Permissible Accommodation or Impermissible Endorsement? A Proposed Approach to Religious Exemptions and the Establishment Clause

In this Article, I propose an approach for deciding the limits that the First Amendment’s Establishment Clause places on state and federal legislatures and courts when they create religious exemptions and there is no federal constitutional compulsion on them to do so. Although the Supreme Court’s much-anticipated decision last Term in Masterpiece Cakeshop v. Colorado Civil Rights Commission ultimately decided very little, it featured a clash of interests that make it a useful vehicle for illustrating those limits. Suppose, for example, that after losing in the Colorado courts, the owner of Masterpiece Cakeshop had decided not to seek review in the U.S. Supreme Court, but instead focused his energies on the Colorado legislature and managed to persuade it to enact a religious exemption of the sort that he unsuccessfully had sought in the courts. Should that exemption survive an Establishment Clause challenge? Suppose instead that, after the bakery owner had lost in the Colorado Court of Appeals, the Colorado Supreme Court had agreed to hear the case and ultimately reversed on the ground that the Colorado Constitution’s free exercise guarantee required that he be granted an exemption from Colorado’s Anti-Discrimination Act. Should the U.S. Supreme Court agree to review that decision and reverse on federal Establishment Clause grounds? In Part I, I lay the groundwork for my proposal by providing an overview of the Establishment and Free Exercise Clauses and the relationship between them. Drawing on important insights offered by Justice O’Connor, I propose in Part II a first step for the approach. In Part III, I spell out the remaining three steps of my proposed approach and briefly explain the basic framework that the approach puts into place. I comment in Part IV on two Supreme Court decisions that have special significance for the viability of the approach. I turn in Parts V, VI, and VII to the issues that arise in making two determinations that lie at the heart of the approach: whether the burden on religious liberty lifted by an exemption is substantial, and whether denying an exemption is necessary to serve a compelling state interest. In those Parts, I suggest answers to various questions raised by the proposed approach, such as: What, if any, benchmarks exist to lend objectivity and consistency to judges’ making those two key determinations? From whose perspective should the substantiality of a burden be judged? How do possible ripple effects of exempting the claimant before the court factor into a determination whether denying the exemption is necessary to serve a compelling state interest