Conscience Wars and Complicity Claims

by | Jun 16, 2015

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About Douglas NeJaime and Reva Siegel

Douglas NeJaime is a professor at Yale Law School. His recent scholarship includes “The Nature of Parenthood,” 126 Yale Law Journal 2260 (2017); “Marriage Equality and the New Parenthood,” 129 Harvard Law Review 1185 (2016); and “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” 124 Yale Law Journal 2516 (2015), with Reva Siegel.

A new front is opening in the culture wars. Persons of faith are now seeking religious exemptions from laws concerning sex, reproduction, and marriage on the ground that the law makes the objector complicit in the assertedly sinful conduct of others.

For instance, in the 2014 U.S. case of Burwell v. Hobby Lobby Stores, employers challenged a federal law requiring that employer-provided health insurance cover contraception, objecting that it would make them complicit in their employees’ use of contraceptives that the employers termed “abortifacients.” Similarly, businesses are objecting to serving same-sex couples on the ground that they would be “facilitating” same-sex relationships or marriages they deem sinful. In the 2013 U.K. case of Bull v. Hall, innkeepers refused to rent a double-bed room to a same-sex couple because they objected “to facilitat[ing] what they regard as sin.” And as others have noted, bakeries have begun to raise objections to making cakes for lesbian and gay customers, both in the U.S. and in Europe.

In Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, our recently published article in the Yale Law Journal, we analyze claims of this kind, which we term complicity-based conscience claims.

In the U.S., complicity-based conscience claims are commonly asserted under the federal Religious Freedom Restoration Act (RFRA) or its state analogs. Complicity claims are plainly covered by RFRA’s broad language, but differ from the religious exemption claims at issue in the constitutional “free exercise” cases mentioned in the statute. In these traditional religious liberties cases, religious minorities sought exemptions based on unconventional beliefs generally not considered by lawmakers when they adopted the challenged laws. The costs of accommodating their claims were minimal and widely shared.

Complicity claims in the U.S. seem to have grown, not out of these constitutional free exercise cases, but instead out of legislation permitting medical professionals to refuse to provide healthcare services. Recent healthcare refusal laws, which cover not only abortion but also contraception, use concepts of complicity to authorize exemptions, not only to refuse to perform procedures, but also to refuse to refer patients denied services and to refuse to inform patients about services in which they might be interested. At the same time, refusal laws have expanded to include people and institutions related by all manner of financial relationships—including through mergers, HMOs, and insurance. The objections in Hobby Lobby likely descended from these expansive healthcare refusal laws.

Complicity-based conscience claims differ from many other religious liberty claims. These differences matter, not because they make the claim for religious exemption any less authentic or sincere, but rather because accommodating claims of this kind is likely to inflict material and dignitary harms on other citizens. Complicity claims focus on the conduct of others outside the faith community, and their accommodation therefore can harm those the claimants view as sinning. Today, complicity claims are asserted by growing numbers of individuals and organizations about contentious “culture war” issues—often encouraged by those seeking to mobilize the faithful against laws that depart from traditional sexual morality.

Some, tacitly acknowledging the democratic contests in which complicity claims are entangled, urge religious accommodation in the hopes of peaceful settlement. Yet, as we show, complicity-based conscience claims can provide an avenue to extend, rather than settle, conflict about social norms. Without change in numbers or belief, religious conservatives can shift from speaking as a majority seeking to enforce traditional morality to speaking as a minority seeking exemptions from laws that depart from traditional morality.

After documenting how religious liberty has become an important site for conservative political mobilization, we examine the practical impact of accommodating complicity claims. We illustrate the material and dignitary effects on third parties of accommodating complicity claims arising in healthcare services, the wedding industry, and other market settings. Concern about these third-party harms, we argue, should guide judgments about whether—and how—complicity claims should be accommodated.

Indeed, we show how concern about third-party harm played a key role in Hobby Lobby. The Court did not hold that religious liberty trumped the government’s interest in women’s health; instead, the majority recognized the claim for accommodation on the narrower ground that the government could promote women’s access to contraception by means that did not burden the plaintiffs’ religious liberty.

The approach we develop respects claims of conscience, yet limits whether and how complicity claims are accommodated in the interest of protecting other citizens from material and dignitary harms. Our approach is especially important where religious claimants seek exemptions from laws protecting citizens who depart from traditional roles and morality. In these circumstances, limiting accommodation in ways that respect the convictions of the believer and her fellow citizens is the most pluralism-promoting path.

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