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U.S. Supreme Court,
Constitutional Law

May 22, 2019

When accommodating becomes establishing

The United States has a long, honorable tradition of religious accommodation. But there are important limits.

Joshua Matz

Counsel
Kaplan Hecker & Fink LLP

Phone: (212) 763-0883

Email: jmatz@kaplanhecker.com

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Jonathan A. Patchen

Partner
Willkie, Farr & Gallagher LLP

Phone: (415) 858-7594

Email: jpatchen@willkie.com

Harvard Univ Law School; Cambridge MA

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When accommodating becomes establishing
Both Caldor and Cutter rested on the premise that the establishment clause applies to religious accommodations. It does so because an obvious way for the government to violate religious neutrality is by selectively lifting regulations in ways that burden third parties or disregard their interests. (New York Times News Service)

The United States has a long, honorable tradition of religious accommodation. When our law burdens the free exercise of religion, the government often allows targeted exemptions out of respect for liberty of conscience. These policies and practices have allowed adherents of many faiths to participate more fully in American public life.

But there are important limits on such accommodations. Under the establishment clause of the U.S. ...

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