WHEN MY OPT OUT IS YOUR TRIGGER: ODERBERG'S ARGUMENT WITH THE RELIGIOUS FREEDOM SINCERITY TEST.

• Author: Quirk, Patrick T.

1. INTRODUCTION

   Filling out a form may not seem like much to ask... But that depends on the form: ask anyone who has signed a mortgage application, a wedding license, a tax return, or a death warrant. --Eternal Word Television Network (2)

   In Arthur Miller's 1953 play, The Crucible, the character, John Proctor, under pressure, admits guilt when he should not have, after which he is asked to sign his name to a written statement of his false confession. He refuses. The impending publication of false guilt is, for him, a step too far and triggers his now famous declaration of disgust against his own false confession. Why can he admit guilt under pressure but not sign his name to the statement? The very thought of signing his name triggered an existential crisis:

   Because it is my name! Because I cannot have another in my life! Because I lie and sign myself to lies! Because I am not worth the dust on the feet of them that hang! How may I live without my name? I have given you my soul; leave me my name! Such reactions to the publication of "signed confessions," which have been made under compulsion, are not uncommon. A signature seems to carry some psychological weight that an unadorned, oral assertion does not. In the legal context, signatures figure highly in an evidential setting, such as the signing of a will or the execution of a bill of exchange.

   In the context of the recent Tenth Circuit religious freedom case of Little Sisters of the Poor Home for the Aged v. Sylvia But-well, (3) there was a requirement, imposed on a group of professed Roman Catholic Sisters, to have a representative sign a U.S. government form. (4) If signed, that form would become the government-inspired means by which the Sisters could remove themselves from the process of providing access to various forms of contraception for their employees. The Sisters refused to sign on the grounds of conscience, and that refusal became the subject of legal scrutiny, public commentary, and much debate.

   As late as June 2019, a number of U.S. State Attorneys General had sued to remove religious exceptions, which were seen by many as a way around the impasse caused by the issues surrounding an unwillingness to merely "sign a form" on the grounds of religious conscience. Later, the U.S. Supreme Court consolidated a number of cases, including that of the Little Sisters in Zuhik v. Burwell, (5) and sent them back to various courts of appeals for reexamination. Commentators and amici have said much about these cases, all of which have convoluted histories, (6) and about the originating cases of Hobby Lobby v. Sebelius and Burwell v. Hobby Lobby, which began the entire saga. (7)

   Sitting behind these cases and the surrounding discussion, there exists an unresolved and difficult question as to the scope of the reigning "sincerity test" for religious claims under the First Amendment. The Supreme Court itself opened this discussion when it cited a well-known moral philosopher, David S. Oderberg, who is an expert in the ethics of what amounts to cooperation in the action of another. (8) In the cases mentioned here, the cooperation would have been the signing of a form by the sisters, and the challenge for the sisters was whether they could or could not, as a matter of conscience, perform that act of signing. For the sisters to sign would, as a religious matter, be the wrong thing to do, so they objected. For the Court, the issue was whether it would simply take the sisters word for it, or whether they would weigh in on that issue and make a judgment about the sisters own (avowedly religious) claim about cooperation. The Court declined and the world moved on. But, the difficult question remains: What is the scope of a religious objection when the claim is made that the analysis of "cooperation" is itself a religious question? Is this asking a court to abandon its wits and go along with any religious accommodation claim whatsoever? Or is there a safe course that saves the court from having to make "religious judgments" that are fraught with difficulty and open to the accusation that the court is "playing theologian" and should back off? This article will grapple with these issues. In doing so, I shall explore a number of related questions about "triggers" and "opt-outs," about different kinds of analysis of what amounts to "cooperation" in law and cooperation according to moral philosophers, about the way theologians (who file amicus briefs) analyse these issues, about the significance of signatures (as opposed to other types of consent), and about the problems that may arise in a thought experiment where a court encounters a hypothetical religious tradition that has "insincerity" at its core. All of these factors make for a strong brew of contested topics, so I will try to narrow these as far as possible without sacrificing any essential detail.

   For those purposes, I note that an important difference between the Hobby Lobby cases and the later cases has to do with the difference between what has been called, on the one hand, an "opt-out" (9) and, on the other hand, a causal "trigger" (10) as identified by Oderberg who, to give him his proper title, is a professional moral philosopher and whose "The Ethics of Co-operation in Wrongdoing" (11) was cited in Burwell and who has, in clear and interesting ways, responded in writing to the problems raised by that difference.

   Indeed, Oderberg's own short analysis will serve well to help us come to grips with the major points at stake. After a discussion of the Little Sisters case, he elaborates the following key distinction:

   The difference [between Hobby Lobby and the situation in the Little Sisters/Zubik cases] however, is crucial: in Hobby Lobby, the Supreme Court held that the objectors (owners of closely held, for-profit corporations) were entitled to what they requested, namely the same accommodation granted to religious non-profits, allowing them to opt out of providing the relevant insurance coverage. The objectors in Little Sisters of the Poor and then in Zubik, however, objected to the very accommodation itself. The accommodation provided by the government required a conscientious objector to notify either the government or the objector's insurance company (we can leave aside the complexities) that they opted out of the mandate and would not provide contraceptive coverage. It was then up to the government or the insurance company to step in and fill the gap. But the objectors in Little Sisters and related cases, and then in Zubik, considered the very act of opting out to be illicit cooperation, relying precisely on Hobby Lobby for their argument. (12) This difference will figure heavily in the following discussions and, in particular, the consideration of some aspects of how moral philosophy interacts with the law. Thus, Part III examines the unusual situation in which a court refers to moral philosophy and so points to larger issues lying beneath the surface of the case.

   Part IV unpacks these problems further by noting first that cooperation claims in law can occur before or after the actus reus, (13) but that, in cases of conscience, the claim to exemption must always come prior in time to that act. I go on to consider types of cooperation, explain the different kinds of cooperation, and introduce Oderberg's borrowed "principles of cooperation" as well as their application in hard cases.

   Part V then narrows the focus to the significance of the required signature in these cases, while Part VI will reflect on problems raised by the Supreme Court's sincerity test when it is tested against a religion that has insincerity at its core.

   The Article concludes by offering a possible solution to an apparent impasse in analysis. Before considering these deeper issues, I will set out the background needed to position the arguments in relation to the sincerity test.

2. SINCERITY: ONE TEST TO RULE THEM ALL

   The role of the sincerity test requires some explanation. For those unfamiliar with the prior Supreme Court jurisprudence, the sincerity test, outlined by U.S. Supreme Court Justice Samuel Alito, in Burwell drew careful attention to the claim by the Little Sisters of the Poor that signing form 700 (an opt-out) actually amounted to an opt-in, but that Justice Alito was not in a position to pronounce whether that was, in fact, the case. Alito asserted:

   The Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our "narrow function ... in this context is to determine" whether the line drawn reflects "an honest conviction," ... , and there is no dispute that it does. (14) Thus, for the U.S. Supreme Court, sincerity ruled the day. To sharpen his point of engagement with Justice Alito, Oderberg drew attention to the formulation of this test as previously expressed by Justice Gorsuch, who, while sitting on the U.S. Court of Appeals for the Tenth Circuit, opined in Hobby Lobby: "As [the company owners] understand it, ordering their companies to provide insurance coverage for drugs or devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their religion disallows." (15)

   For Oderberg, the problem with the approach taken by Justices Gorsuch and Alito is that "[Gorsuch for the Tenth Circuit] treated--as did the Supreme Court [Alito]--the very question of whether the plaintiffs were illicit cooperators as itself purely a matter of religious faith." (16) Oderberg goes on to ask (rhetorically) why this is important and answers as follows:

   The problem derives from the fact that American courts, as with most Western courts, do not as a matter of legal principle question the religious beliefs of a litigant seeking to protect their religious freedom (see, for...