Partly Accultured Religious Activity: A Case for Accommodating Religious Nonprofits

INTRODUCTION Many of today's most vexing problems concerning the accommodation of religious conscience involve religious groups and activities that straddle the perceived boundary of the public versus private. For example, in disputes over same-sex marriage and religious liberty, it is generally agreed that churches and clergy should be able to refuse to host or perform marriages, because these entities fall within the private sphere. (1) But religious entities that reach out to provide services to the broader public provoke much more controversy. Think, for example, of Catholic Charities adoption agencies that decline to place children with same-sex couples. (2) Or think of the intense controversy over religious nonprofit institutions--social service and educational institutions, primarily--that are seeking a full exemption from the mandate to cover contraception in employees' health insurance. (3) To many critics, it is plainly improper to make any accommodation for religious freedom in such cases. They say that when a religious organization hires people outside of the narrow confines of its faith, or becomes a significant social-service provider, it should not be allowed to continue to act on norms that the government has determined are unjust. Once an organization reaches out to others, it must follow whatever rules the state sets, no matter what burden these rules place on religion. That tendency lay behind the original, very narrow exemption from the contraceptive mandate--an exemption that gave no relief to anyone except churches and denominations. (4) And opponents of exemptions from the mandate argue that exemptions are forbidden--in the words of Fred Gedicks and Rebecca Van Tassell--whenever a religious nonprofit "hire[s] from the general pool of applicants, rather than exclusively from a specific religious group," because such a group employs "nonadherents or adherents who understand the requirements of the affiliated religion differently." (5) Similarly, Caroline Corbin argued, in the early stages of debate over the mandate, that any exemption for religious nonprofit employers would improperly "foist[] the Catholic Bishops' religious views onto employees, whether or not they are Catholic." (6) On the other side, of course, critics of the mandate believe that exemptions for nonprofits are essential to preserve religious freedom. This Article explores the idea that such problems involve cases of "partly acculturated" religious activity. This kind of activity falls somewhere between two poles. One pole is "unacculturated" religion: the activity of the small sect or minority faith whose doctrines are strange to the American majority or whose adherents are mostly ethnic minorities or immigrants. Think of Muslims, Sikhs, Amish, or Jehovah's Witnesses. The other pole is "acculturated" religion, usually engaged in by a larger faith, and defined primarily by the harmony between its doctrines or practices and mainstream secular norms. Acculturated groups tend to think that current secular morality helps realize the true meaning of their faith, and they tend to be deeply involved in the world. Think of mainline Protestant denominations and non-Orthodox Jewish bodies. But as Part I of this Article discusses, many religious activities and groups have features from both poles. They are "acculturated" in that they seek to reach out to the broader society and provide services that people of all beliefs value: education, health care, social services of all kinds, from homeless shelters to adoption to job training. Their approach to these services overlaps significantly, although to a varying degree, with the approach of other providers of these services. And yet these religious providers are "unacculturated" in that some of their doctrines and practices sharply clash with the dominant secular values in their relevant sphere. These groups make a claim to be able to continue to provide services while continuing to follow their countercultural doctrines and practices, which often reflect the core values that inspire their service in the first place. …