When Religious Exemptions Cause Third-Party Harms: Is The Establishment Clause Violated?
One of the arguments being made by those displeased with Hobby Lobby is that discretionary religious exemptions, like RFRA, violate the Establishment Clause when the accommodation results in harm to third parties. It is an establishment of religion, it is claimed, when such exemptions override the interests of third parties who do not share the faith of the religious claimants. These third parties lose a valuable benefit, and do so just so the claimants of the exemption can better exercise their religion. That has the government preferring religion over nonreligious interest, insist the critics. This argument is taken up in a new article linked below.
In a consistent line of six cases, the Supreme Court has turned back the claim that religious exemptions, whether enacted by statute or the result of official policy, violate the Establishment Clause. The leading case is Corporation of the Presiding Bishop v. Amos, where the Court upheld an exemption for religious employers from Title VII of the 1964 Civil Rights Act. There are no cases to the contrary. The critics cite to Estate of Thornton v. Caldor, but the law at issue in Caldor was a naked religious preference not a religious exemption. A religious exemption lifts a burden from a religious claimant, one that was originally imposed by the government itself by regulation or taxation. The net result is that those who practice religion are left alone, and government does not advance religion by leaving it alone. A preference, on the other hand, is when the government newly enters the private sector and extends a benefit or advantage on religious persons because of their religion. The Connecticut law struck down in Caldor was of the latter sort; the state was not relieving a burden from an earlier imposed regulation but taking the side of religion over the secular in a private dispute.
Carl H. Esbeck,
When Religious Exemptions Cause Third-Party Harms: Is The Establishment Clause Violated?, 58 A Journal of Church and State
Available at: http://scholarship.law.missouri.edu/facpubs/524