The Yale Law Journal

VOLUME
124
2014-2015
NUMBER
7
May 2015
2202-2679
Feature

Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics

Douglas NeJaime & Reva B. Siegel

abstract. 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. We term claims of this kind, which were at issue in Burwell v. Hobby Lobby Stores, complicity-based conscience claims. Complicity-based conscience claims differ in form and in social logic from the claims featured in the free exercise cases that the Religious Freedom Restoration Act (RFRA) invokes. The distinctive features of complicity-based conscience claims matter, not because they make the claim for religious exemption any less authentic or sincere, but rather because accommodating claims of this kind has the potential to inflict material and dignitary harms on other citizens.

Complicity claims focus on the conduct of others outside the faith community. Their accommodation therefore has potential to harm those whom the claimants view as sinning. Today complicity claims are asserted by growing numbers of Americans about contentious “culture war” issues. This dynamic amplifies the effects of accommodation. 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. Some urge accommodation in the hopes of peaceful settlement, yet, as we show, complicity claims can provide an avenue to extend, rather than settle, conflict.

We highlight the distinctive form and social logic of complicity-based conscience claims so that those debating accommodation do so with the impact on third parties fully in view. We show how concern about the third-party impact of accommodation structured the Court’s decision in Hobby Lobby and demonstrate how this concern is an integral part of RFRA’s compelling interest and narrow tailoring inquiries. At issue is not only whether but how complicity claims are accommodated.

authors. Douglas NeJaime is Professor of Law, UC Irvine School of Law; Visiting Professor of Law, UCLA School of Law (2014-15); Reva B. Siegel is Nicholas deB. Katzenbach Professor of Law, Yale Law School. For helpful comments, the authors thank Jack Balkin, Tom Berg, Mary Anne Case, Erwin Chemerinsky, Sara Dubow, Fred Gedicks, Sherif Girgis, Linda Greenhouse, Michael Helfand, John Inazu, Dawn Johnsen, Cathleen Kaveny, Andy Koppelman, Doug Laycock, Marty Lederman, Kara Loewentheil, Chip Lupu, Bill Marshall, Louise Melling, Martha Minow, Melissa Murray, Jim Oleske, Robert Post, Jed Purdy, Nancy Rosenblum, Amy Sepinwall, Liz Sepper, Neil Siegel, Paul Smith, Priscilla Smith, Nancy Stanwood, Nomi Stolzenberg, and Nelson Tebbe. For research assistance, the authors thank Alexandra Brodsky, Michelle Cho, Elizabeth Deutsch, Courtney Dixon, Sarah Esty, Yuvraj Joshi, Justin O’Neill, Ryan Thoreson, Daniel Townsend, and Julie Veroff.


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 Convention1

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 complicit 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 complicit 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 in form and in social logic from the claims featured in the free exercise cases RFRA 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 encou- raged 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 ci- tizens 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 RFRA invokes, complicity-based conscience claims have become a locus of mobilized political action seeking law reform designed to preserve traditional sexual morality. Drawing on this evidence, Part IV demonstrates how the distinctive form and social logic of complicity-based conscience claims amplify the material and dignitary harms that accommodating such claims can inflict. By material harms we mean tangible, practical effects, such as access to goods and services. By dignitary harms, we refer to the social meaning, including stigma, which may result from accommodating complicity-based objections.

In Part V, we reconnect these concerns about third-party harm to doctrine. We show how inquiry into the third-party harms of religious accommodation arises under RFRA’s compelling interest and least restrictive means analysis, as well as under other bodies of federal and state law. These third-party harms raise questions of fundamental fairness and can implicate different constitutional values in the many contexts in which claimants now seek accommodation of complicity-based conscience claims.

I. burdens of accommodation under hobby lobby

The claimants in Hobby Lobby challenged a law requiring employers to provide their employees health insurance that covered contraceptives the claimants deemed “abortifacients.”21 The law, they argued, forced them to “provid[e] insurance coverage for items that risk killing an embryo [and thereby] makes them complicit in abortion.”22 The concept of complicity has a richly elaborated theological basis in Catholicism.23 But evangelical Christians, such as the Greens, who own Hobby Lobby,24 also assert that their beliefs preclude them from engaging in conduct that would make them complicit in sin.25 As Justice Alito explained in Hobby Lobby, the claimants believe “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.”26

Claims based on complicity are different in form than other kinds of religious liberty claims. Consider the claim the Court most recently confronted. In Holt v. Hobbs,27 a Salafi Muslim inmate claimed an exemption from a rule forbidding prisoners to wear beards.28 Gregory Holt sought an exemption to groom in accordance with precepts of his religion—not to avoid complicity in what he believed were the sinful acts of another citizen.29 This difference in the structure of religious exemption claims is relevant—not to the claim’s sincerity or religious significance, but instead to the claim’s potential to inflict harms on specific third parties. The Court held that Holt was entitled to an accommodation.30 Accommodating Holt’s religious exercise claim imposed modest costs on the public and the prison system; no persons or groups were singled out to bear the burden of Holt’s religious exercise. Indeed, in her very brief concurrence, Justice Ginsburg explained that “accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.”31 In these respects, the claim for religious exemption in Holt differs from the claim in Hobby Lobby and more closely resembles claims in the classic free exercise cases on which Congress focused in enacting RFRA.

In this Part, we begin to explore differences between the complicity-based claim featured in Hobby Lobby and the kinds of religious liberty claims at issue in the paradigmatic free exercise cases Congress invoked in RFRA. Complicity-based claims concern other citizens and so may inflict distinctive burdens on them. The Court has expressed concern about accommodating religious liberty when it may inflict harm on third parties. We show how this concern shaped the Court’s judgment in Hobby Lobby.

A. Differentiating Claims with Attention to Accommodation’s Impact

RFRA invokes three free exercise cases32: Sherbert v. Verner33 and Wisconsin v. Yoder,34 canonical cases representing the high-water mark of free exercise jurisprudence, and Employment Division v. Smith, the precedent departing from this free exercise tradition that prompted the passage of RFRA.35 None of these cases featured complicity-based claims.

The claimants in these cases were minority religious practitioners who asserted unfamiliar religious convictions.36 The Seventh-day Adventist in Sherbert, the Amish in Yoder, and the members of the Native American Church in Smith claimed belief systems outside the mainstream.37 They sought exemptions to act in accordance with unconventional beliefs generally not contemplated by the government when it originally crafted the laws being challenged. The claimant in Sherbert, who observed a Saturday Sabbath, asked that the state extend “unemployment benefits to Sabbatarians in common with Sunday worshippers.”38 The claimants in Yoder asked for an exemption from compulsory education laws because they believed secondary school education would “endanger their own salvation and that of their children.”39 And the claimants in Smith sought an exemption from drug laws that precluded them from engaging in ritual peyote use.40

In these central free exercise cases, the effects of the sought-after accommodation were limited and borne by society as a whole. In Smith, for instance, the exemption would only have modestly detracted from the public health and safety interests advanced by the drug laws.41 And in Sherbert, where it was clear that a relatively “insignificant number of seventh-day observers [were] involved,”42 accommodation imposed at most generalized costs on the state unemployment system.43 Critically, in Yoder, the Court conceptualized the interests of the Amish children as aligned with their parents, such that the accommodation benefitted, rather than potentially harmed, the children themselves.44 In the cases that RFRA cites, accommodating the religious liberty claims would not have harmed specifically identified third parties.45

The claims featured in Sherbert, Yoder, and Smith differ in form from the claim at issue in Hobby Lobby. Complicity-based conscience claims are oriented toward third parties who do not share the claimant’s beliefs about the conduct in question. For this reason, their accommodation has distinctive potential to impose material and dignitary harm on those the claimants condemn.

RFRA’s language sweeps broadly enough to cover complicity-based conscience claims. But, we observe, these are not the kind of claims on which Congress focused when it adopted the statute’s framework for protecting religious liberty. In fact, several years later, when Congress encountered a complicity-based claim while considering new religious liberties legislation, members expressed great concern about the third-party harms the claim’s accommodation would inflict. In Thomas v. Anchorage Equal Rights Commission, a federal appellate court recognized a free exercise claim to exemption from state antidiscrimination law for landlords who refused to rent to unmarried couples based on their belief that “facilitating cohabitation in any way is tantamount to facilitating sin.”46When Congress confronted the prospect of accommodating this type of claim, legislators worried that granting religious exemption claims from state and local antidiscrimination laws could harm vulnerable groups of citizens, including lesbians, gay men, and unmarried parents.47 Ultimately, Congress did not enact the statute that lawmakers feared would have sanctioned this claim.48

This is not surprising. In adjudicated religious liberties law, when accommodation has threatened to impose significant burdens on other citizens, courts have repeatedly rejected the exemption claims. The underlying intuition seems to be that one citizen should not be singled out to bear significant costs of another person’s religious exercise.49 Concerns of this kind are expressed across a range of doctrinal locations.50 In free exercise case law,51 the Court has rejected exemption claims that would, for example, “impose the employer’s religious faith on the employees.”52 Under the Establishment Clause, the Court has invalidated accommodations that impose “significant burdens” on third parties.53 And, in applying the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Court has explained that “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”54 As we now show, the Supreme Court reasoned in this same tradition in Hobby Lobby, where concerns about third parties guided judgments about accommodation.

B. Hobby Lobby and the Question of Third-Party Harm

In Hobby Lobby, religious claimants sought to be excused from a law requiring employers who provide health insurance to their employees to cover forms of contraception the claimants viewed as sinful. The Court required the government to provide the exemption, but without declaring that the religious liberty claim trumped the government’s interest in providing employees access to contraception. Instead, the Court resolved the case on grounds that treated as weighty both the claimants’ religious liberty claim and Congress’s interest in protecting women’s health.

Because the Department of Health and Human Services (HHS) had already offered an accommodation to religiously affiliated nonprofit institutions, the Court reasoned that application of the insurance requirement to closely held for-profit corporations with religious objections was not narrowly tailored.55 Writing for the majority, Justice Alito several times emphasized that the government could provide plaintiffs the benefit of a similar arrangement without restricting employees’ access to contraception.56 Concern about protecting third parties from harm was a structuring principle of the Court’s decision, even if the Court may have erred in assuming that the accommodation would impose no burdens on third parties.57

Justice Kennedy appears to have guided the Court to a decision that endeavored to vindicate both the interests of the claimants seeking religious exemptions and of the government in enforcing the statute. Justice Alito’s majority opinion proceeded on the assumption that the government has a compelling interest in ensuring women’s “cost-free access to . . . contraceptive methods.”58 Justice Kennedy separately concurred in order to emphasize: “It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”59 Along with the four dissenting Justices, he affirmed the government’s compelling interest in enacting laws to promote women’s health.60

Justice Kennedy was clearly concerned about the impact of accommodation on the statute’s beneficiaries. At oral argument, he questioned how accommodation would affect “the rights of the employees, . . . [who] may not agree with these religious beliefs of the employer.”61 And in his Hobby Lobby concurrence, he noted that the accommodation of religious liberty may not “unduly restrict other persons, such as employees, in protecting their own interests.”62

These concerns about accommodation’s effects on the statute’s intended beneficiaries shaped the terms on which the Court recognized the plaintiffs’ RFRA claim. The Court concluded that an accommodation could be designed so as “to protect the asserted needs of women as effectively as the contraceptive mandate.”63 Indeed, the Court began its opinion by emphasizing its view that the effect of “accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”64

Mere days after issuing its Hobby Lobby decision, the Court provisionally recognized another complicity-based conscience claim in its interim order in Wheaton College v. Burwell.65 Again, the Court did so on the assumption that third parties would not bear the impact of accommodation. Wheaton College, a religiously affiliated institution, claimed that the self-certification form—the religious accommodation mechanism, referred to above, provided by the government to religiously affiliated nonprofits—would “make it complicit in the provision of contraceptives by triggering the obligation for someone else to provide the services to which it objects.”66 In ordering accommodation pending appeal, the Court explained, “[n]othing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives.”67 Wheaton College, like Hobby Lobby, appears totie accommodation to the fact that the government has other ways of providing for the statute’s intended beneficiaries so that no third-party harm would result from the accommodation.68

Yet if the opinions in Hobby Lobby and Wheaton College demonstrate concern with third-party harm, they do not examine the kinds of harm that accommodation of complicity-based conscience claims might inflict, nor do they offer guidance about how principles concerned with third-party harm might apply in future cases. The Court’s decision in Hobby Lobby is now being cited to support accommodation of complicity-based conscience claims not merely in litigation involving insurance for contraception or claims under RFRA, but in a wide range of legal and institutional settings. In the LGBT context alone, Hobby Lobby has been used to bolster arguments for exemptions from state antidiscrimination laws requiring businesses to serve same-sex couples69 and from the federal executive order banning sexual orientation and gender identity employment discrimination by federal contractors.70 It is an important moment, therefore, to explore the concerns about third parties that already structure Hobby Lobby, and to show how and why these concerns are an integral part of the RFRA inquiry.

To illustrate the third-party effects of complicity-based conscience claims, we examine healthcare refusal laws—a legislated body of religious liberties law in which complicity-based claims predominate. In this body of law, the risk of third-party harm is substantial and yet largely left unaddressed. The legislation makes plain the impact that accommodating complicity claims can have on other members of the community.

II. another religious liberties antecedent: complicity and healthcare refusals

A body of state and federal law allows persons and institutions in the healthcare industry to assert conscience-based refusals to provide patient services. While early healthcare refusal laws focused on the conscience claims of professionals opposed to performing certain procedures, over time refusal laws expanded through concepts of complicity to cover an increasing number of persons and institutions in healthcare services. The complicity-based conscience claims in Hobby Lobby resemble and perhaps descended from these legislated exemptions, popularly termed healthcare refusal laws or conscience clauses.71 A brief look at this body of law illustrates the shape of this statutory religious liberties tradition—significant not only as an antecedent for the claims in Hobby Lobby but also as an illustration of complicity-based claims in action. With this illustration, we can then begin to examine the distinctive social logic of complicity claims.

A. Understanding Healthcare Refusal Laws

Refusal laws exempt medical providers from duties of patient care that are imposed by various bodies of state and federal law governing institutions and professionals.72 Licensing boards enforce professional standards against healthcare institutions, doctors, nurses, and pharmacists.73 Tort law, and specifically medical malpractice, provides redress to patients injured by breaches of professional duties.74 Institutional actors and individual providers are also subject to common law and statutory obligations, including those imposed on public accommodations and healthcare facilities.75 And patients have constitutional rights, including reproductive and medical decision-making rights, in the healthcare context.76

Against this backdrop, refusal laws allow individuals and institutions in the healthcare industry to express conscience objections to interacting with persons who seek certain medical services—most commonly abortion, sterilization, and contraception. The laws provide religious exemptions for those who assert that abortion, sterilization, and contraception are sinful, and who object to acting in ways that, the claimants assert, would make them complicit in the sinful conduct of others. The laws appear to exempt healthcare providers from duties to patients.77 And they generally do not provide mechanisms to mediate their impact on patients.

B. The Church Amendment

We can trace the emergence of healthcare refusals legislation to Congress’s passage of the Church Amendment in 1973.78 That legislation followed on the heels of two significant judicial decisions: the Supreme Court’s 1973 Roe v. Wade decision invalidating criminal prohibitions on abortion;79 and a 1972 federal district court decision enjoining a Catholic affiliated hospital, which was deemed to engage in state action because of its receipt of federal funding, from prohibiting sterilization at its facilities.80The Church Amendment, which passed with near unanimous support,81 provided that receipt of federal funds would not provide a basis for requiring a physician or nurse “to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions.”82 It also provided that no “entity” could be compelled to “make its facilities available for the performance of any sterilization procedure or abortion if [such] performance . . . is prohibited by the entity on the basis of religious beliefs or moral convictions.”83

The Church Amendment inaugurated a widespread tradition of healthcare refusals legislation at the federal and state levels.84 Yet the Amendment differed in important ways from the body of healthcare refusal laws that would follow. The Amendment protected from discrimination not only individuals who, following the dictates of conscience, refused to perform abortion and sterilization but also those who, following the dictates of conscience, performed such procedures.85 More importantly for our purposes, the Church Amendment’s coverage of individuals focused on the conduct of doctors and nurses who perform[] or assist[] in the performance of a lawful sterilization procedure or abortion.”86 The legislation was concerned with those professionals directly involved in the procedures. The Congressional debate confirms this focus. Senator Russell Long worried that the accommodation could be invoked by “a nurse or an attendant somewhere in the hospital who objected to [the procedure or] . . . someone who had nothing to do with the matter and was not involved in it one way or the other, just someone who happened to be working in a hospital.”87 In response, Senator Frank Church explicitly rejected such an expansive reading of the acts and actors covered. Instead, he affirmed Senator Long’s position that the accommodation would not cover “someone working in the hospital . . . who had no responsibility, directly or indirectly, with regard to the performance of [the] procedure.”88

C. The Expansion of Healthcare Refusals: Operationalizing Complicity

In the immediate wake of the Church Amendment, many states enacted healthcare refusal laws.89 But the expansion of healthcare refusals legislation occurred on a much larger scale in the 1990s and 2000s. Laws at the state and federal levels grew to include contraception90 and to cover a much broader range of acts and actors. This new generation of laws went beyond the Church Amendment and plainly sought to accommodate objections to many more forms of conduct, interactions, and associations thought to make the objector complicit in the wrongdoing of another person.

In this period, the federal government and a number of states enacted laws that allowed a range of healthcare professionals and institutions with objections to abortion or contraception to refuse to refer or counsel patients. On the federal level,a 1996 omnibus appropriations bill provided that neither the federal government nor any state or local government could “subject any health care entity to discrimination” based on the entity’s refusal to provide abortion services, abortion training, arrangements for abortion services, or referrals to other entities that provide abortion services.91 Some states, particularly when covering contraception, explicitly included the provision of information among the list of covered acts.92 Colorado law, for instance, provides: “No private institution or physician, nor any agent or employee of such institution or physician, shall be prohibited from refusing to provide contraceptive procedures, supplies, and information when such refusal is based upon religious or conscientious objection . . . .”93

Just as the range of acts continued to grow in ways that gave practical meaning to the concept of complicity, so did the range of covered actors. Mississippi, which in 2004 passed the nation’s broadest healthcare refusal law,94 provides an illustration of a provision drafted with the evident aim of making as many persons eligible for exemption as possible. The law defines “health care service” to include:

any phase of patient medical care, treatment or procedure, including, but not limited to, the following: patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery, or any other care or treatment rendered by health care providers or health care institutions.95

Mississippi’s law defines “health care provider” with similar breadth:

“Health care provider” means any individual who may be asked to participate in any way in a health care service, including, but not limited to: a physician, physician’s assistant, nurse, nurses’ aide, medical assistant, hospital employee, clinic employee, nursing home employee, pharmacist, pharmacy employee, researcher, medical or nursing school faculty, student or employee, counselor, social worker or any professional, paraprofessional, or any other person who furnishes, or assists in the furnishing of, a health care procedure.96

In particular, as the Mississippi law demonstrates, as healthcare refusal laws grew to include contraception, some states specifically covered pharmacists and pharmacies with objections to selling contraception.97

As changes occurred in the economic organization of the healthcare field, conscience legislation began to apply the logic of complicity to insurance plans’ and HMOs’ financial relationships.98 In 1997, Congress passed a Balanced Bu- dget Act that provided conscience provisions for Medicaid and Medicare ma- naged care providers that objected to providing, reimbursing for, or covering abortion counseling or referral.99 A 2004 appropriations bill broadened the de- finition of a healthcare entity to include HMOs and insurance plans, and withheld federal funding from any federal agencies or state governments that discriminated against healthcare entities on the basis of their refusal to cover, pay for, or refer for abortion.100 In 2008, the Bush Administration adopted regulations that expanded the coverage of the Church Amendment itself, defining “Health Care Entity” to include HMOs and health insurance plans and assistance to include “counseling, referral, training, and other arrangements for the procedure.”101

Over time, the body of healthcare refusals legislation took on a very different form than that originally seen in the Church Amendment. While the Church Amendment focused on persons directly involved in religiously objectionable conduct, over time the legislation was self-consciously expanded to reach an ever-widening number of persons who might count themselves as complicit. Fueled by complicity-based objections, refusal laws expanded to cover acts and actors only remotely connected to the challenged healthcare service.102 And even as healthcare refusal laws offered exemptions for ever-growing numbers of institutions and persons, efforts to offset the impact of refusals on patients remained rare. In fact, many of the laws expressly authorized providers to withhold referrals, as well as the kinds of counseling or information that would provide patients with notice that there were alternative forms of treatment available in which they might be interested.

Overall, the claims upon which recent healthcare refusal laws are based contrast sharply with the claims featured in the cases that Congress referenced in RFRA. Rather than invoking unfamiliar religious beliefs, the claimants object to laws departing from traditional social norms. The claims for accommodation are generally not asserted in courts; instead, they are primarily asserted in politics, and redressed through legislation. The accommodations provided by healthcare refusal laws are not designed for particular religious claimants, such as the Amish or members of the Native American Church; instead, they authorize exemptions for persons asserting conscience objections based on any religion or, with the inclusion of “moral” objections, no religion at all.103 Accommodation of these claims does not entail costs borne by society as a whole; instead, accommodation has consequences for the third parties whose conduct is at issue. Crucially, healthcare refusal laws make little or no effort to offset their impact on third parties.

III. religion in politics

The concepts of complicity that shape more recent and expansive healthcare refusal laws play a growing role in religious conflicts over contraception, abortion, and same-sex marriage. For example, in Hobby Lobby, the employers objected to providing insurance coverage that their employees might use to purchase contraceptives the employers viewed as sinful. Similarly, wedding-related vendors have objected to providing goods and services to same-sex couples because doing so would make them complicit in a relationship they deem sinful.104

Not only do these complicity-based conscience claims differ in form from claims at issue in the free exercise cases RFRA invokes, but as this Part demonstrates, complicity claims also differ in social logic. Our brief consideration of healthcare refusals legislation suggests that complicity-based conscience claims are entangled in long-running “culture war” conflicts about laws that break from traditional morality. In this Part we show that political leaders are encouraging the faithful to assert complicity claims. Unlike the claims in the cases to which Congress referred when it passed RFRA, complicity-based conscience claims are asserted in society-wide conflicts by mobilized groups and individuals acting in coalitions that reach across religious denominational lines and in coordination with a political party.105 Complicity offers a shared language and mode of reasoning that persons can employ in these conflicts to voice objections that are rooted in different faiths and in convictions that are both religious and secular.106

Asserting a complicity-based conscience claim can serve larger law reform goals in “culture war” conflicts. Many who join in cross-denominational coalition to assert complicity-based conscience claims endorse laws concerning abortion or same-sex marriage that would preserve traditional morality for the society as a whole. Some invoke complicity-based conscience claims when they cannot entrench traditional morality through laws of general application. As the conditions of conflict change and arguments rooted in traditional morality lose their ability to persuade, movement leaders have advocated shifting to religious liberty arguments for exemption as part of a long-term effort to shape community-wide norms.107

It is commonplace for people of faith to engage in political action.108 We devote special attention to political mobilization around complicity-based conscience claims for two reasons. The first should be self-evident. Mobilization will amplify the effects of accommodating complicity claims. Complicity claims concerning issues in democratic contest will increase in number, and accommodation of the claims will have significance, not merely for the claimants, but for the other citizens who the claimants believe are sinning.

Considering mobilization is important for a second reason. Many who advocate accommodation of complicity-based conscience claims assert that doing so will settle conflict. By examining how complicity-based conscience claims are part of a contest over community norms, we can see how religious accommodation may extend, rather than resolve, conflict.

A. Complicity’s Social Logic: Cross-Denominational Mobilization

Today, Catholics and evangelical Protestants assert shared religious beliefs in conflicts over sexual norms. This coalition did not exist at the time of Roe, for example, when evangelical Protestants had different views about abortion and were unwilling to join in political coalition with Catholics in opposing it.109 But the views of evangelical Protestants about abortion have changed in the intervening years,110 as has their willingness to assert claims of common faith with Catholics on the question. Theological differences, of course, persist. But since the era of Ronald Reagan’s election, when Republican leaders encouraged evangelical Protestants to enter politics in common cause with Catholics opposed to abortion,111 a conservative, cross-denominational coalition of Christians has pursued self-consciously traditional and conservative ends.

We can see an example of this coalition in the Manhattan Declaration: A Call of Christian Conscience, the 2009 manifesto of conservative Christian principles set forth by Robert George and Chuck Colson and endorsed by Catholic and evangelical Protestant leaders as well as conservative political activists.112 The Declaration calls upon Christians to unite across denominational lines in support of three central principles: “the sanctity of human life, the dignity of marriage as a union of husband and wife, and the freedom of religion.”113 The Declaration presents claims for religious liberty—prominently including complicity-based conscience claims about healthcare and marriage—alongside planks opposing abortion and same-sex marriage.114

From the perspective of the various religious traditions that find common ground in this cross-denominational coalition, the practices that form the basis of today’s complicity-based conscience claims are related: same-sex marriage, abortion, and contraception divert sex and marriage from procreative ends. Same-sex marriage, the Manhattan Declaration argues,

would lock into place the false and destructive belief that marriage is all about romance and other adult satisfactions, and not, in any intrinsic way, about procreation and the unique character and value of acts and relationships whose meaning is shaped by their aptness for the generation, promotion and protection of life.115

While the Declaration opposes abortion as “deliberate killing,”116 abortion also detaches sex from procreative ends. A 1996 statement signed by the Declaration’s authors, as well as many other social conservatives and religious leaders, declared: “The abortion license is inextricably bound up with the mores of the sexual revolution. Promotion of the pro-life cause also requires us to support and work with those who are seeking to reestablish the moral linkage between sexual expression and marriage, and between marriage and procreation.”117 Putting it more succinctly, Pat Robertson recently explained on the 700 Club that abortion and same-sex marriage are connected because both “destroy [our] opportunities to reproduce.”118

Religious conservatives opposed to practices that separate sex from procreation may object not only to same-sex marriage and abortion, but also to contraception. While Hobby Lobby featured an objection to contraceptives the claimants viewed as “abortifacients,”119 many religious claimants object to contraception generally. There are Catholics and evangelical Protestants who object to a “contraceptive mentality” that separates sex from procreation.120 The plaintiffs in Hobby Lobby were supported by amici who opposed contraception121 and advised the Court that contraception harms women.122 And in other litigation over the ACA, claimants have expressed objections to coverage of any FDA-approved contraceptives.123

Christians mobilize across religious denominations to enforce traditional morality in the law of abortion and marriage and to seek conscience-based exemptions from laws that depart from traditional morality. The Manhattan Declaration invokes Christian principles as it urges signers “to labor ceaselessly to preserve the legal definition of marriage as the union of one man and one woman” and “to roll back the license to kill that began with the abandonment of the unborn to abortion.”124 At the same time, the Declaration exhorts Christians to seek conscience exemptions from laws on marriage and healthcare that do not conform to its understanding of Christian values.125The Declaration’s authors understand themselves as “build[ing] a movement—hundreds of thousands, perhaps millions, of Catholic, Evangelical, and Eastern Orthodox Christians”126—seeking to influence law and politics.127 Signers are urged to “share information” about the document at meetings of a “civic group like Kiwanis or Rotary,”128 and Christian social clubs, like the Christian Motorcyclists Association, have distributed the document.129

The Manhattan Declaration offers one prominent example of an organization that mobilizes a cross-denominational coalition of Christians to advocate for laws of general application that preserve traditional values and to assert conscience claims under a banner of religious liberty. The Family Research Council (FRC) is another.130 FRC works to pass laws banning same-sex marriage and abortion.131 At the same time, the organization supports religious exemptions for business owners whose “consciences prevent them from participating in”132 a same-sex marriage and “health care professionals and organizations who have conscientious objections to . . . participation in or cooperation with the delivery and marketing of abortion or abortifacients, sterilization, [and] contraception.”133

To create collective political action in the name of Christian principles, FRC sponsors “Watchmen on the Wall,” a conference that brings to the nation’s capital approximately five hundred Christian pastors, who represent various denominations as well as non-denominational Christian ministries,134 to facilitate advocacy for laws that reflect Biblical values.135 The 2014 conference focused on defending “Biblical marriage” and responding to perceived attacks on religious liberty, including in the domain of abortion and contraception,136 while the 2013 conference featured back-to-back sessions on “Threats to Religious Freedom” and “Protecting Marriage and Life in America.”137 FRC provides pastors with a Voter Impact Toolkit created with the Southern Baptist Convention’s Ethics and Religious Liberty Commission, as well as a Culture Impact Manual, which, for example, instructs pastors to stop others from “misus[ing] civil rights laws to protect homosexual conduct and gender identity disorder.”138

The movements asserting complicity-based conscience claims regularly act in coordination with a political party that shares the movements’ law reform goals.139 The Republican Party platform asserts “support [for] a human life amendment to the Constitution” and “reaffirm[s] . . . support for a [c]onstitutional amendment defining marriage as the union of one man and one woman,” at the same time that it brings together the issues of healthcare, same-sex marriage, and abortion under the banner of a “war on religion.”140 As the Party’s 2012 platform asserted: “The most offensive instance of this war on religion has been the current Administration’s attempt to compel faith-related institutions, as well as believing individuals, to contravene their deeply held religious, moral, or ethical beliefs regarding health services, traditional marriage, or abortion.”141

Republican Party support for complicity-based conscience claims is not limited to the statement of principles in the Party’s platform. The Party has long supported healthcare refusal laws.142 And, after passage of the ACA, which the Party fiercely opposed, Republican leaders attempted to pass legislation providing conscience exemptions from the law’s requirement that employer-provided healthcare insurance cover particular items and services. In 2012, the Respect for Rights of Conscience Act, commonly referred to as the Blunt Amendment, sought to amend the ACA to exempt any employer from “provi- ding coverage” and any plan from “paying for coverage” of any “items or services . . . contrary to the religious beliefs or moral convictions of the sponsor, issuer, or other entity offering the plan.”143 Debate over the Blunt Amendment focused on employers’ coverage of contraception.144

The Blunt Amendment was narrowly defeated in the Senate, voted down 51-48.145 The vote largely tracked party lines, with only one Republican oppo- sing the bill.146 After supporters failed to secure a legislated accommodation from the ACA’s employer coverage requirement, public interest law firms sought the same sort of accommodation through litigation. An attorney from the Becket Fund for Religious Liberty approached the general counsel of Hobby Lobby about filing suit.147 In the months that followed, Hobby Lobby, represented by the Becket Fund, and Conestoga Wood, represented by Alliance Defending Freedom (ADF, formerly Alliance Defense Fund), brought RFRA challenges to the ACA’s requirement that employer-provided insurance cover contraception.148 After failing to achieve a complicity-based exemption through legislation, lawyers encouraged claimants to assert complicity-based claims to exemption through litigation.149

B. Preservation Through Transformation

We now examine how complicity-based conscience claims can serve the law reform goals of cross-denominational movements. As we have seen, many advocates of complicity-based conscience claims are interested in changing the sexual mores of the wider community. Seeking an exemption to avoid complicity in the sins of others can serve this same end. In seeking an exemption, a claimant need not withdraw but instead can employ the religious objection to criticize norms governing the entire community. Describing Hobby Lobby as “a mandate for evangelization,” Bishop James Conley explained a goal of religious exemption claims:

Our religious liberty is not an end in itself. Instead, religious liberty is the freedom for something real—the freedom to “make disciples of all nations”—to spread the Gospel, and its fruits, joyfully. If we want to protect our religious liberty, the very best thing we can do is to use it—to transform culture by transforming hearts for Jesus Christ.150

Religious actors can evangelize by advocating for laws on abortion or marriage that conform to traditional and religious values. Or, as these comments suggest, they can evangelize by seeking religious exemptions from laws of general application that they believe contravene traditional and religious values. Without change in numbers or belief, religious actors can shift from speaking as a majority seeking to enforce traditional morality to speaking as a minority seeking exemptions from laws that offend traditional morality. Changing the form of the claim in this way matters. When defenders of traditional marriage can no longer persuade by appeal to shared beliefs about the wrongs of same-sex relationships, they may instead appeal to beliefs about the importance of protecting religious pluralism, revising the secular rationale for the claim in a way that gives more direct and uninhibited expression to its religious logic. Accommodating complicity-based conscience claims in these circumstances may function to enable “preservation through transformation”: when an existing legal regime is successfully challenged so that its rules and reasons no longer seem persuasive or legitimate, defenders may adopt new rules and reasons that preserve elements of the challenged regime.151

For these reasons, accommodating religious exemption claims may not settle conflict, as many contend.152 Instead, claims for religious exemption can provide a way to continue conflict over community-wide norms in a new form. To demonstrate this dynamic, we first look back at how healthcare refusals le- gislation has functioned within the broader anti-abortion agenda. As we then show, advocates look to the healthcare context as a model for how similar conscience claims might function within campaigns against same-sex marriage and LGBT equality.

1. Healthcare Refusals

Americans United for Life (AUL) annually publishes a comprehensive set of model abortion restrictions to “enable[] legislators to easily introduce bills without needing to research and write the bills themselves.”153 The model laws restrict abortion in different ways, including “informed consent,” “clinic regulation[],” and bans at earlier points in pregnancy.154

AUL’s model legislation includes a Healthcare Freedom of Conscience Act.155 The 2013 model act opens with a statement of purpose: “It is the purpose of this Act to protect as a basic civil right the right of all healthcare providers, institutions, and payers to decline to counsel, advise, pay for, provide, perform, assist, or participate in providing or performing healthcare services that violate their consciences.”156 The model act defines “healthcare provider” broadly to include “any individual who may be asked to participate in any way in a healthcare service, including” not only a physician or nurse but also a “physician’s assistant . . . nurses’ aide, medical assistant, hospital employee, clinic employee, nursing home employee, pharmacist, pharmacy employee, researcher, medical or nursing school faculty, student or employee, counselor, social worker, or any professional, paraprofessional, or any other person who furnishes, or assists in the furnishing of, healthcare services.”157 And the model act provides that “participate” means not just “perform” or “assist in” but also “counsel, advise, provide . . . refer for, admit for purposes of providing, or participate in providing any healthcare service or any form of such service.”158 The AUL model act seeks to spread the logic of complicity-based conscience claims to more types of healthcare, to more actors, and to more acts.

The network of conscience exemptions that the anti-abortion movement seeks to enact functions like other laws pressed by the movement: it impedes access to abortion.159 For example, Mississippi’s broad healthcare refusal law, described in Part II, is explicitly based on the AUL model statute.160 Unlike the Church Amendment, which protected those who supported and those who opposed abortion and sterilization, Mississippi’s law protects only individuals or institutions opposing abortion. At the same time, Mississippi has enacted a range of other measures, including some based on other AUL model statutes, to restrict access to abortion.161 Indeed, the Fifth Circuit Court of Appeals recently blocked enforcement of an admitting privileges law that would have closed the only remaining clinic in the state.162

As Mississippi illustrates, the anti-abortion movement seeks expansive conscience clauses at the same time that it continues to seek Roe’s overturning and to pursue a variety of measures to limit access to abortion.163 Given the numbers mobilized in opposition to abortion in the region, exemptions, like other forms of anti-abortion legislation, can obstruct and stigmatize abortion, functioning as part of a broader legislative strategy to make access to abortion—and contraception—increasingly difficult.

This use of conscience clauses illustrates how opponents of abortion can change the kinds of rules and reasons they employ to enforce contested norms—an example of “preservation through transformation.”164 Constitutional decisions protecting the right to privacy have partly disestablished social norms that were once enforced through laws criminalizing contraception and abortion.165 Advocates seek the reversal of these decisions. But where unable to reinstate a law of general application that enforces traditional sexual morality, they seek exemptions in the name of religious liberty from laws that contravene customary morality. In this way, anti-abortion advocates shift from speaking as a majority enforcing customary morality through the criminal law to speaking as a minority seeking religious exemptions in the civil law.

Through this lens, we can appreciate how conscience provisions allow advocates to rework a traditional norm that was once enforced through the criminal law into a norm that is now enforced through a web of exemptions in the civil law. With the law’s authority, traditional and religious norms can be enforced against third parties outside the religious community. By enacting laws exempting individuals and institutions in the healthcare industry from duties of patient care and authorizing them to express complicity-based objections to associations with certain patients, the state creates a parallel legal order.

The separate normative order authorized by healthcare refusal laws may take a highly institutionalized form. For example, Catholic healthcare delivery is governed by the Ethical and Religious Directives for Catholic Health Care Services (Directives), promulgated by the U.S. Conference of Catholic Bishops (USCCB).166 Implementation of the Directives, which ensure that healthcare is delivered in conformance with Catholic theological principles regarding cooperation and scandal,167 is enabled by healthcare refusal laws. According to the Catholic Health Association, one in six patients in the United States is treated by a Catholic hospital.168 (In Washington State, approximately half of the state’s healthcare system is now Catholic-run.169) It is clear, then, that healthcare refusal laws empower a substantial segment of the healthcare industry to operate in conformity with religious principles that dictate limitations on services relating to abortion and contraception.

But the Catholic hospital system is not the only organization coordinating claims on refusal laws. Religious hospitals represent nearly a fifth of the healthcare delivery system in the United States,170 and eight of the twenty-five largest healthcare systems are religiously owned.171 Even secular hospitals may act on a traditional norm widely shared in the community.172 And other loosely affiliated providers may act on the basis of shared convictions. For example, resistance to emergency contraception may be widespread and include both hospitals and pharmacies.173 In states and regions where abortion and certain forms of contraception are stigmatized, healthcare refusal laws, along with other restrictions, may create a system in which the disestablished sexual norms continue to be enforced. With widespread, cross-denominational assertion of claims for exemption, accommodation of complicity-based conscience objections can have far-reaching effects.

2. Same-Sex Marriage and LGBT Equality

Looking back at the spread of healthcare refusals legislation raises questions about the future trajectory of religious exemptions concerning same-sex marriage. In the sexual orientation context, complicity-based conscience claims, which are beginning to proliferate, have been modeled on healthcare refusals.174 As religious groups opposing same-sex marriage suffer losses in politics and litigation, critics of same-sex marriage, including the Manhattan Declaration’s Robert George, encourage them to look to the abortion context for a model for long-term change.175 The abortion example illustrates how to resist legal settlement of conflict. As Ryan Anderson176 wrote in National Review, “we must . . . make clear that court-imposed same-sex marriage via a Roe-style decision will not settle the marriage debate any more than it has settled the abortion debate.”177 He immediately pivoted to religious freedom: “Whatever the Court does will cause less damage if we . . . highlight the importance of religious liberty. Even if the Court were to redefine marriage, government should not require third parties to recognize a same-sex relationship as a marriage.”178 It is not accidental that at the very moment general arguments for “traditional marriage” are failing, Anderson urges claims on religious liberty. As Anderson emphasizes, the abortion context illustrates how creative advocacy can adapt to conditions of loss. Unsurprisingly, then, conscience clauses secured in the abortion domain have become an aspiration for same-sex marriage opponents.179

We can see how advocates are adapting their arguments in the marriage context. For example, social conservatives long used arguments from traditio- nal morality to oppose recognizing same-sex relationships.180 But these arguments about lesbians and gay men now sound illegitimate—like “bigotry.”181 In response, advocates have changed the secular rationale for their position in ways that give increasingly uninhibited expression to its religious logic. Advocates now emphasize different justifications for excluding same-sex couples from marriage182—for example, that marriage is about biological procreation183 or that preserving “traditional marriage” protects religious liberty.184 At the same time, in anticipation of the possibility of defeat, they argue for exemptions from laws that recognize same-sex marriage.185 In so doing, they shift from speaking as a majority enforcing customary morality to speaking as a minority seeking exemptions based on religious identity.186

As in the case of healthcare refusals, these claims for religious exemption have spread and expanded through the concept of complicity. Many states that allow same-sex couples to marry have enacted legislation making clear that religious denominations and clergy have no obligation to solemnize a same-sex marriage.187 These actors can be analogized to the doctors and nurses covered by the healthcare refusal laws who object to performing abortions or sterilizations.188 But as with healthcare refusals, advocates draw on concepts of complicity to seek exemptions for those who object to facilitating or sanctioning another’s sinful conduct. Ryan Anderson describes the expanding sequence of these claims: “Some will conclude that they cannot in good conscience participate in same-sex ceremonies, from priests and pastors to bakers and florists.”189

As recent litigation illustrates, business owners working in wedding-related fields are asserting complicity-based objections to serving same-sex couples.190 Jack Phillips, the owner of Denver’s Masterpiece Cakes, turned away same-sex couples because he “believes that the Bible commands him . . . not to encourage sin in any way.”191 He contended that baking and selling a cake for a same-sex wedding would force him to “participate” in a sinful same-sex relationship.192 Similarly, owners of an Iowa art gallery used as an event space turned away a same-sex couple because “their religious beliefs prevent them from . . . facilitating . . . same-sex wedding ceremonies.”193 Moreover, through concepts of complicity,194 these exemption claims move beyond wedding-related services. For example, legislative proposals supported by social conservative advocacy groups would allow some for-profit employers who seek to avoid complicity in their employees’ sinful conduct to refuse to provide health insurance that covers employees’ same-sex spouses.195

Many assert that accommodating claims for religious exemption will help settle conflict,196 including claimants and their defenders who seek a “live-and-let-live” resolution.197 In assessing the prospects for conflict settlement, it is important to recognize that accommodating religious objections may also enable the conflict to persist in a new, revitalized form. The claim to exemption may not be a simple claim to withdraw, conceding a new consensus in favor of same-sex marriage while preserving space for faith groups to maintain their religious views. Instead, as in the healthcare refusals context, complicity-based conscience claims can function as part of a long-term effort to contest society-wide norms.198

With growing acceptance of the contested conduct, appeals to religious liberty offer a more persuasive secular ground on which to base persisting objections to the conduct. The goal may be not only to restrict the legal recognition of same-sex marriage, but also to forestall or restrict an antidiscrimination regime that includes sexual orientation. In states with antidiscrimination laws that cover sexual orientation, religious objections to same-sex marriage have provided a basis on which to seek the expansion of already-existing exemptions in the laws.199 For instance, enacting an exemption that allows an institution or individual to refuse to “facilitate the perpetuation” or “treat as valid” a same-sex couple’s marriage would significantly broaden existing exemptions to permit sexual orientation discrimination in situations that have nothing to do with weddings.200 In states without antidiscrimination laws covering sexual orientation, lawmakers have worked to restrict any future nondiscrimination obligations that may exist.201 While framed around marriage, the proposed legislation would allow businesses to refuse to serve same-sex couples more generally.202

These state-level campaigns appear to rehearse arguments to be made on the federal level. Recently, a cross-denominational coalition sought a broad exemption from President Obama’s executive order barring federal contractors from engaging in sexual orientation and gender identity employment discrimination.203 This effort introduced arguments that will play a central role when there is support for the enactment of a federal antidiscrimination law that would cover sexual orientation discrimination.204 In addition, congressional lawmakers anticipating a Supreme Court ruling in favor of a nationwide right to marry for same-sex couples have introduced the Marriage and Religious Freedom Act, which would prohibit the federal government from taking “an adverse action against a person, on the basis that such person acts in accordance with a religious belief that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”205 In this context, we can see how complicity-based claims for religious exemption are a part of society-wide conflict over LGBT equality.

Having considered how complicity-based conscience claims have proliferated as part of society-wide conflicts over contested sexual norms, we are in a better position to understand how their accommodation can inflict material and dignitary harm on the individuals whose conduct the claims target.

IV. harms

Complicity-based conscience claims assert a relationship to third parties whose conduct the claimants view as sinful. In this sense, the third-party effects of accommodation are bound up in the form of the claim itself. But exploring the social logic of complicity-based conscience claims suggests how the consequences of accommodation may be amplified. Mass mobilization of claimants assures that accommodation will affect large numbers of persons, especially in certain areas of the country. The impact is not only material. When a religious claim objecting to others’ sinful conduct is based on a traditional norm that is reiterated by a mass movement over time and across social domains, accommodating the claim has the distinctive power to stigmatize and demean third parties. In this Part, we demonstrate some of the material and dignitary harms that result from accommodating complicity-based conscience claims.

A. Material Harms

Accommodation of complicity-based conscience claims may impose material burdens on third parties by deterring or obstructing access to goods and services. This can occur as objectors deny services; it can also occur as objectors withhold information that would enable an individual to pursue alternative providers.

Consider the healthcare refusal laws. A striking feature of these laws is that they provide expansive exemptions while only rarely furnishing mechanisms that would blunt the impact on third parties. Refusal laws might accommodate individuals with conscience objections within a framework that endeavors to ensure continuity of care for the patient.206 But many healthcare refusal laws allow doctors or nurses to refuse to treat a patient even in an emergency situation207 and do so without requiring that healthcare professionals provide advance notice of their objection to the employer so that the patient receives needed care.208 In addition, some of these laws allow healthcare workers and institutions to refuse to provide referrals, counseling, or information that would notify the patient of the availability of alternative care.209 Unlike the assumption on which the Court granted the accommodation in Hobby Lobby—that accommodation would have “zero” impact on third parties—healthcare refusal laws generally do not provide for alternative means of addressing patients’ healthcare needs. In fact, these laws authorize refusals that appear to contravene state-law duties210 and professional obligations to patients.211

An exemption’s material effects are amplified when the laws authorize large numbers of networked actors to refuse to provide services. This is a threat when institutionalized religious principles govern—such as with Catholic healthcare. The Ethical and Religious Directives for Catholic Health Care Services, which draw on Catholic principles regarding cooperation and scandal, govern how Catholic hospitals deliver healthcare.212 If the local hospital is a Catholic affiliated or sponsored institution,213 patients in the area may not have much or any access to goods or services proscribed by the Directives.214

Concern over access has only increased with the growth of mergers and partnerships involving Catholic hospitals.215 In fact, the 1995 Directives elaborated concepts of cooperation and scandal in ways that explicitly reached these circumstances,216 thereby extending Catholic principles to a larger universe of non-Catholic providers and institutions.217 Those Directives expressed concern that scandal would result from Catholics’ association with non-Catholic healthcare providers, even if the association did not amount to illicit cooperation.218 For instance, the Directives warned that scandal may be caused by “any associationwith abortion providers.”219

Concerns with complicity may lead not only to the refusal to provide goods or services, but also to the refusal to provide information that would lead the patient to obtain those goods or services elsewhere.220 The Directives provide:

Free and informed consent requires that the person . . . receive all reasonable information about the essential nature of the proposed treatment . . . and any reasonable and morally legitimate alternatives . . . . The free and informed health care decision of the person or the person’s surrogate is to be followed so long as it does not contradict Catholic principles.221

The Directives define informed consent as requiring the patient to receive information on the proposed treatment and “morally legitimate” alternatives, and in this way seemingly instruct healthcare providers counseling patients to withhold information on services the Directives oppose.222

A number of healthcare refusal laws sanction denying patients information. On the logic of complicity, these laws authorize healthcare institutions and professionals to refuse to provide information, counseling, or referrals regarding abortion services and contraception.223

When patients are denied information about treatment options, they are denied the opportunity to seek services from an alternative provider. For example, in one litigated case, a Catholic hospital allegedly refused to provide any information to a rape victim whose mother explicitly asked about pregnancy prevention options.224 According to the victim, she did not get medical care from her own physician until more than seventy-two hours later, precluding her from availing herself of emergency contraception.225 In Michigan, a recently filed complaint alleges that a woman whose water broke when she was eighteen weeks pregnant was twice sent home from her local Catholic hospital without being treated for her pain and bleeding or given information that her pregnancy was not viable and that the safest medical course was abortion.226 The patient claimed that during her encounters with the hospital, she had not been told that certain care was being withheld. As she put it, “They never offered me any options. . . . They didn’t tell me what was happening to my body.”227

While the example of Catholic healthcare systems suggests that denials can become widespread through institutionalized norms, widespread denials are also a threat when norms are simply widely shared. As we have seen, healthcare refusal laws that accommodate claims of complicity are not limited to Catholics, and these laws have become a major focal point of a cross-denominational coalition that includes evangelical Protestants.228 In some areas, the accommodations furnished by healthcare refusal laws may align the actual provision of hospital services with majority religious and moral beliefs in the locality.229 Widely shared norms may result in the systematic denial of goods or services, even without formal organization around a governance instrument like the Directives. Healthcare providers may subscribe to those norms or may feel pressure to conform to them in order to avoid controversy and maintain community standing.230 Indeed, some healthcare refusal laws do not even specify that the refusal be based on the provider’s religious or moral objection, thereby seemingly authorizing refusals for any reason.231

Healthcare refusals explicitly intersect with LGBT concerns. Healthcare providers have sought exemptions from state antidiscrimination law to avoid providing reproductive services to lesbian patients, for instance.232 Some healthcare refusal laws cover any service to which a provider objects, and the AUL model healthcare refusal act specifically includes not only abortion, contraception, and sterilization, but also “artificial insemination [and] assisted reproduction,”233 services vital to lesbian and gay family formation. Moreover, religious objections rooted in complicity historically have informed policy on HIV prevention. Some religiously affiliated organizations have resisted prevention efforts that include condom distribution.234 And some Catholic hospitals have refused to counsel HIV-positive patients regarding condom use.235 As we have seen, there are healthcare refusal laws that authorize providers to deny this information.236

Examining the spread of refusals in healthcare over the last several decades suggests how refusals could spread in the marriage context, where they have only recently been asserted. Religiously affiliated nonprofits regularly interact with persons in same-sex relationships, when acting as employers and in providing social services. In the for-profit sector, members of faith communities are beginning to assert complicity-based refusals to engage in transactions with same-sex couples in public accommodations, in employment, and in housing. As in healthcare, refusals may vary regionally. While high-profile refusals directed at same-sex couples first arose in states with antidiscrimination laws that include sexual orientation, refusals are now cropping up in states that, in the wake of court rulings, license same-sex couples’ marriages but do not include sexual orientation in state antidiscrimination laws.237 Some of these states are considering laws authorizing religiously motivated refusals.238 Such laws might provide exemptions from other state nondiscrimination obligations that could apply to same-sex couples,239 and exempt claimants from city and county nondiscrimination ordinances prohibiting sexual orientation discrimination. Going forward, refusals may be most likely to occur in states where same-sex couples are most legally vulnerable—able to marry because of a judicial decision but insufficiently protected from private discrimination.240 Ultimately, in more conservative, religious, and rural parts of the country, complicity-based refusals have the capacity to construct separate, localized legal orders in which same-sex couples face an unpredictable marketplace and labor market and continue to encounter stigma and rejection.

B. Dignitary Harms

To this point, discussion has focused on how claims for religious exemption can obstruct access to service and information regarding alternative sources. But of course a refusal to serve also has dignitary effects. This objection became clear during the civil rights movement, when denials of service at lunch counters were understood as meaning-making transactions.241 As the Court has observed, when Congress adopted the Civil Rights Act, it made “clear that the fundamental object of Title II was to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’”242 In current discussions of complicity-based conscience claims, by contrast, the social meanings of accommodating refusals to serve often recede from view.Just as Congress took the social meaning of refusals into consideration in fashioning antidiscrimination laws governing public accommodations, so too should the social meaning of refusals factor in judgments about whether and how to grant persons religious exemptions from laws of general application.243

In Hobby Lobby, the corporate claimants objected “to provid[ing] employees with insurance coverage that they believe implicates them in an immoral practice.”244 Their refusal to furnish insurance covering contraception labels an entire group of employees—women using certain contraceptives—as sinners.245 In other cases, the refusal is targeted. For instance, the bakery owner who turns away a same-sex couple treats that particular couple as sinners. Both the general condemnation expressed by the corporate claimants in Hobby Lobby and the individualized condemnation in the bakery are actions that address third parties as sinners in ways that can stigmatize and demean.

In some situations, social meaning is explicitly communicated during the religiously based refusal of service. Consider the operation of complicity-based conscience claims in the context of same-sex marriage. A bakery customer, for instance, reported being told, “[we] don’t do same sex weddings because [we] are Christians and being gay is an abomination.”246 A woman shopping for a wedding dress reported that, after a day of trying on dresses at a shop, the owner “would not work with [her] because [being gay is] ‘wrong.’”247

We can observe a similar dynamic in the healthcare context. Patients can be gravely injured when they are denied service in emergency situations or deprived information regarding treatment options. But even aside from these injuries, refusal of service can inflict dignitary harms. A Walgreens pharmacist in Wisconsin refused to fill an emergency contraception prescription for a mother of six, reportedly telling her, “You’re a murderer! I will not help you kill this baby. I will not have the blood on my hands.”248 Similar meanings can be conveyed when a pharmacist simply refuses to fill or transfer a birth control prescription because he deems it “wrong” or “a sin.”249

Even when not stated explicitly, the meaning of the refusal is intelligible to the recipient because it reflects and reiterates a familiar message about contes- ted sexual norms.250 Gays and lesbians understand objections to same-sex marriage as status-based judgments.251 Women encountering objections to contraception may as well. For example, a college student whose regular doctor was not in the office when she called seeking emergency contraception reported being passed around to multiple staff members before eventually speaking to a doctor who “coldly” refused her request. As a result, the young woman said “I felt judged, embarrassed, mortified . . . . I felt like a whore. That’s how those people made me feel. I wasn’t about to go back to them for anything.”252 In a New Jersey hospital, a nurse allegedly refused, in front of the patient receiving abortion services, to provide any pre- or post-operative care. According to the hospital, the patient, understanding the meaning conveyed by the refusal, “was extremely upset and had to be counseled by other members of the nursing staff.”253

Similarly, in the LGBT context, accommodation’s power to stigmatize derives from the fact that the refusal reflects a widely understood message about a contested sexual norm. The individual or group a person of faith asserts is sinning will immediately comprehend the social meaning that refusal expresses. A bakery customer planning a same-sex wedding reported that she had “never felt so low in [her] life” as when the owner terminated the cake tasting upon finding out that the woman was a lesbian.254 Another customer recalled “walk[ing] away feeling hurt and disgusted.”255 A lesbian couple turned away by a wedding venue near Albany, New York, reported to the state’s Division of Human Rights feeling “shell-shocked” and “horrible.”256 According to the Human Rights Division, while one of the women had been “feeling a lot more comfortable” with herself since coming out, she experienced the refusal as a “kind of blow” to her coming-out process.257 Indeed, the rejection upset the women so much that they stopped looking for venues in the area because they doubted they “would feel comfortable” holding the wedding there.258

Beyond the individual transaction, refusing services creates social meaning on a larger scale. The refusals are asserted across a range of settings, and occur at the same time that advocates seek laws of general application condemning the third party’s conduct.259 Indeed, some who assert religious refusals in the LGBT context have become important figures in the broader movement opposing same-sex marriage.260 These dynamics intensify the stigmatization that accommodation of complicity-based conscience claims can produce. The claim’s reiteration by a mass movement amplifies its power to demean.

When complicity-based conscience claims exist side-by-side with efforts to oppose abortion, contraception, and same-sex marriage, the refusals animated by these claims play a key role in society-wide conflict over sexual norms. Indeed, for those who view accommodation as “a mandate for evangelization,” religious exemptions provide an opportunity “to spread the Gospel, and . . . to transform [the] culture.”261

V. considering accommodation

Now that we have examined the form and social logic of complicity-based conscience claims and explained the impact of their accommodation on third parties, we turn back to doctrine to consider how our analysis bears on the enforcement of the law. We start with RFRA and Hobby Lobby, before considering the wider variety of judicial and legislative contexts in which these claims are arising. The impact on third parties of accommodating complicity-based conscience claims varies across contexts, and as it does, it implicates different kinds of values. We consider some of the fundamental and constitutional values that might shape approaches to accommodation.

In what follows, we identify questions that courts and lawmakers need to ask if they are concerned—as our law directs them to be—about the harms to other citizens that accommodating complicity-based conscience claims may inflict. Decision makers may weigh the goods and harms of religious accommodation differently, but few would endorse the principle that one group of citizens should be singled out to bear significant costs of another’s religious exercise. Once we recognize that accommodating complicity claims inflicts distinctive forms of harm on other citizens, even proponents of expansive accommodations should be committed to minimizing those harms. (If they are not, it is likely because the argument for exemption is part of a larger effort to enforce norms of the faith on society as a whole.)

A. Reconsidering Harm in Hobby Lobby’s Wake

RFRA prohibits the federal government from “substantially burden[ing] a person’s exercise of religion” unless the government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling go- vernmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”262 In what follows, we return to Hobby Lobby to show how the question of third-party harm arises as part of the RFRA analysis.263 We then consider questions of accommodation in contexts outside RFRA.

1. RFRA

The Hobby Lobby Court granted the religious accommodation on the premise that it would have “precisely zero” effect on the claimants’ female employees.264 As we showed in Part I, this concern with third-party harm has been a cross-cutting constraint in adjudicated religious liberties law arising under both the Constitution and civil rights statutes.265 In Hobby Lobby, this concern played a critical role. Justice Kennedy, who specifically noted in his concurrence that accommodation may not “unduly restrict other persons, such as employees, in protecting their own interests,”266 provided the majority its decisive fifth vote. The majority opinion reiterated that concern with third-party harm. Justice Alito instructed that “in applying RFRA ‘courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.’ That consideration will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest.”267

In this passage Justice Alito explains that the injunction against third-party harm that we observed across religious liberties case law is an integral part of RFRA’s compelling interest and least restrictive means analysis. The government’s compelling interests in enacting a law often include individual and societal interests, and these interests often have material and expressive dimensions.268 If religious accommodation (1) would inflict material or dignitary harm on those the statute is designed to protect or (2) would produce effects and meanings that undermine the government’s society-wide objectives, this impact is evidence that unimpaired enforcement of the law is the least restrictive means of furthering the government’s interest.

An antidiscrimination law can illustrate. In enacting an antidiscrimination law, legislators seek to provide the citizens the law protects equal access to employment, housing, and public accommodations and to ensure that they are treated with equal respect; legislators also seek to promote the growth of a more integrated and less stratified society.269 If granting a religious accommodation would harm those protected by the antidiscrimination law or undermine societal values and goals the statute promotes, then unencumbered enforcement of the statute is the least restrictive means of achieving the government’s compelling ends. If, however, the government can accommodate the religious claimant in ways that do not impair pursuit of the government’s compelling interests in banning discrimination, then RFRA requires the accommodation.

Looking back at Hobby Lobby, we are now situated to make several observations. The Court decided the case on the basis of least restrictive means analysis. The Court required the accommodation because it thought the government had alternative means of providing the employees access to insurance for contraception, so that the accommodation would have “precisely zero” effect on them.270 In fact, the Court may have erred in assuming that accommodation would inflict no costs.271 If the Court was in error in asserting that accommodating Hobby Lobby would have “precisely zero” effect on its employees’ access to insurance for contraception, we learn something about narrow tailoring analysis. Narrow tailoring requires determining whether an alternative method of serving the government’s interests is available and adequate—whether it is feasible for the government to accommodate religious objections without imposing costs on the citizens the statute protects.

Our analysis prompts another observation about the least restrictive means inquiry in Hobby Lobby. In concluding that religious accommodation was possible with “precisely zero” effect on the statute’s beneficiaries, the Court seems to have focused entirely on material, rather than dignitary, harm. The Court never considered whether accommodating the employers’ belief—that paying for employee health insurance would make the employers complicit in the employees’ sinful practices of contraception—might create harmful social meanings that undermine individual and societal interests the statute promotes. Accommodating such religious beliefs may stigmatize women who use contraception, either by entrenching old norms that condemn women for seeking sex while avoiding motherhood272 or by labeling contraception as an “abortifacient.”273 In these ways, sanctioning the employer’s refusal to pay can create meanings that deter women from using contraception, compromising both the individual and societal interests that the statute furthers.274 Perhaps, however, the government has alternative means of providing employees insurance for contraception that would not create these pejorative social meanings.275

In short, the least restrictive means analysis requires examining the meanings as well as the material arrangements that a proposed accommodation of a religious claim would create.276 If the accommodation does not obstruct the attainment of any compelling governmental ends, then RFRA directs accommodation of the claim. If such an accommodation cannot be devised, RFRA allows the government to pursue its compelling interests through unobstructed enforcement of the statute. Yet even in these circumstances, the religious claimant has resources for expressing concerns of conscience and for advocating change of religiously objectionable laws. The claimant has at her disposal all of the resources of speech and political advocacy available to others in society, but does not have the special advantage of an exemption from complying with the law.277 (RFRA confers that advantage on persons engaged in religious exercise only in the circumstance where the exemption does not obstruct the attainment of compelling governmental interests.)

Hobby Lobby is distinctive: it focused on a claim for religious accommodation in circumstances in which the Court believed that the government already had devised alternative means of vindicating its interest in the statute’s enforcement. In adjudicating complicity-based claims to religious accommodation not involving the ACA—arising under RFRA, under state RFRAs that resemble the federal statute,278 and outside the RFRA context—it will be important to examine carefully the existence and adequacy of alternatives, as well as the material and dignitary effects of an accommodation.

2. Non-RFRA Contexts

Complicity-based conscience claims arise under bodies of law other than federal and state RFRAs. They are asserted in a variety of statutory settings, as healthcare refusal laws and debates over same-sex marriage illustrate.279 In these settings, decision makers will have to determine not only whether but how to accommodate religious exercise. Concern about material and dignitary harm to third parties might lead legislators to reject a proposed accommodation or, at the very least, to consider strategies to minimize the accommodation’s impact on other citizens. Accommodations that do not include mechanisms to offset significant third-party effects—such as those common in healthcare refusal laws—single out some citizens to bear the cost of others’ religious convictions.280

The question of how to minimize the impact on third parties will vary across circumstances.281 The feasibility of providing alternative access to services may depend on the availability of other willing providers—an assessment that may include consideration of the claimant’s market position282 as well as the likely number of other claims for accommodation.283 For example, when a Catholic-affiliated hospital is the only hospital in a particular locale, exercise of exemptions by the institution and its affiliated personnel could significantly affect residents’ access to certain healthcare services.284

Even if the government can provide for affected third parties in alternative ways, these alternatives may not shield third parties from dignitary harms.285 The question of whether a complicity claim can be accommodated in terms that ameliorate the dignitary affront to other citizens is at root practical. In the healthcare context, for example, decision makers might respond by requiring internal procedures that shift patients away from refusing providers and toward their willing colleagues, in ways that shield the patient from stigmatizing encounters.

More broadly, lawmakers might consider the message the government sends in furnishing an exemption. Context matters in assessing social meaning. Are there ways to accommodate religious persons without giving legal sanction to their view that other law-abiding citizens are sinning? If the government grants an accommodation, is the accommodation structured to block or amplify dissemination of religious claims about the sins of other citizens?

B. The Values To Guide Approaches to Accommodation

We have been focusing on the practical considerations that should guide approaches to accommodation of complicity-based conscience claims. But there are broader normative and constitutional concerns at stake, some of which will vary across the contexts in which these claims are asserted.

In courts, and especially in legislatures where complicity-based conscience claims will be subject to negotiated settlements, government actors will make judgments about which claims to accommodate and how to design accommodations. In doing so, they will continually grapple with questions of fundamental fairness. As our religious liberties case law emphasizes, one group of citizens should not bear the significant costs of another’s claim to religious exercise.286

A different kind of fairness concern is likely to arise as lawmakers and courts distinguish among religious claimants.287There is evidence that claimants who appeal to religious convictions consistent with mainstream Christian faiths may be more likely to secure judicial or legislative exemptions than those invoking minority religious convictions.288 This would seem to be especially likely in the context of complicity-based claims, where the relationship between the claimant and the objectionable conduct may be quite attenuated. In these circumstances, there is a risk that decision makers may recognize a burden on religious exercise when the claimant invokes familiar norms condemning the conduct or when decision makers themselves believe the conduct to be wrongful.289

In addition to basic questions of fairness, specific constitutional norms may be implicated when one citizen is asked to bear the costs of another’s religious exercise. Granting an accommodation may not rise to the level of an independent constitutional violation, yet it may still be in deep tension with important constitutional values. For example, healthcare refusal laws may violate duties of care that healthcare institutions and professionals owe patients and may also impair exercise of patients’ constitutionally protected reproductive rights.290 Accommodation of complicity-based conscience claims may also undermine equality norms.291 Although legislative exemptions from antidiscrimination law do not ordinarily constitute freestanding equal protection violations, some recent proposals would specifically allow refusals of same-sex couples.292 Such singling out might undermine the forms of respect that guarantees of equal protection promote.293 Finally, accommodation of complicity-based conscience claims may implicate concerns about religious establishment, as the costs of claimants’ religious practices are imposed on other citizens.294

Conclusion

Pluralism is commonly invoked as a value that justifies religious accommodation.295 Indeed, religious exemptions historically have protected minority practitioners from the operation of generally applicable laws.296 Accommodation, therefore, respects and preserves religious diversity. Today, many scholars and advocates cite this pluralistic tradition to support accommodation of complicity-based conscience claims.297

Yet examination of the form and social logic of these claims suggests that their accommodation may subvert, as well as serve, pluralistic ends. Complicity-based conscience claims are faith claims about how to live in community with others who do not share one’s religious beliefs on contested questions of sexual morality. The claimants treat the lawful conduct of other citizens as sinful and object to being associated with those citizens. Many believe their religious convictions should govern the conduct of citizens who do not belong to their faith community.

In this sense, complicity-based conscience claims can be animated less by a pluralistic interest in preserving space for distinctive religious beliefs and practices and more by what political theorist Nancy Rosenblum has described as an “integralist” orientation.298 The religious integralist believes that “religious authority should guide every aspect of social and political life of the nation as a whole.”299 Some advocates for cross-denominational coalitions asserting and supporting complicity-based conscience claims aspire to a legal and political order shaped by their underlying religious convictions.300 For instance, they seek generally applicable laws that reflect traditional religious views about marriage and abortion. In the absence of laws enforcing traditional sexual norms, they seek to enforce those norms through a web of religious exemptions. Religious liberty, through this lens, is a “mandate for evangelization.”301

Asserted in this spirit, the claim for accommodation is not simply an act of withdrawal. Instead, in advancing complicity-based claims for exemption, mobilized groups and individuals may seek to enforce traditional norms against those who do not share their beliefs. Accommodation of these claims may undermine, rather than advance, pluralistic values.