My Take on "Religious Exemptions and Third-Party Harms"

Scholarship about religious-freedom exemptions from laws has increasingly focused on whether the existence of any "harms to third parties" is a ground for holding that an exemption is not required by religious freedom principles, or is perhaps even forbidden by the Establishment Clause. I've just published my analysis of the question, in the Federalist Society Review. A couple of excerpts:

The chief assertion of this article is that harms to others should not be conclusive against religious exemptions under either free exercise or nonestablishment principles. Such harms can certainly be a reason to deny exemption, but they are not the end of the inquiry: a number of factors must be considered. In particular, I argue, Establishment Clause limits on religious exemptions should not be strict. An exemption is not unconstitutional merely because it has negative effects on others: the burdens on others must be significantly disproportionate to the burdens that it removes from religion....

Under post-1937 constitutional jurisprudence, government has broad prima facie power to define, declare, and prohibit [legal] harms. The modern state is not limited to imposing liability for actual harmful effects; it may declare legal rights designed to head off such effects. And it may frame them as benefits or rights for individual third parties. For example, to prevent the ultimate material harms of labor strife and unfair treatment of employees, government can declare rights of employees to unionize and can allow individuals to sue to enforce the right.

But just because government can prima facie regulate does not mean it can do so in ways that substantially burden religious exercise. The very point of the freedoms listed in the Bill of Rights, including religious freedom, is to place limits on actions otherwise within the government’s power. If religious freedom confers no right to harm others, and the government can define anything it wishes as a harm, then the regulatory state will severely constrict religious freedom. For example, once Title VII and analogous laws defined various forms of discrimination as a legal harm to employees, religious organizations faced lawsuits triggering civil court review of their employment decisions concerning their clergy and other leaders. Their ability to choose their leaders was preserved only by a court-ordered religious exemption: the ministerial exception, affirmed in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC....

 If religious freedom is to continue receiving strong weight in an era of greatly expanded government, the existence of some harm to other individuals cannot be enough in itself to deny exemption or accommodation. On the other hand, harms to others certainly are grounds for limiting religious freedom in a number of circumstances.

... And then you read the rest to find out when. (I've done a longer version of the arguments here.)