In the fall issue of the Marquette Law Review, Professor Nantiya Ruan of the University of Denver Sturm College of Law has written an interesting article entitled “Accommodating Respectful Religious Expression in the Workplace.”  It is always hard to summarize a serious piece of scholarship in the few sentences that a blog post will permit and I am, of course, likely to emphasize those aspects of the piece that I found intriguing. It is also true, since I have decided to post a response and not a blurb, that I will emphasize those things that I see differently. So, with advance apologies to Professor Ruan, here is how I read the article.

Ruan posits an inconsistency between the emerging willingness of the Supreme Court to protect religious expression in public spaces (as illustrated by the Ten Commandments cases of 2005) and its rather narrow reading of the requirements to accommodate religious expression in the workplace under Title VII, where employers need incur no more than a de minimis burden to accommodate religious expression and practice.

I am sympathetic to Ruan’s arguments for greater accommodation of religious expression in the workplace. She does a nice job of advancing the notion that religion is fundamental to individual identity, although I would have added, as I have in recent papers, the notion that mandated secular spaces harm religion.

But I want to comment on her claim of an inconsistency between the recent trend toward toleration of religion in the public square and the treatment of religion in the workplace.

She emphasizes the jurisprudence of Justice Antonin Scalia using as an epigraph his statement in McCreary that morality is essential to society and that religion is the best way to encourage morality. She also focuses on the Court’s cases permitting greater religious speech in public, emphasizing McCreary and Van Orden, which involved government speech in the guise of Ten Commandments displays.

I don’t think either emphasis suggests an inconsistency. Scalia does believe that the government may endorse monotheism (although not any particular form of monotheism). But he has not been sympathetic to the claims of religious people to exemptions from generally applicable norms and for special accommodations for religious practice. In fact, he wrote for the Court in the (to many, infamous) decision in Smith holding that the Free Exercise Clause, contrary to the suggestion of earlier cases, required no such accommodations or exceptions from neutral laws of general applicability.

Scalia, then, is, if not correct, perfectly consistent. Government may engage in certain sort of religious speech, but it is not required to and is not obligated to make exceptions from general norms for contradictory religious practices. One could criticize this as overly solicitious of the majority and as insufficiently accommodating of individual conscience, but I don’t know that inconsistency is a particularly telling objection. That Scalia believes that religion encourages morality does not imply that it must be accommodated in areas where the government or those who set the terms for a private relationship believe that it should not be.

Of course, much of the impetus behind Smith‘s presumption against required accommodations is the parade of horribles. Once we start, how can we ever end? The universe of potential accommodations is cabined only by the limitations of men and women as to the nature of the ineffable.  In addition, one woman’s request for accommodation might be another man’s act of hostility. If I must wear a button with a picture of a fetus, am I creating a hostile environment for those who do not share my religious views — some of whom may have had an abortion. Ruan attempts to distinguish between respectful and disrespectful expression with, I think, only limited success, although I think she does get at the idea that there is a difference between an expression of one’s own views and an attack on someone else’s.  As she acknowledges, however, there is no bright line.

A more fruitful line of cases (which she cites but does not emphasize) is the Court’s limited public forum cases. They hold that, if the state is to create a forum for expression, it may not exclude otherwise permissible expression because it is religious. Perhaps if employers permit individual expression, they may not exclude expression that is religious.

Part of the problem here is that an employer will inevitably be stuck between the rock of discrimination and the hard place of harassment (I’m eschewing references to Greek mythology this morning). The inevitable response to being placed in that kind of a trap is to avoid hiring people who will create it. That’s not what we want.

I am sure that I have not done Professor Ruan justice in this brief response. It’s a good article. Read it.