Chemerinsky and Goodwin on Religion and Harm

In this article, Profs. Erwin Chemerinsky and Michele Goodwin contend that "Religion Is Not a Basis for Harming Others."  Here's the abstract:

Increasingly, people are claiming that practicing their religion gives them a right to inflict injuries on others. Court clerks assert their religion gives them a right to refuse to give marriage licenses to same sex couples. Businesses claim that their owners’ religious beliefs are a basis for refusing to provide services at same sex weddings. Employers demand the right to deny insurance coverage to employees for contraceptives. Doctors maintain that they may refuse to provide assisted reproductive technology services to single women, lesbians, and same sex couples. Pharmacists want the right to not fill prescriptions that they see as violating their religious beliefs. Parents claim a religious right to restrict their children from receiving medical care, opting instead for prayer. 

Our thesis is that free exercise of religion – whether pursuant to the Constitution or a statute – does not provide a right to inflict injuries on others. One person’s freedom ends when another person will get hurt. As we have written about in the contexts of vaccinations, some states even provide religious exemptions for parents who wish to withhold this important, basic preventative treatment from their children, placing not only their kids, but also others at risk. The use of religion as a means to inflict harm others in these ways is not only disconcerting, but problematic for law and society. 

In this Review Essay we take up Dr. Paul Offit’s book, Bad Faith, where he argues that children are suffering and dying because of their parents’ religious beliefs. We place this discussion in a more explicit legal framework. Our position is not anti-religion and it does not deprive free exercise of religion of meaning. We emphasize that people can believe what they want, worship as they chose, and follow their religious precepts – until and unless this would hurt someone else. We argue that parents have no right to inflict suffering or death on their children in the name of religion.

The authors' focus is primarily on religiously motivated denials of health care to minor children.  And, generally speaking, I'm inclined to agree that parents' religiously motivated opposition to necessary health care for minor children can be overridden.  (This is a separate question, I think, from the question how parents whose religiously  motivated refusals cause harm to their children should be treated by the criminal law.)

As I wrote in my first law review article upon entering law teaching, "Taking Pierce Seriously:  The Family, Religious Education, and Harm to Children," a lot depends -- that is, a lot about Chemerinsky's and Goodwin's arguments depend -- on what counts as "harming others."  And, the invocation of a general (and admittedly attractive-sounding) principle like "religion is not a basis for harming others" does not answer this question.  Chemerinsky, I suspect (based on some things he's said and written) believes that allowing children to attend private religious schools "harms" others (both the children to attend the schools and the ones who are "left behind" in government-run schools).  I think he's greatly mistaken about this but, even if I imagined he were right, I would think that "well, I suppose 'religion' therefore sometimes must be a 'basis for harming others' after all."

It's also interesting to note that, for Chemerinsky, constitutional protections like the Freedom of Speech, or the Fourth Amendment, clearly "cause harm to others."  The question, it seems to me, is not simply whether the vindication of one person's constitutional right ever results in undesirable consequences or costs -- clearly, it sometimes will and does -- but is instead about the extent to which we believe that the commitment to constitutional rights justifies the imposition of (some of those) costs.