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Third-Party Harms, Congressional Statutes Accommodating Religion, And The Establishment Clause, Carl H. Esbeck

Faculty Publications

Those disappointed with the U.S. Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc. (2014), are actively seeking ways to otherwise limit the Religious Freedom Restoration Act (RFRA). Justice Ruth Bader Ginsburg, dissenting in Hobby Lobby, wrote that when a statute seeks to accommodate a claimant’s religious beliefs or practices there must be no detrimental effect on third parties who do not share those beliefs. Although it is unclear whether Justice Ginsburg was relying on the Establishment Clause as imposing this categorical restraint on the authority of Congress, some commentators argue that her thinking necessarily rests on that clause. …