By having
legislatures make the accommodation, I am not repealing the
Establishment Clause, which was the reason those cases came out the way they
did. The Smith decision is rather explicit that there is not an
unlimited right to accommodate. Where the accommodation is a bonus,
not narrowly tailored to lift the burden on the conduct, there would be a
strong EC argument.
Marci
If, as Marci
says, legislatures âare better [than
courts] at asking whether this particular accommodation has victims who need
to be taken into account before it is granted,â
would that also mean that legislative accommodations should not be struck down
by courts on the ground that they impose costs on third parties? In
other words, Thornton v. Caldor
(striking down the required day off for all religious worshipers) was wrongly
decided, and likely Texas
Monthly as well â and probably TWA v. Hardison too, since the Court
there probably interpreted the Title VII religious-accommodation provision
more narrowly than Congress intended, based on the Courtâs concerns about the
effect of accommodation on other employees. Moreover, under the âtrust
the political body more than the courtsâ view, Zorach was correctly decided; the school
board is in the best position to weigh the interests of religious students and
nonreligious students concerning the availability of release time. If
the legislature is truly better at making these determinations, then courts
also have to trust it when it choose to accommodate, even when there are
arguable effects on third parties. But if courts strike down these
legislative accommodations while never declaring any constitutional
accommodations, then the principle is not âlet the legislature decide,â but
rather âreligious claims should lose no matter who decides.â
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