National and state governments often create accommodations to protect religious individuals from neutral, generally applicable laws, but they have also passed laws affirmatively protecting religious citizens from discrimination by both private and governmental entities.
Most prominently, Title VII of the Civil Rights Act of 1964, as amended, prohibits employers with more than 15 employees from (among other things) refusing to hire or fire someone because of his or her religion or religious practices. The statute also requires private businesses to make “reasonable accommodations” for their employees’ or potential employees’ sincerely held religious convictions unless the accommodation would create an undue hardship for the employer.
Religious Americans, especially religious minorities, indisputably have benefited from this law. In 2014, for example, Samantha Elauf, a Muslim woman who wore a headscarf for religious reasons applied for a job at the clothing store Abercrombie & Fitch but was not hired because her scarf violated the company’s dress code. Although she had not explicitly requested an exception from the dress policy at her job interview, the Supreme Court ruled by a margin of eight to one that Title VII “prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship.”
Many Americans agree that employers should not be able to discriminate on the basis of religious practices such as wearing a headscarf, a yarmulke, or a turban. Yet the Congress that passed Title VII recognized that some religious discrimination is acceptable and protected by the First Amendment. Accordingly, it crafted an accommodation to Title VII that permits religious institutions to make employment decisions on the basis of religion. Specifically, “a religious corporation, association, educational institution, or society” is exempt “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”
As a result, the Roman Catholic Church can insist that only faithful Roman Catholics run its hospitals, an evangelical college may require its employees to be committed evangelicals, and a Jewish social service agency may decide to employ only Orthodox Jews. To prohibit religious institutions from making such decisions, Congress reasoned, would constitute a grave threat to religious liberty.
Today, it is not uncommon for organizations such as the American Civil Liberties Union to contend that religious individuals and institutions should rarely be exempted from neutral, generally applicable laws. Fortunately, legislators in even the most secular of states often disagree. For instance, before the Supreme Court redefined marriage for the entire country, some states had passed statutes recognizing same-sex marriage that also protected religious organizations from being compelled to participate in them if it violated their doctrine. For instance, Washington State’s law recognizing same-sex marriage stipulates that:
(5) No religious organization is required to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage. (6) A religious organization shall be immune from any civil claim or cause of action, including a claim pursuant to chapter 49.60 RCW, based on its refusal to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage.
Washington State recognizes that it is unconscionable to compel religious organizations to participate in or lend their resources to “celebrations” when doing so would violate their religious convictions.
One shortcoming of the Washington statute is that it does not protect small-business owners like the florist Baronnell Stutzman who have sincere religious convictions that likewise prevent them from participating in same-sex wedding ceremonies. They should also be protected by carefully crafted accommodations. As we have seen, governments regularly create such accommodations and still manage to meet important policy objectives.