Challenging Statutory Accommodations for Religiously Affiliated Daycares: An Application of the Third-Party Harm Doctrine
Challenging Statutor y Accommodations for Religiously Affi liated Daycares: An Application of the Thir d-Party Harm Doctrine
Bronwyn Roantree 0 1
0 Thi s Note is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact
1 Fordham University School of Law
2 J.D. Candidate , 2018 , Fordham University School of Law; PhD , 2011 , Harvard University; B.A., 2002, Columbia University. Thanks to Professor Abner Greene of Fordham Law School, Heather Weaver and Dan Mach at the ACLU Program on the Freedom of Religion and Belief , and Thomas Roantree
Recommended Citation Bronwyn Roantree, Challenging Statutory Accommodations for Religiously Affiliated Daycares: An Application of the Th ird-Party Harm Doctrine, 86 Fordham L. Rev. 1393 (). Available at: http://ir.lawnet.fordham.edu/flr/vol86/iss3/14
Challenging Statutory Accommodations for Religiously Affiliated
Daycares: An Application of the Thir d-Party Harm Doctrine
Law; First Amendment; Health Law and Policy; Law and Society; Education Law; Religion Law
Thi s note is available in Fordham Law Review: http://ir.lawnet.fordham.edu/flr/vol86/iss3/14
ACCOMMODATIONS FOR RELIGIOUSLY
AFFILIATED DAYCARES: AN APPLICATION OF
THE THIRD-PARTY-HARM DOCTRINE
Daycare facilities are subject to a host of regulations that govern matters
from basic health and safety requirements, to caregiver training, to maximum
caregiver-to-child ratios. In sixteen states, however, legislation exempts
religiously affiliated daycares from many of these regulations, with six states
extending particularly broad exemptions. Supporters of the exemptions have
justified them on constitutional grounds, arguing that state oversight of
religiously affiliated daycares violates the Free Exercise Clause of the First
Amendment. Recent reporting has revealed that though children have been seriously injured or have died while in the care of religiously affiliated daycares exempted from regulations, challenges to the exemptions have been unsuccessful.
This Note proposes an alternative strategy for challenging the statutory
accommodations extended to religiously affiliated daycares. Both judicial
exemptions under the Free Exercise Clause and statutory accommodations
under the Establishment Clause have historically been limited by the doctrine
of harm to third parties. Invoking a balancing test, this Note argues that
courts ought to weigh the free exercise burden imposed on the religiously
affiliated daycare against the harm to third parties caused by
accommodation. As such, this Note suggests that parents of children harmed
in exempt facilities invoke the balancing test to argue that the harm to third
parties outweighs the free exercise burden imposed by regulations.
I. FREE EXERCISE CLAUSE AND ESTABLISHMENT CLAUSE JURISPRUDENCE IN CONVERSATION: JUDICIAL EXEMPTIONS AND STATUTORY ACCOMMODATIONS ......................................... 1396
II. THE THIRD-PARTY-HARM DOCTRINE AS A TOOL TO CHALLENGE
EXEMPTIONS FROM STATE REGULATIONS................................... 1412
III. STATUTORY ACCOMMODATIONS FOR RELIGIOUSLY AFFILIATED
DAYCARES: ESTABLISHMENT AND FREE EXERCISE CONCERNS. 1420
IV. USING THE DOCTRINE OF THIRD-PARTY HARM TO CHALLENGE
STATUTORY ACCOMMODATIONS FOR RELIGIOUSLY
AFFILIATED DAYCARES ............................................................... 1427
CONCLUSION ........................................................................................... 1431
In 2012, one-year-old Carlos Cardenas wandered away from his caregivers
at Praise Fellowship Assembly of God in Indianapolis, Indiana, where four
staff members supervised over fifty children, and drowned in the church’s
baptismal font.1 In 2010, seven-week-old Dylan Cummings was placed
1. Amy Julia Harris, Religious Day Cares Get Freedom from Oversight, with Tragic
Results, REVEAL (Apr. 12, 2016),
https://www.revealnews.org/article/religious-day-caresoperate-with-little-oversight-and-accountability [https://perma.cc/39PH-V6MP]. A recent
story by the Center for Investigative Reporting uncovered dozens of similar incidents in
religiously affiliated childcare centers across the country: from infants being left in dirty
facedown on a mattress covered with a loose-fitting sheet in an electrical
storeroom at Bethel Temple Church of Deliverance daycare in Norfolk,
Virginia, and was discovered two hours later, dead, the sheet covered in
vomit and blood.2 Indiana and Virginia are among sixteen states that exempt
religiously affiliated childcare centers from state licensing requirements and
regulations.3 The scope of the statutory accommodations varies from the
minor (waiving registration fees) to the major (excusing facilities from nearly
all regulations and oversight requirements, including requirements that
workers know CPR, refrain from corporal punishment, and maintain a
maximum ratio of children to caregivers).4 These statutory accommodations
not only free religiously affiliated daycares from state regulations but also,
when tragedies do occur, leave parents with little legal recourse: in the
absence of regulations, no rules have been broken.5
Though the statutory accommodations have been challenged by secular
daycare facilities, these challenges have never been successful for two
reasons.6 First, courts have found that the statutes are consistent with the
Establishment Clause under the test developed in Lemon v. Kurtzman7 and
known as the Lemon test. Second, courts have rejected the secular daycares’
argument that the economic advantage that accrues to religious daycares as a
result of their freedom from regulatory requirements is sufficient to establish
standing.8 This Note proposes an alternative approach for challenging
statutory accommodations afforded to religiously affiliated daycares:
drawing on the recently reinvigorated idea of third-party harm, this Note
argues that courts ought to balance the free exercise burden imposed on the
daycare against the harm to third parties caused by accommodation.
diapers for so long that they developed sores on their bottoms, to children being whipped and
paddled to the extent that they developed bruises and welts. See id.
3. The six states that grant the broadest exemptions are Alabama, Florida, Indiana,
Missouri, North Carolina, and Virginia. See ALA. CODE § 38-7 (2017); FLA. STAT. §§ 402.301–
402.319 (2017); IND. CODE 12-17.2-6-1 (2016); MO. REV. STAT. § 210.211 (2016); N.C. GEN.
STAT. § 110-106 (2017); VA. CODE ANN. § 63.2-1716 (2017). States with narrower
exemptions include Arkansas and Illinois. See ARK. CODE ANN. § 20-78-209(b)(4) (2017); 225
ILL. COMP. STAT. 10/2.09 (2015).
4. See, e.g., ALA. CODE § 38-7-3 (“[T]he provisions of this chapter shall not apply to
preschool programs which are an integral part of a local church ministry or a religious
nonprofit elementary school . . . .”); FLA. STAT. § 402.316 (“The provisions of ss. 402.301–
402.319, except for the requirements regarding screening of child care personnel, shall not
apply to a child care facility which is an integral part of church or parochial schools . . . .”).
5. In several cases, daycare workers were charged with child neglect and homicide in
connection with the deaths of children in their care. For example, in Commonwealth v. Futrell,
No. CR11-0211, 2012 WL 8261797, at *1–2 (Va. Cir. Ct. Sept. 30, 2011), a child died of
Sudden Infant Death Syndrome (SIDS) in a crib that was not sleep safe. The judge dismissed
the homicide charges, however, noting that “[t]he Commonwealth quite accurately argued that
had Little Eagles Day Care been subject to the regulation and inspection required of secular
day care centers, many of the SIDS risk factors would not have been present.” Id. at *7.
6. Though tort actions are likely available, they have not been widely brought. The
advantages and disadvantages of bringing such actions are beyond the scope of this Note.
7. 403 U.S. 602 (1971).
8. Forest Hills Early Learning Ctr., Inc. v. Grace Baptist Church, 846 F.2d 260, 264 (4th
Cir. 1988); Forte v. Coler, 725 F. Supp. 488, 491 (M.D. Fla. 1989).
Part I describes the development of judicial exemptions under the Free
Exercise Clause and of statutory accommodations under the Establishment
Clause. Though these two regimes were developed in response to different
clauses, they are deeply imbricated such that an understanding of one is
impossible without an understanding of the other. Part I.A examines the rise
and fall of judicial exemptions developed under the Free Exercise Clause in
a line of cases starting with Reynolds v. United States,9 through Employment
Division v. Smith,10 and culminating in the Religious Freedom Restoration
Act11 (RFRA) and its state cousins. Part I.B turns to the statutory
accommodation regime developed under the Establishment Clause and
examines two principal tests for evaluating claims under the Establishment
Clause: the Lemon12 test and the Texas Monthly13 test.
Part II takes up the doctrine of harm to third parties as a tool for challenging
the statutory accommodations granted to religiously affiliated daycares. Part
II.A considers the development of the doctrine of third-party harm in the
context of religious freedom, and Part II.B considers the invocation of the
third-party-harm doctrine in Burwell v. Hobby Lobby Stores, Inc.14
Part III examines the statutes freeing religiously affiliated daycares from
state regulations in the framework of statutory accommodations and judicial
exemptions developed in Part I and explores how these accommodations
have fared in the courts when they have been challenged by secular daycares.
Finally, Part IV evaluates the opportunities and challenges the doctrine of
third-party harm poses for advocates seeking to limit statutory
accommodations for religiously affiliated daycares.
I. FREE EXERCISE CLAUSE AND ESTABLISHMENT CLAUSE
JURISPRUDENCE IN CONVERSATION:
JUDICIAL EXEMPTIONS AND STATUTORY ACCOMMODATIONS
While the Free Exercise Clause and the Establishment Clause protect
different rights, these rights are closely connected, leading to significant
overlap in their interpretation and application. Broadly speaking, the
organizing principle of free exercise jurisprudence is that of
9. 98 U.S. 145 (1878). The Court denied a Mormon man engaged in plural marriage an
exemption from the law against bigamy. Id. at 167.
10. 494 U.S. 872 (1990). The Court denied adherents of the Native American Church
who used peyote as part of a religious ritual an exemption from the Controlled Substances Act.
Id. at 890.
11. 42 U.S.C. § 2000bb (2012), invalidated by City of Boerne v. Flores, 521 U.S. 507
12. Lemon, 403 U.S. at 615. The three-pronged test asks (
) whether the statute has a
secular legislative purpose, (
) whether the statute’s primary effect is to inhibit or advance
religion, and (
) whether the statute results in excessive government entanglement with
13. Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 14–15 (1989). This two-step test builds on
Lemon, asking first whether the law in question confers a benefit only on religious
organizations and, if so, proceeding to two questions: (
) whether the benefit can be justified
as lifting a preexisting government-imposed burden on free exercise and (
) whether the
benefit imposes significant burdens on third parties. Id.
14. 134 S. Ct. 2751 (2014).
antidiscrimination,15 with the question of judicial exemptions dominating the
case law. Under a judicial-exemptions regime, religious individuals or
organizations bring suit alleging that a neutral law of general applicability
disproportionately affects religious persons.16 The organizing principle of a
significant portion of Establishment Clause jurisprudence, by contrast, is that
of statutory accommodation.17 Under a statutory-accommodation regime,
the legislature enacts a law that confers some benefit on religious persons or
organizations, often by freeing them from some regulation or tax.18
Distinguishing judicial exemptions from statutory accommodations—and
thus Free Exercise Clause claims from Establishment Clause claims—is
more difficult in practice than this schema might lead one to believe. This is
particularly evident in the imprecision of the language used to discuss the two
Clauses: statutory accommodations, for instance, are often referred to as
exemptions, which leads to analytical confusion. Thus, while this Note
focuses on statutory accommodations granted to religiously affiliated
daycares, it is necessary to consider the history and development of both
judicial exemptions and statutory accommodations.
A. The Rise and Fall of Judicial Exemptions:
From Reynolds to Smith
Exemptions for religious persons and institutions from generally
applicable laws under the First Amendment’s Free Exercise Clause emerged
only in the 1960s, and its brief history has been a tumultuous one. Prior to
the 1960s, the U.S. Supreme Court forcefully rejected the concept of
exemptions on free exercise grounds. Indeed, in Reynolds, the Court’s first
engagement with the Free Exercise Clause, the Court famously found that to
permit exemptions from generally applicable laws on the grounds of religious
belief “would be to make the professed doctrines of religious belief superior
to the law of the land, and in effect to permit every citizen to become a law
unto himself. Government could exist only in name under such
circumstances.”19 From 1878 until the 1960s, the rejection of exemptions
purely on free exercise grounds remained firmly in place. On those rare
occasions that religious claimants prevailed at the Court, they did so by
pairing their free exercise claim with another right, such as freedom of
Tracing the path of judicial exemptions under the Free Exercise Clause,
Part I.A.1 describes their emergence in the 1960s and 1970s as articulated in
Sherbert v. Verner.21 Part I.A.2 describes the Court’s radical narrowing of
judicial exemptions, in form if not in function, in the 1990 Smith decision.
Congress’s response to Smith, RFRA, is examined in Part I.A.2.a, while Part
I.A.2.b considers the Court’s response to RFRA in City of Boerne v. Flores22
and Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal.23 Finally,
Part I.A.2.c takes up state analogues to RFRA.
1. The Inauguration of Exemptions:
Sherbert and Yoder
Starting in the 1960s, the Warren Court’s liberal majority inaugurated a
new era in free exercise jurisprudence, rejecting the Court’s reasoning in
Reynolds and embracing exemptions as a way to preserve religious liberty in
an increasingly pluralistic society. The Court announced exemptions on free
exercise grounds in its 1963 decision in Sherbert, in which the Court held
that denying a woman unemployment benefits because her religious beliefs
prevented her from working on Saturday violated her constitutional right to
the free exercise of religion.24 Scholars have since argued that Sherbert and
two related cases25 constitute a special and discrete set of cases limited to
unemployment benefits.26 Even if one accepts that Sherbert is so limited, the
three-prong test for evaluating free exercise claims introduced in Sherbert
nevertheless laid the groundwork for the seminal judicial exemptions case,
Wisconsin v. Yoder.27
Briefly, the three-prong test runs as follows: First, the court asks whether
the government’s actions burden a person’s free exercise of religion.28 This
burden must be substantial: a trivial burden would not survive this prong.29
If the first prong is met, the state must then meet the second and third prongs.
The second prong asks whether the state has a compelling interest generally
in the law at issue.30 Finally, under the third prong, the burden must be
narrowly tailored; that is, there must be no alternative regulation that would
both achieve the state’s interest and avoid infringing on free exercise.31 Thus,
under the third prong, the state must demonstrate that it truly requires uniform
adherence to the law in question. If the claimant satisfies the first prong, and
the state fails to satisfy the second and third prongs, then the individual is
entitled to an exemption from the otherwise generally applicable law at
issue.32 Thus, though the Sherbert test arguably would come to be confined
to unemployment cases, at the time it was decided, it signaled a radical new
openness to exemptions on free exercise grounds.
The Court’s new approach to exemptions on free exercise grounds is
exemplified in Yoder, in what some have characterized as the first—and
perhaps only—true exemption case in which the claimant prevailed.33 In
Yoder, Amish parents sought to withdraw their children from school after
eighth grade though state law required attendance in public or private school
until age sixteen.34 Applying the three-prong Sherbert test, the Court held
that the Amish were entitled to an exemption from the generally applicable
law on free exercise grounds. First, the Court found that compelling Amish
children to remain in school past eighth grade constituted a burden on the
respondents’ religious practices that was “not only severe, but
inescapable.”35 Second, the Court determined that the state lacked a
compelling interest for imposing said burden.36 With the state having failed
the second prong, the Court did not discuss the third prong—whether the law
in question was narrowly tailored. Framed in the terminology of the Sherbert
test, the Yoder decision resembled a simple balancing test, with the interests
of the Amish parents in perpetuating the community weighed against the
state’s dual interests in ensuring uniform adherence to the law and in
producing an educated citizenry.37 Curiously, the question of exactly whose
interests—the parents’ or the children’s—were properly considered in the
balancing test was addressed only cursorily. In his dissent, Justice William
29. Id. at 406.
30. Id. at 407 (noting that the state’s professed fear of “unscrupulous claimants feigning
religious objections” is not a sufficiently compelling interest).
32. Lupu argues that Sherbert is not properly read as an exemptions case because the
appellant was not technically exempted from anything. Rather, he argues, “Sherbert is a
decision about a constitutionally mandatory extension of benefits, rather than an exemption
from general norms.” Lupu, supra note 20, at 50.
33. Id. (“Wisconsin v. Yoder . . . is the true and only lynchpin of a doctrine of free exercise
34. Wisconsin v. Yoder, 406 U.S. 205, 207 (1972).
35. Id. at 218.
36. See id. at 222 (noting that although the state has an interest in producing educated and
engaged citizens, there is no evidence that the two additional years of schooling the state seeks
to impose is necessary to achieve this interest).
37. See Lupu, supra note 20, at 50–51.
Douglas argued powerfully that the interests of the children ought also to be
considered.38 Though it is the parents who suffer the legal consequences of
keeping their children out of school, it is the children who suffer the social
and academic consequences of leaving school before the age of sixteen.
Douglas thus argued that the case should be remanded and that each of the
affected students be canvassed.39 Douglas’s dissent illustrates that the
impulse to weigh third-party harms in the balance when evaluating judicial
exemption cases arose quite early in the life of the exemption regime.
After a strong initial showing in the 1960s through the 1970s, the
exemptions regime suffered setbacks in a trio of cases in the 1980s.40 The
balancing language of Yoder was invoked in United States v. Lee,41 in which
the Court held that the interest of the state in maintaining a uniform social
security system outweighed the harms the social security program, anathema
to Amish religion, imposed on the Amish plaintiffs.42 Though it was
“sensitive to the needs flowing from the Free Exercise Clause,” the Court
held that “every person cannot be shielded from all the burdens incident to
exercising every aspect of the right to practice religious beliefs.”43 Further
challenges followed, but the judicial exemptions regime hobbled along until,
in 1990, it was dealt a mortal blow in Employment Division v. Smith.44
2. The Narrowing of Judicial Exemptions:
Smith and Its Progeny
In a deeply controversial decision, the Court rejected the exemption regime
in language lifted straight from Reynolds.45 In Smith, two individuals were
denied unemployment benefits after they were dismissed from their jobs
because they had ingested peyote.46 The claimants, who were active
members of the Native American Church, ingested the peyote as part of a
religious ritual and asserted that the general prohibition on peyote under
Oregon’s controlled substance law violated the Free Exercise Clause when
applied to the sacramental use of peyote.47 The Court roundly rejected this
claim and observed that the balancing test developed in Sherbert had never
been used to grant an exemption from a generally applicable criminal law.48
Justice Antonin Scalia, writing for the majority, noted that “[t]o make an
individual’s obligation to obey such a law contingent upon the law’s
coincidence with his religious beliefs, except where the State’s interest is
‘compelling’—permitting him, by virtue of his beliefs, ‘to become a law unto
himself,’—contradicts both constitutional tradition and common sense.”49
Indeed, the majority observed that anarchy could result from applying a
compelling government interest standard in free exercise cases.50
a. Congress Responds to Smith:
The Religious Freedom Restoration Act
This full-throated evisceration of judicial exemptions on free exercise
grounds was met with sustained public outcry, and Congress’s response to
the public uproar over Smith was swift and decisive.51 In 1993, a unanimous
House of Representatives and a nearly unanimous Senate passed RFRA.52 In
a statement before the Senate Judiciary Committee, Senator Ted Kennedy,
who introduced the bill along with twenty-three other Senators, characterized
RFRA as simply restoring the “compelling government interest” requirement
for evaluating free exercise claims using pre-Smith standards.53 Indeed, the
purposes of RFRA are enumerated as follows:
) to restore the compelling interest test as set forth in Sherbert v. Verner,
374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to
guarantee its application in all cases where free exercise of religion is
substantially burdened; and
) to provide a claim or defense to persons whose religious exercise is
substantially burdened by government.54
RFRA thus straddles the divide between judicial exemptions and
legislative accommodations; operating as a legislative accommodation
intended to restore the jurisprudence of judicial exemption. In practice,
RFRA authorizes judges to apply strict scrutiny and to determine whether a
neutral law of general applicability has imposed a substantial burden. In
other words, RFRA instructs courts to continue their pre-Smith practices but
to do so as a matter of statutory, rather than constitutional, interpretation.55
Though the likely impact of RFRA in its 1993 form on free exercise
jurisprudence is debatable,56 its decisive passage and overwhelming public
support signaled a popular openness to judicial exemptions. The Court’s
schizophrenic response to RFRA, however, underscored a profound
uncertainty on the Supreme Court regarding judicial exemptions.
b. The Court Responds to RFRA:
Boerne and O Centro
In City of Boerne v. Flores, the Archbishop of San Antonio sought an
exemption under RFRA from city zoning laws.57 The Court held that RFRA
exceeded Congress’s enforcement power under Section 5 of the Fourteenth
Amendment and so was unconstitutional.58 Indeed, the Court concluded that
RFRA’s “[s]weeping coverage ensures its intrusion at every level of
government, displacing laws and prohibiting official actions of almost every
description and regardless of subject matter.”59 Congress lacks the power to
54. 42 U.S.C. § 2000bb(b) (2012), invalidated by City of Boerne v. Flores, 521 U.S. 507
55. Curiously, among the most vocal opponents of RFRA were prolife groups, who feared
women would use RFRA to advocate for a religious right to an abortion. Though their fear
never materialized, this underscores the complexity and bipartisanship of the third-party-harm
doctrine in the free exercise jurisprudence. See Robert F. Drinan & Jennifer I. Huffman, The
Religious Freedom Restoration Act: A Legislative History, 10 J.L. & RELIGION 531, 534
56. Heated scholarly debate arose over whether Congress intended a return to the robust
exemption regime of Sherbert and Yoder that dominated the 1960s and 1970s, or the weakened
exemption regime of the 1980s exemplified in Lee, Bowen, and Goldman. See, e.g.,
Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act
Is Unconstitutional, 69 N.Y.U. L. REV. 437, 445–47 (1994); Lupu, supra note 20, at 54–55;
see also Ira C. Lupu, The Failure of RFRA, 20 U. ARK. LITTLE ROCK L.J. 575, 591 (1998)
(observing that RFRA litigation, particularly outside of the prison context, was largely
57. 521 U.S. 507 (1997). Local zoning authorities denied the Archbishop of San Antonio
a building permit to enlarge a church under an historic preservation ordinance. Id. at 512.
58. See id. at 536. Congress’s power under Section 5 of the Fourteenth Amendment is
limited to enforcing the provisions of the Amendment. The Court found that the Enforcement
Clause is remedial, rather than substantive, such that RFRA, which altered the meaning of the
Free Exercise Clause and imposed this reading on the states, exceeded Congress’s powers
under the Enforcement Clause. See id. at 519 (“Congress does not enforce a constitutional
right by changing what the right is. It has been given the power ‘to enforce’, not the power to
determine what constitutes a constitutional violation.”).
59. Id. at 532.
change or determine the scope of constitutional protections, but, with RFRA,
Congress changed the meaning of the Free Exercise Clause.60 Indeed,
Congress not only overstepped its Section 5 power under the Fourteenth
Amendment but also intruded into the proper domain of the judiciary,
rendering RFRA unconstitutional as applied to states.61 Nearly ten years
after the Court had severely hobbled RFRA as it applied to the states, it
affirmed RFRA as it applied to the federal government.62 In O Centro, the
Court upheld a preliminary injunction granting a religious group an
exemption from the Controlled Substances Act in order to import hoasca, a
hallucinogenic drug used in the group’s religious rituals.63 Applying the
compelling-interest test detailed in the statute, the Court found that the
government failed to show that hoasca was dangerous to human health and
that importation by the group posed a risk of drug trafficking.64 Although
the Court maintained that RFRA could not require the Court to adopt the
Sherbert test, it supported RFRA’s commitment to a balancing approach.65
The heavy burden of persuasion that the Court identified points to a
reinvigoration of strict scrutiny as applied to the actions of the federal
government. That the decision was unanimous is a strong signal that, by
2006, the Court was once again open to statutory accommodations on free
c. RFRA at the State Level
With RFRA gutted at the federal level, a number of states responded by
passing their own versions of RFRA (“state RFRAs”).66 All states protect
religious freedom in some way, and the vast majority of state constitutions
contain both free exercise and establishment provisions.67 The language of
these provisions, though, differs across states and differs from the language
of the First Amendment. Many state constitutions, for instance, contain
superstrong establishment clauses that go beyond the federal Establishment
Clause and are primarily directed at limiting financial aid to sectarian
schools.68 While the language of free exercise clauses in state constitutions
differs from that of the U.S. Constitution, state courts have generally
followed the Supreme Court’s lead in interpreting their own free exercise
clauses.69 On the heels of the public outcry over Smith and Boerne, however,
many state legislatures followed Congress’s lead and passed state RFRAs,
often as constitutional amendments. In an additional ten states, RFRA-like
provisions have become law through state court decisions.70 Where state
RFRAs have been enacted through legislation, the language often draws
verbatim from RFRA. Consider, for instance, Virginia’s legislation:
No government entity shall substantially burden a person’s free exercise of
religion even if the burden results from a rule of general applicability unless
it demonstrates that application of the burden to the person is (i) essential
to further a compelling governmental interest and (ii) the least restrictive
means of furthering that compelling governmental interest.71
Despite the rush to pass state RFRAs, many have languished largely
unused and unchallenged for twenty years.72 As the free exercise landscape
72. Where state RFRAs have been decisive, state courts followed the federal courts’ lead
in interpretation. See, e.g., Rupert v. City of Portland, 605 A.2d 63, 65–66 (Me. 1992) (finding
that confiscation of a marijuana pipe did not violate free exercise, even though the pipe’s
owner used marijuana for religious purposes); Attorney Gen. v. Desilets, 636 N.E.2d 233, 236
shifts once again in the aftermath of Hobby Lobby, state RFRAs present an
opportunity to revitalize the balancing test of the earliest free exercise
judicial-exemption cases, particularly if read in tandem with recent
developments in Establishment Clause statutory accommodations.73
B. Statutory Accommodations and the Establishment Clause
While Free Exercise Clause jurisprudence involves judicial exemptions,
Establishment Clause jurisprudence is centered on legislative
accommodations. Though both create carve-outs from neutral laws of
general applicability, exemptions are ordered by the judiciary by virtue of the
Free Exercise Clause, while accommodations are written into the law by
Whether and how accommodation can be distinguished from
establishment is hotly contested. Advocates for statutory accommodation
argue that the distinction is straightforward and turns on whether the statute
in question promotes a favored form of religion or allows religious
individuals the free exercise of religion.74 Opponents of statutory
accommodation, by contrast, argue that any accommodation of religion is
tantamount to the establishment of religion. Indeed, as a reflection of
Enlightenment values, the Establishment Clause is suspicious—and not
The following sections examine the development of legislative
accommodations and the relationship between such accommodations and
judicial exemptions, starting with an examination of the Lemon test in Part
I.B.1 before moving to an analysis of the Texas Monthly test in Part I.B.2.
Finally, Part I.B.3 takes up the special place of ministerial exceptions under
(Mass. 1994) (reversing and remanding a lower court decision that rejected a landlord’s claim
that renting to unmarried couples violated his free exercise); State v. Hershberger, 462 N.W.2d
393, 396 (Minn. 1990) (denying Amish plaintiffs an exemption from generally applicable
traffic laws sought on religious freedom grounds); Humphrey v. Lane, 728 N.E.2d 1039, 1045
(Ohio 2000) (denying a Native American correctional officer an exemption from the grooming
police of the Department of Rehabilitation and Correction sought on free exercise grounds);
First Covenant Church of Seattle v. City of Seattle, 840 P.2d 174, 185 (Wash. 1992) (finding
that city landmarks ordinances restricting a church’s ability to alter its exterior violated the
73. See generally Jonathan C. Lipson, On Balance: Religious Liberty and Third-Party
Harms, 84 MINN. L. REV. 589 (2000); Lupu, supra note 20; Toni M. Massaro, Nuts and Seeds:
Mitigating Third-Party Harms of Religious Exemptions, Post-Hobby Lobby, 92 DENV. U. L.
REV. 325 (2015); Nelson Tebbe, Religion and Marriage Equality Statutes, 9 HARV. L. & POL’Y
REV. 25 (2015).
74. Michael W. McConnell, Accommodation of Religion: An Update and a Response to
the Critics, 60 GEO. WASH. L. REV. 685, 688 (1992) (“The hallmark of accommodation is that
the individual or group decides for itself whether to engage in a religious practice, or what
practice to engage in, on grounds independent of the governmental action. . . . The hallmark
of establishment is that the government uses its authority and resources to support one religion
over another, or religion over nonreligion.”).
75. Steven G. Gey, Why Is Religion Special?: Reconsidering the Accommodation of
Religion Under the Religion Clauses of the First Amendment, 52 U. PITT. L. REV. 75, 185
(1990) (“[A]id to religion in all its forms is fundamentally inconsistent with the secular nature
of democratic principles embodied in the Constitution.”).
the Establishment Clause by looking at two central cases: Corp. of the
Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v.
Amos76 and Hosanna-Tabor Evangelical Lutheran Church & School v.
1. The Lemon Test and the Entanglement Prong
As we have seen, the development of judicial exemptions has been marked
by false starts and doctrinal shifts. The development of statutory
accommodations under the Establishment Clause has been no different.
Though the Lemon test has been challenged repeatedly, it remains the
touchstone for assessing the constitutionality of statutory accommodations
under the Establishment Clause. In Lemon, state monies were paid to
religiously affiliated schools to supplement the salaries of teachers of secular
subjects.78 The Court held that the state aid violated the Establishment
Clause, concluding that “[t]he Constitution decrees that religion must be a
private matter . . . and that while some involvement and entanglement are
inevitable, lines must be drawn.”79 The Court set out a three-pronged test for
determining where these lines should be drawn. First, the statute must have
a secular legislative purpose; second, the statute’s primary effect must not
advance or inhibit the practice of religion;80 and third, the statute must not
result in excessive government entanglement with religion.81 Of these three,
the entanglement prong raises particularly difficult interpretive questions,
especially with regard to statutory accommodations for religiously affiliated
The Court opened its analysis of the entanglement prong by
acknowledging that total separation of church and state is neither practical
nor desirable.82 Nor is it possible to construct a precise set of rules for
determining whether a statute creates excessive entanglement.83 Rather, a
more nuanced approach is required, one that examines the “character and
purposes of the institutions that are benefitted, the nature of the aid that the
State provides, and the resulting relationship between the government and
the religious authority.”84 In Lemon, the Court found that the schools in
question were of a substantial religious character.85 Indeed, recognition of
this led the state to implement careful government controls and oversight of
the aid to ensure that the funds were used only to support secular purposes.86
The monitoring needed to guard against the use of funds to support the
religious mission of the schools, however, resulted in the unacceptable
entanglement of church and state.87 In addition to requiring the direct
intervention of the state into the affairs of a religious institution, the Court
worried that state aid to religious schools would be dangerously divisive.88
While the application of the Lemon test has shifted since it was established
in 1971, the contours of the entanglement prong have remained largely intact.
Concerns about administrative entanglement, the type of entanglement at
issue in Lemon, remain particularly prominent. In Lemon, the test was used
to invalidate state aid to religion, yet religious groups seeking statutory
accommodations have also invoked excessive entanglement to argue for the
right to be free of state oversight.89
Statutory accommodations that restrict state inspection of the religious
content of a religious organization do not extend, however, to all secular
government activity.90 For example, courts have held that religious
organizations must comply with fire inspections and building and zoning
regulations,91 as well as record-keeping requirements.92 The
excessiveentanglement test, developed to address the issue of when, if ever, state funds
may be used to support the secular activities of a religious group, raises as
many questions as it answers. As such, while the excessive-entanglement
test stands as one of the chief interpretive approaches to the Establishment
Clause, the Court has developed other approaches, principally the three-step
framework in Texas Monthly, Inc. v. Bullock.93
2. The Texas Monthly Test:
Free Exercise Burdens and Harm to Third Parties
In Texas Monthly, the Court considered whether a statutory
accommodation granted to religious groups violated the Establishment
Clause.94 The Court struck down a Texas law that exempted religious
periodicals from paying sales tax as an “unjustifiable award of assistance to
religious organizations” that “convey[s] a message of endorsement” to those
excluded organizations.95 In its analysis, the Brennan plurality developed a
three-step framework for determining whether a legislative accommodation
is appropriate under the Establishment Clause.96 The threshold question is
whether the benefits are available to a broad array of recipients, secular and
religious alike.97 If the benefits flow exclusively to religious recipients, the
threshold is met, and the Court moves to the second step, which consists of
two prongs.98 In the first prong of the second step, the Court asks whether
the benefits lift an obstacle imposed by the government on the free exercise
of religion, while in the second prong, the Court asks whether the
accommodation imposes harm on third parties.99
As to the threshold question, while not every nonreligious group need
benefit, enough nonreligious groups must benefit to demonstrate that the
benefit is not targeted to religious groups. Thus, a government program that
is neutral in its offerings such that benefits do not flow exclusively, or nearly
so, to religious institutions or persons may “withstand Establishment Clause
scrutiny without further analysis.”100
As to the first prong, if a benefit flows only to religious groups or persons,
this benefit can be justified if it lifts a preexisting government-imposed free
exercise burden. The deep entanglement of free exercise jurisprudence and
establishment jurisprudence is evident. Indeed, it has been observed that the
Court has not yet “flesh[ed] out the operational meaning of this principle,”101
thereby sidestepping the interpretive difficulties that arise when the two
Clauses appear to be at odds. In these so-called mixed-effect cases, granting
a legislative accommodation would alleviate a free exercise burden, but such
an accommodation may also create establishment problems where it imposed
significant harm on third parties.102
As to the second prong, the Court asks after harms to third parties.
Religion-only benefits granted through statutory accommodations may be
appropriate only if they do not impose “substantial” burdens on third parties.
The Court offers little guidance, however, for determining when a burden on
95. Id. at 15 (quoting Corp. of the Presiding Bishop of the Church of Jesus Christ of
LatterDay Saints v. Amos, 483 U.S. 327, 348 (1987) (O’Connor J., concurring)).
96. Id. (“[W]hen government directs a subsidy exclusively to religious organizations that
is not required by the Free Exercise Clause and that either burdens nonbeneficiaries markedly
or cannot reasonably be seen as removing a significant state-imposed deterrent to the free
exercise of religion, . . . it ‘provide[s] unjustifiable awards of assistance to religious
organizations’ and cannot but ‘conve[y] a message of endorsement to slighted members of the
community.’” (third and fourth alterations in original) (quoting Amos, 483 U.S. at 348)).
97. Id. at 14.
99. Id. at 15–16.
100. See McConnell, supra note 74, at 699.
101. Id. at 700.
102. Consider, for example, the catch-22 posed by Sunday-closing laws. Judicial
exemptions from such laws lift a burden on Saturday Sabbatarians. Because most stores are
not operated by Saturday Sabbatarians, however, the exemption effectively imposes an
economic cost on Sunday observers. See id. at 701–02.
a third party is so substantial that it would militate against an
accommodation.103 Thus, while harm to third parties as a limiting factor on
establishment claims is within the Texas Monthly framework, the contours of
what constitutes a harm to third parties sufficient to defeat statutory
accommodation remains largely unexplored. It is not clear in the Brennan
plurality whether the two prongs in step two are properly read as disjunctive
(i.e., a religion-only benefit is appropriate if it lifts a free exercise burden or
imposes significant harm on a third party) or as conjunctive (i.e., a
religiononly benefit is appropriate if it lifts a free exercise burden and also does not
impose a significant harm on a third party).
3. Harm to Third Parties:
The Ministerial Exception in Hosanna-Tabor and Amos
Under the ministerial exception, some of the internal affairs of religious
organizations may be exempt from generally applicable laws.104 Within
Establishment Clause jurisprudence, the ministerial exception line of cases
occupies the muddy middle ground between judicial exemptions under the
Free Exercise Clause and legislative accommodations under the
Establishment Clause. Religious organizations arguing for a ministerial
exception, then, do so from both Clauses: to be free to practice their religion,
there must be limits on state oversight of religious matters.
Two justifications for the ministerial exemption are relevant to the
question of statutory accommodations for religiously affiliated daycares: (
to protect religious rules of ministry that would otherwise be prohibited in a
secular context and (
) to protect the right of religious organizations to
evaluate its employees according to religious standards.105 As such, the
ministerial exception is an explicit grant intended to benefit only religious
organizations. The complexity of the ministerial exception in action as a
legislative accommodation is illustrated in a pair of cases: Hosanna-Tabor
Evangelical Lutheran Church & School v. EEOC106 and Corp. of the
Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v.
Hosanna-Tabor stands as the paradigmatic application of the ministerial
exception. At issue in Hosanna-Tabor was whether a teacher who had sought
and received the designation of “called” teacher, meaning she understood
herself as being called to her vocation by God, could be fired for violating
the religious teachings of the Church.108 Upholding the Church’s right to fire
the teacher, the Court held that the ministerial exception shielded the
churchoperated school from liability under the Americans with Disabilities Act
(ADA),109 which would otherwise have protected the interests of a school
employee.110 Indeed, failing to grant the ministerial exception would violate
both the Free Exercise Clause and the Establishment Clause.111
The Court’s holding in Hosanna-Tabor was narrow, finding only that the
ministerial exception precluded an employment discrimination suit brought
by a minister.112 Evaluating the claim under the Texas Monthly test,
however, would likely result in a similar outcome. First, the benefit—
exemption from certain ADA provisions—would flow only to religious
institutions. Having met the threshold requirement of the first step, the
analysis would then consider the two prongs of the second step. First, does
this religion-only benefit lift a preexisting government-imposed free exercise
burden? The ministerial exception underscores the great deference shown to
religious groups in the appointment of religious personnel. As such, the
church would likely prevail on this first prong of the second step.
Considering how the accommodation might fare under the second prong
of the Texas Monthly test is instructive. The Court acknowledged that its
ruling imposed harms on a third party—namely, the teacher who lost her
job.113 Having done so, the Court laid out a three-part test for evaluating
third-party harm: (
) the magnitude of the harm imposed on the third party,
) the likelihood of the harm occurring, and (
) the magnitude of the belief
impacted. In Hosanna-Tabor, the magnitude of the harm imposed on the
third party was significant: the teacher lost her job. The likelihood of the
harm occurring, or that other teachers would be fired for violating a religious
stricture, was also high. Further, it is unlikely that threatening to sue to
enforce one’s civil rights constitutes legitimate grounds for dismissal.
Finally, the magnitude of the impacted belief was also high, as it cut to the
quick of the Church’s expectations of its ministers. With all three elements
of the Texas Monthly framework raising strong concerns, and two of the three
elements militating against a statutory accommodation, the Court’s decision
in Hosanna-Tabor thus underscores the arguably outsized weight given to
108. Hosanna-Tabor, 565 U.S. at 179–81. The Lutheran Synod believes that Christians
should resolve disputes internally. Id. at 180. The teacher’s threat to sue the Church for firing
her in violation of the ADA violated that belief. Id. at 204–05.
109. The ADA prohibits an employer from discriminating against a qualified individual on
the basis of disability as well as from retaliating against an employee who charges her
employer with violating the ADA. See Americans with Disabilities Act, 42 U.S.C.
§§ 12112(a), 12203(a) (2012).
110. Hosanna-Tabor, 565 U.S. at 179–80.
111. Id. at 188–89 (“By imposing an unwanted minister, the state infringes the Free
Exercise Clause, which protects a religious group’s right to shape its own faith and mission
through its appointments. . . . [It] also violates the Establishment Clause, which prohibits
government involvement in such ecclesiastical decisions.”).
112. Id. at 188.
113. Id. at 179, 196.
the ministerial exception. Whether and to what extent proponents of statutory
accommodations for religiously affiliated daycares can successfully argue
that the accommodations fall under the ministerial exception, then, will likely
have a significant outcome on a court’s decision if these accommodations are
If Hosanna-Tabor represents a relatively straightforward application of the
ministerial exception, Amos underscores the Court’s capacious
understanding of the exception’s scope. In Amos, a building engineer at a
gymnasium owned and operated by the Church of Jesus Christ of Latter-Day
Saints (LDS) was fired when he failed to secure a certificate from the LDS
authorities that he was a member in good standing.114 The employee sued,
alleging religious discrimination under Title VII of the Civil Rights Act of
1964.115 The Court rejected the employee’s argument, finding that § 702,
which permits religious organizations to discriminate on religious grounds,
applied to the secular nonprofit activities of said organizations.116 Thus,
though Amos ostensibly addresses whether a statutory accommodation
violates the Establishment Clause, judicial exemptions and the free exercise
concerns they address also played an important role in the Court’s reasoning.
Acknowledging the deep connection between the Free Exercise and
Establishment Clauses, the Court concluded that properly curtailing
government interference in religious life disfavors not only positive statutory
mandates to which a religious group must conform its practices but also
statutes that would force a religious organization to defend its beliefs and
practices before a judge who “would not understand its religious tenets and
sense of mission,” as so doing places a “significant burden on a religious
organization.”117 The wall of separation between church and state thus
appears particularly impregnable, with religious organizations effectively
shielded from having to defend practices forbidden to secular organizations.
As an extension of the ministerial exception to employees whose
ministerial function was tenuous at best, Amos underscores the complexity of
the exception.118 For some, the ministerial exception is fundamental to
protecting religious institutions from state dominance.119 Others endorse
ministerial exceptions less because they fear state overreach in religious
affairs and more because they are skeptical of the courts’ ability to properly
distinguish religious from non-religious job functions.120 Still others argue
that reading the ministerial exception too broadly allows religious
organizations to engage in pernicious discrimination.121 Amos and
HosannaTabor, when read together, demonstrate the need for a balancing test, and the
third-party-harm doctrine provides just such a test.
II. THE THIRD-PARTY-HARM DOCTRINE AS A
TOOL TO CHALLENGE EXEMPTIONS FROM STATE REGULATIONS
The third-party-harm doctrine is both implicit in the strict scrutiny analysis
developed with regard to judicial exemptions122 and is, or should be, used by
legislators in the creation of statutory accommodations.123 While the
institutional question of who is best positioned to evaluate third-party harm
claims is complex, abandoning the responsibility entirely to the legislators is
not advisable.124 Rather, there is an important role for courts to intervene
when statutory accommodations impose significant harms on third parties.125
As a balancing test, the third-party-harm doctrine counsels that “[r]ather
than subordinating all religious conduct to laws of general application (or
vice versa), . . . enforcement of, or exemption from, a law should be
determined by reference to the effect such decisions have on third parties.”126
Not all statutory accommodations of religious practices impose burdens on
third parties, and some burdens are insignificant because they are widely
distributed.127 The notion of harm to third parties as a limiting factor on
Thomas v. Review Bd., 450 U.S. 707, 715 (1981))); see also Note, The Ministerial Exception
to Title VII: The Case for a Deferential Primary Duties Test, 121 HARV. L. REV. 1776, 1787–
121. See, e.g., Robin West, Freedom of the Church and Our Endangered Civil Rights:
Exiting the Social Contract, in THE RISE OF CORPORATE RELIGIOUS LIBERTY 399, 399–400
(Micah Schwartzman et al. eds., 2016).
122. While the premise that free exercise should be limited when it causes harm to third
parties runs throughout Sherbert-era jurisprudence, perhaps its most famous articulation
predates Sherbert. In Prince v. Massachusetts, 321 U.S. 158 (1944), Justice Robert H. Jackson
noted that the “limitations which of necessity bound religious freedom . . . begin to operate
whenever activities begin to affect or collide with liberties of others or of the public,” id. at
123. That legislators will consider the harm to third parties imposed by statutory
accommodations—and indeed are in a better place to evaluate these harms—is central to much
scholarly analysis. See MARCI A. HAMILTON, GOD VS. THE GAVEL: RELIGION AND THE RULE
OF LAW 205–10 (2d ed. 2014).
124. The extent to which the compelling interest, narrowly tailored approach captures harm
to third parties is, however, debatable. For instance, where the state’s compelling interest is
in helping one party and the narrow tailoring focuses on that party, the possible impact on third
parties may not be properly taken into account.
125. See Nelson Tebbe et al., How Much May Religious Accommodations Burden Others?,
in LAW, RELIGION, AND HEALTH IN THE UNITED STATES 215, 217 (Elizabeth Sepper et al. eds.,
2017) (proposing that the undue hardship standard used in the context of employment law may
guide our intuitions about how much harm is too much).
126. See Lipson, supra note 73, at 638.
127. See 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, 56–57 (2014). The authors note that in O Centro, the Court observed that the sect’s
drug use did not impose a burden on third parties outside the sect, and that in Walz, tax
exemptions for churches do not impose a significant burden on third parties because the burden
is distributed across a large and indeterminate class. Id.
religious freedom is entrenched in both Free Exercise and Establishment
Clause jurisprudence. Comporting with the intuitions of both religion
clauses, then, the doctrine of harm to third parties is uniquely positioned to
ease the tensions that arise when free exercise and establishment concerns
abut one another. Statutory accommodations for religiously affiliated
daycares raise both free exercise and establishment concerns, and as such the
third-party-harm doctrine illuminates a new—and potentially more
successful—strategy for challenging these accommodations. The following
Part sketches the core concerns of the doctrine of third-party harms and key
moments in the emergence of the third-party-harm test.
A. The Doctrine of Third-Party Harm:
Definitions and Developments
The idea that harm to third parties might function as a limiting factor on
judicial exemptions and statutory accommodations in the name of religious
freedom was implicit in many of the Court’s earliest First Amendment
cases.128 Recently, the doctrine reemerged in Cutter v. Wilkinson,129 with
the Court observing that “courts must take adequate account of the burdens a
requested accommodation may impose on non-beneficiaries.”130 In all these
cases, the doctrine of third-party harm is used, whether implicitly or
explicitly, as a balancing test: a judicial exemption or statutory
accommodation is appropriate if and only if the religious interests at stake
outweigh the magnitude of the burden and the likelihood of harm occurring.
While in one line of cases, the Court has expressed profound suspicion of
balancing tests when it comes to religious freedom,131 in another equally
prominent line of cases, the Court has employed a balancing test wherein
harms to third parties are weighed against the benefit to the religious
group.132 As the third-party-harm test becomes more prominent, scholars
have grappled with the proper structure and function of the test. Analyzing
the third-party-harm test as a balancing test, this Part examines how the third
128. See, e.g., Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 19–20 (1989) (plurality opinion)
(noting that the state’s interest in the uniform collection of sales tax must be weighed against
the interests of publishers of religious periodicals to spread the word without the burden of
sales tax); Wisconsin v. Yoder, 406 U.S. 205, 235 (1972) (observing that the interests of the
state in a well-educated citizenry must be weighed against the religious interests of the Amish
parents in keeping their children from school); Reynolds v. United States, 98 U.S. 145, 166–
68 (1879) (noting that the interest of the state in laws that apply uniformly to all citizens must
be weighed against the interests of the LDS in practicing plural marriage).
129. 544 U.S. 709 (2005).
130. Id. at 720.
131. See Emp’t Div. v. Smith, 494 U.S. 872, 889 n.5 (1990) (“[I]t is horrible to contemplate
that federal judges will regularly balance against the importance of general laws the
significance of religious practice.”).
132. There is a school of thought, represented by Marci Hamilton, that any harm is too
much harm, such that exemptions ought to be granted only where religious organizations can
prove they will do no harm to others. See HAMILTON, supra note 123, at 205–10. This
argument has been criticized as reductionistic and implausible in a crowded society where
harm can be defined capaciously. See Douglas Laycock, A Syllabus of Errors, 105 MICH. L.
REV. 1169, 1171 (2007) (reviewing MARCI HAMILTON, GOD VS. THE GAVEL: RELIGION AND
THE RULE OF LAW 205–10 (2005)).
party ought to be identified and how the scales in the balancing test ought to
be calibrated, before finally turning to the invocation of the third-party-harm
doctrine in Hobby Lobby.
1. Third-Party Harms as a Balancing Test
To assess whether a given action imposes impermissible harms on a third
party, the Court in Texas Monthly laid out a three-factor balancing test: first,
the magnitude of the burden; second, the likelihood of the feared harm
occurring; and third, the magnitude of the religious interest at stake.133 First,
as the Court stated in Estate of Thornton v. Caldor, Inc.,134 the burden in
question must be substantial. In Thornton, Connecticut’s Sabbath
observance statute granted a benefit exclusively to religious persons, namely,
the right not to work on whatever day of the week that person observed the
Sabbath.135 This religion-only benefit imposed a significant burden on
employers and non-Sabbatarian employees by requiring them to conform
their business practices to the particular religious practices of the
employee.136 The significance of the burden on third parties was central to
the Court’s rejection of the statute as a violation of the Establishment Clause.
Determining when a burden is substantial is often challenging, however, and
does not admit of a bright line analysis.137 While there will be difficult cases
at the margin, there will also be cases in which the substantiality of the harm,
such as death or serious injury, is unquestionable.
Second, scholars argue that courts ought to carefully scrutinize the
likelihood of the harm occurring.138 Where the risk of that harm is
vanishingly small, an exemption should not be denied simply because it
might impose harm on a third party. For example, in Holt v. Hobbs,139 the
state cited security concerns related to hiding contraband in denying a
Muslim inmate’s request to grow a half-inch beard as part of his religious
observance.140 The Court rejected this argument. The likelihood that the
inmate would conceal a dangerous weapon in his half-inch beard was so
vanishingly small that the burden on third parties was not only not
substantial, it was nearly nonexistent.141 Courts have extended this analysis
to situations in which the likelihood of occurrence is less remote and the
potential harm is very severe. For example, in custody disputes in which one
parent is a Jehovah’s Witness (and thus opposed to blood transfusions for
religious reasons), where the child is healthy and the likelihood that he or she
would require a transfusion is low, courts have refused to award custody to
the non-Witness parent solely because of the threat of harm.142 The
likelihood of a healthy child falling so ill as to require a blood transfusion is,
courts have concluded, too remote to be relevant.143
Finally, scholars argue that courts ought to consider the magnitude of the
religious interests at stake. Measuring the magnitude of a religious interest
is, however, quite difficult. The ministerial exception is the paradigmatic
instance of courts considering the magnitude of the religious interest at
stake.144 The ability of religious bodies to choose their leaders free from state
interference is so central to the full and free functioning of these bodies that
judicial exemptions or statutory accommodations to allow this functioning
are appropriate.145 Even where this causes real and significant harm to third
parties (such as the loss of employment in both Hosanna-Tabor and Amos),
the significant religious interests at stake in the appointment of ministers
outweigh the harm to the fired employees. The extension of the ministerial
exception in Amos to employees engaged in nonreligious work in secular
affiliates of a religious organization, however, raises concerns that the
oncenarrow exception is now much more capacious. Beyond the ministerial
exception, courts have struggled to arrive at a method for assessing the
magnitude of the religious belief, proffering various criteria, such as the
centrality of the belief and the sincerity of the belief.
Courts have long resisted evaluating the truth of a religious claim,146 and
at times this resistance has been extended to evaluations of the sincerity of a
religious claim.147 By and large, however, courts have distinguished between
assessing the truth of a religious claim on the one hand and its centrality or
sincerity on the other, and they have been willing and able to evaluate the
latter fairly and effectively.148 Of the three factors for evaluating whether an
accommodation impermissibly imposes harm on a third party, then, the
magnitude of the religious interest at stake appears to be the most challenging
2. Identifying the Third Party
Identifying who, precisely, counts as a third party for purposes of the
thirdparty-harm test has significant implications for how such claims can be
litigated. Determining who, if anyone, has standing to challenge a judicial
exemption or statutory accommodation can be difficult.149 When identifying
the harmed third party, two overarching questions emerge. First, how
identifiable must the third party be? Second, ought the harm to “internal”
third parties be treated differently from the harm to “external” third parties?
First, here is significant disagreement as to the degree of specificity with
which courts ought to identify the harmed third party. There is a line of cases,
exemplified by Reynolds and Smith, in which the identity of the third party is
defined quite capaciously, seeming to encompass the entire body politic.150
That the Court implicitly identified the state as the harmed third party rather
than, for example, wives or children living in polygamous households, is
perhaps surprising.151 Likewise, in Yoder, the harms that the Court weighed
were the harm to the state of having an uneducated citizen and the harm to
the parents’ free exercise of religion.152 As Justice Douglas notes in his
dissent in Yoder, however, the Court arguably did not correctly identify the
third party most directly harmed by the exemption: the Amish children.153
Further, Jonathan Lipson has argued that where the harmed party is the state
as an abstraction, the ability to interfere with the internal affairs of a religious
organization ought to be strictly curtailed.154
Second, where the harmed third parties are individuals, rather than the
state, should it matter whether the harmed party is a member of the same
religious community? One might argue that harms imposed on third-party
insiders, such as members of the religion, ought to be given less weight,
provided that the insiders have a real ability to exit the offending
organization, than harms imposed on third parties who are removed from the
religious organization.155 Even were one to accept the insider versus outsider
dichotomy, determining who qualifies as an insider can be challenging. For
example, are children “insiders” for the purposes of analysis if they lack a
meaningful ability to exit the community?156 How to identify the relevant
party for the purposes of the third-party-harm test remains unsettled, and the
ultimate resolution of this question will have a significant effect on how
questions of standing in cases invoking the test are resolved.
3. Calibrating the Scales for the Balancing Test
Even where scholars agree that harm to third parties ought to be the test
for determining whether a statutory accommodation or judicial exemption for
religious practice is legitimate, how to calibrate the test poses additional
challenges. Opinions run the gamut from setting the scales evenly to
allowing religious communities a “thumb on the scale.” Proponents of
setting the scales evenly offer both practical and principled reasons for so
doing. In his analysis of Yoder, Ira Lupu argues that, despite the language of
substantial burden and compelling interest, the Court was actually engaged
in an even-handed balancing of the interests of both parties, factoring in the
harms for each side at the margin.157 This fact-intensive analysis, where
there was no presumption either in favor of or opposing an exemption and
where the benefits and harms of an exemption were carefully weighed, best
serves the interests of both parties. Indeed, as Lupu notes, the ability to
balance benefits and harms accurately is so important that it should be solely
the province of the legislature, such that judicial exemptions should be
abandoned in favor of statutory accommodations.158
Adopting a slightly different approach, Jonathan Lipson advocates for the
scales to be evenly set when the religious exercise harms third parties but for
a thumb to be on the scale for religious persons or organizations when it does
not.159 As such, “[t]he thumb should rest on the scales in favor of religious
actors in inverse proportion to the presence of third parties.”160 By contrast,
Michael McConnell would grant religion a thumb on the scale even where
the practice in question imposes harm on third parties.161 For McConnell,
religion has a special constitutional status, and as such, while legislatures
may consider economic and other harms to third parties when considering
accommodations, they are not required to do so.162 Though there is
of exit, particularly where exemptions may impair a person’s ability to function outside of the
156. See supra notes 38–39 and accompanying text. The same logic also applies to the
children of Jehovah’s Witnesses who may be too young to effectively exit the church in order
to receive a life-saving blood transfusion.
157. See Lupu, supra note 20, at 50.
158. Id. at 101.
159. See Lipson, supra note 73, at 671.
161. See Michael W. McConnell, Accommodation of Religion, 1985 SUP. CT. REV. 1, 37.
McConnell does recognize one caveat, namely where the accommodation would impose a
burden on a third party’s religious liberties. Id. at 23.
162. Id. at 38 (“[T]he legislature is [not] required to treat religious conviction as if it had
no greater weight or dignity under the Constitution than economics or similar interests.”).
disagreement in the scholarly community about how to set the balance and
which kinds of harms count,163 there is broad agreement that a third-party
harm balancing test is consistent with the Free Exercise and Establishment
Clauses of the Constitution.164
B. The Resurgence of the Third-Party-Harm Test:
Though the idea that harm to third parties ought to limit judicial
exemptions and statutory accommodations has run throughout Free Exercise
and Establishment Clause jurisprudence, in recent years the third-party harms
test has enjoyed a new prominence. The Court’s discussion of harm to third
parties as a limiting factor on religious accommodations in Hobby Lobby
points to a new strategy for the parents of children who died or were injured
in religiously affiliated daycares excepted from state regulations to challenge
In Hobby Lobby, a for-profit, closely held corporation sought an exemption
from the Affordable Care Act’s (ACA) mandated contraceptive coverage for
drugs or devices that operate after the moment of conception because
contraception contravenes the owners’ sincere religious belief that life begins
at conception.166 Under RFRA, a government action that imposes a
substantial burden on religious exercise must (
) serve a compelling
government interest and (
) be the least restrictive means of serving that
interest.167 In a five-to-four decision, the Court assumed arguendo that the
government has a compelling interest in ensuring that people have access to
contraceptive coverage as part of their health insurance but found that the
mandate failed the second prong, as there are less restrictive ways to achieve
the same goal.168 Indeed, Department of Health and Human Services (HHS)
regulations already excepted nonprofit organizations with religious
objections from the contraceptive mandate.169 The group-health-insurance
issuer for such organizations must exclude contraceptive coverage from the
employer’s plan and issue separate contraceptive payments for plan
participants without imposing the costs on the organization.170 The decision
had significant implications for religious liberty jurisprudence, chief among
them weakening the “substantial” in “substantial burden.”171 Though the
doctrine of third-party harm does not figure prominently in the majority’s
decision, it appears in a modified form in the Court’s discussion of the
government’s argument that the plaintiff is seeking an exemption from a legal
obligation to confer a benefit on a third party.172 Indeed, the assumption that
the government would provide an alternative mechanism for female
employees to obtain free contraception and thus to suffer no harm is key to
the holding. Though the Court (rightly) rejected HHS’s argument that RFRA
does not permit the state to burden one party’s free exercise so long as the
burden confers a benefit on another party,173 it noted that impeding women’s
receipt of healthcare benefits harms women and is not what Congress
Though the question of harm to third parties was dismissed rather
cavalierly in the majority decision, Justice Ginsburg raised it forcefully in her
dissent: “No tradition, and no prior decision under RFRA, allows a
religionbased exemption when the accommodation would be harmful to others—
here, the very persons the contraceptive coverage requirement was designed
to protect.”175 The harms imposed on third parties—here, female employees
of corporations exempted from the ACA mandate—are significant, from
increased contraceptive costs, to the risk of unplanned pregnancies, to the
denial of contraceptives used to treat other diseases such as menstrual
disorders.176 Writing for the majority, Justice Alito acknowledged that the
denial of contraceptive coverage burdened third parties but concluded that
HHS, by creating an accommodation for certain nonprofit religious
organizations whereby the costs for contraceptive coverage would be borne
not by the organization but by the plan issuer, had already developed a
workaround to alleviate this burden.177
Indeed, had the Court applied the three-factor third-party-harm test, the
outcome would likely have been different. First, the magnitude of the harm
to third parties is high: the inability to control one’s reproductive life imposes
significant burdens on women. Second, the likelihood of harm is high:
excluding contraceptive coverage from the employer health plan would have
an immediate and noticeable effect on women.178 Though the fact of a
worksimply deferred to Hobby Lobby’s assertion that the mandate imposed a substantial burden);
see also Alex J. Luchenitser, A New Era of Inequality?: Hobby Lobby and Religious
Exemptions from Anti-Discrimination Laws, 9 HARV. L. & POL’Y REV. 63, 68 (2015).
Luchenitser notes that the religious organization need show only that the claims that the
governmental action imposes a substantial burden reflects its honest conviction. Id.
172. Hobby Lobby, 134 S. Ct. at 2781 n.37.
174. Id. at 2782–83.
175. Id. at 2801 (Ginsberg J., dissenting).
176. For a discussion of the myriad burdens that reduced access to contraceptives imposes
on women, see Gedicks & Koppelman, supra note 127, at 57–59.
177. Hobby Lobby, 134 S. Ct. at 2763, 2782 (majority opinion). Critics have challenged
this assessment, arguing that the majority fails to appreciate the significant practical
difficulties of achieving the work-around. See Elizabeth Sepper, Free Exercise Lochnerism,
115 COLUM. L. REV. 1453, 1492–95 (2015).
178. The harm to third parties cannot be effectively alleviated by requiring women to obtain
contraceptive-only coverage, as the attendant statutory, regulatory, and practical barriers this
entails create significant hurdles for women seeking contraception. Contraception-only
around to accommodate religious nonprofits may diminish the likelihood of
harm somewhat, these work-arounds have been challenged repeatedly and
their continued existence is somewhat precarious.179 Finally, the magnitude
of the affected belief is also high. Courts, in recognition of the importance
of these beliefs to many different religious communities, are particularly
sensitive to religious views about when life begins. Thus, though the Hobby
Lobby majority did not address the question of third party harms in any depth,
the issue was raised, and with especial force in Justice Ginsburg’s dissent.
Had the third-party-harm balancing test been applied, it is likely that the harm
imposed on the female employees would outweigh the burden imposed on
the employer’s religious beliefs. With this account of the third-party-harm
doctrine as it intersects with the religion clauses in place, this Note brings the
doctrine to bear on the difficult question of legislative accommodations for
religiously affiliated daycares.
III. STATUTORY ACCOMMODATIONS FOR RELIGIOUSLY AFFILIATED
DAYCARES: ESTABLISHMENT AND FREE EXERCISE CONCERNS
As the preceding Parts demonstrate, the jurisprudence of the Free Exercise
and Establishment Clauses is complex and contradictory. Some states,180
perhaps noting the Court’s shifting interpretation of these Clauses and
seeking to protect religious institutions from state interference, enacted
statutes excusing religiously affiliated daycares from complying with certain
state regulations.181 Even after Smith, when the Court adopted a deep
suspicion of judicial exemptions, the statutes remained in force.182 Indeed,
where these statutes were challenged, the challenges were wholly
unsuccessful.183 Part III.A considers several such statutes, while Part III.B
examines various (failed) efforts to challenge these statutes.
A. Statutory Accommodations for Religiously Affiliated Daycares
All states regulate daycare facilities. Though the precise scope of the
regulations, the mechanisms for ensuring compliance, and the penalties for
failure to comply vary from state to state, there are significant similarities.
policies are not permitted under the ACA, as they are not qualified health plans that offer all
essential health benefits. See Brief of Health Policy Experts as Amici Curiae in Support of
Respondents at 15–20, Zubik v. Burwell, 136 S. Ct. 1557 (2016) (Nos. 14-1418 et al.), 2016
WL 675863, at *15–20. In the alternative, requiring women to leave their employer-sponsored
health plans would likely disrupt the important relationships women have with their healthcare
providers as they would almost certainly face a different provider network. Id. at 18.
179. See Zubik v. Burwell, 136 S. Ct. 1557, 1560 (2016) (per curiam). The Court, down to
eight members, remanded the case for further proceedings. Id. at 1561.
180. See supra note 3.
181. Alabama amended its code in 1981 to exempt religiously affiliated daycares from
many regulations. See 1981 Ala. Laws 396. Indiana extended exemptions to religiously
affiliated daycares in 1993. See 1993 Ind. Acts 106.
182. See supra Part I.A.2.a.
183. Where the statutes were challenged, courts found either that (
) the exemptions
satisfied the Lemon test and so were acceptable statutory accommodations; (
) the challengers,
secular daycares, lacked standing as they failed to show that the exemptions resulted in actual
economic harm; or (
) both of the preceding. See infra Part III.B.
Broadly speaking, states prescribe a rigorous set of regulations for daycare
facilities that cover a wide range of topics including character and
qualifications of the caregivers, minimum child-to-caregiver ratios,
acceptable disciplinary practices, health and safety standards, and
recordkeeping requirements.184 The definition of “daycare facility” is quite
capacious in many states, such that the regulations cover a broad range of
childcare arrangements, from formal preschools to in-home care.185 A
number of states have enacted statutes exempting religiously affiliated
daycares from many of the regulations that govern secular facilities. The
scope of these accommodations ranges widely, from near-total exemption
from state regulation in Alabama186 to more limited exemptions in North
Carolina, with other states, including Florida and Virginia falling somewhere
in between. The accommodations address issues of health and safety, staff
qualifications and training, and reporting requirements. Considering the
scope of the statutory accommodations granted to religiously affiliated
daycares provides valuable insight into the internal logic of the
Before turning to a close examination of the statutes regulating daycares
and the accommodations extended to religiously affiliated daycares, a brief
note on the complicated history of establishment clauses in state constitutions
underscores the complex place of religiously affiliated educational
institutions in state legislative schema. In response to the influx of Roman
Catholics to the United States in the mid-nineteenth century—and their
attendant efforts to establish Roman Catholic schools—a significant number
of states adopted so-called Blaine amendments into their state
constitutions.187 Blaine amendments prohibit all financial support of
religious institutions by the state.188 Though the Blaine amendments are
184. See, e.g., ALA. CODE § 38-7-7 (2017); FLA. STAT. § 402.305 (2017); IND. CODE §
1217.2-6-2 (2016); MO. REV. STAT. § 210.211 (2016); N.C. GEN. STAT. § 110-106 (2017); VA.
CODE ANN. § 63.2-1716 (2017).
185. See ALA. CODE § 38-7-8. The Alabama Administrative Code defines childcare facility
capaciously, requiring any facility that provides care for one or more children unrelated to the
provider for more than four hours a day to be licensed whether or not the provider is
186. Alabama’s sweeping accommodations have received some scrutiny recently, and there
is currently a bill before the Alabama House of Representatives that would rescind nearly all
of the current accommodations and require religiously affiliated daycares to submit to the same
licensing requirements as secular daycares. See H.R. 548, 2016 Reg. Sess. (Ala. 2016). The
bill, however, has languished in the state house since it was introduced on April 19, 2016, and
its prospects for passage are dim at best. See Alabama House Bill 548, LEGISCAN,
https://legiscan.com/AL/bill/HB548/2016 [https://perma.cc/N8GW-2B8D] (last visited Nov.
187. Efforts to pass a Blaine amendment at the federal level were very nearly successful,
with the proposed amendment passing in the House of Representatives and failing to meet the
required two-thirds majority in the Senate by only four votes. See Kyle Duncan, Secularism’s
Laws: State Blaine Amendments and Religious Persecution, 72 FORDHAM L. REV. 493, 510
188. See, e.g., FLA. CONST. art. 1, § 3 (“No revenue of the state or any political subdivision
or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of
any church, sect, or religious denomination or in aid of any sectarian institution.”); MO. CONST.
art I, § 7 (“[N]o money shall ever be taken from the public treasury, directly or indirectly, in
limited to financial support, the strong separation between church and state
that the amendments call for may be read as support for state disengagement
from religion.189 This reading was dealt a serious blow, however, in Trinity
Lutheran Church of Columbia, Inc. v. Comer,190 in which the Court held that
withholding a public benefit from a church simply because it was a church
was “odious to our Constitution.”191 The impact of this decision on
arguments that exemption from state regulation amounts to de facto state aid
for religious bodies has yet to be felt, and the question remains a live one.
With this caveat, this Note turns to the statutory schema exempting
religiously affiliated daycares from regulation.
Though the process by which a daycare facility is recognized as religiously
affiliated, and so not bound by the full panoply of regulations that apply to
secular facilities, differs from state to state, in no state is the process
particularly onerous. For example, in Alabama, churches seeking
accommodations for their preschool programs must merely file a notice with
the Department of Human Resources indicating that they meet the definition
of a “local church ministry”192 along with a notice of intent to operate with
the appropriate fire and health departments.193
The accommodations that states provide can be organized into several
categories: first, basic health and safety; second, teacher qualifications and
ratios; and third, child discipline. First, although some states require
religiously affiliated daycares to comply with the same health and safety
regulations as secular daycares, not all do.194 In Alabama, for instance, in
which close to half of all daycare facilities are currently excepted from
regulations, the Department of Human Resources requires only that
religiously affiliated daycares file notices of intent to operate with the
appropriate health and fire departments but does not provide a mechanism
for collecting or overseeing these evaluations.195 Virginia, by contrast,
requires exempt facilities to file documentation certifying that the facility has
been inspected by the local health department and fire marshal and is in
compliance with all applicable health and safety laws and regulations.196
Likewise, while Florida exempts religiously affiliated daycares from the
aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister
or teacher thereof, as such; and . . . no preference shall be given to nor any discrimination
made against any church, sect or creed of religion, or any form of religious faith or worship.”).
189. See generally Brief of American Civil Liberties Union, ACLU of Missouri, American
Humanist Association, Center for Inquiry, Freedom from Religion Foundation, and People for
the American Way Foundation as Amici Curiae Supporting Respondent, Trinity Lutheran
Church of Columbia, Inc. v. Pauley, 137 S. Ct. 2012 (2017) (No. 15-577), 2016 WL 3640468.
190. 137 S. Ct. 2012 (2017).
191. Id. at 2025.
192. See ALA. CODE § 38-7-3 (2017) (exempting religiously affiliated daycares whether or
not they are attached to a religious elementary school).
194. ARK. DEP’T OF HUMAN SERVS., MINIMUM LICENSING REQUIREMENTS FOR CHILD CARE
CENTERS (2015), http://humanservices.arkansas.gov/dccece/licensing_docs/2014%20A1%
195. ALA. CODE § 38-7-3.
196. VA. CODE ANN. § 63.2-1716(A)(
statewide health and safety regulations that govern secular daycares, it
requires excepted facilities to meet the minimum standards set by the relevant
Second, while even those states with the most far-reaching exceptions
require compliance with basic health and fire regulations, many states grant
broad exceptions from standards regulating teacher qualifications and staff
ratios. For example, in Florida, personnel working in nonexempt facilities
must meet a host of requirements, from screening for “good moral character”
to training in child development.198 Personnel in religiously affiliated
facilities, however, are exempted from all training requirements and must
merely demonstrate that they meet screening requirements related to past
criminal activity.199 Similarly, in Virginia, personnel in religiously affiliated
daycares that choose to be exempt from licensure need not meet any training
requirements. They are required only to obtain “a search of the central
registry . . . on any founded complaint of child abuse or neglect and a
criminal records check” and to provide a sworn statement disclosing whether
the applicant has ever been “the subject of a founded complaint of child abuse
or neglect,” convicted of a crime, or the subject of pending criminal
Not only is the staff of exempted facilities not held to the same standards
with regards to training and background, but some states also exempt
religiously affiliated daycares from minimum staff-to-student ratios. Of all
the statutory accommodations, exemption from minimum ratios is perhaps
the most significant in terms of both differential costs imposed on secular and
religious facilities and a facility’s ability to adequately supervise and protect
the children in its care. In Alabama, exempted facilities are not required to
meet any minimum staffing requirements, with the caveat that they “make
available” to parents the adult-to-child ratio.201 In Florida, daycares are
197. FLA. STAT. § 402.316 (2017). The penalty for failure to comply with local
requirements is the loss of exemption from licensure. Id. The penalties provision that applies
to nonexempt facilities in Florida does not, however, extend to exempt facilities. See id.
198. Id. § 402.305(
)(a). Personnel are required to take a forty-hour course covering topics
including child safety and development and to demonstrate competency by passing an
examination. Id. The course covers important safety information, including how to recognize
and prevent shaken baby syndrome, prevention of sudden infant death syndrome, and the
recognition and care of infants and toddlers with developmental disabilities. Id. Personnel are
additionally required to take an annual continuing education course, including a course
specifically devoted to early literacy and language development. Id.
199. FLA STAT. § 435.04 (2017) (excluding persons found guilty of a series of offenses such
as murder, sexual assault, and drug crimes).
200. VA. CODE ANN. § 63.2-1724 (2017). Those convicted of “barrier crimes,” defined at
§ 19.2-392.02, and including murder, obscenity and sexual abuse, are wholly prevented from
working at daycare facilities, both licensed and unlicensed. Id. § 63.2-1724.
201. ALA. CODE § 38-7-3 (2017) (“The following information shall be available to parents
or guardian prior to enrolling their children in said church ministry; staff qualifications;
pupilstaff ratio; discipline policies; type of curriculum used in the learning program; the religious
teachings to be given each child; and the type of lunch program available.”). Having done
this, exempt programs are almost wholly relieved of any state oversight. They are required
only to inform the department that they are providing this information to the parents and that
required to maintain strict maximum child-to-adult ratios, while religiously
affiliated facilities are wholly exempted from these requirements.202 By
contrast, in Virginia, religiously affiliated facilities are required to comply
with maximum adult-to-child ratios, requiring one adult for every four
children under two, one for every ten children six and younger, and one for
every twenty-five children over six.203
Finally, religiously affiliated daycares are routinely granted
accommodations from state laws governing the discipline of children in
daycare facilities. Arkansas requires exempt facilities to comply with state
standards on corporal punishment unless alternative compliance is granted
by the Division of Child Care and Early Childhood Education at the
Department of Human Services.204 Other states, including Alabama, excuse
exempt facilities from state standards on discipline.205
B. Legal Challenges to Statutory Accommodations
Secular daycares in several states have challenged the statutory
accommodations extended to religiously affiliated facilities but have been
unsuccessful at every turn.206 Three common issues arise. First, courts find
that requiring religiously affiliated daycares to submit to state regulations
would result in impermissible entanglement of the state in internal church
affairs.207 Second, courts reject equal protection challenges, finding that
secular and religiously affiliated daycares are not similarly situated and that
the accommodations are not only constitutionally appropriate but also
possibly constitutionally required.208 Third, the courts routinely find that the
secular providers lack standing to bring their claims.209
Concerns about excessive entanglement between the state and religious
organizations—and attendant Establishment Clause concerns—are at the
heart of each of the decisions on statutory accommodations for religiously
they are maintaining fire and health inspection reports, immunization records and medical
history forms. Id.
202. FLA. STAT. § 402.305(4). There must be one childcare professional for every four
children under the age of one; one professional for every six children between the ages of one
and two; one professional for every eleven children between the ages of two and three, and so
203. VA. CODE ANN. § 63.2-1716.
204. ARK. CODE ANN. § 20-78-209(b)(4) (2017).
205. ALA. CODE § 38-7-3.
206. See, e.g., Forest Hills Early Learning Ctr., Inc. v. Grace Baptist Church, 846 F.2d 260,
264 (4th Cir. 1988); Kid’s Care, Inc. v. State of Ala. Dep’t of Human Res., No. 01-T-453-N,
2001 WL 35827965, at *2 (M.D. Ala. June 14, 2001); Forte v. Coler, 725 F. Supp. 488, 491
(M.D. Fla. 1989).
207. Courts recognize that some contacts between church and state, including fire
inspections and building and zoning regulations, are not only unavoidable but desirable. See
Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 305 (1985); Lemon v.
Kurtzman, 403 U.S. 603, 614 (1971).
208. See Kid’s Care, 2001 WL 35827965, at *3.
209. Although courts have found that secular daycares lack standing, in many decisions
they also, surprisingly, consider the merits of the case. See id. at *2.
affiliated daycares.210 In Forest Hills Early Learning Center, Inc. v. Grace
Baptist Church,211 the Court applied the Lemon test as interpreted by Amos,
which had been decided while the case was on remand to the district court.212
Moving quickly over the first, or purpose, prong of the Lemon test to the
second prong, the Court found that the accommodation not only does not
promote religion but also that denying the accommodation would effectively
inhibit religion.213 In its discussion of excessive entanglement, the Court
relied on the Amos Court’s finding that requiring a religious group to defend
its beliefs in free exercise litigation before a judge who may be ignorant of
the group’s religious mission and purpose implicates establishment
concerns.214 To deny religiously affiliated daycares exemptions from certain
state regulations would be to require the kind of issue-by-issue free exercise
litigation that Amos eschews.215 This would both “chill and interfere with
religious groups, enmeshing judges in intrusive and sometimes futile
attempts to understand the contours, sincerity and centrality of the religious
beliefs of others.”216
In Forte v. Coler,217 in which a secular daycare likewise challenged the
constitutionality of statutory exemptions for religiously affiliated daycares,
the court drew directly on the Fourth Circuit’s decision in Forest Hills,
characterizing it as “highly persuasive.”218 Noting that the accommodation
satisfies the first and second prongs of the Lemon test, the court then noted
that not only does the statute not promote the entanglement of church and
state, it also effects more complete separation of the two than would obtain
in the absence of the accommodation.219 Further, as in Forest Hills, the
accommodation eases the burden on the court system by obviating the need
to litigate each and every free exercise claim that would be brought under the
state RFRA by a religiously affiliated daycare, thereby avoiding
In addition to challenging the statutory accommodations for entanglement
concerns, many secular daycares have asserted equal protection claims. In
such cases, secular providers’ claims that the accommodation improperly
discriminates between religious and secular facilities have not been
successful. Courts have routinely rejected these equal protection claims,
210. See id. at *4. The Court also considered entanglement under the aegis of substantive
due process, finding that the state’s interest in limiting church-state entanglement and
respecting free exercise could provide a rational basis for the accommodations, resulting in
the dismissal of the due process claim. Id. at *5.
211. 846 F.2d 260 (4th Cir. 1988).
212. Id. at 263.
213. Id. (“Absent the exemption [for religiously affiliated daycares], some church leaders
would immediately be forced to violate their convictions against submitting aspects of their
ministries to state licensing, or face legal action by the state.”).
214. See supra notes 114–16 and accompanying text.
215. Forest Hills, 864 F.2d at 263.
216. Id. at 264.
217. 725 F. Supp. 488 (M.D. Fla. 1989).
218. Id. at 490.
219. Id. at 491.
finding that the statutes are motivated by a permissible purpose (namely, to
avoid excessive entanglement) and that the exemptions are rationally related
to these permissible ends. In Kid’s Care, Inc. v. State of Alabama
Department of Human Resources,221 for instance, the court rejected the
secular providers’ argument that the accommodations violated the Equal
Protection Clause because they were “a form of ‘arbitrary and capricious’
discrimination among similarly situated daycare providers that lacks any
rational basis in violation of the Equal Protection Clause.”222 Rather, the
court observed that not only were secular and religious daycares not similarly
situated as a matter of constitutional law but also that, in passing the statutory
accommodation, the state acted with a “rational and permissible purpose.”223
The court then offered several rationales as to why the state would structure
the accommodation as it does.224 Likewise, in Forte, the court noted that the
statute was motivated by the permissible purpose of limiting interference
with free exercise and that the accommodations were rationally related to this
Finally, courts have been unsympathetic to the secular providers’ ability
even to challenge the accommodation, with many courts finding that the
secular daycares lack standing to bring their claims. In Kid’s Care, a group
of secular daycares asserted that the freedom from onerous regulations gave
religiously affiliated daycares a competitive advantage and inflicted
economic harm on secular facilities.226 Specifically, the secular facilities
contended that, were the accommodations removed, more state subsidies for
childcare would flow to the secular daycares.227 The court rejected this
argument, however, concluding that the plaintiffs had offered only highly
general allegations of harm and that a facial attack on the law fails because
“it is apparent that the statute is not ‘unconstitutional in all its
221. No. 01-T-453-N, 2001 WL 35827965 (M.D. Ala. June 14, 2001).
222. Id. at *3.
223. Id. Indeed, the accommodations were justified by the state’s twin interests in limiting
church-state entanglement and respecting free exercise. Id.
224. Id. at *5 (“For example, the State might want to avoid the higher financial expense
that would result if it conducted independent evaluations of providers, or, it might find it more
efficient to monitor the bad-faith conduct of exempted day-care providers through means other
than its licensing decisions. Or, the State might have fashioned its certification process so as
to keep the State out of the business of defining what counts as religion and to limit the possible
intrusions on the free exercise of religion that could result if religious certification depended
upon bureaucratic discretion.”).
225. Forte, 725 F. Supp. at 491.
226. Kid’s Care, 2001 WL 35827965, at *2.
228. Id. at *9 (quoting Williams v. Pryor, 240 F.3d 944, 953 (11th Cir. 2001)). Further, the
Court rejected the Plaintiffs’ procedural due process claim, finding that not only did the
plaintiffs have no colorable allegation of a property interest at issue, but, even were it true that
more money would flow to secular daycares, this would still not rise to the level of a legitimate
entitlement. See id. at *4 (“Even if, for the sake of argument, the plaintiffs were entitled to
operate in a regulatory world without religious exemptions, their hope and expectancy in the
extra funds that might later be determined to be due them in a post-exemption world still would
not amount to a present constitutionally cognizable property interest.”).
The Fourth Circuit, by contrast, found that secular daycares did have
standing to challenge the accommodations.229 Whereas the Alabama court
found that religiously affiliated and secular daycares were not similarly
situated, the Fourth Circuit found that they were. Citing the Supreme Court’s
decision in Arkansas Writers’ Project v. Ragland,230 the Fourth Circuit thus
found that the secular daycares had standing to bring the challenge.231
The challenges secular daycares have faced with regard to standing are
instructive and counsel in favor of identifying a litigation strategy in which
the plaintiffs are not secular daycares. If the harm-to-third-party doctrine is
used to challenge these accommodations, the parties who would bring the
cases would be the parents of the children who were injured or died while in
the care of understaffed and underregulated religiously affiliated facilities.
IV. USING THE DOCTRINE OF THIRD-PARTY HARM TO
CHALLENGE STATUTORY ACCOMMODATIONS FOR
RELIGIOUSLY AFFILIATED DAYCARES
Given recent developments in Establishment Clause jurisprudence,
particularly the renewed attention paid to the doctrine of harm to third parties,
the time is ripe to revisit statutory accommodations granted to religiously
affiliated daycares. Where statutory accommodations for religiously
affiliated daycares have been challenged, the daycares have asserted that
regulations create excessive entanglement, invoking both free exercise and
establishment arguments.232 Supporters of accommodations assert that free
exercise would be limited were religiously affiliated daycares forced to
comply with, for example, regulatory oversight of disciplinary methods, such
as corporal punishment.233 Likewise, regulations that dictate staff
qualifications raise both free exercise and establishment concerns under the
ministerial exception.234 Underlying both arguments is the question of who
has standing to challenge these accommodations. Even were plaintiffs to
demonstrate standing, they would then need to demonstrate that their
interests outweigh the burdens on free exercise. The Texas Monthly test,
incorporating a sensitivity to both free exercise concerns in the first prong of
its second step and establishment concerns in the second prong of its second
step, may fruitfully be applied. Taking up first the question of standing and
then the two steps of the Texas Monthly test, this Note argues that, by using
the third-party-harm test, the parent of a child injured in a religiously
affiliated daycare that is exempted from complying with state regulations
may successfully challenge these statutory accommodations.
First, where statutory exemptions for religiously affiliated daycares have
been challenged, the plaintiffs have been owners of secular daycares.235
Courts have found, across the board, that these plaintiffs failed to show that
the exemptions resulted in actual economic harm and so lacked standing to
bring the challenges.236 With courts finding that the plaintiffs lacked
standing, many of these cases have been dismissed early in the litigation
process. Were the parents or guardians of children who suffered injury or
death in facilities exempt from some or most state regulations to bring a case,
however, clearing the initial hurdle of standing—demonstrating that they
suffered a direct, cognizable injury—should be easier.237 Though the parents
may face difficulty proving causation between the lack of state oversight and
the child’s injury, were they able to demonstrate standing, they would at least
advance further in the litigation process.
Second, the first prong of the Texas Monthly test’s second step asks
whether exemption from state regulations lifts a free exercise burden that
would otherwise be imposed by the government.238 Here, most regulations,
including fire and safety inspections, food preparation, and record keeping,
do not appear to implicate free exercise concerns. The concerns raised in
Forte and Forest Hills thus seem overinclusive.239 Excusing religiously
affiliated daycares from basic health and safety regulations risks sacrificing
state interests in the protection of its most vulnerable members on the altar of
Some regulations, however, including those touching on discipline and
corporal punishment, may implicate free exercise concerns under the Texas
Monthly test. Of the states that offer statutory accommodations, many
explicitly extend the exception to disciplinary procedures.240 Corporal
235. See generally Kid’s Care, Inc. v. State of Ala. Dep’t of Human Res., No. 01-T-453-N,
2001 WL 35827965 (M.D. Ala. June 14, 2001); Forte v. Coler, 725 F. Supp. 488 (M.D. Fla.
236. See supra note 228 and accompanying text.
237. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 578 (1992).
238. See supra Part I.B.2.
239. See supra Part III.B.
240. See, e.g., ALA. CODE § 38-7-3 (2017) (providing that exempt facilities are not bound
by the disciplinary guidelines that apply to nonexempt facilities but instead must provide
information on disciplinary procedures to parents); ARK. CODE ANN. § 20-78-209(b)(4) (2017)
(providing that exempt facilities may be granted alternative compliance by the Division of
Child Care and Early Childhood Education regarding corporal punishment); FLA. STAT.
§ 402.316 (2017) (providing that regulations addressing discipline do not apply to exempt
punishment of children has deep roots in several religious traditions,241 and
exempting religiously affiliated facilities from regulations concerning
discipline lifts a free exercise burden that would otherwise be imposed.242
Regulations governing the qualifications of daycare staff raise separate
concerns about excessive entanglement.243 If a religiously affiliated daycare
considers itself an extension of the group’s ministry, then the staff would be
engaged in ministerial work.244 Though the ministerial exception is typically
invoked by religious organizations as a defense against a Title VII
violation,245 it is conceivable that a religiously affiliated daycare may invoke
the ministerial exception were it forced to comply with state regulations
concerning staff qualifications. Indeed, here the ministerial exception is, in
effect, sanctioned by the state through the statutory accommodation freeing
the facilities from regulation.246
The likelihood that an Amos-like ministerial exception would extend to
staff at religiously affiliated daycares is, however, unclear
post-HosannaTabor. Deploying the familiar three-step analysis, the magnitude of the harm
imposed on the third party—job loss—is high; the likelihood of the harm
occurring is high; and the magnitude of the belief affected is minimal. Critics
of Amos might go further, arguing that Amos marked a significant—and
inappropriate—extension of the ministerial exception from persons engaged
in preaching and teaching to employees whose jobs have no confessional
dimension and thus ought not be extended to daycare workers.247 The extent
to which exceptions from training requirements for staff in religiously
affiliated daycares is required or desirable is, then, difficult to resolve, with
the argument that the accommodations are necessary because of the
ministerial exception not wholly implausible.
Finally, though some of the exemptions extended to religiously affiliated
daycares may raise free exercise concerns, post-Texas Monthly the analysis
would continue.248 Applying the same three-factor test but switching the
identity of the affected party to a child in the care of a religiously affiliated
daycare, the same test yields different results.249 First, the magnitude of the
harm imposed on the third party may be extremely high. As the Center for
Investigative Reporting found, children in the care of religiously affiliated
daycares have suffered serious injury and even death.250 Proving that the
lack of regulation led to a particular child’s injury or death is necessarily a
fact-based inquiry. It is conceivable, however, that a parent-plaintiff could
demonstrate that the lack of a minimum staff-to-child ratio contributed to a
child’s wandering off or the lack of safe-sleep training contributed to an
infant’s crib death. Second, it is difficult to determine the likelihood of the
harm occurring.251 While a statistical comparison of injuries sustained in
regulated daycares and exempt daycares would be the gold standard, in the
absence of such a study, evaluating likelihood would be challenging. Third,
the magnitude of the belief affected may be low. While religiously affiliated
daycares would likely argue that state regulations interfere with free exercise
and promote excessive entanglement, these arguments are weak. Few of the
regulations, with the possible exception of some requirements for staff
qualifications and corporal punishment, touch directly on matters of religious
doctrine, and state oversight of nonexempt facilities is not particularly
intrusive. Under a fact-sensitive balancing test, then, parent-plaintiffs might
successfully demonstrate that the magnitude of the harm to third parties
outweighs the magnitude of the belief impacted, particularly where the
exemption in question was only tenuously related to religious doctrine.
Even were parent-plaintiffs to successfully demonstrate that the religiously
affiliated daycare’s free exercise concerns were minimal and that the harm to
third parties was substantial, one final hurdle would remain: distinguishing
the facts from those of Hobby Lobby. The outcome in Hobby Lobby, brought
under RFRA, is particularly relevant in those states that have adopted a
version of RFRA in their state constitutions.252 Though the majority in
Hobby Lobby recognized that an exemption from the contraception mandate
burdened third parties, it rejected the application of the mandate because it
248. See supra note 96 and accompanying text.
249. See supra note 133 and accompanying text.
250. See Harris, supra note 1.
251. Depending on the relief sought, the likelihood of the harm occurring is more or less
important. Where the plaintiff seeks damages for a harm that has already occurred, the
likelihood that it will occur again is not relevant. Where the plaintiff seeks an injunction,
however, the likelihood of the harm occurring again is central. See City of Los Angeles v.
Lyons, 461 U.S. 95, 111 (1983). Were parent-plaintiffs to bring a case against a religiously
affiliated daycare, they would likely seek an injunction in addition to damages.
252. Among the states with statutory accommodations for religiously affiliated daycares
that also have state RFRAs are Alabama, Florida, Indiana, Missouri, and Virginia. See ALA.
CONST. art I, § 3.01; FLA. STAT. § 761.03 (2017); IND. CODE § 34-13-9-8 (2016); MO. REV.
STAT. § 1.302 (2016); VA. CODE ANN. § 57-2.02 (2017).
was not the least restrictive means of serving the government’s compelling
interest in providing women access to contraception.253 Here, several states
have adopted alternative registration requirements that require exempted
facilities to self-report their compliance with a limited number of
regulations.254 Supporters of statutory accommodations for religiously
affiliated facilities may argue that, even were parent-plaintiffs to demonstrate
the exemption imposed harm on third parties, direct state oversight would not
be the least restrictive means and the alternative self-reporting system would
be sufficient. The findings of the Center for Investigative Reporting seem to
belie this, however, and the forceful dissent in Hobby Lobby may support
imposing more rigorous oversight where harm to third parties is
significant.255 Indeed, as the Court recognized in Cutter v. Wilkinson, where
a statutory accommodation imposes significant harms on third parties, the
accommodation itself might violate the Establishment Clause.256
253. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759 (2014).
254. See, e.g., ALA. CODE § 38-7-3 (2017); 225 ILL. COMP. STAT. 10/2.09 (2015); MO. REV.
STAT. § 210.254 (2016).
255. See supra note 175 and accompanying text; see also Hobby Lobby, 134 S. Ct. at 2800
(Ginsburg, J., dissenting).
256. Cutter v. Wilkinson, 544 U.S. 709, 722 (2005) (“Our decisions indicate that an
accommodation must be measured so that it does not override other significant interests.”);
see also Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709 (1985).
257. See, e.g., Forest Hills Early Learning Ctr., Inc. v. Grace Baptist Church, 846 F.2d 260,
262 (4th Cir. 1988); Kid’s Care, Inc. v. State of Ala. Dep’t of Human Res., No. 01-T-453-N,
2001 WL 35827965, at *1 (M.D. Ala. June 14, 2001); Forte v. Coler, 725 F. Supp. 488, 491
(M.D. Fla. 1989).
258. See supra note 1 and accompanying text.
1. The Inauguration of Exemptions: Sherbert and Yoder ... 1398
2. The Narrowing of Judicial Exemptions: Smith and Its Progeny ........................................................................... 1400 a. Congress Responds to Smith: The Religious Freedom Restoration Act.......................................... 1401 b. The Court Responds to RFRA: Boerne and O Centro ....................................................................... 1402 c. RFRA at the State Level.............................................. 1403 B . Statutory Accommodations and the Establishment Clause ..... 1405
1. The Lemon Test and the Entanglement Prong ................. 1406
2. The Texas Monthly Test: Free Exercise Burdens and Harm to Third Parties...................................................... 1407
3. Harm to Third Parties: The Ministerial Exception in Hosanna-Tabor and Amos............................................... 1409 A. The Doctrine of Third-Party Harm: Definitions and Developments........................................................................ 1413
1. Third-Party Harms as a Balancing Test ........................... 1414
2. Identifying the Third Party............................................... 1416
3. Calibrating the Scales for the Balancing Test .................. 1417 B. The Resurgence of the Third-Party-Harm Test: Hobby Lobby .................................................................................... 1418 A. Statutory Accommodations for Religiously Affiliated Daycares ............................................................................... 1420 B . Legal Challenges to Statutory Accommodations .................... 1424
15. Church of the Lukumi Babalu Aye, Inc . v. City of Hialeah , 508 U.S. 520 , 532 ( 1993 ) (“At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious belief or regulates or prohibits conduct because it is undertaken for religious reasons .”).
16. See generally Douglas Laycock, Free Exercise and the Religious Freedom Restoration Act, 62 FORDHAM L . REV. 883 ( 1994 ).
17. A separate element of Establishment Clause jurisprudence pushes back against the dominant religion's use of power by limiting prayer in schools, Engel v . Vitale , 370 U.S. 421 , 424 - 25 ( 1962 ), financial assistance to religious bodies , Lemon , 403 U.S. at 602, and the display of religious symbols, Lynch v . Donnelly , 465 U.S. 668 , 704 - 05 ( 1984 ).
18. See Mark Tushnet, The Emerging Principle of Accommodation of Religion (Dubitante) , 76 GEO. L.J. 1691 , 1708 - 09 ( 1988 ).
19. Reynolds v. United States , 98 U.S. 145 , 167 ( 1878 ).
20. Ira C. Lupu , Hobby Lobby and the Dubious Enterprise of Religious Exemptions , 38 HARV. J.L. & GENDER 35 , 49 ( 2015 ) (noting that the Court tended to grant exemptions where the due process rights of parents to direct their child's upbringing were burdened , as in Meyer v. Nebraska , 262 U.S. 390 , 399 - 402 ( 1923 ), or free speech rights were infringed, as in West Virginia Board of Education v . Barnette , 319 U.S. 624 , 634 - 35 & n. 15 ( 1943 )).
21. 374 U.S. 398 ( 1963 ). The Court held that a law denying unemployment compensation to a person fired because her job requirements conflicted with her religious beliefs violated the Free Exercise Clause . Id. at 406.
22. 521 U.S. 507 ( 1997 ).
23. 546 U.S. 418 ( 2006 ).
24. Sherbert , 374 U.S. at 410.
25. See generally Hobbie v . Unemployment Appeals Cmm'n , 480 U.S. 136 ( 1987 ); Thomas v . Review Bd., 450 U.S. 707 ( 1981 ).
26. See , e.g., Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct , 61 U. CHI. L. REV . 1245 , 1254 ( 1994 ); Lupu, supra note 20, at 49; see also Emp't Div. v. Smith , 494 U.S. 872 , 883 ( 1990 ) (noting that the Sherbert test has been cabined to claims about unemployment compensation .).
27. 406 U.S. 205 ( 1972 ). The Court granted Amish parents who sought, for religious reasons, to withdraw their children from school after eighth grade, an exemption from a Wisconsin law requiring children to attend school until age sixteen . Id. at 235-36.
28. Sherbert , 374 U.S. at 403.
38. See Yoder, 406 U.S. at 242 (Douglas, J., dissenting) ( “[N]o analysis of religiousliberty claims can take place in a vacuum. If the parents in this case are allowed a religious exemption, the inevitable effect is to impose the parents' notions of religious duty upon their children .”).
39. Id . at 246 & n.4 (“Canvassing the views of all school-age Amish children in the State of Wisconsin would not present insurmountable difficulties. A 1968 survey indicated that there were at that time only 256 such children in the entire State .” (citing Norman R. Prance , Comment, The Amish and Compulsory Schools Attendance: Recent Developments , 1971 WIS. L. REV. 832 , 852 n.132)).
40. See Bowen v. Roy , 476 U.S. 693 , 700 ( 1986 ) (holding that the requirement that an individual have a social security number in order to obtain government benefits did not violate free exercise); Goldman v . Weinberger , 475 U.S. 503 , 504 ( 1986 ) (holding that Air Force regulations mandating the removal of headgear indoors, including yarmulkes, did not violate free exercise); United States v . Lee , 455 U.S. 252 , 258 ( 1982 ) (holding that religious employers are not exempt from paying social security tax).
41. 455 U.S. 252 ( 1982 ).
42. Id . at 258.
43. Id . at 261.
44. 494 U.S. 872 ( 1990 ).
45. Id . at 890.
46. Id . at 874.
47. Id . at 876.
48. Id . at 882- 83 . This does not capture Yoder, however, which cannot be understood as a hybrid rights case .
49. Id . at 885 (citation omitted) (quoting Reynolds v . United States , 98 U.S. 145 , 167 ( 1879 )).
50. Id . at 888 (“ Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them .”).
51. Condemnation of the Smith decision crossed ideological and political lines, and RFRA was supported by a coalition of unlikely bedfellows, including the National Association of Evangelicals, the American Civil Liberties Union, and People for the American Way . See Religious Freedom Restoration Act of 1993: Hearing on S. 2969 Before the S. Comm. on the Judiciary, 102nd Cong . 2 ( 1993 ) (statement of Sen . Edward M. Kennedy).
52. Religious Freedom Restoration Act of 1993 , Pub. L. No. 103 - 141 , 107 Stat. 1488, invalidated by City of Boerne v . Flores , 521 U.S. 507 ( 1997 ).
53. See Religious Freedom Restoration Act of 1993: Hearing on S. 2969 Before the S. Comm. on the Judiciary, supra note 51 , at 2 (statement of Sen . Edward M. Kennedy) (“In essence, the act codifies the requirement for the Government to demonstrate that any law burdening the free exercise of religion is essential to furthering a compelling governmental interest and is the least restrictive means of achieving that interest .”).
60. Id .
61. Id . at 536 (“ RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance .”).
62. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418 , 439 ( 2006 ).
63. Id . at 425.
64. Id . at 432-33.
65. Id . at 439 (“ Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue .”).
66. As of 2016, twenty-one states had enacted RFRA through legislation: Alabama, Arizona , Arkansas, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia . Alan E. Brownstein, State RFRA Statutes and Freedom of Speech , 32 U.C. DAVIS L. REV. 605 , 607 n. 4 ( 1999 ).
67. See generally Monrad G. Paulsen, State Constitutions, State Courts and First Amendment Freedoms , 4 VAND. L. REV. 620 ( 1951 ) (surveying religious freedom protections in state constitutions).
68. See , e.g., MO. CONST. art 1 , § 7 (“[N]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and . . . no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship .”).
69. See , e.g., ALA . CONST. art I , § 3 (“[T] he civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles .”); N.D. CONST. art. I, § 3 (“The free exercise and enjoyment of religious profession and worship, without discrimination or preference shall be forever guaranteed in this state . . . but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state .”); VA. CONST. art I , § 16 (“ [A]ll men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other .”).
70. States with RFRA-like provisions enacted through judicial decisions include Alaska , Hawaii, Ohio, Maine, Massachusetts, Michigan, Minnesota, Montana, Washington, and Wisconsin. Juliet Eilperin, 31 States Have Heightened Religious Freedom Protections, WASH. POST (Mar. 1 , 2014 ), https://www.washingtonpost.com/news/the-fix/wp/2014/03/01/ wherein-the-u-s-are-there-heightened-protections-for-religious-freedom [https://perma .cc/GFV9- V7AT].
71. VA. CODE ANN. § 57 - 2 .02(B) ( 2017 ). The Virginia Code goes on to address the complex relationship between judicial exemptions and both the U.S. Establishment Clause and the state establishment clause: Nothing in this section shall be construed to (i) authorize any government entity to burden any religious belief or (ii) affect, interpret or in any way address those portions of Article 1, Section 16 of the Constitution of Virginia, the Virginia Act for Religious Freedom (§ 57-1 et seq .), and the First Amendment to the United States Constitution that prohibit laws respecting the establishment of religion. Granting government funds, benefits or exemptions, to the extent permissible under clause (ii) of this subsection, shall not constitute a violation of this section. As used in this subsection, “granting” used with respect to government funding, benefits, or exemptions shall not include the denial of government funding, benefits, or exemptions .
76. 483 U.S. 327 ( 1987 ).
77. 565 U.S. 171 ( 2012 ).
78. Lemon v. Kurtzman , 403 U.S. 602 , 607 - 10 ( 1971 ).
79. Id . at 625.
80. A key primary-effects case is Estate of Thornton v . Caldor, Inc., 474 U.S. 703 , 710 - 711 ( 1985 ). There, the Court found that a Connecticut statute that extended to Sabbath observers an “absolute and unqualified right” not to work on the Sabbath impermissibly advanced religion, citing Judge Learned Hand's observation in Otten v . Baltimore & Ohio R. Co ., 205 F.2d 58 ( 2d Cir . 1953 ), that “[t]he First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities,” id . at 61.
81. Lemon , 403 U.S. at 612- 13 . The Court imports the entanglement prong from Walz v . Tax Comm'n , 397 U.S. 664 ( 1970 ). Excessive entanglement is characterized by “comprehensive, discriminating, and continuing state surveillance of religion.” Vernon v . City of Los Angeles, 27 F.3d 1385 , 1399 ( 9th Cir . 1994 ).
82. Lemon , 403 U.S. at 614 ( noting that fire inspections and building and zoning regulations are examples of “necessary and permissible contacts”).
83. Id .
84. Id . at 615.
85. Id . at 616.
86. See id. at 619-20.
87. Id . at 619.
88. Id . at 622 (“[P] olitical division along religious lines was one of the principal evils against which the First Amendment was intended to protect. The potential divisiveness of such conflict is a threat to the normal political process .”).
89. See Brief of Constitutional Law Scholars as Amici Curiae Supporting Respondents at 11-13, Sebelius v. Hobby Lobby , 134 S. Ct . 2751 ( 2014 ) (Nos . 13 - 354 , 13 - 356 ), 2014 WL 356639, at * 11 - 13 .
90. See infra Part III.B.
91. See Tony & Susan Alamo Found . v. Sec'y of Labor , 471 U.S. 290 , 305 ( 1985 ).
92. Id . at 305-06.
93. 489 U.S. 1 ( 1989 ).
94. Id . at 5 (plurality opinion).
103. Id . at 703- 04 . McConnell argues that in Estate of Thornton v . Caldor, Inc., 472 U.S. 703 ( 1985 ), the Court implied that a burden was substantial when it was significantly disproportionate to the benefit that accrued to the religious person or group . McConnell, supra note 74 , at 703- 04 . In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 ( 1977 ), by contrast, the Court implied that even a de minimis burden on third parties triggered establishment concerns . McConnell, supra note 74 , at 703-04.
104. Paul Horwitz, Act III of the Ministerial Exception , 106 NW. L. REV. 973 , 977 - 78 ( 2012 ) (arguing that the ministerial exception emerged from the institutional separation of church and state that has been at the foundation of American civic thought since colonial times).
105. Douglas Laycock , Hosanna-Tabor and the Ministerial Exception, 35 HARV . J.L. & PUB. POL 'Y 839 , 848 - 49 ( 2012 ).
106. 565 U.S. 171 ( 2012 ).
107. 483 U.S. 327 ( 1987 ).
114. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v . Amos , 483 U.S. 327 , 330 ( 1987 ).
115. Id . at 331; see also 42 U.S.C. § 2000e-2(a)(1) ( 2012 ).
116. Amos , 483 U.S. at 335-36.
117. Id . at 336.
118. For an excellent survey and critique of different scholarly assessments of the ministerial exception, see generally Ira C. Lupu & Robert W. Tuttle , The Mystery of Unanimity in Hosanna-Tabor Evangelical Lutheran Church & School v . EEOC , 20 LEWIS & CLARK L. REV . 1265 ( 2017 ).
119. See , e.g., Michael A. Helfand , Religious Institutionalism, Implied Consent, and the Value of Voluntarism , 88 S. CAL. L. REV . 539 , 542 ( 2015 ).
120. See Burwell v. Hobby Lobby Stores , Inc., 134 S. Ct . 2751 , 2798 ( 2014 ) (Ginsburg , J., dissenting) (“[C] ourts are not to question where an individual 'dr[aws] the line' in defining which practices run afoul of her religious beliefs.” (second alteration in original) (quoting
133. For an excellent discussion of the three-factor test, see Christopher C. Lund , Religious Exemptions, Third-Party Harms , and the Establishment Clause, 91 NOTRE DAME L. REV 1375 , 1376 - 81 ( 2016 ).
134. 472 U.S. 703 ( 1985 ).
135. Id . at 706.
136. Id . at 709-10.
137. See Lund, supra note 133 , at 1377 (“[T] he significance of a burden is more of a spectral variable than a dichotomous one, and there will be no clear boundary between significant and insignificant burdens .”).
138. Id . at 1378.
139. 135 S. Ct . 853 ( 2015 ).
140. Id . at 861.
141. Id . at 864- 65 . Holt was decided under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and not the Free Exercise Clause . Id. at 86-62.
142. See Harrison ex rel . J.D.H. v. Tauheed, 256 P.3d 851 , 866 - 67 (Kan. 2011 ); Garrett v . Garrett , 527 N.W.2d 213 , 221 (Neb. Ct. App. 1995 ).
143. See Varnum v. Varnum , 586 A.2d 1107 , 1112 (Vt. 1990 ) (“We are also concerned about the use of the finding that defendant would not allow her children to have blood transfusions even if medically necessary, in the absence of any evidence that such an eventuality is likely and cannot be resolved in ways other than depriving defendant of custody .”).
144. See supra Part I.B. 3 .
145. See supra note 111 and accompanying text .
146. Thomas v. Review Bd., 450 U.S. 707 , 716 ( 1981 ) (“Courts are not arbiters of scriptural interpretation .”).
147. See Burwell v. Hobby Lobby Stores , Inc., 134 S. Ct . 2751 , 2805 ( 2014 ) (Ginsburg, J., dissenting) (noting that there is an overriding interest in “keeping the courts 'out of the business of evaluating' . . . the sincerity with which an asserted religious belief is held” (quoting United States v . Lee , 455 U.S. 252 , 263 n. 2 ( 1982 ) (Stevens , J., concurring))).
148. See Ben Adams & Cynthia Barmore , Questioning Sincerity: The Role of the Courts After Hobby Lobby , 67 STAN. L. REV. ONLINE 59 , 60 - 62 ( 2014 ) (observing that courts have evaluated the sincerity of religious claims on questions ranging from conscientious objection , to drug use, to bankruptcy proceedings).
149. For example, secular daycares that have challenged statutory accommodations granted to religiously affiliated daycares have had great difficulty establishing standing . See infra Part III.B.
150. In both cases, the key concern was the damage an exemption would do to the cohesion of the body politic were individuals allowed to become laws unto themselves . See Emp't Div . v. Smith , 494 U.S. 872 , 890 ( 1990 ); Reynolds v . United States , 98 U.S. 145 , 167 ( 1878 ).
151. By contrast, the invocation of a depersonalized body politic in Smith is perhaps more understandable, as it is difficult to imagine who would suffer individualized harm were Native Americans granted an accommodation to use peyote in ritual settings .
152. Wisconsin v. Yoder , 406 U.S. 205 , 235 ( 1972 ).
153. Id . at 245 (Douglas, J., dissenting) ( “It is the future of the student, not the future of the parents, that is imperiled by today's decision.”).
154. See Lipson, supra note 73 , at 670 (citing Watson v . Jones , 80 U.S. 679 , 727 - 29 ( 1871 )).
155. See generally Emile Lester, The Right to Reasonable Exit and a Religious Education for Moderate Autonomy, 68 REV . POL. 612 ( 2006 ) (noting the central importance of freedom
163. See , e.g., Gedicks & Koppelman, supra note 127 , at 56-57; Lipson, supra note 73, at 635-50.
164. See , e.g., Lund, supra note 133 , at 1375; Lupu, supra note 20, at 100-01.
165. Burwell v. Hobby Lobby Stores , Inc., 134 S. Ct . 2751 , 2781 n. 37 ( 2014 ).
166. Id . at 2766.
167. Id . at 2759.
168. Id . at 2758-59.
169. Id . at 2763. HHS has effectively exempted certain religious organizations from the mandate, namely eligible organizations, defined under 45 C.F .R. § 147 .131( b ) ( 2016 ) as nonprofit organizations that hold themselves out as a religious organization and oppose providing some or all contraceptive coverage because of religious objections. To qualify for an accommodation, an organization need only certify that it is a religious organization .
170. Id .
171. Abner S. Greene , Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground?, 9 HARV . L. & POL'Y REV . 161 , 179 - 80 ( 2015 ) (noting that the majority decision
229. Forest Hills Early Learning Ctr ., Inc. v. Grace Baptist Church , 846 F.2d 260 , 262 ( 4th Cir . 1988 ).
230. 481 U.S. 221 ( 1987 ).
231. Forest Hills, 846 F.2d at 262. The court noted that the facts and positions of the case were closely analogous to those in Arkansas Writers' Project, and so the “same principle must govern.” Id. (citing Ark . Writers' Project , 481 U.S. at 221).
232. See supra Part III.B.
233. Greg J. Matis , Dilemma in Daycare: The Virtues of Administrative Accommodation , 57 U. CHI. L. REV . 573 , 585 ( 1990 ). States courts differ in their application of the Free Exercise Clause to corporal punishment. In Michigan, for example, although a court upheld regulations governing corporal punishment on the ground that the state's compelling interest in protecting children justified the burden, it still found that the regulations violated the religious exercise of a religiously affiliated daycare . Dep't of Soc. Servs . v. Emmanuel Baptist Preschool , 388 N.W.2d 326 , 334 (Mich. Ct. App. 1986 ). By contrast, a California court found that the state's much more restrictive corporal punishment provision did not burden the religious exercise of a religiously affiliated daycare . N. Valley Baptist Church v. McMahon , 696 F. Supp . 518 , 520 (E.D. Cal . 1988 ).
234. See supra Part I.B. 3 .
241. Alan N. Braverman , Recent Decision, Glaser v . Marietta , 351 F. Supp . 555 ( W.D. Pa . 1971 ), 12 DUQ. L. REV. 645 , 647 n. 6 ( 1974 ) (noting that the Bible sanctions corporal punishment).
242. For a discussion of First Amendment arguments for corporal punishment, either by parents or, via in loco parentis, by schools, see Susan H. Bitensky, Spare the Rod , Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children , 31 U. MICH. J.L . REFORM 353 , 457 - 61 ( 1998 ).
243. Many states with statutory accommodations exempt religiously affiliated daycares from complying with regulations concerning staff qualifications . See, e.g., ALA. CODE § 38-7- 3 ( 2017 ) ; N.C. GEN . STAT. § 110 - 91 ( 8 ) ( 2017 ).
244. The Court extends deep deference to religious organizations on matters of internal church organization . See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC , 565 U.S. 171 , 186 ( 2012 ) (“[O]ur opinion in Watson 'radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation-in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'” (second alteration in original) (quoting Kedroff v . Saint Nicholas Cathedral of Russian Orthodox Church , 344 U.S. 94 , 116 ( 1952 )).
245. See Helfand, supra note 119 , at 544.
246. Following Amos, for example, courts may be deferential to religious organizations' claim to staff their facilities with minimal oversight by the state . See supra notes 114-16 and accompanying text.
247. The ministerial exception has traditionally been applied narrowly to persons whose primary duties are “important to the spiritual and pastoral mission of the church .” Rayburn v. Gen. Conference of Seventh-Day Adventists , 772 F.2d 1164 , 1169 ( 4th Cir . 1985 ). Though determining which positions qualify under this test may occasionally raise free exercise concerns, it is possible to draw distinctions without so doing . See also Hosanna-Tabor , 565 U.S. at 205. See generally Note, supra note 120.