The New Religious Institutionalism Meets the Old Establishment Clause

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1 Washington University in Saint Louis From the SelectedWorks of Gregory P. Magarian February 3, 2014 The New Religious Institutionalism Meets the Old Establishment Clause Gregory P. Magarian, Washington University in St Louis Available at:

2 THE NEW RELIGIOUS INSTITUTIONALISM MEETS THE OLD ESTABLISHMENT CLAUSE Gregory P. Magarian 1 DRAFT TABLE OF CONTENTS INTRODUCTION... 3 I. THE DOCTRINAL TENSION BETWEEN ACCOMMODATION AND NONESTABLISHMENT... 4 The Sherbert Era: Engaging the Tension... 6 The Smith Settlement... 9 II. NEW CHALLENGES FROM RELIGIOUS INSTITUTIONALISM III. A. The New Institutionalism and the Accommodation-Nonestablishment Tension The Normative Appeal of Institutional Religious Accommodation The New Institutionalism s Limited Attention to Establishment Concerns B. The Enhanced Establishment Dangers of Institutional Accommodations MEDIATING THE TENSION BETWEEN INSTITUTIONAL ACCOMMODATION AND NONESTABLISHMENT A. Hosanna-Tabor as a Model for Limited Mandatory Accommodation of Religious Institutions B. The Contraceptive Mandate Compromise as a Model for Limited Discretionary Accommodation of Religious Institutions CONCLUSION Professor of Law and Israel Treiman Faculty Fellow, Washington University in St. Louis. Thanks to participants in the Conference on the New Religious Institutionalism at DePaul Law School, especially Rick Garnett, Fred Gedicks, Paul Horwitz, John Inazu, and Zoe Robinson.

3 ABSTRACT Recent religious liberty scholarship spotlights the legal rights of churches and similar religious institutions, as distinct from the rights of individual religious believers. Advocates of the new religious institutionalism argue that religious institutions need robust legal rights in order to effectuate their institutional functions and advance religious believers interests. The Supreme Court recently fanned the new institutionalist flame by holding, in Hosanna Tabor Evangelical Lutheran Church v. EEOC, that the Constitution protects churches from legal liability for employment discrimination in hiring ministers. In this essay, Professor Magarian considers a complication that advocates of the new religious institutionalism have generally ignored: The Establishment Clause. Legal accommodation of religious believers has always operated in tension with nonestablishment values. Examining the past half century of legal doctrine, Professor Magarian finds a strong vein of tension between accommodation claims and nonestablishment values, especially acute in the scattered cases that have considered institutional accommodation claims. Since the Court s 1990 decision in Employment Division v. Smith, however, courts and scholars have given little thought to the accommodation-nonestablishment tension, because Smith both neutralized the Free Exercise Clause as a source of accommodations and marginalized the Establishment Clause as a check on accommodations. The new institutionalist call to increase accommodation of religious institutions compels renewed emphasis on the Establishment Clause as a limiting principle for accommodations. Religious institutions perform normatively valuable social functions by aggregating believers interests and promoting pluralism in public discourse. At the same time, though, accommodating religious institutions raises sharper establishment concerns than accommodating individual religious believers, because institutions generally have greater scope and power than individuals. Professor Magarian contends that the Establishment Clause, whether understood in neutralist or separationist terms, counsels great caution in expanding institutional religious accommodations. He posits that both Hosanna Tabor and the recent political compromise over the contraception mandate in the Affordable Care Act, properly understood, represent imperfect but broadly appropriate reconciliations of the important, competing interests in institutional religious accommodation and nonestablishment. 2

4 INTRODUCTION Religious accommodation the practice of exempting religious believers, via either Free Exercise Clause mandate or government discretion, from legal obligations that conflict with religious commitments has always occurred in tension with the Establishment Clause. Giving religious believers legal benefits that nonbelievers lack may advance religion, lack a credible secular purpose, or convey special government approval for the accommodated belief. For many years the Supreme Court engaged this tension. Although proclaiming a rule of presumptive mandatory accommodation under the Free Exercise Clause, the Court usually found reasons to deny mandatory accommodation claims. Meanwhile, the Court explicitly relied on the Establishment Clause to strike down most discretionary accommodations it considered. Then, in 1990, Employment Division v. Smith 2 seemed to resolve the tension. Smith effectively foreclosed claims for mandatory accommodation under the Free Exercise Clause, but it also marginalized the Establishment Clause by granting legislatures wide latitude to confer discretionary accommodations. Smith signaled the Court s strong disinterest in wrestling with any implications of the Establishment Clause for religious accommodations. Last year, the Court in Hosanna-Tabor Evangelical Lutheran Church v. EEOC 3 announced that the Establishment Clause did not bar, but in fact joined with the Free Exercise Clause to compel, an exemption for churches from nondiscrimination laws in the hiring of ministers. Hosanna-Tabor dovetails with a recent surge in scholarly arguments that religious institutions should enjoy substantial autonomy from legal constraints. The new academic institutionalists, like the Hosanna-Tabor Court, follow Smith in substantially disregarding the tension between accommodation and nonestablishment. At the same time, institutionalists have noted the discontinuity between Smith, which repudiated the idea of constitutionally mandatory accommodations, and Hosanna-Tabor, which loosely embraces that idea. Indeed, some institutionalists hope Hosanna-Tabor contains the first stirrings of a doctrinal retreat from Smith. That hope, however, presents a puzzle. If the Justices move away from the Smith Court s disdain for mandatory accommodations, can it continue to avail itself of the Smith settlement between accommodation and nonestablishment interests, or must repudiation of Smith reawaken the Court s long-dormant concern about how those interests conflict? Even if Hosanna-Tabor merely encourages widespread discretionary institutional accommodations under the auspices of Smith, can the Smith settlement bear the weight of that development? U.S. 872 (1990) U.S., 132 S. Ct. 694 (2012). 3

5 Religious institutions have sought accommodations before, but the paradigmatic claimant for accommodation has been the beleaguered individual believer. The Court usually has approached accommodation questions with individual claimants in mind. Focusing the case for accommodation on the interests of religious institutions compels a fresh examination of the distinctive establishment concerns that widespread institutional accommodation might entail. I think those concerns are substantial. The case for institutional religious accommodations carries considerable normative force. Religious institutions serve both to aggregate the interests of individual believers and to introduce distinctive perspectives and energy into public discourse in ways that individual believers cannot. At the same time, religious institutions can exercise considerable power in ways that individuals cannot. Broadly accommodating religious institutions would heighten anxiety under any forceful account of the Establishment Clause. This essay considers the old conflict between accommodationist and nonestablishment values in the fresh light of the new religious institutionalism. Even as I acknowledge the social value of religious institutions, I urge heightened attention to the establishment concerns that religious institutional accommodations present. To reconcile the competing values, I suggest that both Hosanna-Tabor, a mandatory accommodation, and the resolution of the recent contraceptive mandate controversy, a discretionary accommodation, provide useful models. Properly understood, both of these accommodations rebuke the disdain for religious dynamism expressed in Smith while also reanimating the Establishment Clause as a prudent constraint on religious institutional accommodations. I. THE DOCTRINAL TENSION BETWEEN ACCOMMODATION AND NONESTABLISHMENT The two core religious principles set forth in the First Amendment that government shall neither prohibit the free exercise of religion nor establish religion operate in tension with one another. Given the broad impact of government authority, the mandate of the Free Exercise Clause inevitably requires some conscious, religion-regarding actions by government. Even absent that mandate, government may choose to take such actions in a conscientious effort to respect religious exercise. Whenever government acts on religious believers behalf, however, it risks promoting religion in potential violation of the Establishment Clause. 4 The area of legal doctrine that embodies this tension is 4 Important discussions of this dynamic include Jesse Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. PITT. L. REV. 673 (1980); Kent Greenawalt, Quo Vadis: The Status and Prospects of Tests Under the Religion Clauses, 1995 SUP. CT. REV. 323; Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 4

6 religious accommodation: the circumstance in which a religious believer or entity either demands as a constitutional matter or asks as a discretionary matter that the government spare it from adherence to some generally applicable law that conflicts with the believer s or entity s religious obligations. Accommodation disputes implicate the difficult boundary between what the Free Exercise Clause compels, or what the Constitution at least permits, and what the Establishment Clause forecloses. The Supreme Court spent a quarter century considering a substantial number of both mandatory and discretionary accommodation disputes. During that period, the Court paid serious attention to the accommodationnonestablishment tension, tacitly in mandatory accommodation cases and explicitly in discretionary accommodation cases. The Court has spent the subsequent quarter century enforcing a settlement that effectively neuters both the Free Exercise and Establishment Clauses in the accommodation setting. The Court, however, retains at least some establishment concerns about religious accommodations, particularly institutional accommodations. 5 A problem in analyzing religious accommodation is that one could plausibly classify the vast majority of Religion Clause disputes as accommodation cases. Every free exercise and establishment dispute that does not involve deliberate state discrimination 6 deals in some sense with conflicts between religious practices and otherwise applicable laws. When government sponsors a public religious display, 7 allows prayer in a public setting, 8 or funds a religious enterprise, 9 we might say that it accommodates religion. My emphasis on the tension between accommodation and nonestablishment may pull toward broad DEPAUL L. REV. 993 (1990); Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933 (1989); William C. Marshall, Solving the Free Exercise Dilemma: Free Exercise as Expression, 67 MINN. L. REV. 545 (1983); Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 GEO. WASH. L. REV. 685, (1992) (hereinafter McConnell, Accommodation). The decrease in academic attention to the accommodation-nonestablishment tension after 1990 tracks the development of constitutional doctrine. See infra section I.B. 5 This section s account of the cases draws on my discussion in Gregory P. Magarian, The Jurisprudence of Colliding First Amendment Interests: From the Dead End of Neutrality to the Open Road of Participation-Enhancing Review, 83 NOTRE DAME L. REV. 185, (2007) (hereinafter Magarian, Colliding Interests). 6 See, e.g., Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (sustaining a Free Exercise Clause challenge to a municipal animal cruelty ordinance that targeted Santeria practices). 7 See, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984) (rejecting an Establishment Clause challenge to a municipal crèche display). 8 See, e.g., Lee v. Weisman, 505 U.S. 577 (1992) (sustaining an Establishment Clause challenge to a high school graduation prayer). 9 See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (rejecting an Establishment Clause challenge to a public school voucher program that sent public funds to religious schools). 5

7 conceptions of both. This essay, however, deals only with the sorts of cases that the Supreme Court has described and treated as dealing with religious accommodations. Those canonical accommodation cases, unlike other Religion Clause disputes, pit claims of religious compulsion against the government s interest in coercing or punishing private conduct. 10 Whether or not that distinction marks a real difference between accommodation disputes and other Religion Clause cases, the legal and cultural significance of the canonical accommodation cases makes them an important subject for critical inquiry. The Sherbert Era: Engaging the Tension The Supreme Court spent more than 25 years wrestling actively with questions of religious accommodation. The fruits of that engagement, while frustratingly inconsistent and sometimes cryptic, reflect serious effort to come to grips with the tension between accommodation and nonestablishment. In its 1963 decision in Sherbert v. Verner, 11 the Court announced that it would review religious accommodation claims under strict scrutiny. Applying that standard, the Sherbert Court upheld the demand of a Seventh-Day Adventist, who had been fired for her refusal to work on Saturdays, to receive unemployment benefits notwithstanding a state s rule denying benefits to workers fired for cause. The Sherbert Court only briefly considered Establishment Clause objections to accommodation, noting the minority status of the religion at issue and the lack any involvement of religious with secular institutions. 12 Following Sherbert, the Court mandated accommodation in several other, essentially indistinguishable unemployment benefits cases. 13 In Wisconsin v. Yoder, 14 the Court also granted Amish parents an exemption from a state requirement that children attend public schools, once again brushing aside Establishment Clause concerns. 15 For the most part, however, Sherbert proved to be a paper tiger. The Court in the Sherbert era approached strict scrutiny in ways that led it to deny every other demand for mandatory accommodation it considered. The Court rejected some claims because the challenged laws presented insufficiently weighty burdens on the plaintiffs religious exercise to trigger strict scrutiny 10 For a more detailed effort to draw the boundaries of the religious accommodation genre, see Michael W. McConnell, Accommodation, supra note 4, at U.S. 398 (1963). 12 Id. at See Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829 (1989); Hobbie v. Unemployment Appeals Commn., 480 U.S. 136 (1987); Thomas v. Review Board, 450 U.S. 707 (1981) U.S. 205 (1972). 15 See id. at

8 review. In Tony and Susan Alamo Foundation v. Secretary of Labor, 16 the Justices held a religious foundation s justifications for employing certain unpaid laborers insufficiently integral to warrant exemption from the Fair Labor Standards Act. Likewise, the Court in Bowen v. Roy 17 dismissed a Native American family s asserted religious justification for not providing their daughter s social security number in order to receive welfare payments. In other cases, the Court found the government s regulatory interests sufficiently weighty to satisfy or obviate strict scrutiny. In United States v. Lee, 18 the Court rejected an Amish employer s demand for exemption from social security taxes based on the federal government s compelling interest in maintaining a sound tax system. Similarly, Bob Jones University v. United States 19 allowed the IRS to deny a tax exemption to a university that asserted a religious justification for racially discriminatory policies, citing the government s compelling interest in eradicating racial discrimination. Lyng v. Northwest Indian Cemetery Protective Assn. 20 refused to block timber harvesting on federal land held sacred by Native Americans, citing the government s interest in managing its internal affairs. Finally, the Court flatly excluded prisons 21 and the military 22 from the Sherbert mandate of strict scrutiny. Even though the Establishment Clause could have provided substantial support for the Sherbert-era Court s denials of mandatory accommodations, the Court avoided direct Establishment Clause analysis. Instead, the Justices indulged in fine-grained manipulation of the components of the strict scrutiny approach announced in Sherbert. This deficit may reflect the Court s tendency, ubiquitous in First Amendment doctrine, to avoid directly confronting conflicts between different constitutional interests. 23 Even so, the Court in the Sherbert era having proclaimed mandatory accommodation the order of the day usually reached results in mandatory accommodation cases that comport with a strong conception of the Establishment Clause. Although the decisions offer virtually no explicit guidance about how to reconcile accommodation and nonestablishment U.S. 290 (1985) U.S. 693 (1986) (plurality opinion) U.S. 252 (1982) U.S. 574 (1983) U.S. 439 (1988). 21 See Goldman v. Weinberger, 475 U.S. 503 (1986) (rejecting, under a deferential standard, a Jewish service member s claim for a mandatory accommodation to allow him to wear a yarmulke). 22 See O Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (rejecting, under a deferential standard, Muslim prisoners claim for a mandatory accommodation to allow them to attend certain worship services). 23 See generally Magarian, Colliding Interests, supra note 5. 7

9 interests, the Establishment Clause appears to inform the Court s reluctance to require accommodations under the Free Exercise Clause. The Justices during the Sherbert era also considered several Establishment Clause challenges to discretionary accommodations. The Court struck down most of those accommodations. Larkin v. Grendel s Den, Inc. 24 invalidated a state law that empowered the governing bodies of churches and schools to veto applications for liquor licenses adjacent to their facilities, holding that the law had the effect of advancing religion. Estate of Thornton v. Caldor, Inc. 25 rejected a state s requirement that all employers must relieve religious believers of obligations to work on their Sabbaths. Again, the majority found that the statute had the manifest purpose of advancing religion. In Texas Monthly, Inc. v. Bullock, 26 a splintered Court struck down a state s sales tax exemption for religious periodicals. A plurality of the Justices maintained that the Establishment Clause barred government from extending a benefit to religious believers that it denied to nonbelievers. None of these decisions holds up the Establishment Clause as a general bar on discretionary accommodations. Each of them, however, invokes the Establishment Clause to curb government actions that give religious believers and entities substantial benefits unavailable to similarly situated nonbelievers and nonreligious entities. Only one Supreme Court decision in the Sherbert era vindicated a discretionary accommodation limited to religious beneficiaries. 27 In Corporation of the Presiding Bishop v. Amos, 28 the Justices upheld a federal law that exempted religious employers from the general federal bar on religious discrimination in employment. While declining to reach the question whether the Free Exercise Clause compelled the exemption, 29 Justice White s majority opinion posited that the nondiscrimination law imposed a significant burden on religious institutions. 30 Turning to the Establishment Clause, the Court concluded that the exemption satisfied the secular purpose of alleviat[ing] a significant governmental interference with the ability of religious organizations to define and U.S. 116 (1982) U.S. 703 (1985) U.S. 1 (1989). 27 Prior to Sherbert, the Court in Zorach v. Clauson, 343 U.S. 306 (1952), had upheld a state allowance for public schools to release students during the school day for off-site religious education. Following Sherbert, Walz v. Tax Commission, 397 U.S. 664 (1970), upheld a property tax exemption that benefited educational and charitable institutions as well as religious institutions. In another Sherbert-era decision, NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the Court used the canon of constitutional avoidance to grant religious schools a tacit exemption from labor laws on statutory construction grounds U.S. 327 (1987). 29 See id. at 339 n Id. at

10 carry out their religious missions. 31 Amos is the sole Sherbert-era accommodation decision to transcend the cursory comments in Sherbert and Yoder by considering in some depth, and then rejecting, a serious Establishment Clause objection to a religious accommodation. The questionably secular nature of what the Amos Court found to be the accommodation s pivotal secular purpose only renders the Court s embrace of the accommodation that much more striking and singular. As we will see, the central issue in Amos a church s desire to avoid government regulation of certain employment decisions has animated the Court s recent reentry into the mandatory accommodation field. 32 Notably for present purposes, the Sherbert-era cases reveal a pronounced judicial concern with the establishment dangers of institutional religious accommodations. The Court has never distinguished between individual and institutional accommodations as doctrinal categories. However, the primary set of accommodations the Court mandated under the Free Exercise Clause during the Sherbert period in the unemployment benefit cases were individual rather than institutional. Yoder broadly accommodated a group of adherents to a particular religion. In contrast, the Sherbert-era Court did not grant any mandatory accommodations to religious institutions, and most of the mandatory accommodation claims it rejected were institutional rather than individual. As for the discretionary accommodation cases, all but Thornton a group accommodation case like Yoder involved institutional rather than individual accommodations, and the Court struck down all of the challenged discretionary accommodations under the Establishment Clause, with the significant exception of Amos. The Sherbert-era religious accommodation jurisprudence reveals far greater concern about establishment in institutional accommodation cases than in individual accommodation cases. The Smith Settlement The Court in 1990 overhauled its religious accommodation jurisprudence in a way that tacitly settled the accommodation-nonestablishment conflict. Employment Division v. Smith 33 presented a Free Exercise Clause challenge by two members of the Native American Church, which treated ingestion of peyote as a sacrament, to their exclusion from unemployment benefits because they were fired for their drug use. The Court rejected the claim and all but foreclosed future mandatory accommodation claims. Justice Scalia s majority opinion abandons 31 Id. at See infra notes 88-91, and accompanying text (discussing Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 U.S., 132 S. Ct. 694 (2012)) U.S. 872 (1990). 9

11 two dubious touchstones of the Sherbert era: the increasingly facetious claim that strict scrutiny was the operative standard of review for mandatory accommodation cases, and the practice of rejecting mandatory accommodation claims by manipulating that standard. In their place, the opinion introduces two new dubious touchstones. First, it eviscerates the Free Exercise Clause as a source of mandatory accommodations, holding that mandatory accommodation claims warrant only rational basis review. 34 Second, it encourages legislatures to accommodate religion however they see fit, effectively neutralizing the Establishment Clause as well in the accommodation setting. 35 Justice Scalia barely mentions the Establishment Clause. It plays no role at all in his repudiation of the Sherbert approach to mandatory accommodation, which he treats purely as an excessive construction of the Free Exercise Clause. Although Smith says nothing about Larkin, Estate of Caldor, or Texas Monthly, the Court s approach to discretionary accommodation leaves those cases in the rearview mirror. Congress, in response to Smith, enacted the Religious Freedom Restoration Act (RFRA), which restores strict scrutiny for mandatory accommodation claims by requiring government agencies to exempt religious believers from any legal obligations that substantially burden religious exercise, unless an agency can show that enforcing the law is the least restrictive means to accomplish a compelling government interest. 36 In City of Boerne v. Flores, 37 which presented a mandatory accommodation claim against a state instrumentality, the Court struck down RFRA as exceeding Congress power under section 5 of the 14 th Amendment. Curiously, the Boerne Court said not a word about RFRA s applications to federal law, which do not depend on the 14 th Amendment. 38 Almost a decade later, the Court tacitly confirmed RFRA s continuing federal vitality in Gonzales O Centro Espirita Beneficente Uniao do Vegetal, 39 a case that, like Smith, concerned sacramental use of an illegal drug. The Court presumed that RFRA applied to federal law and held that the government s failure to accommodate the plaintiffs sacramental drug use violated the statute. In neither Smith nor O Centro did the Court discuss any implications of the Establishment Clause for RFRA. 34 See id. at See id. at 890; see also McConnell, supra note 4, at 698 (reading Smith as approving[ ] discretionary accommodations. 36 See Religious Freedom Restoration Act, 42 U.S.C. 2000bb to 2000bb4 (2006) U.S. 507 (1997). 38 See generally Gregory P. Magarian, How to Apply the Religious Freedom Restoration Act to Federal Law Without Violating the Constitution, 99 MICH. L. REV (2001) (hereinafter Magarian, RFRA) U.S. 418 (2006). 10

12 The Court has made clear that broad-based allowances for discretionary religious accommodations do not facially violate the Establishment Clause. Justice Stevens brief concurrence in Boerne invokes the Establishment Clause as a constraint on discretionary accommodations. He maintains that RFRA amounts to a preference for religion that facially violates the Establishment Clause. 40 No other Justice agreed with that broad critique. 41 Nearly a decade later, in Cutter v. Wilkinson, 42 a unanimous Court including Justice Stevens upheld a provision of the Religious Land Use and Institutionalized Persons Act against a facial Establishment Clause challenge. Cutter has a very narrow scope. Justice Ginsburg s majority opinion emphasizes that the challenged provision is [l]ess sweeping than RFRA, 43 that it alleviates exceptional government-created burdens on private religious exercise, 44 that it does not differentiate among bona fide faiths, 45 and that the Court s rejection of the facial challenge does not foreclose future Establishment Clause challenges to particular applications of the provision. 46 In addition, because the challenged provision involves religious exercise in prisons, the decision deals only with individual accommodations. Cutter mainly reiterates the old news that not all discretionary accommodations violate the Establishment Clause. At the same time, the decision pushes back against Smith by reminding us that some discretionary accommodations may violate the Establishment Clause. The only post-smith case in which the Supreme Court has considered an Establishment Clause challenge to a particular discretionary accommodation sustains the challenge. 47 In Board of Education of Kiryas Joel Village School District v. Grumet, 48 a sharply divided Court held that New York violated the Establishment Clause when it established a special school district for the adherents of a single, insular religious group, the Satmar Hasidim. The heart of the Court s objection to New York s action is that it singles out a particular 40 See Boerne, 521 U.S. at 536 (Stevens, J., concurring). 41 In my view, RFRA does not on its face violate the Establishment Clause, although a substantial number of its conceivable applications do. See Magarian, RFRA, supra note 40, at U.S. 709 (2005). 43 Id. at Id. at See id. at See id. at 725. The Court, of course, strongly disfavors facial constitutional challenges. See United States v. Salerno, 481 U.S. 739 (1987). 47 Locke v. Davey, 540 U.S. 712 (2004), suggests that the Establishment Clause would not bar a state from making devotional theology students eligible for a scholarship program. See id. at 719. The decision, however, also suggests that nonestablishment interests could justify a state in excluding devotional theology students from eligibility. See id. at 722. The Court holds only that the state s exclusion of a devotional theology student did not amount to religious discrimination in violation of the Free Exercise Clause U.S. 688 (1994). 11

13 religious sect for special treatment, 49 violating a principle of religious neutrality. 50 Neutrality in Religion Clause jurisprudence is a notoriously slippery framework, 51 and Kiryas Joel sheds no great light on the Court s grounds for permitting discretionary accommodation in some instances while forbidding it in others. The Court s holding, however, makes clear that the Establishment Clause retains some vitality as a check on government discretion to accommodate religion, while Justice Scalia s impassioned dissent 52 supports the inference that his Smith opinion entails a weak account of the Establishment Clause. Notably for present purposes, Kiryas Joel also represents the Court s only constitutional decision, in the years between Smith and Hosanna-Tabor, about an institutional accommodation. The reasoning and result of Kiryas Joel echo the anxiety about institutional accommodations that characterizes the Sherbert-era decisions. II. NEW CHALLENGES FROM RELIGIOUS INSTITUTIONALISM The cases discussed in Part I, viewed as a whole, strongly suggest that institutional accommodations raise deeper concerns than individual accommodations under the Supreme Court s Establishment Clause doctrine. In the Sherbert era, the Court granted some individual mandatory accommodations but rejected institutional claims for mandatory accommodations. The Court also sustained Establishment Clause challenges in the majority of discretionary accommodation cases, most of which involved institutional accommodations. Smith muted religious accommodation as a constitutional issue, but Kiryas Joel reflected a lingering Establishment Clause concern about discretionary institutional accommodations. The new religious institutionalism, fostered in the academy and intensified by Hosanna-Tabor, destabilizes the Smith settlement and compels renewed consideration of the accommodation-nonestablishment tension in the institutional setting. A. The New Institutionalism and the Accommodation- Nonestablishment Tension 1. The Normative Appeal of Institutional Religious Accommodation 49 Id. at 706 (footnote omitted). 50 See id. at See Magarian, Colliding Interests, supra note 5, at (criticizing the Court s reliance on neutrality as a basis for resolving religious accommodation disputes). 52 See Kiryas Joel, 512 U.S. at 732 (Scalia, J., dissenting). 12

14 The surge in religious institutionalist scholarship has complicated and enriched the legal debate over the appropriate scope and nature of religious accommodations. The case for increasing accommodation of religious institutions carries substantial normative force. I do not attempt here to examine the full range of arguments in favor of increased religious institutional autonomy. I merely sketch the contours of two sorts of arguments that I find both normatively appealing and less threatening to nonestablishment values than some other institutionalist arguments. Both address the instrumental value of religious institutional autonomy for a robust democratic culture. The first emphasizes the value of religious institutions for realizing the interests of individual religious believers. I call this the aggregation argument. The second emphasizes the value of religious institutions for making public discourse more diverse and dynamic. I call this the pluralist argument. 53 Both the aggregation and pluralist arguments apply to a broad range of civil society institutions beyond religious institutions. 54 Religious institutionalist scholars, however, make particular claims about how religious institutions serve aggregation and pluralist ends. The aggregation argument for increased religious institutional autonomy posits that taking the legal rights of individual religious believers seriously must, as a practical matter, mean taking the legal rights of religious institutions seriously. Religious institutions bring believers together to form and manifest religious commitments. They provide [a] narrative [that] constitutes the interpretive structure against which [believers] assess the meaning of their lives. 55 Religious institutions transcend individual believers by virtue of their durability and their qualities of community or association that include many more lives and consciences than one. 56 Religious groups effectuate individual interests both by advancing members self-realization and by giving members strength in numbers against the authoritarian tendencies of government. 57 In particular, religious institutions secure and fortify the individual right to religious liberty. In Justice Brennan s words, [s]olicitude for a church s ability to [define itself] reflects the idea that furtherance of the autonomy of religious organization 53 These two arguments, as I conceive them, roughly parallel what I have called the participatory and informative values of public discourse. Elsewhere I have contended that religiously grounded ideas advance both of those values. See Gregory P. Magarian, Religious Argument, Free Speech Theory, and Democratic Dynamism, 86 NOTRE DAME L. REV. 119, (2011) (hereinafter Magarian, Religious Argument). 54 See generally PAUL HORWITZ, FIRST AMENDMENT INSTITUTIONS (2013); JOHN D. INAZU, LIBERTY S REFUGE: THE FORGOTTEN FREEDOM OF ASSEMBLY (2012). 55 Frederick M. Gedicks, Toward a Constitutional Jurisprudence of Religious Group Rights, 1989 WIS. L. REV. 99, 108 (hereinafter Gedicks, Constitutional Jurisprudence). 56 Ira C. Lupu and Robert Tuttle, The Distinctive Place of Religious Entities in Our Constitutional Order, 47 VILL. L. REV. 37, 50 (2002). 57 See Gedicks, Constitutional Jurisprudence, supra note 57, at

15 often furthers individual religious freedom as well. 58 Even beyond this strengthening of individual liberty, some religious believers and traditions conceive religious exercise as an essentially communal activity, making legal protection of individual conscientious rights inadequate to protect their religious freedom. 59 The pluralist argument for religious institutional autonomy builds on Fred Schauer s contention that First Amendment doctrine should take account of the ways in which various civil society institutions, including the media, universities, and electoral structures, substantially advance public knowledge and information while providing important counterweights to the influence of government and the market. 60 I have argued elsewhere that religious arguments make an important, positive contribution to public political discourse, even especially when religious messages threaten to destabilize settled understandings of political matters. 61 Religious institutionalist scholars offer a rich account of how religious institutions drive that contribution. Paul Horwitz explains that religious institutions, particularly core religious institutions such as churches, help form, shape, and propagate public discourse, placing them firmly in the category of what he calls First Amendment institutions. 62 Religious institutions, characteristically focused on questions of morality and transcendent value, play a major role in developing the normative arguments that animate liberal political processes. 63 An especially important aspect of religious institutions normative contribution is their tendency to oppose and resist government assertions of authority. 64 More broadly, religious institutions often question and reject 58 Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 342 (1987) (Brennan, J., concurring in the judgment); see also Richard W. Garnett, Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses, 53 VILL. L. REV. 273, (2008) (hereinafter Garnett, Institutional Understanding); Gedicks, Constitutional Jurisprudence, supra note 57, at See Mary Ann Glendon, Law, Communities, and the Religious Freedom Language of the Constitution, 60 GEO. WASH. L. REV. 672, (1992) (criticizing Religion Clause doctrine for treating religious exercise as private and volitional rather than communal). 60 See Frederick Schauer, Towards an Institutional First Amendment, 89 MINN. L. REV (2005); Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84 (1998); Frederick Schauer and Richard H. Pildes, Electoral Exceptionalism and the First Amendment, 77 TEX. L. REV (1999). 61 See Magarian, Religious Argument, supra note 55, at Paul Horwitz, Churches as First Amendment Institutions: Of Sovereignty and Spheres, 44 HARV. CIV. R.-CIV. LIB. L. REV. 79, 113 (2009). 63 See Gedicks, Constitutional Jurisprudence, supra note 57, at See, e.g., John D. Inazu, The Freedom of the Church (New Revised Standard Version) (April 2013) at 29, available at ( The church performs its proclamation in service to the state by naming the state s limits and ambitions. ). 14

16 majoritarian consensus on difficult issues, advancing novel ideas that can help to unsettle status quo understandings and promote dynamic social change. 65 Some religious institutionalist scholars may view my sympathy for the aggregation and pluralist arguments as damning with faint praise. Both of those arguments, as I have framed them, are entirely instrumental. In contrast, the dominant tendency in the new institutionalism is existential, claiming for religious institutions a measure of parallel sovereignty under the law that overlaps state authority. This sort of argument maintains that religious institutions emerge on the social landscape through some organic process. Because of their independence of the state and their structural importance in counterbalancing state power, religious institutions should be understood as sovereign within a certain range of activity. Accordingly, the state has very limited jurisdiction to interfere with religious institutions, leaving internal governance mechanisms to resolve most of their problems. 66 Sovereignty arguments often draw upon theological accounts of religious institutions social function, 67 although they usually disclaim theological authority. 68 A thorough critique of sovereignty arguments lies well beyond the scope of this article. I simply note that I find those arguments unpersuasive. Granting parallel sovereignty to civil society institutions runs counter to the republican principles that undergird our contemporary law and politics. 69 In addition, sovereignty arguments face a problem with authority. Who determines the proper scope of religious institutions and states sovereignty? Theologically grounded sovereignty arguments provide an easy answer, but implementing it would violate the Establishment Clause in spectacular fashion. Absent divine authority, sovereignty arguments must either default to state boundary-drawing or depend on free-floating normative claims 65 See Kathleen A. Brady, Religious Organizations and Free Exercise: The Surprising Lessons of Smith, 2004 B.Y.U. L. REV. 1633, Important versions of the argument that courts should view religious institutional authority as, to some substantial extent, paralleling state authority include Garnett, Institutional Understanding, supra note 60; Horwitz, supra note 64; Steven D. Smith, Freedom of Religion or Freedom of the Church? (August 2011), available at 67 See, e.g., Richard W. Garnett, The Freedom of the Church, 4 J. Cath. Soc. Thought 59 (2007) (grounding a theory of religious institutional autonomy in the idea, associated with the Catholic tradition, of libertas ecclesiae); Inazu, supra note 66 (constructing an argument for church autonomy based on Protestant theology and examining possibilities for translating that argument into generally accessible terms). 68 See, e.g., Horwitz, supra note 64, at (basing a sovereignty argument on the views of neo- Calvinist theologian Abraham Kuyper but adapt[ing] Kuyper s thought... to a religiously pluralistic society in which Kuyper s assumptions about the primacy of Calvinist thought cannot be assumed to hold ). 69 See Frederick M. Gedicks, True Lies: Conossa as Myth, at 3-6 (unpublished manuscript, on file with author); Richard Schragger and Micah Schwartzman, Against Religious Institutionalism, 99 VA. L. REV. [draft at 22-27] (forthcoming 2013). 15

17 that have to contend in the political and legal arenas with competing claims. Both of those approaches, whatever their virtues, give sovereignty away. Although I reject sovereignty arguments for religious institutional autonomy, I believe religious institutions have distinctive, though not exclusive, grounds for asserting autonomy and thus pursuing certain accommodations. Arguments that no sort of civil society institution advances such democratic values as aggregation and pluralism more than any other 70 strike me as unduly formalist. Certainly a wide range of institutions political parties, labor unions, service organizations make important contributions to public discourse. Religious institutions, however, have the unusual virtue of bringing people together to develop and advance beliefs about deep questions of human existence. 71 Some nonreligious institutions as well perform that same function, and I think the law should extend them similar accommodations. 72 In addition, the category of religious institutions is neither monolithic nor simple. 73 Even so, religious institutions comprise a discernible category within civil society that maintains a distinctive commitment to pursuing a certain kind of democratically valuable activity. In this respect, religious institutions run parallel to universities and the media. 74 All three categories of institutions make distinctively valuable contributions to public discourse, and each has distinctive needs under the law. Universities need academic freedom; the media needs press shield laws; religious institutions need certain accommodations to protect religious exercise. Religious institutions do not have unique value, but they have distinctive value, and I believe the law can and should take account of that value. The difficult question is what constraints the Establishment Clause imposes. 2. The New Institutionalism s Limited Attention to Establishment Concerns In the last century, advocates of religious accommodation often confronted the Establishment Clause directly, contesting arguments that it should constrain accommodations. 75 As discussed above, however, the Court s settlement in Smith of the religious accommodation question, while minimizing the Free Exercise 70 See, e.g., id. at See Gedicks, Constitutional Jurisprudence, supra note 57, at (qualifying religious groups for autonomy as to membership decisions based on the idea that such groups create rather than merely reflect values ). 72 See Magarian, RFRA, supra note 40, at For a helpful discussion, see Zoe Robinson, What Is a Religious Institution?, 55 B.C. L. REV. (forthcoming 2014). 74 See generally HORWITZ, supra note See, e.g., McConnell, Accommodation, supra note 4, at

18 Clause as a source of mandatory accommodations, also sidelined the Establishment Clause as a basis for objecting to discretionary accommodations. 76 Moreover, under the sort of sovereignty argument that dominates the new institutionalist scholarship, the notion of an accommodation-nonestablishment tension becomes incoherent: government need not accommodate religious institutions but simply must respect their parallel sovereignty. Thus, for both doctrinal and theoretical reasons, the new institutionalists have said almost nothing about the possibility that a robust doctrine of institutional accommodations might present heightened establishment concerns. Carl Esbeck has argued, since well before the current wave of religious institutionalist scholarship, that the Establishment Clause operates not as a guarantee of individual rights but as a structural constraint on government action. 77 As a result, he maintains, the Establishment Clause works in tandem with the Free Exercise Clause to bar government from interfering with the autonomy of religious institutions. 78 The idea that the Establishment Clause does not restrain but rather empowers religious institutions has influenced the new institutionalists. Professor Horwitz argues that a strong regime of nonestablishment strengthens arguments for religious institutional autonomy by encouraging competition among religions. 79 In particular, he sees the Establishment Clause as supporting religious institutional claims on questions of public funding and access to public resources 80 but limiting symbolic endorsements of religion by government. 81 In advocating a broad, jurisdictional ministerial exception 82 and a robust regime of individual and institutional religious accommodations 83 under his conception of sphere sovereignty, Horwitz does not consider any implications of the Establishment Clause. Steven Smith posits a church focused jurisprudence that grants special constitutional status to the church but denies special status to religion. 84 Under his approach, the Establishment Clause apparently would not impede any government support for religion short of a literal endorsement: government could provide direct financial 76 See supra section I.B. 77 See Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 B.Y.U. L. REV (hereinafter Esbeck, Dissent and Disestablishment); Carl H. Esbeck, The Establishment Clause as a Structural Constraint on Government Power, 84 IOWA L. REV. 1 (1998). 78 See Esbeck, Dissent and Disestablishment, supra note 79, at Paul Horwitz, Freedom of the Church Without Romance, J. CONTEMP. LEGAL ISS. (forthcoming 2013) [draft at 80]. 80 See Horwitz, supra note 64, at See id. at See id. at See id. at See Smith, supra note 68, at

19 aid to churches, which Smith analogizes to foreign sovereigns, and endorse religious beliefs. 85 The Court s decision in Hosanna-Tabor 86 catches the new institutionalist wave, placing unprecedented judicial support behind the idea that the Establishment Clause does not bar but rather mandates at least some religious institutional accommodations. In affirming that churches enjoy an exemption from federal antidiscrimination law for decisions about hiring ministers, Chief Justice Roberts opinion for a unanimous Court relies on both the Free Exercise Clause and the Establishment Clause. The Free Exercise Clause protects a religious group s right to shape its own faith and mission through its appointments, while the Establishment Clause prohibits government involvement in such ecclesiastical decisions. 87 Michael McConnell, noting that no prior Supreme Court decision invoked the Establishment Clause in support of religious institutional autonomy, suggests that Hosanna-Tabor could have major ramifications for Religion Clause doctrine. 88 Whether Hosanna-Tabor really portends a broad new doctrine of institutional (or other) accommodations, let alone conscripts the Establishment Clause to drive such a doctrine, remains open to question. 89 The decision, however, at least tracks the new institutionalists disregard for establishment concerns and provides fuel for McConnell s speculation. My colleague John Inazu, in an article that outlines differences between Catholic- and Protestant-derived accounts of religious institutional autonomy, suggests that the Establishment Clause would present problems for an institutional accommodation doctrine that favored particular structures of churches. 90 This is an important point, and it resonates with an admonition in Hosanna-Tabor by the odd couple of Justices Alito and Kagan, although they take no account of establishment concerns. 91 Religious institutions vary widely in the rigidity and complexity of their institutional structures, the nature and extent of the authority they exercise over individual believers, and the nature and extent of their 85 See id. at Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 U.S., 132 S. Ct. 694 (2012). 87 Id. at 706. For a discussion of the conceptual tension between these two strands of Hosanna- Tabor, see Frederick M. Gedicks, Narrative Pluralism and Doctrinal Incoherence in Hosanna- Tabor, 64 MERCER L. REV. 405, (2013). 88 See Michael W. McConnell, Reflections on Hosanna-Tabor, 3 HARV. J. LAW & PUB. POL. 821, (2012) (hereinafter McConnell, Hosanna-Tabor). 89 See infra section III.A. 90 See Inazu, supra note 66, at 34 n.143 (positing that disparate treatment of church-affiliated and non-church-affiliated religious institutions may raise Establishment Clause concerns ). 91 See Hosanna-Tabor, 132 S. Ct. at 711 (Alito, J., concurring) ( Because virtually every religion in the world is represented in the population of the United States, it would be a mistake if the term minister or the concept of ordination were viewed as central to [the ministerial exception]. ). 18