Volokh Conspiracy: The Religious Freedom Restoration Act and complicity in sin

[What follows is a slight updating of part of my pre-Hobby-Lobby Cato ebook on the case; I thought I'd repost it, since this is an issue that I've seen a lot of people discussing both before and after the decision.]

Some people have argued that the Religious Freedom Restoration Act shouldnt have applied in Hobby Lobby because the employer mandate doesnt require employers to actually do anything they see as sinful. The employers arent required to use the implantation-preventing contraceptives that they see as immoral. They arent required to administer or even handle them. They are just required to provide insurance policies that their employees may then choose to use to buy those contraceptives. Is that a real burden on belief?

That question would be answered no if a RFRA claim is brought by an employer who thinks the only relevant sin is actually using the implantation-preventing contraceptives. If the employer is called to the stand and asked, Do you think that it is religiously wrong for you to provide this insurance? and the employer says, no, thats fine, only using the contraceptives is sinful, then the employer has admitted that the employer mandate does not impose a substantial burden on his beliefs.

But, unsurprisingly, many people believe that, when some behavior is wrong, many sorts of complicity with that behavior are wrong, too. Many secular people believe this. The law takes this view, in all sorts of contexts. Religious people believe it, too.

True, people disagree about when complicity stops. Some people think that race discrimination itself is wrong and thus didnt want to do business in South Africa if they had to discriminate in hiring to do so. Others thought they shouldnt do business in South Africa even if they could do so without discriminating. Others thought they shouldnt do business with South African companies. Others may have thought they shouldnt buy any products made in South Africa. Some people might have thought their complicity would be cut off by the use of the corporate form (Im not the one whos doing business with South African companies; its just the corporation that I own thats doing that), though I suspect many people would not have taken that view. Where the connection becomes too attenuated and morally or religiously culpable complicity stops is a question on which reasonable people will differ.

But for purposes of RFRA, the question isnt whether a judge or jury agrees with a persons claim that a law requires him to engage in behavior that is sinful it is whether the person sincerely believes that the behavior is sinful. Likewise, when the person believes that complicity itself is sinful, the question is not whether our secular legal system thinks that he has drawn the right line regarding complicity; it is whether he sincerely believes that the complicity is sinful.

Thomas v. Review Board (1981) on which the Hobby Lobby majority relied is the classic illustration of this principle. Thomas had been working at a machinery company and was transferred to a department that produced tank turrets. Thomas refused to work on such military production and was fired. Under the Courts Free Exercise Clause jurisprudence, whether Thomas could claim unemployment compensation turns on whether his refusal to work on war production was an exercise of his religion. The lower court had said that it wasnt, but the Court reversed (emphasis added):

[The Indiana Supreme Court noted] that Thomas admitted before the referee that he would not object to working for United States Steel or Inland Steel produc[ing] the raw product necessary for the production of any kind of tank [because I] would not be a direct party to whoever they shipped it to [and] would not be chargeable in conscience . The court found this position inconsistent with Thomas stated opposition to participation in the production of armaments. But Thomas statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.

Thomas wasnt, of course, being required to kill anyone using a tank, fire a tank gun, ride in a tank helping the gunner, or assemble a completed tank. But he thought that the religious prohibition went further than that. Even making tank turrets though not making steel that would go into a tank was, he thought, itself sinful complicity with sin.

And the Court held that it was for him, not for the secular courts, to figure out where he thought God wanted him to draw a line. The substantial burden requirement didnt require that the connection be substantial enough in the secular legal systems understanding of complicity. (A burden might be insubstantial because it imposes too small a secular cost to count, not because outsiders to a religion think that a causal connection is too weak to count as sinful complicity.)

See the original post here:
Volokh Conspiracy: The Religious Freedom Restoration Act and complicity in sin