Storslee on Religious Accommodation and Third-Party Harm

Mark Storslee (Stanford Constitutional Law Center) has posted Religious Accommodation, the Establishment Clause, and Third-Party Harm on SSRN.  Here is the abstract: In the wake of Burwell v. Hobby Lobby, religious accommodation has become increasingly controversial. That controversy has given rise to a new legal theory gaining popularity among academics and a few Supreme Court justices: the idea that the Establishment Clause condemns accommodations whenever they generate anything beyond a minimal cost for third parties. The third-party thesis is appealing. But this Article argues, contrary to most academic commentary, that there are good reasons to believe it fails as an interpretation of the Establishment Clause. In its place, the Article offers a new theory for understanding the relationship between costly accommodations and the Establishment Clause. That theory begins with a simple assertion: the Establishment Clause is not a prohibition on generic harm, but…

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