The Costs of Conscience

32 Pages Posted: 5 Mar 2018 Last revised: 4 Dec 2018

See all articles by Micah Schwartzman

Micah Schwartzman

University of Virginia School of Law

Nelson Tebbe

Cornell Law School

Richard Schragger

University of Virginia School of Law

Date Written: Dec 3, 2018

Abstract

When the government enacts laws or regulations that accommodate religious believers, it may not impose significant costs on identifiable third parties. This is sometimes called the third-party harm doctrine. Critics of this doctrine have raised a diversity of objections to it. They have argued that it (1) lacks normative foundations, (2) is not grounded in constitutional sources, (3) assumes an incorrect baseline for determining when third parties are harmed, and (4) cannot be applied without eliminating all, or nearly all, religious accommodations. Critics have also argued (5) that the doctrine does not apply when the government provides legal exemptions for both religious and secular claims of conscience, and (6) that religious freedom is like other fundamental rights that impose harms on others. We argue that none of these objections is persuasive. Responding to them provides an opportunity to develop the third-party harm doctrine in ways that illuminate the limits of religious liberty, freedom of conscience, and other constitutional rights.

Keywords: religious liberty, freedom of conscience, third-party harm, constitutional rights

Suggested Citation

Schwartzman, Micah and Tebbe, Nelson and Schragger, Richard, The Costs of Conscience (Dec 3, 2018). Virginia Public Law and Legal Theory Research Paper No. 2018-14; Cornell Legal Studies Research Paper No. 18-35; 106 Kentucky Law Journal 881 (2018). Available at SSRN: https://ssrn.com/abstract=3133075

Micah Schwartzman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Nelson Tebbe

Cornell Law School ( email )

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

Richard Schragger

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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