My View About Whether Religious Exemptions Impose Third-Party Harms Is That They Always Do

Professor Amy Sepinwall has posted a paper entitled, "Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby's Wake" to SSRN. The paper has a request not to be cited without permission, so of course I won't cite (or quote) any of it, not even its publicly available abstract. I will note, however, that it mentions my name in connection with the view that religious exemptions never impose cognizable harms on third parties.

In order to avoid any confusion about the matter, permit me to make my view plain. Religious accommodations always impose harms on third parties. I have said so repeatedly in my posts on the subject. Sometimes those harms will be legally cognizable, and I have never argued to the contrary. The tricky issues do not concern questions about per se legal cognizability of third party harms. They concern the context in which those harms are assessed as a legal matter, and the standard by which they are assessed. As to that question, it is true that I believe that the existing statutory frameworks of RFRA and RLUIPA incorporate an assessment of third-party harms. Within those statutory frameworks, third party harms may, indeed, sometimes be legally cognizable.