Summary provided by Gary Simson
Discussion Group: Religious Exemptions and Harm to Others
The dozen members of the discussion group offered various perspectives on the problems presented under the First Amendment’s Establishment Clause when religious objectors are granted exemptions from generally applicable laws and third parties suffer harm as a result. Because the topic lies at the intersection of the Establishment and Free Exercise Clauses, the discussion ranged across various aspects of both clauses. The discussion group members disagreed in their interpretations of both clauses and in the weight that they assigned in interpretation to text, history, precedent, and other sources. Few matters were lacking for debate, and among the questions aired were: The Supreme Court has indicated that, for an exemption to survive Establishment Clause review, it must take adequate account of third-party harms, but what constitutes adequate account? How should courts decide the substantiality of the burden that a generally applicable law places on some people’s religious liberty? Are religious exemptions any more problematic than limitations on the scope of a law like one limiting a law’s applicability to employers with more than fifty employees? What significance does the enormous increase in our nation’s religious diversity have for Establishment Clause analysis of religious exemptions? How much does developing a coherent approach to the problem of religious exemptions and harm to others depend on characterizing some Supreme Court case law as wrongly decided? The members of the group also offered their thoughts on a case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, being heard by the Supreme Court this fall on the constitutionality of a state’s denial of a religious exemption. Various members of the group will be participating this fall in a live and print symposium on religious exemptions and harm to others sponsored by the Kentucky Law Journal, University of Kentucky College of Law, and SEALS.