Many "exemptions" can be described also as affirmative accommodations. The
person bringing his or her own meal into a restaurant is taking up table space
that might otherwise be used by a patron ordering from the menu. Allowing it
however may just be good business practice, since otherwise the remainder of
the party might not patronize the restaurant. That is why so many restaurants
have a vegetarian alternative-- the vegetarian in the group often has a veto.
I would suggest that the real issue in the basketball league is the special
place of athletics in our society. I would see sports leagues-- even privately
sponsored ones-- as performing something like a "public function" as that term
is used in state-action cases. I suspect people feel differently about the
need to reschedule a tournament basketball game, vs. the need for a privately
endowed art museum to offer its art classes on a day other than Saturday.
Howard Friedman
Professor Emeritus
University of Toledo
College of Law
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu on behalf of Douglas Laycock
Sent: Mon 3/5/2012 3:16 PM
To: 'Law & Religion issues for Law Academics'
Subject: Exemptions and accommodations
Eugene's distinction between the restaurant letting the Jewish member of the
party bring in his own kosher meal, and the restaurant changing its own
kitchen to provide a kosher meal for him, illustrates the difference between
a simple exemption from a rule and a the institution taking affirmative
steps to accommodate someone else's religious needs.
This distinction is why I think it is a mistake to talk about exemptions as
accommodations. One who seeks only an exemption is merely asking to be left
alone, unregulated in some way. There may be reasons not to leave him alone,
if he is harming those around him. But to be left alone is all he is asking
for. One who seeks affirmative conduct by others to enable or facilitate his
religious observance is asking for something more, and accommodation would
be a good word to describe those cases, if we had not already used the word
to describe simple exemptions. Accommodation has also been used widely and
variously to describe all sorts of other things that religious folks
sometimes want, up to and including school-sponsored prayer, and the range
of uses has deprived the word of any very precise meaning.
The Court has repeatedly used "accommodation" to describe exemption cases,
and much of the scholarly literature uses it, so I suppose we are stuck with
it. But it has always seemed to me to be a mistake.
Part of what makes the calendar cases hard is that they so often require
active accommodation and not merely exemption. When the event must be
rescheduled for everyone, that is more complicated, and more costly, than
when the religious individual merely seeks to have his absence excused.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
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