As the LGBT rights movement has begun to achieve tangible successes at the national level—in particular, marriage equality and workplace protections—legislatures and courts alike have grappled with how to address those who claim their religious beliefs require them to discriminate. Since Obergefell v. Hodges, this process has gone into overdrive: Both legislative and judicial accommodations for religious dissenters have taken on novel and expansive forms. Several prominent federal court decisions have relied on Burwell v. Hobby Lobby Stores, Inc. to expand courts’ conception of what constitutes a burden on religious practice and constrict the category of government action that meets the least-restrictive-means test under the Religious Freedom Restoration Act of 1993. And legislatures have considered and enacted expansive new exemptions from nondiscrimina- tion laws with the novel feature of singling out for protection particular beliefs rather than particular actions.
This new wave of religious accommodations has revived the question of what limits, if any, the First Amendment’s Establishment Clause places on government’s ability to protect religious exercise. So far, scholars opposed to the accommodations have emphasized the harm that religious exemptions from nondiscrimination laws impose on third parties and argued that the Establishment Clause as interpreted by the U.S. Supreme Court prohibits religious accommodations with such substantially negative effects. The only federal court opinion so far to invalidate a nondiscrimination accommodation—the Northern District of Mississippi’s decision in Barber v. Bryant—adopted that reasoning in substantial part.
This Note argues that focusing on the harm caused by nondiscrimination accommodations comes at the problem from the wrong angle. In general, the Establishment Clause is directed at structural problems: preventing government from interfering in the operation of religious bodies and preventing religious entities from wielding governmental power. In particular, Supreme Court holdings since Larkin v. Grendel’s Den, Inc. in 1982 have consistently prohibited governments from giving parties the power to decide, by virtue of their religious beliefs, how governmental benefits are distributed. This Note argues that the new wave of nondiscrimination accommodations does just that, impermissibly giving religious actors a veto over LGBT people’s and others’ statutory rights to do business on equal terms. That perspective places objections to religious accommodations on a stronger, and more circumscribed, doctrinal footing, affording governments more flexibility to design constitutionally valid religious accommodations. But it also acknowledges that the conflict between religious accommodation and nondiscrimination is fundamentally a conflict between two visions of governmental power—one that ultimately must be resolved by the Constitution’s command that government cannot interpose a religious veto point between a citizen and her rights.