Download this Paper Open PDF in Browser

When Do Religious Accommodations Burden Others?

The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Susanna Mancini & Michel Rosenfeld eds., Cambridge Univ. Press, 2017 Forthcoming)

Cornell Legal Studies Research Paper No. 16-25

Virginia Public Law and Legal Theory Research Paper No. 2016-44

17 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 provisions protecting reproductive freedom for women, marriage equality, and civil rights for LGBT citizens.

For example, the Court in Burwell v. Hobby Lobby Stores, Inc. granted a religious accommodation to a business corporation that sought relief from the contraception mandate imposed by the Obama Administration under the Affordable Care Act. That dispute had obvious ramifications for the freedom and equality of the company’s female employees and the female dependents of its male employees. Similarly, the Court’s decision in Zubik v. Burwell may affect the employees of religious nonprofits. And conflicts between religious freedom and LGBT rights have become familiar — these often involve harm to third parties.

In this chapter, we address one particular critique of the principle of avoiding harm to others. Some critics have argued that many denials of government aid or protection do not count as burdens at all. For example, advocates for Hobby Lobby have argued that the company’s employees did not have a right to contraception coverage in the first place, and therefore that depriving them of that coverage as a consequence of accommodating the company did not count as a burden. Scholars have made the same argument in favor of the religious nonprofits in Zubik. If they are right, then the principle against shifting burdens to third parties simply does not apply. This critique raises the question of how we should we identify the baseline for measuring whether an exemption has shifted a burden to third parties.

Here, we show why the problem is genuinely difficult — and critically important — and we offer an approach that can account for the most difficult cases. First, we describe the baseline problem and we argue that burdens can only be identified by reference to substantive or normative values. Second, we apply that solution to the Hobby Lobby Court’s problematic treatment of the subject in a troubling footnote.

Suggested Citation

Tebbe, Nelson and Schwartzman, Micah and Schragger, Richard, When Do Religious Accommodations Burden Others? (July 19, 2016). The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Susanna Mancini & Michel Rosenfeld eds., Cambridge Univ. Press, 2017 Forthcoming); Cornell Legal Studies Research Paper No. 16-25; Virginia Public Law and Legal Theory Research Paper No. 2016-44. Available at SSRN: https://ssrn.com/abstract=2812121

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

Paper statistics

Downloads
244
Rank
106,710
Abstract Views
819