In recent years, religious claimants in high-profile religious liberty cases have argued that government policy improperly forces them to become complicit in the moral wrongdoing of others. Hobby Lobby and Zubik v. Burwell (better known as the Little Sisters of the Poor case) are perfect examples. And, although it is being argued as a free speech case, Jack Phillips’s blockbuster Masterpiece Cakeshop case at the Supreme Court this term involves the same complicity-based objection at its root.
Yale Law Professors Douglas NeJaime and Reva Siegel are skeptical of such objections. In their Yale Law Journal article “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” Professors NeJaime and Siegel argue that complicity-based religious liberty claims should be judicially disfavored. They say complicity-based claims differ from other religious liberty disputes in both “form” and “social logic” because complicity cases impose “material” and “dignitary harms” on third parties. A Muslim inmate’s religious objection to shaving his beard, for example, ostensibly does not affect other people. Complicity-based claims do.
But this third-party harm theory is fundamentally flawed, as I explain in my article “The Case for Complicity-Based Religious Accommodations,” published in the Tennessee Journal of Law and Policy. Complicity-based religious accommodations are both a traditional and a necessary part of the American legal framework. They should be treated no differently than any other religious liberty claim.
There are three major reasons to reaffirm religious accommodations in complicity cases. First, long-established Supreme Court precedent affirms protection from complicity. Second, the third-party harm theory overstates its asserted harms. Even if the legitimacy of these harms were accepted, the inconveniences imposed on third parties under the current system should at least be weighed against the injuries to religious claimants when accommodations are weakened or withdrawn. Finally, eliminating religious accommodations in complicity cases will not resolve culture war conflicts—it will only exacerbate them.
A Longstanding Tradition of Complicity
Complicity is an ancient concept in law and ethics. No wonder, then, that it is embedded throughout the American legal system. In criminal law, for example, this takes the form of facilitator liability, where one who helps another commit a crime is himself culpable. Though Professors NeJaime and Siegel claim that religious exemptions based on complicity were practically unheard of prior to Hobby Lobby, a careful examination of Supreme Court precedent shows that complicity-based claims have historically been treated with the same regard as other religious liberty claims.
In Wisconsin v. Yoder, Amish parents objected to compulsory public high schooling and sought an exemption. They asserted that high school entangled their families in “a ‘wordly’ influence in conflict with their beliefs,” and worried they would be morally implicated by the corrupting influences of non-Amish students, teachers, and administrators. This objection is essentially a complicity-based claim that presents the possibility for “third-party harm.” The Amish parents even imposed what Professors NeJaime and Siegel would call a “dignitary harm” by suggesting that worldly outsiders were engaged in objectionable conduct. Nevertheless, the Supreme Court granted the accommodation.
Thomas v. Review Board is another prominent example. In that case, a Jehovah’s Witness who refused work in a tank turret factory was denied unemployment compensation. Professors NeJaime and Siegel try to distinguish this case from Hobby Lobby by claiming that Thomas did “not single out a particular group of citizens as sinning.” But Thomas did suggest that those who manufactured the tank turrets—as well as those who would eventually use them to kill—were engaged in sinful conduct. It was precisely because Thomas believed the creation of armaments to be sinful that he quit his job. Despite the possibility of material and dignitary harm, the Supreme Court accommodated him.
Although complicity-based claims are not novel, trying to distinguish them from other religious liberty claims would be. It would be strange if Amish parents who frame their objection as an objection to secular education win in court, but parents who phrase their objection as avoiding complicity with a corrupt education system lose. Judges shouldn’t need to scrutinize the form of the objector’s religious reasoning to determine whether his claim should be upheld.
Harms to Third Parties
Professors NeJaime and Siegel argue that complicity-based claims also differ in “social logic,” insofar as they impose “material and dignitary” harms on third parties. According to their argument, material harms include inability to obtain reproductive services (such as abortion) and difficulty finding wedding venues and vendors for same-sex ceremonies. Communicating unwelcome “social meaning” by refusing to provide services constitutes a so-called dignitary harm. But how serious are these alleged harms?
First, the existing legal framework for determining whether to grant a religious accommodation already examines whether there is a “compelling state interest” for the government policy that would preclude an exemption. Although significant material harms to third parties are relevant to whether there is a “compelling state interest,” the mere desire to obtain nonessential goods and services may not be a harm deserving of judicial consideration. Second, market forces are capable of solving most cases of material hardship when religious objectors decline to provide services. In a recent Washington case involving a pharmacist who declined to provide abortifacients, extensive fact-finding could not identify a single instance of an individual who was unable to obtain emergency contraception or HIV drugs as a result of a religiously motivated refusal.
The concept of “dignitary harm” also raises practical and theoretical difficulties. Not only are such harms difficult or impossible to quantify, their conceptual underpinnings are fundamentally at odds with the American tradition’s understanding of human dignity. According to the third-party harm theory, government confers and validates individual dignity. Accommodations for religious objectors are thus a state-sanctioned injury. But the Declaration of Independence tells us that equal dignity is endowed by the Creator, that it is intrinsic to the human person, and that no matter what injustices are inflicted upon him, man’s innate dignity remains unbroken.
Even if “dignitary harm” were coherent and quantifiable, it is unclear that the law itself plays any role in imposing such harm. As between the religious claimant and the third party, the law is neutral. The religious claimant is permitted to refrain from participating in the third party’s conduct, but the third party’s conduct is not legally prohibited.
Furthermore, even if the law did impose dignitary harm, it would be a non-unique harm that cannot be considered by courts. The First Amendment offers robust protection of speech and other forms of expression that impose “dignitary harm.” What makes dignitary harm a trump card for free exercise, but not for other First Amendment liberties, such as free speech or freedom of the press? It would be strange indeed if directly saying “You’re a murderer!” were protected speech, but indirectly communicating a less aggressive “social meaning” through refusal to provide abortifacients could be penalized.
Harms to Religious Claimants
Professors NeJaime and Siegel’s emphasis on third parties obscures and ignores the harms that would be imposed on religious individuals if the law no longer accommodated their beliefs to the extent possible. To accurately evaluate the relative social cost of permitting or denying complicity-based accommodations, both sides of the harm equation must be completed.
First, religious objectors could face grave material consequences from catastrophic fines and potential jail time. Already, these penalties are meted out when religious liberty protections are unavailing. The proprietors of Sweet Cakes By Melissa, for example, were forced to pay $135,000 after declining to bake a wedding cake for a same-sex ceremony. The magnitude of the fine and their vulnerability to future litigation forced Aaron and Melissa Klein to close their bakery in October 2016.
If the third-party harm theory is embraced, the Kleins’ fate would become the norm. Draconian punishments would ultimately drive sincere religious objectors out of their chosen service, trade, or industry altogether. Such a withdrawal would in turn impose material harms on third parties, such as foster children served by Catholic Charities, victims of human trafficking who might otherwise be served by faith-based providers, the elderly poor served by the Little Sisters of the Poor, and all those who depend on religious hospitals and healthcare providers.
Second, requiring religious actors either to violate their beliefs or to close their businesses imposes dignitary harm too. The existing legal regime offers latitude for both individuals seeking services and religious objectors seeking to live in accordance with their beliefs. Weakening RFRA protections, however, would marginalize religious dissenters’ views with the force of law. Now the law itself would play a role imposing the harm.
The “social meaning” of such a policy would communicate that individuals with religiously motivated beliefs about sexual morality are not welcome in certain industries, or in the public square at all. (“No Catholics or Evangelicals need apply.”) Using Professors NeJaime and Siegel’s reasoning and definition of dignitary harm, the religious objector is harmed at least as much (if not more) when accommodations are denied than the third party seeking services when accommodations are permitted.
Accommodations Promote Social Peace
Advocates of the “dignitary harm” theory need to acknowledge that no reasonable alternatives to accommodation exist. The culture wars will not disappear if religious accommodations are curtailed. Crushing the “other side” and treating sincere religious objectors like defeated Nazis or Confederates (as suggested by Harvard Law Professor Mark Tushnet) simply will not work. The most fundamental convictions about the nature of God, man, and morality are at stake—and many persons of religious conviction have welcomed far worse martyrdoms for their faith.
Not only will a take-no-prisoners legal approach fail to change the deeply held beliefs of religious traditionalists, it may also alienate those who would otherwise support socially liberal policies on abortion and LGBT issues. Such total war tactics are deleterious to social cohesion and invite a sharp backlash.
Rather than using the coercive force of law to impose a new orthodoxy on matters of sexual politics, private ordering—guided by principles of what Professor John Inazu calls “confident pluralism”—should be allowed to flourish. Market-based systems, which permit businesses and civil society groups to shape social norms, are preferable to a compulsory legal approach that eliminates accommodations for religious objectors. This allows subsidiary institutions to create systems to navigate conflicts between religious liberty and issues of gender, sexuality, and reproduction.
If businesses such as Airbnb and Uber can exercise market power to express their views and influence public opinion about matters of gender and sexuality (even when doing so imposes material or “dignitary harms” on religious third parties), why can’t ChristianMingle do the same when its core religious beliefs about male-female sexual complementarity are implicated? Why not Jack Phillips of Masterpiece Cakeshop, Barronelle Stutzman of Arlene’s Flowers, or the Stormans family’s pharmacy?
If we are to have a truly diverse and pluralistic public square, there must be consideration for both religious actors and third parties. That includes robust accommodations for religious objectors in complicity cases. Perhaps most importantly, it includes a posture of humility and mutual respect.
Josh Craddock is a student at Harvard Law School and the editor-in-chief of the Harvard Journal of Law & Public Policy. He lives in Cambridge with his wife and two children.