February 9, 2023
Originally published in the Deseret News.
Oakwood Adventist Academy in Huntsville, Alabama, has a successful basketball team. Last year, the team advanced to the semifinals of the state’s tournament, but the game was scheduled for a Saturday afternoon. This posed a challenge, because the school’s religious mission includes observance of the Sabbath on Saturday until sundown. Though the school requested an accommodation to play after sundown, the state athletic association declined, and the school had to forfeit the game.
The debate surrounding the Respect for Marriage Act focused attention on the question of religious accommodations. Such accommodations have been a feature of American law since the very beginning. During the colonial era, while many Quakers and others with religious objections to military service were persecuted for refusing to fight, some colonies enacted laws to allow people of faith to decline to serve. A national draft, and a national policy on conscientious objectors, would come later.
The nature of a religious exemption is that it creates an exception to a general law. Many laws, perhaps most, do not implicate religious practices. They are enacted to address a need, such as for soldiers to defend the country or for public health measures to stop a communicable disease from spreading. These laws do not target people of faith, but they may incidentally implicate religious practices.
By their nature, religious accommodations usually are needed to protect religious minorities. Legislators and other public officials can generally be trusted to be solicitous of the religious practices of majorities. In contrast, they may not even be aware of how their actions could affect the practices of the adherents of minority faiths, or if they are, they may not be as concerned about accommodating them.
When a need for an accommodation is identified, it can be provided directly, as with the exemption from military service. This approach is valuable because it creates certainty for people of faith and religious organizations. This type of accommodation is not always forthcoming, though.
A recent illustration is a dispute over septic system regulations between an Amish group and a Minnesota county. It is unlikely that the county intended to impose on Amish families, even if that was the effect of an otherwise neutral rule requiring modern septic systems, so the county would likely not have established an accommodation as part of the initial regulation.
Even if a religious practice is known, it may be unpopular, so government officials might not want to accommodate. An important U.S. Supreme Court case involved a local regulation of religious animal sacrifice in Florida that actually targeted the practice.
Eventually, the Supreme Court ruled that the First Amendment did prevent governments from burdening religious beliefs without a compelling reason — a ruling that it walked back in the early 1990s. The benefit of the earlier rule is that it applies even when government officials do not know about or are unwilling to offer accommodations. The disadvantage is that it can only be claimed when the religious person or group affected by a regulation is threatened with punishment and persuades a court to extend it. That is less certain than a direct accommodation, and the legal process can be expensive and burdensome to navigate.
The Respect for Marriage Act, of course, involved a direct federal accommodation, but most conflicts arise at the state or local level. Recent disputes that reached the U.S. Supreme Court involved a local school district, a city foster care regulation, a state civil rights commission, and city and state pandemic restrictions.
State and local governments may actually be more sensitive to the needs of minority religious groups since they are usually smaller and closer to constituents.
Being well into the new year, many states have convened or are convening their legislative sessions. These legislatures and other state and local officials can do much to avoid or lessen religious conflicts and enable people of faith to live their beliefs. Some progress has been made on this in recent years.
Washington state enacted legislation in 2019 requiring schools to “reasonably accommodate students who, due to the observance of religious holidays, expect to be absent or endure a significant hardship during certain days of the course or program.”
Utah’s legislature recently enacted a similar law directing the Utah Board of Higher Education to create policies that would accommodate students’ observance of religious holidays. In the last session, the legislature approved a resolution asking schools and local officials to accommodate religious and moral concerns about school uniforms. This session, legislators are returning to this topic.
These are positive developments. The states are a source of potential religious freedom conflict, but more importantly, they have the potential to prevent or defuse these conflicts. It may be difficult for the national government to predict all the ways its actions can impact religious Americans, and thus constitutional and legislative backstops will be particularly important there. In the states, and with local governments, however, policymakers can be expected to be more familiar with those who will be affected by their actions. Thus, they are particularly well placed to prevent many conflicts or to resolve them quickly.
When Alabama Gov. Kay Ivey learned of the forced forfeit of Oakwood Adventist Academy, she reached out to the state’s athletic association to ensure a similar problem did not arise in the future. The Alabama High School Athletic Association then updated its rules to allow accommodations of religious requests in future games.
This type of common-sense approach is a great example of what can and should happen when policymakers are committed to giving people space to live their faith. More states should do the same.
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