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53 B.C. L. Rev. 1417 (2012)
The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and other Clashes between Religion and the State

handle is hein.journals/bclr53 and id is 1429 raw text is: THE CALCULUS OF ACCOMMODATION: CONTRACEPTION, ABORTION, SAME-SEX MARRIAGE, AND OTHER CLASHES BETWEEN RELIGION AND THE STATE ROBIN FRETWELL WILSON* 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. Reli- gious 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 reli- gious 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 reli- gious liberty. This Article examines, and responds to, a number of stick- ing 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 un- canny resemblance to reasons why some believe the Obama administra- tion should not yield further on the coverage mandate. This Article main- tains 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. * @ 2012, Robin Fretwell Wilson, Class of 1958 Law Alumni Professor of Law, Washing- ton and Lee University School of Law. I benefited immensely from presentations of an early version of this Article to workshops and panel discussions at the Brookings Institu- tion; the Competing Claims of Law and Religion conference at Pepperdine University; the Georgetown University Law Center; the New York City Bar Forum on Reconciling Rights: Balancing Lesbian, Gay, Bisexual, and Transgender Civil Rights with First Amendment Religious Protection; Oxford University's Magdalen College; Princeton University; South- ern Methodist University; the University of Houston; the University of Illinois; the Univer- sity of Oklahoma; and Washington and Lee University School of Law's Faculty Enclave. I am especially indebted to Tom Berg, Bill Eskridge, Josh Fairfield, David Gamage, Nicole Huberfeld, David Hyman, Rick Garnett, Kent Greenawalt, Tim Jost, Anthony Kreis, Doug Laycock, Chip Lupu, Tim MacDonnell, Pamela Melton, Kathy Moore, and Stacey Tovino for insightful, helpful comments on early versions of this Article, and to John Eller, Ron Fuller, and Claire Hagan for their expert, diligent research support. 1417

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