One more question about the "unconstitutional burdens on third parties" theory: The clergy-penitent privilege allows the clergy (and penitents) to refuse to testify about penitential communications, even when the result is that a litigant is deprived of potentially highly probative evidence.
What's more, this is a specifically identifiable litigant who is being denied the benefit of applying the normal duty to testify. And, unlike with the conscientious objector exemption, the clergy-penitent exemption is indeed limited to religious communications, with no secular philosophical analog. (The psychotherapist-patient privilege, I think, is quite different, partly because it requires communications to someone who is licensed by the state, requires a state-prescribed course of training, and is usually quite expensive, and partly because it tends to have fewer exceptions.) Say, then, there are two people. Anita works for an employer who (by hypothesis) has been exempted from the usually applicable (with some secular exemptions) employer mandate as a result of a statutory religious objector exemption. As a result, she doesn't get, say, $500/year worth of contraceptive benefits that she would have been legally entitled to but for the employer mandate. Barbara is suing Don Defendant for $500,000. She has reason to think that Don has confessed to Carl Clergyman that Don is indeed liable, so she wants Carl to be ordered to testify about the communication. But Carl has been exempted from the usually applicable (with some secular exemptions) duty to testify as a result of a statutory clergy-congregant privilege. As a result, she doesn't win the $500,000 that she would have been legally entitled to but for the clergy-congregant privilege. Is the application of the clergy-congregant exemption from the duty to testify in Barbara's case an Establishment Clause violation, on the grounds that it imposes an excessive burden on Barbara? And if it isn't, then why would the application of the hypothetical exemption from the employer mandate an Establishment Clause violation in Anita's case? Eugene
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