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At the heart of national debate in recent years is the balance between religious liberty and antidiscrimination interests. The Supreme Court energized the debate in its latest Free Speech and Establishment Clause decisions in Burwell v. Hobby Lobby Stores, Inc., Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and American Legion v. American Humanist Association. These decisions pushed the pendulum towards greater protection of religious liberties and opened the door to new context-specific tests for how the Establishment Clause will interact with the broader range of interests protected by the Free Exercise Clause. This is especially significant in the public employment context, where government employers must balance requests for religious freedom accommodations with Establishment Clause concerns.
Next, this Article details the importance of the protection paradigm operating in the employment context generally, and the public employment context in particular. As to the latter, this Article outlines the concerns of a government employer as they relate to balancing claims for religious liberties with the employer’s obligations pursuant to the Establishment Clause. It details the unique context of a governmental entity as both sovereign and employer and argues for the importance of a situation-specific standard in these situations. To put this context in perspective, this Article reviews the Establishment Clause jurisprudence that led to the Supreme Court’s most recent decision in American Legion. After examining American Legion itself, this Article argues that the Court has opened the door to, and indeed indicated its preference for, the development of more context-specific tests. This is especially preferable in the public employment context and in light of the currently prevailing protection paradigm.
Finally, this Article concludes by analyzing different potential methods for trying to balance religious liberty claims with antidiscrimination concerns, and thus Establishment Clause concerns, in public employment. This Article argues for a combination of relevant tests that balances the magnitude and likelihood of third- party harm, substantiality of burden to religious liberty, and availability or prevalence of secular accommodations. This test provides room for factual inquiry and context-specific value judgments, while still allowing a workable framework, the results of which are sufficiently predictable that employers and employees are not left to wonder about the boundaries by which their relationship should be governed.
* Visiting Professor at the University of Idaho, College of Law. Professor Bauges was previously, from 2018–2020, an Assistant Professor at Concordia University School of Law and Director of Externships, Mentorship, and Pro Bono Programs. Prior to joining Concordia Law, Professor Bauges practiced in employment law, representing both government entities and private organizations. She is grateful for the help of her research assistant, Gwen King, and her colleagues for their encouragement and advice. She would especially like to thank Aaron and Alexander Bauges for their unwavering support and patience.