Religious exemptions, third-party harms, and the establishment clause.

• Author: Lund, Christopher C.
• Position: Religious Liberty and the Free Society: Celebrating 50 Years of 'Dignitatis Humanae'

Religious exemptions are important, and sometimes required by the Free Exercise Clause. But religious exemptions can also be troubling, and sometimes forbidden by the Establishment Clause. It is the latter issue with which this Essay concerns itself.

The Establishment Clause forbids religious favoritism, or at least many of us think it does. And if that's true, the Establishment Clause naturally prohibits religious exemptions when they amount to religious favoritism. Now the argument that religious exemptions always amount to religious favoritism has never persuaded the Court. It is just too obvious that one can support religious exemptions without necessarily supporting the religious belief or practice underlying it. (1) It is not for the truth of the matter asserted, a trial lawyer might say.

Even so, particular religious exemptions might still violate the Establishment Clause. One might think, for example, of the parsonage allowance. (2) But that may not be the best example, because it might be too easy. The parsonage allowance is a tax exemption rather than a regulatory one, and (at least from one perspective) tax exemption is equivalent to government subsidy, and government subsidy of clergy implicates the core of the Establishment Clause. (3) But one could imagine a regulatory exemption that amounts to religious favoritism. An exemption sufficiently disconnected from the protection of religious exercise--a modern benefit-of-clergy statute, for example, that exempted ministers from the murder laws--would seem to be a solid case of that. (4) None of this seems all that controversial.

But now a different question, which raises a different conception of the Establishment Clause: When are religious exemptions improper or unconstitutional because they burden third parties? This issue of third-party harms has received a lot of attention, (5) especially in light of Hobby Lobby. (6) Hobby Lobby initially sought an exemption from the contraceptive mandate that would have come at the expense of their employees, who would have then lacked insurance coverage for certain forms of contraception. The employees would have had, in essence, to shoulder the cost of someone else's religious commitments.

The general principle here--that burdens on third parties matter--is well established. It fits with common sense; it accords with long-established free exercise notions of what counts as a compelling governmental interest. It also fits with well-established Establishment Clause precedent. In Cutter v. Wilkinson, following longstanding precedent, a unanimous Court said plainly that religious exemptions must "take adequate account of the burdens ... impose [d] on nonbeneficiaries." (7) That seems to answer it.

1. FOUR FACTORS

   Even so, much of the debate thus far has been about whether this third-party harm principle exists rather than what it might mean. Disagreements over baseline issues have taken up a lot of attention. (8) Take Hobby Lobby. One side says the baseline is the Affordable Care Act, and that any religious exemption to it therefore imposes discrete harm on workers. The other side says the baseline is the situation before the Affordable Care Act, as the objection in Hobby Lobby is directed at the Act itself, seeing it as a violation of religious conscience.

   This dispute deserves the attention it has gotten. But this Essay will accept that third-party harms matter. (9) (Otherwise this Essay will be over before it starts.) It turns instead to the practical details of the theory. And while this piece is a quick and rough examination of the issue, this Essay will suggest four factors relevant to the issue of third-party harms.

   1. The Magnitude of the Third-Party Harm

      The first is perhaps the most obvious and the most important--how severely are third parties injured by the religious exemption in question? How heavy is the third-party burden? This was one of the points stressed in Hobby Lobby, when scholars pointed out how severely the religious exemption would affect the female employees of Hobby Lobby. (10) The greater the third-party harm, the more problematic the religious exemption becomes. The difficulty here, of course, will be in categorizing the various kinds of harms and in figuring out how much harm is too much. Caldor spoke of "significant" burdens. (11) But the significance of a burden is more of a spectral variable than a dichotomous one, and there will be no clear boundary between significant and insignificant burdens. One wonderful little recent case, reminiscent of Joel Feinberg's old bus hypothetical, (12) involves an Establishment Clause challenge to a local noise ordinance that exempted church bells. (13) The plaintiff said the bells had wrecked his marriage; (14) it is not clear whether the district judge took this claim seriously or not. (15) But the case prompts useful questions about what harms should count. Is the sound of church bells too trifling to count as a harm? On the other hand, doesn't it matter how loud they are? In any event, the questions with this first factor may be difficult but they are relatively straightforward. What kinds of harms to third parties count? Which kinds of harms are the most severe? And how much harm is too much?

   2. The Likelihood of the Third-Party Harm

      Just as the magnitude of the threatened harm is important, so too is the likelihood of it actually happening. Holt v. Hobbs, the Supreme Court's recent case about beard-length restrictions in prison, is precisely this kind of case. (16) Arkansas raised security concerns as a reason for denying Gregory Holt permission to wear a half-inch beard; Arkansas saw his beard as a threat to prison guards and other inmates. (17) But the Court decided that those threatened harms--which were certainly serious enough--were just not sufficiently likely to happen. (18) Perhaps religious draft exemptions can be explained the same way. The likelihood of you being drafted because someone else got an exemption is infinitesimal; it is barely more than the risk you had originally of being drafted. (19) And related here is a point about the spread of third-party burdens. Even large burdens, if sufficiently diffused over enough people, do not seem all that troubling. The aggregate cost of the Bureau of Prisons providing Kosher meals to inmates may be enormous, but it is spread over all federal taxpayers and so any individual's share will be quite small.

      As an even clearer example of the likelihood factor coming into play, consider a thorny and fascinating issue arising in child-custody cases between divorced parents when one is a Jehovah's Witness and the other is not. Jehovah's Witnesses refuse blood transfusions for religious reasons. And in these custody proceedings, this creates a logical and almost irresistible line of attack: if the child gets sick, he might end up needing a blood transfusion, and she might not give it to him because she's a Jehovah's Witness, and he could die. Now it is rightly setded that parents cannot legally deny blood transfusions to their minor children. (20) (This, of course, is yet another manifestation of our third-party-harm principle at work.) But a problem arises because this argument takes place routinely in custody disagreements even when the child is perfectly healthy and when there is no solid evidence the religious parent would try to deny the...