When Religious Exemptions Cause Third-Party Harms: Is The Establishment Clause Violated?

Abstract

Those disappointed with the ruling by the Supreme Court of the United States in Burwell v. Hobby Lobby Stores, Inc.1 are 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 exempt a religious claimant's beliefs or practices from general legislation there must be no detrimental effect on third parties who do not share those beliefs.2 She was referring to those employees and their families as “third parties” who, because of RFRA, would not have available the full complement of contraceptive devices in their employer-provided health insurance plan. Although it is unclear whether Justice Ginsburg continues to rely on the Establishment Clause as imposing this categorical restraint on the authority of Congress to craft religious exemptions,3 some academicians argue that her thinking necessarily rests on the clause.4 It is of some importance whether these commentators are correct about the third-party harm rule being dependent on the Establishment Clause. Justice Samuel Alito, writing for the court in Hobby Lobby, squarely rejected the argument that third-party harms categorically defeat requests for accommodations under RFRA.5 He did not, however, consider the Establishment Clause. That was because the solicitor general never argued the clause. So these academicians are able to maintain that nothing in Hobby Lobby contradicts their reliance on the clause. They would, of course, like to have Justice Ginsburg on their side. In her recent concurrence in Holt v. Hobbs,6 Justice Ginsburg reiterated her view that substantial third-party harms are a categorical restraint on statutory religious accommodations, but she did not clarify whether her novel rule is derived from the Establishment Clause or is solely a limitation implicit in the underlying statutory claim.7