Religious Exemptions, Third-Party Harms, and the Establishment Clause

Abstract

In recent years, battles over religious exemptions have been increasingly common and increasingly heated. Maybe the biggest hesitation now with regard to religious exemptions, one that has genuine constitutional salience, is that religious exemptions can impose serious harms on third parties. This was a primary concern, for example, in the Hobby Lobby litigation — when Hobby Lobby sought a religious exemption from the Affordable Care Act that would have resulted in their employees being unable to receive complete contraceptive coverage through their health insurance.

Sometimes religious exemptions cause either a diffuse kind of harm or a specific kind of harm that is picked up by the government and then spread over the public at large — like when the Bureau of Prisons pays extra to provide Jewish inmates with Kosher meals. But other times, religious exemptions cause discrete harm to identifiable third parties — third parties, in essence, are forced to shoulder the costs of someone else’s religious exercise.

This Essay details an account of when third-party harms should be sufficient to defeat a claim for a religious exemption. It suggests four factors as relevant to the inquiry: (1) the magnitude of the third-party harm caused by the religious exemption, (2) the likelihood of the third-party harm caused by the religious exemption, (3) the strength of the religious interest in obtaining the religious exemption, and (4) the existence of other kinds of exemptions. All four, this Article contends, are necessary to the inquiry; none can be ignored without abandoning both the case law and deeply shared intuitions. After unpacking and defending these four factors, the piece concludes by raising three general concerns that any theory of third-party harms will have to address — concerns about balancing, about justification, and about practical consequences.

Keywords: Free Exercise, RFRA, state RFRAs, religion, church and state, separation of church and state, Establishment Clause