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To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?


Hillel Y. Levin, Allan J. Jacobs & Kavita Shah Arora


September 17, 2016

When should we accommodate religious practices? When should we demand that religious groups instead conform to social or legal norms? Who should make these decisions, and how? These questions lie at the very heart of our contemporary debates in the field of Law and Religion.

Particularly thorny issues arise where religious practices may impose health-related harm to children within a religious group or to third parties. Unfortunately, legislators, courts, scholars, ethicists, and medical practitioners have not offered a consistent way to analyze such cases, so the law is inconsistent. This Article suggests, first, that the lack of consistency is a troubling artifact of our political system, and, second, that it raises serious constitutional questions that lie at the intersection of the Free Exercise and Establishment Clauses of the First Amendment.

To resolve these problems, we offer and develop a test to determine whether such a religious practice should be accommodated by legislators, courts, and medical practitioners. Our test is sensitive to the institutional strengths and weaknesses of differently situated decision makers and is designed to be flexible enough to account for these differences. Consequently, it has distinctive applications for legislators, administrative officials, judges, and medical practitioners. Further, although the test was developed specifically to address religious practices that may impose health-related harms to children and third-parties, it also has potential implications in other contexts as well, such as the debate over whether sexual orientation non-discrimination laws should accommodate religious dissent.