Doug's distinction between exemptions and accommodations is helpful, but the cause of the problem isn't limited to free exercise cases. If we are talking about freedom of speech, for example, many people would describe the decision of a bookstore to reject a request to carry particular books in its inventory as censorship, not a failure to accommodate the author and her readers. The exclusion of less popular candidates from privately organized debates is similarly decried as burdening freedom of speech, not the failure to accommodate the excluded speaker.. When government provides police to maintain order at political events involving unpopular speakers we typically describe this conduct as protecting freedom of speech, not the accommodation of unpopular speakers. When government sets up restrictive rules limiting access to non-public forums, we describe its decision as burdening freedom of speech, not failing to accommodate speakers seeking access to public property.
Perhaps we should be much more careful about distinguishing between requests to be left alone and requests for affirmative action to facilitate the exercise of different freedoms and rights. The failure to do so, however, is fairly widespread. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, March 05, 2012 12:16 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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