//  9/28/17  //  Commentary

Last week, I addressed one of the robust theories of free exercise exemptions being advanced in Masterpiece Cakeshop and explained why the theory (1) cannot be reconciled with Employment Division v. Smith and its progeny and (2) even on its own terms, is not properly implicated by the law being challenged in Masterpiece Cakeshop. I also argued that (3) the Court should reconsider Smith and bring its free exercise doctrine into parity with its free speech doctrine. This would entail providing a floor of modest protection against incidental burdens without requiring religious exemptions that – like the one sought in Masterpiece – would interfere with substantial state interests, such as ensuring equality of treatment in the marketplace.

The Court could dispose of the free exercise argument in Masterpiece by focusing on point #2 above without reaching definitive conclusions on points #1 or #3. But in this post, I want to acknowledge a troubling potential consequence if the Court – either in Masterpiece or a subsequent case – agrees with my position on point #1 while rejecting my position on point #3. That consequence is the continued vulnerability of Title VII’s modest requirement that state employers, like private employers, “reasonably accommodate” the religious practices of their employees. See generally Holmes v. Marion County Office of Family & Children, 349 F.3d 914, 919-22 (7th Cir. 2003) (holding that the reasonable accommodation requirement exceeds Congress’s Section 5 powers and upholding a state sovereign immunity defense as a result).***

In order to qualify as appropriate Section 5 enforcement legislation, Title VII’s reasonable accommodation provision must be congruent and proportional to the requirements of the Free Exercise Clause. Of course, if the Court were to reconsider Smith and adopt a modest free exercise accommodation requirement, Title VII’s provision would be a perfect fit with the constitutional rule. But if the Court adheres to Smith’s equal-protection approach to the Free Exercise Clause, the Section 5 status of the reasonable accommodation provision will likely depend on whether it can be deemed congruent and proportional to the selective-exemption rule, under which “the Free Exercise Clause may still require religious exemptions from a law when the government selectively makes available other exemptions from that law.” Thus, the breadth of that rule – and a determination of how often it will be triggered in the state employment context – could be critical to the Section 5 analysis.

In a 2004 article, I developed the argument that Title VII’s reasonable accommodation provision could and should be upheld as appropriate Section 5 legislation based on its relationship to the selective-exemption rule, though I noted that the question “is much closer than many might like to admit.” Taking a fresh look back at my 2004 analysis with the benefit of my more in-depth 2013 analysis of the proper scope of the selective-exemption rule, see Lukumi at Twenty, I am now less optimistic that the case for congruence and proportionality can be made. 

In my 2004 article, I divided the universe of selective-exemption situations into just two sets: individualized-exemption situations, which were explicitly mentioned by both Smith and Lukumi, and categorical-exemption situations, which Lukumi indicated might be covered by the selective-exemption rule and which some lower courts explicitly found could be covered. I argued that, if the Court interpreted the rule as extending to situations where laws included categorical exemptions, the reasonable accommodation provision could be found congruent and proportional to the Court’s doctrine given the prevalence of categorical exemptions in state employment rules. 

In retrospect, this analysis was too simplistic, as it failed to appreciate that not all categorical-exemption situations are the same. As I explained in my 2013 article, sometimes such situations may be suggestive of discriminatory intent, but often they will not be. This leads to the second shortcoming of my 2004 article: it failed to grasp the full import of the Court’s post-Lukumi jurisprudence, which made clear that the Free Exercise Clause under Smith only protects against the danger of intentional discrimination. See City of Boerne. That teaching necessitates distinguishing between different selective-exemption situations and treating as suspect only those that raise the specter of impermissible targeting. On a related note, my 2004 article was too quick to dismiss the argument that adopting a broad selective-exemption rule would create an implausibly large loophole in the Smith doctrine. In the course of dismissing that argument in a single paragraph, I relied on language and inferences from Lukumi without properly accounting for either (1) City of Boerne’s interpretation of Smith or (2) the passage in Smith itself in which the Court referred to a wide variety of laws that should not routinely be subject to a strict-scrutiny exemption regime. See Smith, 494 U. S. at 888-89. In short, I made two of the same mistakes in 2004 that I believe Professors Thomas Berg and Douglas Laycock are making now in advocating for their broad version of the selective-exemption rule.

Unlike my 2004 article, my 2013 article fully accounted for City of Boerne’s interpretation of Smith and argued for “a more appropriately tailored reading of the selective-exemption rule—a reading grounded in the rule’s origins as a tool to prevent intentional discrimination.” Adopting this more tailored reading of the selective-exemption rule, however, has consequences for Title VII’s reasonable accommodation provision: if the only categorical-exemption situations that implicate the Free Exercise Clause are those suggesting discriminatory intent, it will be more difficult (though not necessarily impossible) to show that such situations (along with individualized-exemption situations) regularly arise in the state employment context. And, thus, it will be harder to demonstrate that the reasonable accommodation provision is congruent and proportional to constitutional violations in that context. Cf. Holmes, 349 F.3d at 921 (“An accommodation requirement does not reinforce the constitutional approach … in the absence of some need to use accommodation to counteract evasions of the antidiscrimination principle.”). Conversely, if the Court were to adopt the broader version of the selective-exemption rule that is being championed in Masterpiece by Professors Berg and Laycock, the Section 5 argument for the reasonable accommodation provision would become more secure. But because that broader rule is inconsistent with the Smith/City of Boerne interpretation of the Free Exercise Clause, which treats that clause as only protecting against intentional discrimination or targeting, it cannot serve as the Section 5 baseline for judging the reasonable accommodation provision.

And therein lies the troubling consequence if one both accepts my argument that the broad selective-exemption rule is inconsistent with current doctrine and rejects my argument that the Court should revisit current doctrine and provide a modest free-exercise accommodation right: doing so leaves uncertain the status of Title VII’s modest reasonable accommodation provision as appropriate legislation enforcing the Free Exercise Clause. This uncertainty cannot justify reinterpreting Smith in a manner inconsistent with City of Boerne. See Lukumi at Twenty at 335-36 (“Although strong arguments have been offered for reconsidering Smith and its ‘equal protection’ interpretation of the Free Exercise Clause, those arguments should not be advanced through the backdoor of the selective-exemption rule.”). But it does reveal one further benefit of squarely reconsidering Smith, bringing free exercise doctrine into parity with free speech doctrine, and adopting a modest free exercise accommodation requirement that is comparable to the one in Title VII.  

*** The Court's sovereign immunity doctrine, which applies to private suits against states for money damages, does not affect actions brought against states by the federal government and does not preclude individuals from suing state officials for injunctive relief. Thus, even if Title VII’s reasonable accommodation provision does not qualify as valid Section 5 legislation that can abrogate state sovereign immunity, because it is also an exercise of Congress’s Commerce Clause powers, it can be enforced through those alternative mechanisms. As a number of commentators have observed, however, those alternative mechanisms are of limited efficacy. See Commentary Collected in Note 9 Here.

Disclosure: I am helping to draft an amicus brief in Masterpiece Cakeshop that primarily focuses on issues other than free exercise doctrine.

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