The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes between Religion and the State

Abstract

This Article considers a burning issue in society today—whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate same-sex marriages. In all these contexts, religious objectors claim a special right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and may impose significant costs on others. Legislators and other policymakers have struggled with how to advance two compelling, and at times conflicting, values—access and religious liberty. This Article examines, and responds to, a number of “sticking points” voiced by legislators about a qualified exemption for religious objectors that would permit them to step aside from facilitating same-sex marriages so long as no hardship will result. These concerns bear an uncanny resemblance to reasons why some believe the Obama administration should not yield further on the coverage mandate. This Article maintains that religious accommodations qualified by hardship to others can transform what could be a zero-sum proposition into one in which access and religious freedom can both be affirmed.