Posted by Eugene Volokh:
Religious Accommodations:
http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1236894344
[1]Investor's Business Daily writes:
Minnesota is offering a program to Muslims who want to buy a home
but don't want to break their religion's laws about interest....
The Minnesota program, the first in the nation, will be
administered by the state's housing agency, which will buy homes,
with taxpayers' dollars, and resell them at higher prices to Muslim
buyers.
To circumvent Islamic Shariah law, which, we're told, forbids
Muslims from buying or selling loans that charge interest, the
transaction will have higher up-front costs, including the amount
of interest that would have been charged over the life of the loan.
This is a clear mixing of religion and state, which runs afoul of
the Constitution ....
[Are potential opponents of the proposal] afraid to anger a group
whose more enraged members have gained a reputation for taking
advantage of our politically correct culture and bullying officials
to get their way? ... [Are they] fearful activists will target
them? They've already seen Minnesota officials, who, when pushed by
activists demanding preferential treatment for Muslims, agreed to
provide foot-washing facilities on the campuses of several
universities.
It's not within the legitimate duties of government to ensure that
members of certain religions can buy homes....
I think IBD is wrong about this (and about its criticism of the ACLU
on this, more on which in a separate point). Here's why.
The government routinely faces situations where certain government
benefits are set up in ways that keep certain religious groups from
taking advantage of them. Often it's too burdensome or expensive to
restructure the benefit to accommodate those groups. But often it is
possible, and when it is possible, I think it's eminently proper for
the government to do so. And it is certainly routinely done for groups
other than Muslims, so the implication that Muslims are getting
special treatment because of modern "political[] correct[ness]"
strikes me as quite unsupported.
1. Let's look at a very simple scenario: Imagine that a government
office runs a cafeteria for employees, and imagine that it is always
careful to provide some pork-free dishes for its Jewish employees, and
some vegetarian dishes for Buddhist employees and some Jews who will
only eat vegetarian dishes in nonkosher establishments. (Obviously
some Jews won't eat anything in nonkosher establishments, but I know
some Jews who will eat vegetarian dishes.)
This makes sense for the government, since it keeps its employees
happy. It makes sense for the employees. And it imposes little burden
on anyone. Of course, if it was a matter of buying wholly kosher food
just in case the one observant Jewish employee wanted to eat it, and
the food cost more, used up shelf space, and often got thrown out
uneaten, the analysis might be different. But when there are a
considerable number of people who are helped by this program, it
should be perfectly acceptable. (I should note that some nonreligious
vegetarians -- or for that matter nonvegetarian vegetable lovers --
might enjoy having the vegetarian dishes as well, but I don't think
this affects the analysis.)
2. Or consider another common scenario: The government offers people a
job, but requires employees to follow various rules. If the rules are
important to the job, it may be sensible to require everyone to follow
them. But if the rules are peripheral -- for instance, a no-headgear
rule, or a rule requiring everyone, including women, to wear pants,
where there is no safety reason for the requirement -- it makes sense
that the government would create an accommodation, for instance for
men who want to wear yarmulkes, or for women who feel it wrong for
women to wear pants. Federal antidiscrimination law requires such
accommodations when they are not burdensome, both for private and
public employers. But whatever you think of that, I think it's quite
proper for an employer to make such accommodations.
3. Likewise, unemployment benefits are generally available only for
people who are willing to take reasonable job options that they are
offered. This would sometimes mean that Sabbatarians, such as
Seventh-Day Adventists and Orthodox Jews, would lose unemployment
benefits because they wouldn't take offered jobs that required them to
work Saturdays. In 1963, the Supreme Court held (in Sherbert v.
Verner) that Sabbatarians had to be exempted from those requirements.
I don't think Sherbert was correct, at least as to its most expansive
reasoning, and I think there may be good reasons to deny Sabbatarians
such an exemption, which does give them something of an advantage over
others. But the existence of this principle illustrates that religious
accommodations began long before there were Muslim claimants, and that
Muslims are asking for accommodations that are not far different from
those that other religious groups have gotten.
4. On to this particular proposal: As best I can tell, the
[2]financing option is available to everyone, not just Muslims; it's
just that Muslims will find it useful and others won't. Moreover,
nothing I've seen suggests that Muslims are getting a significant
secular benefit here, such as lower aggregate rates.
If I'm right on this, then what we have here is much like the
pork-free food option in the cafeteria line, or a break from
no-headgear requirements (though even less troublesome than such a
break, because it's available to everyone, not just religious
objectors). The government set up a general program that it was hoping
lots of people could take advantage of. To its surprise, some people
have a religious objection to the program, and thus can't benefit from
it. Fortunately, it's pretty cheap to slightly tweak the program in a
way that doesn't undermine its core purposes, and that doesn't
materially burden other beneficiaries or the taxpayers, but that lets
religious objectors -- here Muslims, but in other contexts Jews,
Christians, Buddhists, and others -- fully participate in the program.
That is the extension of a generally worthy American tradition --
Muslims getting roughly similar religious accommodations that other
religious groups have long gotten. It is not some rare departure from
"separat[ion]" of "church and state" explainable only by modern
political correctness and the supposed rage of a particular group.
References
1.
http://www.investors.com/editorial/editorialcontent.asp?secid=1501&status=article&id=321662749216001
2.
http://www.mnhousing.gov/idc/groups/public/documents/document/mhfa_007419.pdf
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