In considering contemporary conflicts between religious freedom and equality law, a mediating principle has proved to be important, namely the rule that governments granting religious accommodations to some citizens should avoid harm to others. Normally, when government lifts regulatory burdens on religious actors, any associated costs are covered by the government itself, or by the public. But sometimes, the costs of religious accommodations are shifted to other private citizens. And when that happens, constitutional concerns arise. Recently, the rule against third party harms has come up in conflicts over provisions protecting reproductive freedom for women, marriage equality, and civil rights for LGBT citizens.
For example, the Court in Burwell v. Hobby Lobby Stores, Inc. granted a religious accommodation to a business corporation that sought relief from the contraception mandate imposed by the Obama Administration under the Affordable Care Act. That dispute had obvious ramifications for the freedom and equality of the company’s female employees and the female dependents of its male employees. Similarly, the Court’s decision in Zubik v. Burwell may affect the employees of religious nonprofits. And conflicts between religious freedom and LGBT rights have become familiar — these often involve harm to third parties.
In this chapter, we address one particular critique of the principle of avoiding harm to others. Some critics have argued that many denials of government aid or protection do not count as burdens at all. For example, advocates for Hobby Lobby have argued that the company’s employees did not have a right to contraception coverage in the first place, and therefore that depriving them of that coverage as a consequence of accommodating the company did not count as a burden. Scholars have made the same argument in favor of the religious nonprofits in Zubik. If they are right, then the principle against shifting burdens to third parties simply does not apply. This critique raises the question of how we should we identify the baseline for measuring whether an exemption has shifted a burden to third parties.
Here, we show why the problem is genuinely difficult — and critically important — and we offer an approach that can account for the most difficult cases. First, we describe the baseline problem and we argue that burdens can only be identified by reference to substantive or normative values. Second, we apply that solution to the Hobby Lobby Court’s problematic treatment of the subject in a troubling footnote.
Richard C. Schragger, Micah J. Schwartzman & Nelson Tebbe, When Do Religious Accommodations Burden Others?, in The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality, Cambridge University Press, 328–346 (2018).