Do Discretionary Religious Exemptions Violate the Establishment Clause?

27 Pages Posted: 13 Apr 2017 Last revised: 28 Dec 2017

Carl H. Esbeck

University of Missouri School of Law

Date Written: January 2, 2018


The Establishment Clause is not violated when government enacts regulatory or tax legislation but provides, concerning these burdens, an exemption for those holding conflicting religious beliefs and practices. These religious accommodations are at the discretion of a legislature and have as their purpose to ameliorate hardships borne by religious minorities and other dissenters who find themselves out of step with the prevailing social or legal culture. Statutory religious exemptions are commonplace in this nation where there is a long and venerable tradition of religious toleration toward our neighbors.

The presence of third parties who complain of incidental harm said to be the result of these discretionary religious exemptions does not alter their constitutionality. In an unbroken line of cases now spanning a century, the U.S. Supreme Court has ten times rejected the argument that a religious exemption in a regulatory or tax framework is an advancement of religion in contravention of the Establishment Clause. There are no cases to the contrary that have ever commanded a majority of the Supreme Court.

A categorical mistake has emerged in the literature (but not the case law) where religious exemptions are being conflated with what are really statutory religious preferences. The two are quite different. A true exemption occurs when a dissenter’s religious observance is left alone by the legislature or is not within the scope of the regulatory sweep even as others similarly situated are made to labor under a new burden of the legislature’s creation. The government does not establish religion by leaving it alone. Exemptions ensure that regulatory burdens imposed on others are not also thrust in the path of the religiously devout who are already inclined to privately conform to the dictates of their faith. Because a private act of religious devotion and not the government’s decision to refrain for regulating religion is the cause behind the religious observance, any harm that befalls third parties is the result of private conduct. And, of course, harm redressable under the Establishment Clause (indeed, any provision of the Bill of Rights) must be injury caused by a “state actor,” not the work of a private actor. This is not to deny that third parties are sometimes harmed, only a denial that the source of the harm is the government.

In contrast, a religious preference arises when government first takes note of a religious dispute in the private sector and proceeds to try and resolve the conflict. If the legislature’s intervening law takes the side of the religious disputant, the government is intentionally preferring religion over the secular. If the form of the government’s intervention goes on to unyieldingly side with religion such that any harm to third parties is not also weighed in the balance, then the Supreme Court will strike down the preference. The operative Establishment Clause rule is entirely proper: government cannot compel persons in the private sector to readjust their lives in order that a fellow citizen can better practice his or her religion.

The blurring of the line between a true exemption and a true preference has become a point of attack by a few academicians who mount a constitutional objection to discretionary acts by government exempting religious observance from general legislation. When there is incidental harm to third parties, these scholars want religious exemptions to be struck down by the Establishment Clause. This not only misconceives the nature of the Establishment Clause, but the argument assumes that “third-party harm” is a juridical category that can be both defined and bounded. It cannot. The logic behind this category is in danger of expanding and overwhelming most every religious exemption.

The founding generation did not regard a discretionary religious exemption as an establishment of religion. Moreover, there are presently thousands of religious exemptions in local, state, and federal law. To abolish them all because they are thought to be unconstitutional under a new and wholly novel theory would work primarily to the injury of religious minorities. That would bring a sea change in the venerable American practice of extending a welcoming hand to diverse peoples of diverse faiths.

Keywords: Establishment Clause, regulatory, tax, legislation, accommodation, religious, beliefs, religion, exemptions

Suggested Citation

Esbeck, Carl H., Do Discretionary Religious Exemptions Violate the Establishment Clause? (January 2, 2018). 106 KENTUCKY LAW JOURNAL ___ (No. 4, 2018); University of Missouri School of Law Legal Studies Research Paper No. 2017-13. Available at SSRN:

Carl H. Esbeck (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Rm. 203 John K. Hulston Hal
Columbia, MO 65211
United States
573-882-3035 (Phone)
573-882-4984 (Fax)

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