Esbeck on discretionary religious accommodations and "third-party harms"

Prof. Carl Esbeck has posted a succinct, and very helpful, response to the currently popular theory that discretionary religious exemptions violate the Establishment Clause whenever they result in "third-party harms."  Here is the abstract: 

The Establishment Clause is not violated when government enacts regulatory or tax legislation but provides, concerning these new burdens, an accommodation for those holding conflicting religious beliefs or practices. Such religious exemptions are enacted at the discretion of the legislature and have as their purpose to ameliorate hardships borne by religious minorities and other dissenters who find themselves out of step with the prevailing social or legal culture. In an unbroken line of cases now spanning a century, the Supreme Court has seven times rejected the argument that a religious exemption contravenes the Establishment Clause. In some instances, no doubt, lawmakers should exercise their discretion and deny an exemption for religious observance. What is not the law is that the presence of adverse effects on those who do not benefit from an exemption causes an otherwise lawful accommodation to violate the Establishment Clause.

Cases involving a religious preference are being confused with exemptions. An exemption occurs when a dissenter’s religious practice is simply left alone even as others are made to labor under a new burden of the legislature’s creation, be it a tax or regulatory duty. Government does not establish religion by leaving it alone. An exemption, rather, ensures that a new regulatory burden on others is not also thrust in the path of individuals who are already inclined to follow the dictates of their faith. Because the government’s exemption is not the causal agent behind the religious observance, any harm to third parties is the result of private conduct. Harm redressable under the Establishment Clause must be injury that was caused by the government, not private actors.

A preference, on the other hand, arises when the government takes note of a disagreement in the private sector that involves religion. If a law is adopted that takes the side of the religious disputant, the government is intentionally preferring religion. The favoritism occurs in a situation not of the state’s creation, but in circumstances arising out of private social or market forces. Should the form of the government’s intervention go on to “unyieldingly” side with religion such that any costs to others are not weighed in the balance, then the Court will strike down the preference. The operative Establishment Clause rule is that persons in the private sector should not be forced to readjust their lives just so that a neighbor can better conform to his or her religion.

Along with the foregoing preferences, progressives want religious exemptions to be balanced against any incidental harms that befall third parties. They want this not as a matter of legislative discretion, but as a constitutional imperative. This not only misconceives the nature of the Establishment Clause, but the argument assumes that “third-party harm” as a juridical category can be both defined and bounded. It cannot. Additionally, the logic behind this category is in danger of expanding and could end up overwhelming most every religious exemption.

The founding generation did not regard a religious exemption as an establishment. Moreover, there are presently thousands of religious exemptions in local, state, and federal law. To abolish them all because they are thought to be unconstitutional under a novel theory would work primarily to the injury of religious minorities. That would bring a sea change in the venerable American practice of extending a welcoming hand to diverse religions.