Document Type
Article
Publication Date
2020
Publication Information
95 Ind. L.J. 331 (2020).
Abstract
Refuting the unhelpful fixation on the mere presence of generic harm, this Article makes two important contributions, one descriptive and one normative. First, this Article carefully describes the nuanced ways that courts classify and weigh different types of harm, and it identifies three categories: (1) prohibited harms (meaning harms that are categorically impermissible); (2) probative harms (meaning relevant harms that can be balanced against other harms); and (3) inadmissible harms (meaning harms that are given no weight regardless of how severely or disproportionately they are experienced by third parties). This Article demonstrates how these categories of harm are not limited to religious exemptions but are in fact common to all First Amendment rights. Further, this descriptive framework highlights the competing harms that always arise when First Amendment rights are protected. Second, this Article argues that moving beyond a false dichotomy of harm versus no harm allows one to ask much more .fruitful normative questions, including whether there is a justifiable trade off between the specific harm and the social goods it provides, whether institutions can be modified to mitigate avoidable harm, and whether disproportionate harms can be distributed in more just ways. This Article offers examples of how these necessary normative questions are already woven into the legal framework that governs many sorts of religious exemptions.
Recommended Citation
Stephanie H. Barclay,
First Amendment “Harms”,
95 Ind. L.J. 331 (2020)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1569