Free Exercise and Third-Party Harms: Why Scholars Are Wrong and RFRA is Right
Trinity Law Review, Forthcoming
36 Pages Posted: 18 Mar 2017
Date Written: March 15, 2017
Some scholars have argued that the outer perimeter of religious freedom should be defined where third-parties are 'harmed' - an argument especially relevant after the Hobby Lobby decision. However, these scholars employ such a broad definition of harm that this "no-harm" standard would undermine the history and substance of the Free Exercise clause. This article reviews these arguments, including recent articles by Professors Chemerinsky & Goodwin and Professors NeJaime & Siegel, and asserts that Congress was wise to implement RFRA, instead of this "no-harm" standard, which appropriately considers the rights of all parties.
Keywords: RFRA, RLUIPA, Hobby Lobby, religious freedom, First Amendment, religious history
JEL Classification: K10
Suggested Citation: Suggested Citation