Why Accommodate Religion?

America’s earliest colonial settlements were hardly bastions of religious liberty, but by the American Founding, virtually every civic leader believed that governments should not, in the words of James Madison, compel “men to worship God in any manner contrary to their conscience.”
Scholars debate the exact meaning of the First Amendment’s Free Exercise Clause, but few deny that it prohibits governments from explicitly requiring or banning religious practices. By the late 20th century, it was a rare legislative body that would even consider doing so.
In an extraordinary exception to this generalization, the town of Hialeah, Florida, banned the slaughter of animals in religious ceremonies, but not for other purposes. Members of the Church of Santeria, whose religious practices include animal sacrifices, were prosecuted under this statute. In 1993, the Supreme Court of the United States held unanimously that the law violated the First Amendment.

How Religious Liberty Is Threatened Today

Since the early twentieth century, the chief threats to religious liberty in America have not come from such laws, but have instead arisen from general laws or policies aimed at advancing the common good—laws that unintentionally burden religious actors. These statutes rarely mention specific religions or religious practices, but they nonetheless prevent certain citizens from acting on their religious convictions (or make it very costly for them to do so).
For example, a state may determine that beards could be used to conceal contraband or to help prisoners escape and so ban inmates from growing them. Yet this neutral, generally applicable rule would keep Muslim prisoners who believe that their faith requires them to grow beards from following the dictates of their religion.
What should be done? One possibility would be to abolish the regulation altogether, but assuming that the policy advances its intended goals, such a solution detracts from the common good. Alternatively, the religious convictions of Muslim prisoners could simply be ignored.

Protecting Religious Liberty and Promoting the Common Good: A Third Way

At their best, Americans have opted for a third way. In this situation, many states voluntarily created accommodations to allow prisoners to grow very short beards if required to do so by their faith. Arkansas did not, but in 2015 the U.S. Supreme Court ruled unanimously that Congress’s Religious Land Use and Institutionalized Persons Act of 2000 required such an outcome.
One major purpose of this act, which was passed without objection in both houses of Congress, was to ensure that the religious convictions of prisoners were accommodated whenever possible.

Sometimes Religious Practices Should Not Be Protected

Of course not all religious practices should be accommodated. Religious liberty is not an absolute trump card that empowers citizens to disregard laws.
State and national governments, therefore, have sometimes refused to protect religious citizens, or have even withdrawn protections when they determine that the actions in question are extremely damaging to the common good.
For instance, in the twentieth century, many states first accommodated parents who had religious objections to providing medical treatment for their children. State governments abolished these accommodations as it became evident that children were dying from illnesses that medical advances had rendered easily treatable.
Determining which actions dictated by religious convictions should be protected and which should not is a practical question to be decided prudentially on a case-by-case basis.

Our Historical Framework for Determining When to Accommodate Religious Liberty

There is no simple formula for making these decisions, but the United States Supreme Court developed a framework that is helpful for approaching them. In 1963, under the leadership of the liberal Justice William J. Brennan, the Court adopted the principle that government actions which burden a religious practice must be justified by a compelling state interest. Later, the Court added the requirement that this interest must be pursued in the least restrictive manner possible.
In other words, citizens should not be forced to violate their religious beliefs unless necessary. Whenever possible, an accommodation must be found. Although this test was developed to help jurists interpret the First Amendment’s Free Exercise Clause, it is also a useful guide for legislatively crafted accommodations.

The Religious Freedom Restoration Act

When a majority of Supreme Court Justices repudiated this test with respect to interpreting the Free Exercise clause in the 1990 case of Oregon v. Smith (involving the use of an illegal drug in religious rituals), Congress enacted the Religious Freedom Restoration Act (RFRA) of 1993 to restore it. It is noteworthy that the bill was passed in the House without a dissenting vote, was approved 97 to 3 by the Senate, and was signed into law by President Bill Clinton.
This law was meant to apply to all levels of government, but in 1996, the Supreme Court ruled that it could not be applied to the states. In response, 21 states have enacted RFRA laws of their own. Most of these bills were widely supported by Democrats and Republicans alike.
Yet when Indiana and Arkansas considered similar laws in 2015, a virtual firestorm erupted. Opponents concentrated on the hypothetical harms that could result from such religious accommodations.
RFRAs are controversial because they offer sweeping protection to religious liberty, but federal and state laws already contain literally thousands of religious accommodations. Careful consideration of these accommodations and their impacts demonstrates that it is possible to protect religious liberty without imperiling the common good.
Mark David Hall is Herbert Hoover Professor of Politics and Faculty Fellow in the William Penn Honors Program at George Fox University. Parts of this series were originally published by the Heritage Foundation as “Religious Accommodations and the Common Good,” available here. This is the second installment in his series on religious freedom. You can read part one here.