In Hobby Lobby, I am pretty happy with the way that the Court treated the question of corporate personhood for purposes of RFRA. I am less impressed with the Court’s analysis of whether the contraception mandate imposed a substantial burden on the religious exercise of the challengers. 

Justice Alito analyzed this question by looking at the scope of the penalty in the event that the challengers refused to comply with the law.  Because the penalty was substantial, he argued, the burden must be substantial.  I think that this focus on the penalty is mistaken.  It seems to imply that moderate penalties imposed on core religious activities would not be a substantial burden.  Suppose, for example, that some neutral law had the effect of imposing a $50 fine every time a Catholic priest performed the sacrament of ordination.  As I understand it, priests perform this sacrament fairly infrequently, but it is centrally important to the life of the Church.  Likewise, a massive fine on a relatively trivial religious activity – say putting an ichthus bumper sticker over a license plate – would be a substantial burden.

The analysis in Justice Ginsburg’s dissent strikes me as muddled, but at least it circles toward the real issue in the case.  It’s muddled because she spends a lot of time arguing about harms to third parties.  The problem with the harm principle, in my opinion, is that it is of little help because so much of the real work in the argument is done by the definition of harm.  In Hobby Lobby, granting an exemption to the challengers harms third parties if one assumes that they have a right to contraception provided by their employers as part of their compensation.  If one does not assume the existence of such a right, then there is no harm.  Given that the case here involves a debate over whether such a legal right in fact exists, it doesn’t seem that we can appeal to such a right in the harm analysis without becoming circular.  Alternatively, we might understand harm not in terms of some baseline of rights, but rather in terms of actually disutility or the like.  The problem here, as Amartya Sen long ago pointed out his essay “The Impossibility of a Paretian Liberal”, is that once one links harm to the idea of utility rather than rights, the harm principle becomes impossibly restrictive. 

Justice Ginsburg’s analysis gets closer to the mark, I believe when she talks about the idea of complicity.  The burden asserted by the challengers is that by being required to purchase certain kinds of contraception coverage they are being made complicit in abortion.  Justice Alito suggests that once one asserts complicity, a substantial burden has been established, presumably so long as the sanction for not complying with the law is large enough.  Any attempt to judge the substantiality of the challengers’ complicity, he claims, would involve judging the reasonableness of their religious beliefs.  In contrast, Justice Ginsburg is eager to charge in where Justice Alito fears to tread, arguing that in this case the actual use of the objected to contraception involves the choice of a third party, and, therefore, the challengers cannot assert the their religious exercise is burdened. 

Here, I think Justice Ginsburg’s dissent gets at the hard issue in the case: When does complicity burden religious freedom?  My intuitions on this run in opposite directions.  On one hand, I think that Justice Alito’s deferential attitude toward claims of complicity is dangerous.  If we must simply defer to a challenger’s claim that any forced complicity creates a burden without any inquiry into the scope or attenuation of the complicity, then we have a world where A can claim that his religious exercise has been burdened because B has engaged in conduct that A finds religiously objectionable, so long as A can sincerely claim that there is some law that makes A complicit in B’s activity.  The problem is that in an interconnected society law and commerce arguably makes us complicit in so much of each other’s activities that we run the risk of adopting the perverse view that religious freedom is routinely threatened when others engage in religiously objectionable activity. 

My other intiution is that in some cases complicity becomes a valid way of understanding burdens on religious activity.  The obvious case would be a law requiring an objecting physician to perform abortions when asked to do so by a patient willing to pay for it.  In such a case, one might point out that in this instance the abortion will only be performed if the patient chooses to do so, and if the physician doesn’t perform the operation, the abortion will happen anyway because the patient by definition has the funds to purchase the desired procedure.  Still, I think such a law would be a major imposition on religious freedom.  The difference between my hypothetical abortion law and Hobby Lobby or a case of someone objecting to taxes on the grounds of complicity in religiously objectionable government policies, it seems to me, is simply the extent of the complicity rather than any difference in the nature of the religious burden.  

For those interested in business and corporate law, the issue of complicity is particularly important.  Commerce is a matter of joint enterprises, and, as casuists long ago recognized, it involves ubiquitous complicity in the actions of others.  The easiest solution to the problem of complicity-via-commerce is a regime of freedom of contract.  In this world, consent does the work of mediating the degree to which we wish to become involved in the moral complexities of others’ projects. Of course, to this one can marshal the traditional objections to freedom of contract – inequality of bargaining power (whatever that means), the presence of non-disclaimable contractual and legal duties, problems of monopoly, the countervailing claims of status and the like - and we can turn this debate on religious freedom over to the contract law geeks.

In a world where freedom of contract is subordinated to such concerns, RFRA-like regimes require judgments about the level of complicity at which religious protections should be triggered.  This means making the kind of delicate inquiries Justice Alito believes courts should avoid.  Contra Justice Alito, however, I believe that in making such judgments courts would be defining the scope of religious freedom not the scope of reasonable religious belief. 

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