March 24, 2014
Hobby Lobby: The Problem of Complicity
Posted by Nate Oman

Like Steve, I am not a con law maven.  I am also not a corporate law scholar, although I sometimes try to play one in my Business Associations class.  I am, however, interested in markets, law, and religion.  So from my point of view, what makes Hobby Lobby so fascinating is what it reveals about how we might think about the way that the law regulates the relationship between religion and commerce.  I have a number of thoughts and ideas about the case, but I'll throw out one to begin with: The problem of complicity.

A number of people have expressed skepticism over the claim that requiring Hobby Lobby, Inc. to purchase contraception coverage for its employees creates a substantial burden on religious exercise.  One reason that people have this intuition is that Hobby Lobby's religious claim seems to rely heavily on the idea of complicity.  Suppose that I had a religious objection to contraception.  The government requires that I buy contraception pills, but not that I use them.  Such a regulation might be stupid and wasteful, but it doesn't seem to burden my religion in any meaningful sense.  The ACA simply requires that Hobby Lobby buy contraception pills and give them to someone else.  Whether they are used or not is entirely the employees' decision.  It seems deeply inimical to the idea of religious liberty to say that my religious exercise is burdened when you make choices that I disapprove of on religious grounds.  Yet there is something more than this to Hobby Lobby's position.  Their claims seems be that by forcing religious employers to provide the means for others to commit what employers see as a grievous sin, the state is forcing them to be complicit in someone else's sin.  It is the forced complicity that creates the burden.
I don't know what to make of this complicity argument and its one reason I go back and forth on whether I think there's a substantial burden in this case.  I think the RFRA ought to apply to for-profit corporations, and I see no reason why commercial activity might not be a form of religious exercise.  Part of me, however, wants to say that once the choice of another intervenes one's own complicity becomes sufficiently attenuated that religious exercise isn't substantially burdened.  After all, paying cash wages might make me complicit in an employee's abortion if the employee uses the wages to pay for the abortion.  
But then I think, what if we passed a law requiring that the Catholic Church buy insurance plans for all of its employees that covered abortion?  Surely in that case there would be some burden on religious freedom.    Indeed, the ACA regulations themselves create an exception for the Catholic Church largely on these grounds. When I have put the Catholic Church abortion hypothetical to those opposed to a religious exemption to the contraception mandate they have always said something like, "Churches are different" or "Expressive association would save the church in that case."  Both responses strike me as cop outs.  If the Catholic Church's argument would be that it was being made complicit in the sinful behavior it condemns, I don't quite see why others shouldn't be able to make the same kind of religious claim.  As for expressive association, I'd have more faith in this response if those that made it were rather more enthusiastic in their response to cases like Boy Scouts of America v. Dale.  Given that I know many of them abhor the outcome in that case, the expressive association response feels like a lawyerly dodge that doesn't really answer the underlying question of what to make of complicity-style arguments.

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