TENDER AND TAINT: MONEY AND COMPLICITY IN ENTANGLEMENT JURISPRUDENCE.

• Author: Sepinwall, Amy J.

Introduction 1624 I. Complicity, in Liberal and Christian Thought 1628 A. Complicity in Liberal Thought 1629 B. Complicity in Christian Thought 1633 II. Compelled Hosting 1635 A. FAIR Versus Farmers 1636 B. Tobacco Versus Medicine 1639 III. Compelled Support 1642 A. Money Versus Creative Labor 1643 IV. FUNGIBILITY 1647 A. Material Support 1647 B. Union Dues 1648 C. Campaign Finance 1650 v. Pecuniary Complicity in Liberal and Christian Thought 1651 A. Secular Concerns About the Self 1651 B. Christian Concerns for Purity 1653 INTRODUCTION

When is one person implicated in the conduct of another? Given its commitment to individualism, liberalism provides a narrow answer to this question. (1) One individual shares responsibility for another individual's act only if the first made a significant causal difference to the second's act. Further, the contributing actor must at least know that they stand to make this causal difference; on an even narrower version, the first must also endorse the second's end, or contribute precisely with an eye to seeing the end succeed. (2)

To a large extent, the law reflects the narrow conception of complicity. For example, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR), the Supreme Court held that a law school may be made to host military recruiters who violate the school's nondiscrimination policy on the ground that the military's discrimination is not attributable to the law school, even though it takes place on school grounds. (3) The fact that the law school did not seek to foster the military's end sufficed to negate any attribution of responsibility to the school for the military's conduct. A similar resistance to complicity claims can be found across virtually all of the cases considering--and ultimately rejecting--wedding vendors' bids to evade public accommodations laws on religious freedom grounds. (4) Standards requiring "active complicity" have saved corporations from liability for the human rights abuses of their suppliers. (5) We can even see limits on the doctrine of standing as embodiments of a liberal commitment to individualism. (6)

There is, however, one glaring exception to the Court's--or perhaps more accurately, to the Roberts Court's (7)--general resistance to complicity claims: where one actor becomes connected to another's act through a pecuniary contribution, the Court's liberalism falls away. According to the caselaw, money forges a cognizable association no matter how tenuous the causal connection and no matter the subsidizer's attitudes toward the subsidized act. For example, in Burwell v. Hobby Lobby Stores, Inc., the Court recognized complicity arising from an employer-subsidized health plan, even though the employer had no role to play in the ways its employees chose to spend their healthcare dollars. (8) Pecuniary association also explains material support cases, where donors to the peaceful wing of an advocacy group can nonetheless be guilty of the crime of supporting a foreign terrorist organization if the group has a violent wing; after all, money is fungible, and no matter that the donor might oppose the group's violence. Janus v. American Federation of State, County, and Municipal Employees, Council 31, where an employee successfully contested his union dues even though these were not going to fund the union's political activity, can be understood on similar grounds. (9)

The first aim of this piece is to trace the law's divergent approaches to shared responsibility. On the one hand, the law's atomism generally constrains complicity. But the doctrine tells a very different story where money is the means of association. I aim to draw out this divergence across numerous doctrinal areas, including compelled hosting, campaign finance, public accommodations, and school choice.

Given that religion pervades many complicity claims, a second aim of the piece is to survey Christian conceptions of complicity to see if they share secular law's special solicitude for money. Two findings emerge. First, while Christianity understands complicity broadly, its concerns with purity--along with the inevitable intermingling with the profane that market interactions involve--prompt a heightened focus on pecuniary associations. Second, there is nonetheless an important difference in the way that the law and Christian theology treat these associations. Legal doctrine views money as implicating because it views money as an extension of the self. This elision resolves the apparent inconsistency between liberalism and the caselaw recognizing pecuniary association: if I am my money, then my spending money really does connect me in ways more significant than, say, my devoting my institutional home (FAIR) or my labor or my talents (the wedding vendor cases) would. To be sure, one ought to think that one's home, labor, and talent are far more personal than money. That the doctrine gets this wrong just is the mark of its profanity. But Christian doctrine, focused as it is on purity rather than personhood, avoids this sin. As I will argue, that makes Christian doctrine more defensible than secular law's implicit equation of one's person and one's purse.

The Article begins, in Part I, with liberal and Christian conceptions of complicity. The next three Parts present the Article's doctrinal survey, which aims to draw out the differential treatment complicity claims receive, depending on whether money is the mode of implication. Parts II and III offer contrasting lines of doctrine in cases involving compelled hosting and compelled support, respectively. Part IV extends the analysis by describing the Court's strikingly expansive conception of money's reach through caselaw in which money's fungibility is taken to an extreme. Part V concludes by assessing the liberal and Christian thought that might explain concerns about money's taint.

Several words of caution before embarking on the analysis: first, the analysis treats compelled speech and complicity claims together, even while the former are always rooted in free speech concerns, whereas the latter are often rooted in concerns for religious freedom. Running them together is not undue, I believe, because, in many cases, they nonetheless appeal to the same illicit state action. As Jessie Hill notes, "both compelled speech claimants and complicity claimants argue that, by virtue of the challenged law or its implementation, they are forced into guilt by association." (10) Further, even where the compelled speech claim is not about guilt by association, (11) it still concerns a kind of implication, as I describe below.

Second, the analysis is transsubstantive, and so vulnerable to the following objection: the rationales for the law's treatment of complicity claims within one doctrinal area need not align with the rationales in another; any divergence in outcomes is then explainable because there are different values or considerations at stake within different doctrines. Be that as it may, I am not convinced that the proffered explanation justifies the different outcomes. One way to read the analysis I offer is precisely as an effort to call into doubt the fact that the law does operate with different values or considerations within different doctrines. I aim to show that the considerations the law heeds in one doctrine might give undue weight to the underlying interests while the considerations underpinning a different doctrine might give the underlying interests short shrift. One sees the law's differential treatment where, for example, the doctrine treats pecuniary implication more seriously than expressive implication. (12) So while the analysis sometimes glosses over the rationales underpinning the doctrines it addresses, this is because I do not take the rationales themselves to be justificatory.

Finally, and again given the transsubstantive nature of the analysis, there will inevitably be cases that appear to defy the account I offer. In some instances, I aim to dispel the appearance, by recasting the apparent counterexamples in ways that harmonize them with my account. (l3) But I acknowledge that not every outlier is susceptible to this recasting. At the end of the day, I shall be satisfied if, through an accretion of examples, a compelling pattern emerges, even if it is one that does not capture all of the cases perfectly. That pattern is instructive--for insights into the sacred and the profane.

1. COMPLICITY, IN LIBERAL AND CHRISTIAN THOUGHT

   Complicity is traditionally understood as sharing moral responsibility in a wrong by virtue of a culpable contribution to that wrong. Culpable contributions can arise where one induces, commands, assists or encourages a wrong; (14) they can also arise where one praises, ratifies or acquiesces in, or fails to prevent, a wrong. (15) Someone who contributes in one of these ways is implicated in the act to which they contribute. Extensions of the notion of complicity occur where one is implicated in an act that one subjectively views as wrong but that most people would think morally neutral. The conscientious objector to a military draft worries about his complicity in war even if the state and most of its citizenry think war, and this war in particular, morally justifiable. The owners of Hobby Lobby take themselves to be complicit in contraceptive use if they are compelled to fund contraception even though most people think contraceptive use morally neutral.

   Sometimes litigants object to being made to contribute in one of the ways listed above even though they have no moral objection to the act to which they are being made to contribute. Cigarette companies object to having to host graphic warning labels on their packages, but presumably this is not because they judge the content of the warning to be morally wrong. (16) Instead, it seems probable that they have nonmoral reasons to oppose their compelled contributions--most plausibly that the message they...