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Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby’s Wake Amy J. Sepinwall† In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (for example, by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (for example, by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than the standard that legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives or to university fees that support abortion services. In Hobby Lobby, however, the Supreme Court took the corporate owners at their word: the mere fact that Hobby Lobby believed that it would be complicit, no matter how idiosyncratic its belief, sufficed to qualify it for an exemption. In this way, the Court made elements of an employee’s health-care package the “boss’s business” (to borrow from the nickname of the Democrats’ proposed bill to overturn Hobby Lobby). Much of the critical reaction to Hobby Lobby focuses on the issue of corporate rights of religious freedom. Yet this issue is a red herring. The deeper concerns that Hobby Lobby raises—about whether employers may now refuse, on religious grounds, to subsidize other forms of health coverage (for example, blood transfu- sions or vaccinations) or to serve customers whose lifestyles they deplore (for example, gays and lesbians)—do not turn on the organizational form that the employer † Assistant Professor, Department of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania. BA 1997, McGill University; MA 1999, McGill University; JD 2004, Yale Law School; PhD (Philosophy) 2011, Georgetown Uni- versity. I thank Vincent Buccola, Nicolas Cornell, Rick Garnett, Frederick Gedicks, Gwendolyn Gordon, Jack Knight, William Laufer, Sarah Light, Douglas NeJaime, Wayne Norman, Elizabeth Pollman, Richard Schragger, Richard Shell, Reva Siegel, and Alan Strudler, as well as participants at the Carol and Lawrence Zicklin Center for Business Ethics Research’s Hobby Lobby Conference, and audiences at Columbia, Georgetown, Harvard, Johns Hopkins, Michigan, and Wharton, as well as the annual meeting of the Academy of Legal Studies in Business, for very helpful feedback. I am especially indebted to Eric Orts, Micah Schwartzman, and Nelson Tebbe, each of whom offered detailed and insightful comments on this Article. Finally, for many walks and talks on these matters, I am, as always, tremendously grateful to Andy Siegel. Kate Gheen, Monica Kwok, and Jonelle Lesniak provided excellent research assistance. This Article was written with the generous support of the Carol and Lawrence Zicklin Center for Business Ethics Research and the Wharton Dean’s Research Fund. I claim full re- sponsibility for any errors. 1897 03 SEPINWALL_ART_SA (SD) (DO NOT DELETE) 12/12/2015 2:32 PM 1898 The University of Chicago Law Review [82:1897 has adopted. Instead, the more significant issue goes to our understanding of complicity: When is it reasonable for an employer (for-profit or nonprofit, corporate or individual) to think itself complicit in the conduct of its employees or customers? And when is a reasonable claim of complicity compelling enough to warrant an accommodation, especially when that accommodation would impose costs on third parties? Hobby Lobby does not provide the proper guidance for answering these ques- tions, and no wonder: as I argue here, the concept of complicity pervading the treatment of conscientious objection in the law is murky and misleading, and it often yields unjust results. This Article offers the guidance that the doctrine does not. To that end, it exposes the flaws in the understandings of complicity evident in both the majority and dissenting opinions in Hobby Lobby, as well as in Religious Freedom Restoration Act cases more generally. It then seeks to disaggregate the elements of a complicity claim and to identify which of these elements deserves to be treated deferentially. Deference, however, is not decisive. The Article’s second ambition is to expose an oversight in the law’s treatment of conscientious objection—namely, its failure to inquire into how a religious accommodation will affect third parties. Exemption opponents contend that the law already requires courts to deny an accommodation when the accommodation would impose substantial burdens on third parties. I be- lieve that these opponents have a mistaken and overly sanguine view of the protection that the doctrine currently affords. I end the Article by proposing a revised balancing test—one that reflects a far more nuanced grasp of what is at stake for the objector while yielding far more just outcomes for third parties. INTRODUCTION .................................................................................................. 1899 I. COMPLICITY AND DEFERENCE .................................................................... 1911 A. Moral, Empirical, and Relational Elements of Complicity Claims . 1911 B. Complicity as Intentional Participation........................................... 1913 1. Decisionmaking and complicity. ................................................ 1915 2. Complicity as direct participation. ............................................ 1918 C. Complicity as Subjective Implication ............................................... 1922 D. Deference to Nonstandard Beliefs .................................................... 1923 1. Moral deference. ......................................................................... 1927 2. Empirical deference. .................................................................. 1930 3. Relational deference. ................................................................. 1934 II. COMPLICITY IN LAW AND ETHICS ................................................................ 1938 III. THE TROUBLING ROLE OF PROXIMITY IN COMPLICITY DETERMINATIONS .... 1944 A. Proximity as the Prevailing Criterion for Conscientious Objection 1945 B. The Grounds of Conscientious Objection ......................................... 1948 C. Proximity versus First Person Perceptions of Complicity............... 1951 D. Morally Mandated Indifference to Proximity .................................. 1958 IV. MISSING THIRD PARTIES: A TROUBLING OVERSIGHT .................................. 1959 A. The Hobby Lobby Dissent’s Strained Efforts to Find Third-Party Considerations in the Doctrine ......................................................... 1961 B. The Troubling Omission of Third-Party Costs ................................ 1966 03 SEPINWALL_ART_SA (SD) (DO NOT DELETE) 12/12/2015 2:32 PM 2015] Conscience and Complicity 1899 1. The compelling-interest prong of RFRA. .................................. 1967 2. The Establishment Clause. ....................................................... 1967 3. The “shoals” causing claims for religious accommodation to founder. ...................................................................................... 1970 4. Third-party intervention. .......................................................... 1972 C. Balancing Concerns for Complicity against Third-Party Costs ...... 1973 1. Assessing the strength of complicity claims. ............................ 1973 2. Balancing deference against third-party interests................... 1974 3. Bringing third-party interests before a court. .......................... 1976 D. Assessing Hobby Lobby and Its Progeny in Light of the Proposed Balancing Test .................................................................................. 1977 CONCLUSION AND A PERSONAL APOLOGIA ......................................................... 1979 INTRODUCTION In Burwell v Hobby Lobby Stores, Inc,1 the Supreme Court faced a plea for an exemption from the Patient Protection and Affordable Care Act2 (ACA) based on an unusually broad concep- tion of complicity: Hobby Lobby, a closely held for-profit corpora- tion, claimed that it would be participating in a wrong merely by subsidizing insurance through which its employees might access contraception that might destroy embryos.3 The understanding of complicity underpinning this claim is vastly more expansive than that which standard legal doctrine or moral theory contemplates.4 As such, the Court could have rejected Hobby Lobby’s claim—and, in doing so, denied it an exemption from the so-called contraceptive mandate5—on the ground that Hobby Lobby’s connection to the conduct it found objectionable was too 1 134 S Ct 2751 (2014). 2 Pub L No 111-148, 124 Stat 119 (2010). 3 See Aaron E. Carroll, How Hobby Lobby Ruling Could Limit Access to Birth Con- trol (NY Times, June 30, 2014), archived at http://perma.cc/E2WP-LJTN (describing the medical consensus that the possibility of the challenged methods of contraception involv- ing embryo destruction is highly speculative and improbable). See also George J. Annas, Theodore W. Ruger, and Jennifer Prah Ruger, Money, Sex, and Religion — the Supreme Court’s ACA Sequel, 371 New Eng J Med 862, 862 (2014) (“[I]n the opinion of medical experts, the four methods of contraception under scrutiny do not induce abortion; rather, they prevent abortion by preventing pregnancy.”); notes 130–34

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