PEACEFUL COEXISTENCE

Commissioners’ Rebuttals
117
narrowly as applicable law requires.” We’d still be in the position of having to figure out whether
applicable law does indeed or should require any such thing.
Recommendation #2 states:
“RFRA protects only religious practitioners’ First Amendment free exercise rights,
and it does not limit others’ freedom from government-imposed religious
limitations under the Establishment Clause.”
If you are having trouble figuring out what Recommendation #2 is trying to get at, you are
not alone. Perhaps it is trying to say that Congress, in attempting to protect the religious liberty of
some, must take care not to violate the Constitution’s Establishment Clause, which prohibits “any
law respecting an establishment of religion.” If so, again, yes, of course. But, again, the difficulty
is in the details. Everybody with even a passing understanding of the Constitution knows that
Congress must steer a path between the Free Exercise Clause and the Establishment Clause. 2
How to do that is not so easy; volumes have been written on it. Yet a simple, foolproof technique
for doing so has never been discovered and perhaps never will be, since cases continue to reach
the Supreme Court in need of resolution. This report does nothing to help resolve those issues.
Recommendation #3 states:
“In the absence of controlling authority to the contrary such as a state-level,
RFRA-style statute, the recognition of religious exemptions to nondiscrimination
laws and policies should be made pursuant to the holding of Employment Division
v. Smith, which protects religious beliefs rather than conduct.”
Two things: First, like some of the other recommendations, this one is worded in such a
way as to sound significant, but in the end it doesn’t mean much. It states that in the absence of
law pointing in the other direction one should apply Smith. But often there is authority pointing
in the other direction (and when there isn’t, the legislature may create such a law). It can come
not only from RFRA-style statutes, but also from state constitutions, whose religious liberty
guarantees may be very different from the Free Exercise Clause of the U.S. Constitution as
interpreted in Smith. It can also come from the nondiscrimination statutes themselves, in the form
of an explicit or implicit requirement for religious accommodation (or in the form of broader
exceptions into which religious accommodations may fit). For example, Title VII forbids sex
discrimination in employment, but contains an exception for “bona fide occupational
qualifications based on sex.” Might such a provision permit a specialty restaurateur whose
religion forbids his co-religionists from eating food prepared by women to hire only men? The
Commission’s recommendation surely provides us with no assistance in answering that question.
2
For example, if the federal government funds religious schools, is it a violation of the Establishment Clause? Or is it
a violation of the Free Exercise Clause to fund all schools, except religious schools?