Religious Accommodations:

My post on religious accommodations, and in particular the statement, "But requests from minority religious groups (including recent immigrant groups) for accommodation are a longstanding and respectable part of the American tradition of religious freedom," drew this response from a commenter:

Correction: It's not part of American tradition but part of a U.S. Supreme Court adventurism under the faulty disguise it has the power to dictate social religious preferences within states.


1. None of the examples I gave are U.S.-Supreme-Court-mandated religious accommodations; all were done by the democratic process.

2. While from 1963 to 1990, the U.S. Supreme Court read the Constitution as mandating some sorts of religious accommodations, the 1990 Employment Division v. Smith decision almost entirely rejected that doctrine. The rule right now is that the Free Exercise Clause almost never mandates religious exemptions from generally applicable laws. (I have written in support of the Smith constitutional rule.)

3. Following the Smith decision, it was Congress that enacted the Religious Freedom Restoration Act, which provided that governments have to exempt religious objectors from generally applicable laws that burdened their religious practices (unless applying the law to the objector was necessary to serve a compelling government interest). Congress voted in favor of RFRA by a 97-3 vote in the Senate and by voice vote with no objection in the House.

4. It was then the Supreme Court, in 1997, that struck down RFRA as it applied to states. State legislatures in about a dozen states, and state voters in Alabama, have since enacted state-level RFRAs that do apply to state laws. (State supreme courts in about a dozen more states have also read their state constitutions as mandating some sorts of exemptions from generally applicable laws.)

So you can fault the Court for lots of things, but don't turn hostility to the Court -- or even to constitutional constraints on legislative action more broadly -- into a macro (ctrl-shift-A for "activism") that becomes a blanket response to everything. The American tradition of religious accommodation has generally been a tradition of accommodation precisely by the political branches of government.