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Friday, October 17, 2014

Religious accommodations and legal pluralism

In this piece, ("Religious accommodation's roots in legal pluralism"), Columbia's Prof. Katherine Franke writes that "one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme."  She also writes, later in the piece, "the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority."

Now, for me -- unlike Katherine, it seems -- to identify something's roots in "legal pluralism" is, generally speaking, to pay that something a compliment!  (I recommend, by the way, Prof. Victor Muniz-Fraticelli's new bookThe Structure of Pluralism.)  But, put that general matter aside:  Although Madison's Memorial and Remonstrance certainly takes seriously the authority of "sources exogenous to the secular legal system itself," I don't think that our accommodation-through-exemption regime in the United States really reflects or constitutes a "threat to the idea of state power" or even to the idea of "singular legal authority."  In practice, and in most of the arguments for religious accommodation, it seems to me, the conversations and litigation happen in terms of interest-balancing, toleration, benevolence, getting-along, etc.  

It is true that -- for some of us, anyway --  the idea that the state's authority is both bounded and non-singular is important and worth operationalizing through constitutional doctrines like the ministerial exception and decisions like Kedroff (more on that here).  But again, most requests for religious exemptions, in practice, look and sound to me much more like requests (or pleas) for toleration and for the state to stay its hand, moderate its approach, and endure a little inconvenience in order to reduce unnecessary pain to certain citizens with religious objections to complying with otherwise generally applicable laws.  

We could hear, for example, Mr. Holt as making some kind of jurisdictional claim about the state's lack of authority to regulate the length of Muslim prisoners' beards and, to be sure, he is (at least implicitly) claiming that to the extent the relevant non-political authority's commands conflict with the political authority's, he believes the former authority's are the ones that, for him, control.  But, within the confines of our religious-liberty legal regime, he is simply invoking one of the political authority's valid and binding laws (RLUIPA) in support of his claim that another of the political authority's binding and valid policies (the prison-grooming regulation) can, all things considered, be modified in application in this particular case, and therefore should.   It seems to me that there is nothing -- to borrow Katherine's word -- particularly "radical" about that.

Posted by Rick Garnett on October 17, 2014 at 03:31 PM in Religion, Rick Garnett | Permalink

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