Article Title

Religious Nondelegation


The problem of religious exemptions has given rise to a rich body of scholarly literature, as well as a flood of litigation. One recent set of cases involved challenges to the Affordable Care Act’s (ACA) health care mandates—Section 1557 and the contraceptive mandate—and their religious exemptions. Some scholars have argued that religious exemptions violate the Establishment Clause when they confer a benefit on religious individuals, the costs of which are largely borne by those who do not share the religious individuals’ beliefs—a notion that is sometimes expressed in terms of “third-party harms.” The third-party harms approach to Establishment Clause violations has garnered substantial scholarly acceptance—and some criticism. It does not seem to be keeping a foothold in the courts, however. In this Article, I suggest an alternative way to articulate the problem with certain religious exemptions, grounded not in the Establishment Clause but in the nondelegation doctrine. The nondelegation approach suggests that one subset of exemptions—those that delegate arbitrary authority over a person’s property or liberty to another private individual—are unconstitutional under longstanding due process principles. This Article also argues that exemptions that make individuals’ access to government benefits subject to another party’s religious values and beliefs are unconstitutional, because they allow individuals to exercise coercive and final authority over others based on reasons that cannot normally form the basis of government action— specifically, religious reasons.

First Page