve patients, on the grounds that compliance would enable others to engage in sin and would sanction their wrongdoing. In our writing, we have focused extensively on these complicity-based conscience claims. Today, claims of this kind arise in high-profile conflicts ranging from Masterpiece Cakeshop v. Colorado Civil Rights Commission, where a baker refused to provide a wedding cake to a same-sex couple, to recent Trump Administration regulations exempting employers from requirements that they include contraceptive coverage in employee insurance benefits.

This brief essay makes three points about claims for religious exemption in the context of LGBT equality and reproductive healthcare. First, claims for religious exemption from laws that protect contraception, abortion, and same-sex marriage differ from accommodation claims involving ritual observance in dress or prayer, most importantly in their capacity to inflict targeted harms on other citizens who do not share the claimant’s beliefs. Second, U.S. constitutional and statutory law recognizes concerns about third-party harm as reason for limiting religious accommodation. Third, religious accommodation serves pluralist ends only when the accommodation is structured in such a way that other citizens who do not share the objectors’ beliefs are protected from material and dignitary harm.

Keywords: religious liberty, religious accommodation, religious exemptions, religious freedom, LGBT rights, LGBT equality, reproductive rights, reproductive healthcare, abortion, contraception, marriage, same-sex marriage, third-party harm, pluralism

Suggested Citation

NeJaime, Douglas and Siegel, Reva, Religious Accommodation, and Its Limits, in a Pluralist Society (November 27, 2017). Religious Freedom and LGBT Rights: Possibilities and Challenges for Finding Common Ground (Robin Fretwell Wilson & William N. Eskridge, Jr. eds., Cambridge Univ. Press 2018 Forthcoming); Yale Law School, Public Law Research Paper No. 625. Available at SSRN: https://ssrn.com/abstract=3078002

Douglas NeJaime (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Reva B. Siegel

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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