Those disappointed with the U.S. Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc. (2014), are actively seeking ways to otherwise limit the Religious Freedom Restoration Act (RFRA). Justice Ruth Bader Ginsburg, dissenting in Hobby Lobby, wrote that when a statute seeks to accommodate a claimant’s religious beliefs or practices there must be no detrimental effect on third parties who do not share those beliefs. Although it is unclear whether Justice Ginsburg was relying on the Establishment Clause as imposing this categorical restraint on the authority of Congress, some commentators argue that her thinking necessarily rests on that clause. It is of some importance whether these commentators are correct about the rule of third-party harm being derived from the Establishment Clause. Although Justice Samuel Alito for the Court in Hobby Lobby squarely rejected the argument that third-party harms categorically defeat requests for accommodations under RFRA, he did not consider the Establishment Clause. Indeed, the Government did not argue it. So these commentators promoting the third-party harm rule are able to maintain that nothing in Hobby Lobby contradicts their reliance on the Establishment Clause. The commentators would, of course, like to have Justice Ginsburg on their side. In her recent concurrence in Holt v. Hobbs (2015), Justice Ginsburg reiterated her view that substantial third-party harms were a categorical limitation on statutory religious accommodations, but she did not clarify if her rule was derived from the Establishment Clause or was otherwise a limitation implicit in the statutory claim. Six times the Supreme Court has held that when a regulation or tax imposes a burden on a religious practice of an individual or organization, a legislature is free to lift that burden by providing an exemption. This is what Congress has done in adopting RFRA and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Only in one such case has the Establishment Clause said to have been violated, namely Estate of Thornton v. Caldor, Inc. (1985). The statute in Caldor, however, was singular in that it created an “unyielding” preference for a particular religious observance, Sabbath rest, and thereby completely disregarded the costs borne by others such as coworkers. RFRA and RLUIPA are not unyielding but operate in a manner that accounts for the circumstances of others. These two statutes require officials to engage in case-specific interest balancing. Any costs falling on third parties are weighed in the balance, along with other relevant considerations, all as statutorily prescribed, before a determination is made whether to allow the religious accommodation. Neither RFRA nor RLUIPA violate the Establishment Clause, either facially or as applied.
Esbeck, Carl H., Third-Party Harms, Congressional Statutes Accommodating Religion, and the Establishment Clause (May 18, 2015). University of Missouri School of Law Legal Studies Research Paper No. 2015-10. Available at SSRN: http://ssrn.com/abstract=2607277