Third-Party Harms, Congressional Statutes Accommodating Religion, and the Establishment Clause

15 Pages Posted: 19 May 2015 Last revised: 17 Nov 2015

See all articles by Carl H. Esbeck

Carl H. Esbeck

University of Missouri School of Law


Those disappointed with the U.S. Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc. (2014), are actively seeking ways to otherwise limit the Religious Freedom Restoration Act (RFRA). Justice Ruth Bader Ginsburg, dissenting in Hobby Lobby, wrote that when a statute seeks to accommodate a claimant’s religious beliefs or practices there must be no detrimental effect on third parties who do not share those beliefs. Although it is unclear whether Justice Ginsburg was relying on the Establishment Clause as imposing this categorical restraint on the authority of Congress, some commentators argue that her thinking necessarily rests on that clause. It is of some importance whether these commentators are correct about the rule of third-party harm being derived from the Establishment Clause.

Although Justice Samuel Alito for the Court in Hobby Lobby squarely rejected the argument that third-party harms categorically defeat requests for accommodations under RFRA, he did not consider the Establishment Clause. Indeed, the Solicitor General did not argue it. So these commentators promoting the third-party harm rule are able to maintain that nothing in Hobby Lobby contradicts their reliance on the Establishment Clause. The commentators would, of course, like to have Justice Ginsburg on their side. In her recent concurrence in Holt v. Hobbs (2015), Justice Ginsburg reiterated her view that substantial third-party harms were a categorical limitation on statutory religious accommodations, but she did not clarify if her rule was derived from the Establishment Clause or was otherwise a limitation implicit in the statutory claim.

Six times the Supreme Court has held that when a general regulation or tax imposes a burden on a religious observance, a legislature is free to “lift” that burden by providing an exemption. This is what Congress has done in adopting RFRA and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Supreme Court’s decision in Estate of Thornton v. Caldor, Inc. (1985), is not to the contrary. The statute struck down in Caldor was a naked religious preference. Rather than relief from general legislation, the state took note of a dispute between two private parties caused by market forces and sought to resolve it by taking the side of the religious claimant. The statute in Caldor created a double wring, for it created an “unyielding” preference for a particular religious observance, Sabbath rest, and thereby completely disregarded the costs borne by others such as coworkers and the employer. RFRA and RLUIPA are not “unyielding” but operate in a manner that accounts for the circumstances of others. They require officials to engage in case-specific interest balancing with any costs falling on third parties weighed, along with other relevant considerations, before a determination is made whether to allow the religious accommodation. Accordingly, neither RFRA nor RLUIPA violate the Establishment Clause.

Keywords: Burwell, Hobby, RFRA, religious freedom, Ginsburg, Alito, establishment, Holt, religious land, RLUIPA, Thornton, religion

Suggested Citation

Esbeck, Carl H., Third-Party Harms, Congressional Statutes Accommodating Religion, and the Establishment Clause. University of Missouri School of Law Legal Studies Research Paper No. 2015-10, Available at SSRN:

Carl H. Esbeck (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Rm. 203 John K. Hulston Hal
Columbia, MO 65211
United States
573-882-3035 (Phone)
573-882-4984 (Fax)

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
PlumX Metrics