Religious Exemptions, Third-Party Harms, and the Establishment Clause

Christopher C. Lund*

Religious exemptions are important, and sometimes required by the Free Exercise Clause. But religious exemptions can also be troubling, and sometimes forbidden by the Establishment Clause. It is the latter issue with which this Essay concerns itself.

The Establishment Clause forbids religious favoritism, or at least many of us think it does. And if that’s true, the Establishment Clause naturally prohibits religious exemptions when they amount to religious favoritism. Now the argument that religious exemptions always amount to religious favoritism has never persuaded the Court. It is just too obvious that one can support religious exemptions without necessarily supporting the religious belief or practice underlying it.¹ It is not for the truth of the matter asserted, a trial lawyer might say.

Even so, particular religious exemptions might still violate the Establishment Clause. One might think, for example, of the parsonage allowance.² But that may not be the best example, because it might be too easy. The parsonage allowance is a tax exemption rather than a regulatory one, and (at least from one perspective) tax exemption is equivalent to government subsidy, and government subsidy of clergy implicates the core of the Establishment Clause.³ But one could imagine a regulatory exemption that amounts to religious favoritism. An exemption sufficiently disconnected from the protection of religious exercise—a modern benefit-of-clergy statute, for example, that exempted ministers from the murder laws—would seem to be a solid case of that.⁴ None of this seems all that controversial.

But now a different question, which raises a different conception of the Establishment Clause: When are religious exemptions improper or unconstitutional because they burden third parties? This issue of third-party harms has received a lot of attention,⁵ especially in light of Hobby Lobby.⁶ Hobby Lobby initially sought an exemption from the contraceptive mandate that would have come at the expense of their employees, who would have then lacked insurance coverage for certain forms of contraception. The employees would have had, in essence, to shoulder the cost of someone else’s religious commitments.

The general principle here—that burdens on third parties matter—is well established. It fits with common sense; it accords with long-established free exercise notions of what counts as a compelling governmental interest. It also fits with well-established Establishment Clause precedent. In Cutter v. Wilkinson, following longstanding precedent, a unanimous Court said plainly that religious exemptions must “take adequate account of the burdens . . . impose[d] on nonbeneficiaries.”⁷ That seems to answer it.

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© 2016 Christopher C. Lund. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor of Law, Wayne State University Law School. For helpful comments, I would like to thank Marc DeGirolami, Chad Flanders, Fred Gedicks, John Inazu, Micah Schwartzman, Nelson Tebbe, Jon Weinberg, as well as all those in attendance at the symposium who gave thoughtful feedback.

1 To give just one example, the Supreme Court unanimously protected the use of hoasca when used sacramentally by a small Brazilian religious group, even though presumably no one on the Court uses hoasca or thinks it efficacious in worship. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).

2 The parsonage allowance, 26 U.S.C. § 107 (2012), allows ministers to deduct the fair-rental value of their homes from their income. It is broader than the exemption available to anyone whose job requires them to live in employer-provided housing, 26 U.S.C. § 119, because clergy can deduct the value of their home regardless of how much they use it for work.

3 Insiders know how the Supreme Court has gone back and forth on the issue of whether tax exemptions should be equated with monetary grants for Establishment Clause purposes. Sometimes the Court has emphasized their similarities. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 14 (1989); Bob Jones Univ. v. United States, 461 U.S. 574, 591 (1983). Sometimes the Court has emphasized their differences. See Mueller v. Allen, 463 U.S. 388, 396 n.6 (1983); Walz v. Tax Comm’n, 397 U.S. 664, 675 (1970).

4 “Benefit of clergy” originally allowed clergy to claim they were outside the jurisdiction of the secular courts and thus should be tried by the (usually) more lenient ecclesiastical courts. Benefit of clergy declined slowly as various limitations were placed on it. Benefit of clergy was abolished for murder, for example, under King Henry VII. See An Acte to Make Some Offence Petty Treason, 1496, 12 Hen. 7 c. 7 (Eng.), reprinted in 2 The Statutes of the Realm 639 (1819).

5 See, e.g., Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49 Harv. C.R.-C.L. L. Rev. 343 (2014); Frederick Mark Gedicks & Andrew Koppelman, Invisible Women: Why an Exemption for Hobby Lobby Would Violate the Establishment Clause, 67 Vand. L. Rev. En Banc 51 (2014).

6 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

7 Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (citations and quotations omitted).