Religious Exemptions, Third-Party Harms, and the False Analogy to Church Taxes
Kentucky Law Journal, Vol. 106, p. 679, 2018 (symposium)
Wayne State University Law School Research Paper Forthcoming
6 Pages Posted: 24 Jan 2019
Date Written: January 14, 2019
Abstract
In recent years, scholars have developed a variety of arguments as to how the Establishment Clause might limit religious exemptions that impose costs on others. Seeking historical footing for such claims, some have analogized the harm imposed by religious exemptions to church taxes, a classic feature of religious establishments traditionally conceived. This analogy has some appeal. But it also runs into some real problems, both practical and conceptual. On the practical level, it would invalidate religious exemptions that almost everyone finds sensible—like prisons providing Kosher meals to Jewish inmates. This practical problem can be traced back to its mistaken conceptual root: the analogy conflates government support for religious liberty with government support for religion. This is a deep mistake, as the two are quite different things. Government support for religion is impermissible in a system like ours, but government support for religious liberty is a bedrock constitutional principle. When the government provides Kosher meals to Jewish inmates, it is not a tax for Jews, a tax for Judaism, or a tax for religion. It is, in a sense, a tax for religious liberty and the religious liberty of Jews specifically. But that is an entirely different thing.
Keywords: Free Exercise; Establishment Clause; religion; third-party harms; religious exemptions; religious accommodations
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