Free Exercise and Third-Party Harms: Why Scholars Are Wrong and RFRA is Right

Trinity Law Review, Forthcoming

36 Pages Posted: 18 Mar 2017  

Lisa Mathews

George Mason University, Antonin Scalia Law School, Students

Date Written: March 15, 2017

Abstract

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

Mathews, Lisa, Free Exercise and Third-Party Harms: Why Scholars Are Wrong and RFRA is Right (March 15, 2017). Trinity Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2933918

Lisa Mathews (Contact Author)

George Mason University, Antonin Scalia Law School, Students ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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