The Religious Freedom Restoration Act and complicity in sin

Eugene Volokh:

[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 shouldn’t have applied in Hobby Lobby because the employer mandate doesn’t require employers to actually do anything they see as sinful. The employers aren’t required to use the implantation-preventing contraceptives that they see as immoral. They aren’t 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, that’s 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 didn’t want to do business in South Africa if they had to discriminate in hiring to do so. Others thought they shouldn’t do business in South Africa even if they could do so without discriminating. Others thought they shouldn’t do business with South African companies. Others may have thought they shouldn’t 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 (“I’m not the one who’s doing business with South African companies; it’s just the corporation that I own that’s 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 isn’t whether a judge or jury agrees with a person’s 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 Court’s 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 wasn’t, 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 wasn’t, 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 didn’t require that the connection be “substantial” enough in the secular legal system’s 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.)

Likewise, the Hobby Lobby owners drew a line: Providing health insurance — including through their closely held corporation — that covers what they see as tools for homicide is sinful complicity with sin. Providing salaries that employees may use to buy the same tools or hiring employees who use those tools is not.

Many of us might draw the line elsewhere (even if we agreed with the judgment that the potentially implantation-preventing contraceptives are sinful). But it is for the owners of Hobby Lobby to draw the line and not for the courts to second-guess it. Perhaps there is a compelling interest that justifies the substantial burden that the law imposes on the owners — more on that later — but courts cannot say that the burden is insubstantial simply because they think the complicity is too attenuated.

And this position should look especially sensible, I think, given how wide an array of judgments our own American legal system has on the subject of complicity.

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