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

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 which the Religious Freedom Restoration Act (RFRA) invokes, as well as the claim to religious exemption the Court recently recognized in Holt v. Hobbs. 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 the claimants view as sinning. Today complicity claims are asserted by growing numbers of Americans about contentious “culture war” issues. This dynamic amplifies the material and dignitary 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, tacitly acknowledging the democratic contests in which complicity claims are entangled, urge religious accommodation in the hopes of peaceful settlement. Yet, as we show, complicity-based conscience claims can provide an avenue to extend, rather than settle, conflict about social norms. 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. The Article considers a range of legal and institutional contexts in which complicity claims are arising, paying particular attention to RFRA. We show how concern about the third-party impact of accommodation structured the Court’s decision in Hobby Lobby. And looking beyond Hobby Lobby, we show how this concern with third-party harm is an integral part of the compelling interest and narrow tailoring inquiries that courts undertake in applying the statute. At issue is not only whether but how complicity claims are accommodated.

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