To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?

103 Pages Posted: 9 Aug 2015 Last revised: 11 May 2016

See all articles by Hillel Y. Levin

Hillel Y. Levin

University of Georgia School of Law

Allan Jacobs

State University of New York (SUNY) - Department of Obstetrics and Gynecology

Kavita Arora

Case Western Reserve University - School of Medicine

Date Written: August 7, 2015

Abstract

When should we accommodate religious practices? When should we demand that religious groups instead conform to social and legal norms? Who should make these decisions, and how? These questions lie at the very heart of our contemporary debates in the field of Law and Religion.

Particularly thorny issues arise where religious practices may impose health-related harm to children within a religious group or to third parties. Unfortunately, legislators, scholars, courts, ethicists, and medical practitioners have not offered a consistent way to analyze such cases and the law is inconsistent. This Article suggests that the lack of consistency is a troubling artifact of our political system, and further, that it raises serious constitutional questions that lie at the intersection of the Free Exercise and Establishment clauses of the First Amendment.

To resolve these problems, we propose and develop a test to determine whether such a religious practice should be accommodated by legislators, courts, and medical practitioners. Our test is sensitive to the institutional strengths and weaknesses of differently-situated decision-makers, and is designed to be flexible enough to account for these differences. Consequently, it has distinctive applications for legislators, administrative officials, judges, and medical practitioners. Further, although the test was developed specifically to address religious practices that may impose health-related harms to children and third-parties, it also has potential implications in other contexts as well, such as the debates over sexual orientation non-discrimination laws should accommodate religious dissent.

Keywords: law and religion, constitutional law, jurisprudence, political science, medical ethics, medicine, law and medicine, judging, legislatures, education law, children in the law, medical treatment, religious accommodation, First Amendment, Religious Freedom Restoration Act, vaccines

JEL Classification: I18, K19

Suggested Citation

Levin, Hillel Y. and Jacobs, Allan and Arora, Kavita, To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties? (August 7, 2015). Washington and Lee Law Review, Vol. 73, 2016; UGA Legal Studies Research Paper No. 2016-19. Available at SSRN: https://ssrn.com/abstract=2641076 or http://dx.doi.org/10.2139/ssrn.2641076

Hillel Y. Levin (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

Allan Jacobs

State University of New York (SUNY) - Department of Obstetrics and Gynecology ( email )

100 Nicolls Road
Stony Brook, NY 11794
United States

Kavita Arora

Case Western Reserve University - School of Medicine ( email )

2511 Overlook Road
Cleveland Heights, OH 44106
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
286
Abstract Views
918
rank
104,779
PlumX Metrics