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How Much May Religious Accommodations Burden Others?

in Law, Religion, and Health in the United States (Elizabeth Sepper, Holly Fernandez Lynch, and I. Glenn Cohen, ed., Cambridge Univ. Press, 2017 Forthcoming)

Cornell Legal Studies Research Paper No. 16-25

Virginia Public Law and Legal Theory Research Paper No. 2016-43

14 Pages Posted: 26 Jul 2016 Last revised: 10 Aug 2016

Nelson Tebbe

Cornell Law School

Micah Schwartzman

University of Virginia School of Law

Richard Schragger

University of Virginia School of Law

Date Written: July 19, 2016

Abstract

In considering contemporary conflicts between religious freedom and equality law, a mediating principle has proved to be important, namely the rule that governments granting religious accommodations to some citizens should avoid harm to others. Normally, when government lifts regulatory burdens on religious actors, any associated costs are covered by the government itself, or by the public. But sometimes, the costs of religious accommodations are shifted to other private citizens. And when that happens, constitutional concerns arise. Recently, the rule against third party harms has come up in conflicts over reproductive freedom for women, marriage equality, and civil rights for LGBT citizens.

Critics of the rule against harm to others have argued, among other things, that third-party harms cannot always render religious accommodations unconstitutional, because many exemptions have negative effects on others. An absolute bar on third party harms would generate absurd results, cutting against both established precedents and our considered convictions.

In this chapter, we acknowledge that there are some situations where the interference with religious freedom is so significant, and the countervailing burden on others so slight, that accommodations ought to be upheld despite some harm to third parties. But if the principle of avoiding harm to others is not absolute, that raises a crucial question: How much burden-shifting to third parties is constitutionally permissible?

Our answer is that a promising model can be found in employment discrimination law. Title VII, the main federal statute prohibiting discrimination against workers, contains a provision that requires employers to reasonably accommodate the religious observances of their employees. But there are limits. Title VII does not require employers to accommodate religious employees if that would impose “undue hardship” on the employer.

We think the undue hardship standard provides an attractive model for limiting the principle against shifting harm to third parties. First, federal courts have interpreted the standard against the background of serious Establishment Clause concerns. Second, lower courts have applied the standard over many decades to reach results that are sensible, overall. Although the undue hardship standard has been confined to employment law, we suggest that it could provide useful guidance in other contexts involving claims for religious accommodations that have harmful effects on others.

Keywords: religious freedom, free exercise, establishment clause, civil rights

Suggested Citation

Tebbe, Nelson and Schwartzman, Micah and Schragger, Richard, How Much May Religious Accommodations Burden Others? (July 19, 2016). in Law, Religion, and Health in the United States (Elizabeth Sepper, Holly Fernandez Lynch, and I. Glenn Cohen, ed., Cambridge Univ. Press, 2017 Forthcoming); Cornell Legal Studies Research Paper No. 16-25; Virginia Public Law and Legal Theory Research Paper No. 2016-43. Available at SSRN: https://ssrn.com/abstract=2811815

Nelson Tebbe (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
(607) 255-3506 (Phone)

Micah Schwartzman

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Richard Schragger

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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