I wonder whether this further shows the value of distinguishing
not just exemptions and accommodations, but discriminatory action and
nondiscriminatory action. For instance, I expect that few people would view a
bookstore owner's decision to close the store as "censorship," or a private
organization's decision not to host a debate as burdening freedom of speech.
So it seems that it's worth distinguishing - for analytical purposes even if
not always for legal purposes - at least three categories of action:
1. Deliberate action that singles out speakers, religious
practitioners, and others who exercise particular constitutional rights for
exclusion.
2. A generally applicable rule that applies to people who have
religious objections to it (or perhaps have free-speech-based objections, as
with nondiscrimination rules or membership-disclosure rules applied to private
associations, or as in cases such as O'Brien), and from which objectors seek an
exemption.
3. A generally applicable rule that applies to people who have
religious objections to it, and as to which objectors seek an accommodation
that would require action by others.
Eugene
Alan writes:
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Monday, March 05, 2012 1:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: Exemptions and accommodations
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.
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