Daycare facilities are subject to a host of regulations that govern matters from basic health and safety requirements, to caregiver training, to maximum caregiver-to-child ratios. In sixteen states, however, legislation exempts religiously affiliated daycares from many of these regulations, with six states extending particularly broad exemptions. Supporters of the exemptions have justified them on constitutional grounds, arguing that state oversight of religiously affiliated daycares violates the Free Exercise Clause of the First Amendment. Recent reporting has revealed that though children have been seriously injured or have died while in the care of religiously affiliated daycares exempted from regulations, challenges to the exemptions have been unsuccessful.
This Note proposes an alternative strategy for challenging the statutory accommodations extended to religiously affiliated daycares. Both judicial exemptions under the Free Exercise Clause and statutory accommodations under the Establishment Clause have historically been limited by the doctrine of harm to third parties. Invoking a balancing test, this Note argues that courts ought to weigh the free exercise burden imposed on the religiously affiliated daycare against the harm to third parties caused by accommodation. As such, this Note suggests that parents of children harmed in exempt facilities invoke the balancing test to argue that the harm to third parties outweighs the free exercise burden imposed by regulations.