The Establishment Clause is not violated when government enacts regulatory legislation but provides, concerning the new duty of compliance, an exemption for those holding conflicting religious beliefs and practices. These 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 in labor and employment statutes, as well as many other police power laws, 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 harms said to be the result of these 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 an employment law or other regulatory 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 Court.
A categorical mistake has emerged in the literature (but not the case law) where religious exemptions are being conflated with what are really religious preferences. The two are quite different. A true exemption occurs when a dissenter’s religious observance is left unregulated (i.e., “exempted”), hence not within the scope of the statute’s sweep even as others similarly situated bear the burden of compliance imposed by the legislation. And, at least since the Supreme Court’s decision in Flagg Brothers v. Brooks (1978), we know that there is no “state action” when a private party proceeds under a regulatory law permitting private action or self-help. Because a private act of religious devotion—and not the government’s decision to forebear from regulating religious conduct—is the cause behind the religious observance, any alleged harm that befalls third parties is the consequence 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 injured by acts of religious devotion by others, only to observe that the cause of such harm is not the government.
In contrast, a religious preference arises when government takes note of a religious/secular dispute in the private sector and attempts to resolve the conflict between the two parties. If the intervention takes the side of the religious disputant, the government is affirmatively acting to prefer religion over the secular. If the form of the government’s intervention goes on to unyieldingly side with religion such that any harm to others is not weighed in the legislative balance, then the Court will strike down the law preferring the religious disputant over the secular. This rule of Establishment Clause skepticism toward religious preferences is entirely proper: the government should not intervene to compel persons in the private sector to readjust their lives in order that other citizens can better practice their 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 government exempting religious observance from nondiscrimination laws and other regulatory statutes. When there is incidental harm to third parties, these scholars want the exemptions to be struck down by the Establishment Clause. But the absence of “state action” makes this First Amendment’s invocation of no avail. Again, religious preferences are constitutionally suspect, but religious exemptions are not.
There are presently thousands of religious exemptions in local, state, and federal laws. To abolish them all because they are said to be unconstitutional under a wholly novel theory will 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 a diverse people of diverse faiths.
Carl H. Esbeck,
Do Discretionary Religious Exemptions Violate the Establishment Clause?, 106 Kentucky Law Journal 629
Available at: https://scholarship.law.missouri.edu/facpubs/709