Accommodating Discrimination

Abstract

The Supreme Court's jurisprudence on church-state issues is unsettled. With respect to the Establishment Clause, the three-pronged test from Lemon v. Kurtzman is often used to hold government benefits to religious organizations unconstitutional. But, in cases where the majority of the Court finds the governmental benefit permissible, Lemon is generally unmentioned. This problem is confounded when the Court considers accommodations for religious organizations. Lemon, without refinement, is ill-suited to application to such accommodations. Does allowing religious organizations an exemption from generally applicable laws benefit a religious organization in violation of the Establishment Clause or does failing to provide the accommodation violate the Free Exercise Clause and unduly punish religious organizations because of their message? This paper addresses these questions and presents a new, more coherent test for accommodations to religious organizations. Specifically, it looks at the employment practices of religious organizations participating in school choice programs to determine (1) is it constitutional for accommodations to be made to religious schools participating in the program, and (2) would it violate the Free Exercise clause to deny the accommodation in some circumstances. Finally, the paper asks if legislatures authorizing school voucher programs could constitutionally demand waiver of any exemptions as a condition on participation in the program.