“Religious liberty exemptions should be given as long as _____________.”

How would you fill in the rest of that sentence? Most Americans (who are somewhat sympathetic to religious freedom) would say as long as “they don’t harm third-parties.”

But is that the right standard? Thomas C. Berg has an analysis of the question in the Federalist Society Reviewin which he argues that harmful effects should not automatically be a reason to deny exemptions:

The chief assertion of this article is that harms to others should not be conclusive against religious exemptions under either free exercise or nonestablishment principles. Such harms can certainly be a reason to deny exemption, but they are not the end of the inquiry: a number of factors must be considered. In particular, I argue, Establishment Clause limits on religious exemptions should not be strict. An exemption is not unconstitutional merely because it has negative effects on others: the burdens on others must be significantly disproportionate to the burdens that it removes from religion….

Under post-1937 constitutional jurisprudence, government has broad prima facie power to define, declare, and prohibit [legal] harms.The modern state is not limited to imposing liability for actual harmful effects; it may declare legal rights designed to head off such effects. And it may frame them as benefits or rights for individual third parties. For example, to prevent the ultimate material harms of labor strife and unfair treatment of employees, government can declare rights of employees to unionize and can allow individuals to sue to enforce the right.

But just because government can prima facie regulate does not mean it can do so in ways that substantially burden religious exercise. The very point of the freedoms listed in the Bill of Rights, including religious freedom, is to place limits on actions otherwise within the government’s power. If religious freedom confers no right to harm others,andthe government can define anything it wishes as a harm, then the regulatory state will severely constrict religious freedom.

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