When the government enacts laws or regulations that accommodate religious believers, it may not impose significant costs on identifiable third parties. This is sometimes called the third-party harm doctrine. Critics of this doctrine have raised a diversity of objections to it. They have argued that it (1) lacks normative foundations, (2) is not grounded in constitutional sources, (3) assumes an incorrect baseline for determining when third parties are harmed, and (4) cannot be applied without eliminating all, or nearly all, religious accommodations. Critics have also argued (5) that the doctrine does not apply when the government provides legal exemptions for both religious and secular claims of conscience, and (6) that religious freedom is like other fundamental rights that impose harms on others. We argue that none of these objections is persuasive. Responding to them provides an opportunity to develop the third-party harm doctrine in ways that illuminate the limits of religious liberty, freedom of conscience, and other constitutional rights.
Richard C. Schragger, Micah J. Schwartzman & Nelson Tebbe, The Costs of Conscience, 106 Kentucky Law Review, 781–812 (2018).