Religious Exemptions, Third-Party Harms, and the Establishment Clause

Religious exemptions are important, and sometimes required by the Free Exercise Clause. But religious exemptions can also be troubling, and sometimes forbidden by the Establishment Clause. It is the latter issue with which this Essay concerns itself. But now a different question, which raises a different conception of the Establishment Clause: When are religious exemptions improper or unconstitutional because they burden third parties?

This issue of third-party harms has received a lot of attention, especially in light of Hobby Lobby. Hobby Lobby initially sought an exemption from the contraceptive mandate that would have come at the expense of their employees, who would have then lacked insurance coverage for certain forms of contraception. The employees would have had, in essence, to shoulder the cost of someone else’s religious commitments.