Religious Accommodation, the Establishment Clause, and Third-Party Harm
66 Pages Posted: 16 Mar 2018 Last revised: 16 Jun 2018
Date Written: March 8, 2018
In the wake of Burwell v. Hobby Lobby, religious accommodation has become increasingly controversial. That controversy has given rise to a new legal theory gaining popularity among academics and a few Supreme Court justices: the idea that the Establishment Clause condemns accommodations whenever they generate anything beyond a minimal cost for third parties.
The third-party thesis is appealing. But this Article argues, contrary to most academic commentary, that there are good reasons to believe it fails as an interpretation of the Establishment Clause. In its place, the Article offers a new theory for understanding the relationship between costly accommodations and the Establishment Clause. That theory begins with a simple assertion: the Establishment Clause is not a prohibition on generic harm, but instead a ban on government attempts to promote a favored religion. Thus, when evaluating religious accommodations, the fundamental inquiry is not whether a private party bears some cost, but instead whether the government is using its power to foster religious conformity.
Although largely overlooked in the literature, members of the founding generation actually did equate accommodations with establishments on at least two occasions, both involving instances in which accommodations encouraged religious conformity. And as it turns out, the principles drawn from those incidents provide powerful explanations for many of the Court’s modern precedents — sometimes more powerful than the Court’s own reasoning, but certainly more persuasive than appeals to ‘third-party harm.’ To be sure, other kinds of concerns besides government-induced conformity will be relevant when considering the propriety or desirability of religious accommodations. But those costs are accounted for through other constitutional provisions, or through the political process.
Keywords: Religion Clauses, First Amendment, Establishment Clause, Religious Accommodation, Constitutional Law
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