Conscience wars: complicity-based conscience claims in religion and politics.

• Author: Nejaime, Douglas
• Position: Introduction through III. Religion in Politics A. Complicity's Social Logic: Cross-Denominational Mobilization, p. 2516-2552

FEATURE CONTENTS INTRODUCTION I. BURDENS OF ACCOMMODATION UNDER HOBBY LOBBY A. Differentiating Claims with Attention to Accommodation's Impact B. Hobby Lobby and the Question of Third-Party Harm II. ANOTHER RELIGIOUS LIBERTIES ANTECEDENT: COMPLICITY AND HEALTHCARE REFUSALS A. Understanding Healthcare Refusal Laws B. The Church Amendment C. The Expansion of Healthcare Refusals: Operationalizing Complicity III. RELIGION IN POLITICS A. Complicity's Social Logic: Cross-Denominational Mobilization B. Preservation Through Transformation 1. Healthcare Refusals 2. Same-Sex Marriage and LGBT Equality IV. HARMS A. Material Harms B. Dignitary Harms V. CONSIDERING ACCOMMODATION A. Reconsidering Harm in Hobby Lobby's Wake 1. RFRA 2. Non-RFRA Contexts B. The Values To Guide Approaches to Accommodation CONCLUSION INTRODUCTION

"I don't think the culture wars are over ... but are moving into a new phase." --Russell Moore, President, Ethics & Religious Liberty Commission, Southern Baptist Convention (1)

In Burwell v. Hobby Lobby Stores, Inc., (2) closely held for-profit corporations asserted claims under the Religious Freedom Restoration Act (RFRA) (3) to exemptions from provisions of the Affordable Care Act (ACA) that require employee health insurance plans to include coverage of contraception. While much attention has focused on the fact that the claimants in these cases were corporate entities, (4) far less attention has been paid to the kind of religious liberties claims the corporate claimants asserted. (5) The claimants in Hobby Lobby objected to providing their employees health insurance benefits under the ACA. They contended that providing insurance coverage would make them complied with employees who might use the insurance to purchase forms of contraception that the employers viewed as sinful.

Claims of this kind--religious objections to being made complicit in the assertedly sinful conduct of others--are often raised in response to contested sexual norms, and they now represent an important part of courts' religious liberties docket. (6) Consider, for instance, claims arising in the same-sex marriage context. A growing number of business owners have begun to voice religious objections to providing goods and services for same-sex weddings. (7) Baking a cake, it is claimed, makes a baker complied in a same-sex relationship to which he objects. (8)

We term religious objections to being made complicit in the assertedly sinful conduct of others complicity-based conscience claims. There are at least two important dimensions to such claims. The claim concerns the third party's conduct--for example, her use of contraception--but, crucially, it also concerns the claimant's relationship to the third party. Complicity claims are faith claims about how to live in community with others who do not share the claimant's beliefs, and whose lawful conduct the person of faith believes to be sinful. Because these claims are explicitly oriented toward third parties, they present special concerns about third-party harm.

Hobby Lobby did not discuss the kinds of harm that accommodating complicity-based conscience claims can impose on other citizens, but the Court decided the case on grounds that made concerns about the interests of third parties central. (9) It emphasized that because the government had other means of ensuring that women have access to affordable contraception, the plaintiffs' religious beliefs could be accommodated with "precisely zero" effect on female employees and dependents. (10) In what follows, we examine the distinctive features of complicity-based conscience claims in order to give visibility, practical meaning, and principled sense to the concerns about third-party harm that already structure the Court's decision in Hobby Lobby.

As we show, complicity-based conscience claims differ inform and in social logic from the claims featured in the free exercise cases RPRA invokes. The claims may be just as authentic and sincere as any other claim of faith protected by the statute, yet these differences in form and logic matter because they amplify the material and dignitary harms that accommodation of the claims can inflict on other citizens.

In the free exercise cases that RFRA invokes, claims were advanced by religious minorities who 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. (11) Complicity-based conscience claims differ in form. Because the claims concern the conduct of citizens outside the faith community, accommodating the claims can harm those whose conduct the claimants view as sinful. Complicity-based conscience claims also differ in social logic. Complicity claims are now asserted by growing numbers of Americans about some of the most contentious "culture war" issues of our day. (12) As we show, complicity claims are often encouraged by those seeking to mobilize the faithful against laws that depart from traditional sexual morality. (13) When those engaged in "culture war" conflicts encourage the faithful to seek exemptions from laws that protect citizens who depart from customary morality, religious accommodation will affect other citizens in ways not at issue in the free exercise cases RFRA invokes. Faith claims that concern questions in democratic contest will escalate in number, and accommodation of the claims will be fraught with significance, not only for the claimants, but also for those whose conduct the claimants condemn. Accommodating these religious liberty claims will have social meaning and material consequences for the law-abiding persons who the claimants say are sinning. (14)

Some, tacitly acknowledging the democratic contests in which complicity claims are entangled, urge religious accommodation in the hopes of peaceful settlement. (15) Yet the complicity-based conscience claims asserted in these contexts are often not simple claims to withdraw. As we show, complicity claims can provide an avenue to extend, rather than settle, conflict about social norms in democratic contest. Those seeking to preserve traditional norms governing sex, reproduction, and marriage may speak as a majority endeavoring to defend or enact laws that enforce community-wide customary norms--or, without change in numbers, they may speak as minorities endeavoring to avoid complicity when law departs from those norms. (16) Religious accommodation claims of this kind may continue democratic conflict in new forms, or so at least some advocates hope. (17) Faith claimants are free to assert claims for religious exemption in this context, as in any other, but it is important to consider the exemption's impact on those the law protects in deciding whether and how to restrict the law's enforcement.

To date, the features of complicity-based conscience claims that distinctively endow them with the capacity to inflict harms on third parties have not been well appreciated in debates over accommodation. Our purpose in writing is to draw attention to the distinctive features of these claims so that they are clearly in view in the many legal contexts and institutional settings in which the question of accommodation is now being debated. We examine the distinctive features of complicity-based conscience claims in the belief that these features matter in judgments about accommodation, and in the belief that others will recognize that this is so, even if they may weigh these concerns differently because they hold different views about the importance of integrating religion in public life. (18)

Conscience claims have long played a crucial role in our ethical, political, and religious lives. (19) Yet respect for conscience does not require us to ignore the special features of complicity-based conscience claims that endow them with capacity to harm other citizens. However differently those in the debate may weigh claims for accommodation, few would affirm a result in which some citizens are singled out to bear significant costs of another's religious exercise. Appreciating the consequences for third parties may affect which religious liberties claims are accommodated, how religious liberties claims are accommodated, and why judges and legislators shape religious liberties law in particular ways. (20)

We proceed in five Parts. We begin our analysis of complicity-based conscience claims in Hobby Lobby, move outside doctrine to consider mobilization around claims of complicity, and finally return to law to consider how our analysis bears on judicial and legislative approaches to accommodation.

Part I shows that complicity-based conscience claims are distinctive in form, focusing on third parties in ways that the claims in the free exercise cases that RFRA invokes do not. It also shows how a concern about third-party harm with deep roots in our religious liberties case law shaped the Court's decision in Hobby Lobby. Part II illustrates the third-party effects of complicity claims in legislation that authorizes conscience objections to providing healthcare services--legislation from which the complicity-based conscience claims in Hobby Lobby may have descended. Drawing on the example of healthcare refusal laws, Part III begins to explore how claims about complicity have a life in religion and in politics. Unlike the claims in the free exercise cases...