Challenging Statutory Accommodations for Religiously Affiliated Daycares: An Application of the Third Party Harm Doctrine

Abstract

Daycare facilities are subject to a host of regulations, governing matters from basic health and safety requirements to caregiver training to maximum caregiver-to-child ratios. In sixteen states, however, legislation exempts religiously affiliated daycares from some of these regulations, with six states extending particularly broad exemptions to religiously affiliated daycares. Though recent reporting reveals that children have been seriously injured or died while in the care of religiously affiliated daycares, challenges to the lack of oversight, brought by secular daycares, have been unsuccessful. Supporters of these exemptions have justified them on Constitutional grounds, arguing that state oversight of religiously affiliated daycares violates the Free Exercise Clause of the First Amendment. This Note argues that both judicial exemptions under the Free Exercise Clause and statutory accommodations under the Establishment Clause have historically been limited by the doctrine of harm to third parties. Invoking a balancing test, this Note argues that courts ought to weigh the free exercise burden imposed on the religiously affiliated daycare against the harm to third parties caused by accommodation. This Note proposes an alternative strategy for challenging statutory accommodations extended to religiously affiliated daycares: parents of children harmed in exempt facilities invoking the balancing test to argue that the harm to third parties outweighs the free exercise burden imposed by regulations.