AP Photo/Doug McSchooler
This article appears in the Summer 2015 issue of The American Prospect magazine. Subscribe here.
These days, conservatives seem to own "conscience." Consider the current objection to marriage equality. "Some citizens may conclude that they cannot in good conscience participate in a same-sex ceremony, from priests and pastors to bakers and florists," argues the Heritage Foundation's Ryan Anderson. "The government should not force them to choose between their religious beliefs and their livelihood." Serving same-sex couples, business owners assert, would make them complicit in relationships they deem sinful, and so they claim religious exemptions from state and local antidiscrimination laws.
Conscience is also the rallying cry of conservatives opposed to the Affordable Care Act. In Burwell v. Hobby Lobby Stores, decided by the Supreme Court in June 2014, employers challenged the ACA's required coverage of contraception on the grounds that it would make them complicit in their employees' use of drugs that the employers believe cause abortion. The Court ruled 5–4 in favor of the employers' conscience objections.
Religious liberty challenges to the ACA arise under a law known as the Religious Freedom Restoration Act (RFRA), which allows people to claim exemptions from federal laws that "substantially burden" their religious practice. Opponents of same-sex marriage are moving to enact or to strengthen state laws mirroring the federal RFRA, as high-profile conflicts in Arizona, Indiana, and Arkansas have illustrated.
Partisan divides over religious conscience claims are not surprising in light of today's culture wars. But from a historical perspective, the partisan divide is remarkable. Liberals have long respected conscientious objection to military service and advocated that the government accommodate the beliefs and practices of religious minorities.
The new conservative campaign for religious exemptions follows a well-established pattern. When advocates suffer defeat and their arguments lose legitimacy, they look for new ways to frame their views, often borrowing from their opponents. Initially, for example, critics objected to affirmative action in the name of "innocent" whites, but when that argument proved insufficient, they reframed their case in the language of civil rights. In 1978 in University of California v. Bakke, Justice Lewis Powell said many of the groups that made up the white majority were also minorities that had faced discrimination, and he appealed to ideals of color-blindness to justify restricting race-conscious efforts to integrate public universities.
Conscience is the new color-blindness. In the debate over same-sex marriage, the opponents at first defended traditional marriage by appealing to moral disapproval of homosexuality. When these arguments began to lose credibility, opponents emphasized the importance of preserving sex-differentiated procreation and parenting. Today many have reframed the defense of traditional marriage as necessary to preserve religious liberty, to promote pluralism, and to avoid discrimination against religious conservatives. Again, conservatives are speaking in the language of civil rights. As Jeb Bush has put it, "People that act on their conscience shouldn't be discriminated against, for sure."
This is how RFRA has been drawn into the culture wars. After failing to prohibit abortion and same-sex marriage, conservatives have sought to create religious exemptions from laws that protect the right to abortion or same-sex marriage. Without change in numbers or belief, religious conservatives have shifted from speaking as a majority seeking to enforce traditional morality to speaking as a minority seeking exemptions from laws that depart from traditional morality. If unable to protect traditional sexual morality through laws of general application, conservatives can protect traditional values through liberal frames-by asserting claims to religious exemption and by appealing to secular commitments to pluralism and nondiscrimination.
Conservatives' claims of conscience in conflicts over abortion and same-sex marriage put liberals on the defensive. After all, don't liberals still support the free exercise of religion? And if liberals do support religious liberty, shouldn't they accept the logic of the conservative case? Current controversies seem to confront liberals with two unhappy choices: accept the new claims for religious accommodation or compromise longstanding commitments to conscience and religious liberty. But there is a way out of this thicket. The new claims being made by conservatives today are fundamentally different from the claims of religious liberty that led to the passage of RFRA. These differences are crucial to judging whether and how to accommodate the demands for religious exemption.
The Roots of RFRA
RFRA has not always provoked partisan conflict. More than two decades ago, Congress enacted the law with near unanimous bipartisan support. The immediate stimulus was a Supreme Court decision in a case involving Native Americans who were denied unemployment benefits after being fired for their use of peyote during religious rituals. Many people across the ideological spectrum thought that the Constitution protected claims of this kind under the First Amendment's guarantee of the right to "free exercise" of religion. After all, in the famous case of Sherbert v. Verner, the Warren Court had provided free-exercise protection to a Seventh-day Adventist who had been denied unemployment compensation when she refused to accept a job because of her Sabbath observance. But in the case involving the use of peyote in Native American religious ceremonies, the Court interpreted guarantees of free exercise more narrowly, as prohibiting only state action singling out the faithful for discriminatory treatment. Justice Antonin Scalia, a recent Reagan appointee, wrote the Court's opinion.
As Scalia's position indicated, conservatives have not always supported expansive judicial protections for the free exercise of religion. Some conservatives in the Reagan administration favored limiting judicial enforcement of free-exercise rights as part of their general effort to contain the role of the courts in matters of religion. Nevertheless, the Court's decision denying claims for religious exemption in the peyote case alienated Republicans and Democrats alike, and in 1993, Congress rallied to restore protection for religious liberty through RFRA. Signed into law by President Bill Clinton, the statute commands that the government may not "substantially burden a person's exercise of religion" unless doing so is "the least restrictive means of furthering [a] compelling governmental interest."
But in enacting RFRA, Congress did not contemplate religious liberty cases of the kind we are now seeing. The statute itself names three free-exercise cases, all of them involving members of minority religions who sought exemptions based on unconventional beliefs generally not considered by lawmakers when they adopted the challenged laws. Few imagined that opponents of abortion would assert claims under RFRA. In fact, Catholics wanted to make RFRA abortion-neutral, fearful that advocates for choice might assert conscience-based claims for exemptions from abortion bans if the Court overturned Roe v. Wade.
Conscience Claims in Health Care
Conscience-based claims against abortion developed from a different body of law-not RFRA, but laws that allow medical personnel to refuse to provide health-care services on religious grounds. In the wake of Roe, newly enacted federal and state laws authorized doctors with religious or moral objections to refuse to perform abortions or sterilizations. After the Court narrowed but upheld Roe in 1992, abortion opponents invoked religious liberty to expand health-care refusal laws, authorizing many more individuals and institutions to deny health-care services they deemed sinful-abortion prominently, but also increasingly contraception.
The latest wave of health-care refusal legislation uses concepts of complicity to authorize conscience objections in broadly defined circumstances. Mississippi, for example, allows health-care providers to assert conscience objections to providing "any phase of patient medical care, treatment or procedure, including, but not limited to, the following: patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery, or any other care or treatment rendered by health care providers or health care institutions." The Mississippi law also defines "health care provider" as expansively as possible. Like laws adopted in some other states, the one in Mississippi is based on a model statute promulgated by the anti-abortion group Americans United for Life.
Laws authorizing health-care providers to refuse patient care illustrate how conservatives are now using the ideas of conscience and religious liberty. States like Mississippi could accommodate the conscience objections of health-care providers while ensuring alternative care for patients. But health-care refusal laws rarely require institutions to provide alternative care; many even authorize providers to refuse to inform patients that they are being denied services that they may want. Expansive health-care refusal laws of the kind Mississippi has enacted thereby serve to restrict access to abortion.
For decades, constrained by constitutional rulings, conservatives have used claims on conscience to restrict access to abortion. Now, as laws recognizing same-sex marriage spread, religious conservatives have begun to look to health-care refusals as an inspiration and a model for restraining another development they could not entirely block. As Ryan Anderson writes in the National Review, "Whatever the Court does will cause less damage if we … highlight the importance of religious liberty. Even if the Court were to one day redefine marriage, governmental recognition of same-sex relationships as marriages need not and should not require any third party to recognize a same-sex relationship as a marriage." Positioning himself for a run for the White House, Jeb Bush warned that if the Supreme Court recognizes marriage equality, "that automatically then shifts the focus to people of conscience."
Conscience is now a rallying cry for a cross-denominational coalition opposing abortion and same-sex marriage and supporting religious liberty. For example, the "Manhattan Declaration"-a 2009 manifesto of conservative Christian principles endorsed by Catholic and evangelical Protestant leaders as well as conservative political activists-is subtitled "A Call of Christian Conscience." The declaration asks Christians to unite across denominational lines in support of three central principles: "the sanctity of human life, the dignity of marriage as a union of husband and wife, and the freedom of conscience and religion." Alongside planks opposing abortion and same-sex marriage, the statement offers support for claims of conscientious refusal to be complicit in either one.
Similarly, the Family Research Council-a self-declared "Christian public policy ministry" that has worked to pass laws banning same-sex marriage and abortion-seeks religious exemptions for business owners whose "consciences prevent them from participating in" a same-sex marriage and "health care professionals and organizations who have conscientious objections" to abortion and contraception.
As Jeb Bush's comments suggest, the cross-denominational coalition asserting conscience claims in health care and marriage has the backing of the Republican Party, which invokes conscience to decry a so-called "war on religion." The 2012 Republican Party platform declared, "The most offensive instance of this war on religion has been the current Administration's attempt to compel faith-related institutions, as well as believing individuals, to contravene their deeply held religious, moral, or ethical beliefs regarding health services, traditional marriage, or abortion." In announcing his 2016 presidential run, Ted Cruz supported religious liberty exemptions from laws that contravene traditional sexual morality, while at the same time advocating laws codifying traditional values.
At least two background conditions incline conservatives to refashion their defense of traditional sexual morality into claims for religious exemptions. For many years, conservatives have promoted "religion in the public square" and denounced objections to officially sponsored prayer and other forms of religious expression under government auspices as a "war on religion." Conservatives are also now much more willing to use courts to assert the role of religion in public life. While attacking liberal judicial decisions as "judicial activism," conservatives sought control of the courts, and, after decades of Republican judicial appointments, confidently use the courts-whether to strike down affirmative action, campaign finance regulation, and the ACA, or to vindicate religious liberty. Just as conservatives have turned color-blindness on its head, so too they now deride the "bogeyman of judicial activism" and praise "judicial engagement."
Why Complicity Claims Are Different
Now that conservatives have turned the Warren Court's activism and religious-liberty precedents to their own purposes, what are liberals to do?
Some would limit protections of religious liberty to cases of invidious discrimination and consequently reject exemptions from general laws on grounds of conscience. But one can challenge the Court's decision in Hobby Lobby and reject the conscience claims of bakers and florists without abandoning support for all religious exemptions.
Today's conflicts over marriage and health care feature a special kind of conscience claim-claims about complicity. The employers in Hobby Lobby objected that the ACA forced them to provide "insurance coverage for items that risk killing an embryo [and thereby] makes them complicit in abortion." Similarly, businesses in the wedding industry object to "facilitating" same-sex weddings. These complicity claims concern the conduct of third parties, other citizens who do not share the objector's beliefs, and so differ in fundamental ways from many other religious-liberty claims. For instance, in the recently decided Holt v. Hobbs case, a prisoner sought a religious exemption from the prison's general prohibition on beards; he was not seeking to avoid complicity in what he believed were someone else's sinful acts.
To be sure, complicity claims are bona fide faith claims. For example, Catholic principles of "cooperation" and "scandal" warn the faithful against complicity in the sins of others. Further, there should be no doubt that RFRA's broad language covers complicity claims. But unlike the claims that concerned Congress when it enacted RFRA, the accommodation of complicity claims is more likely to result in harm to third parties, such as women seeking access to contraception and abortion or same-sex couples going about their everyday lives.
In the free-exercise cases that Congress invoked in passing RFRA, religious minorities sought exemptions based on unconventional beliefs or practices generally not considered by lawmakers when they adopted the challenged laws. The costs of accommodating their claims were minimal and widely shared. For instance, granting exemptions from the drug laws to Native Americans who use peyote in ritual ceremonies only modestly detracts from the public interest in health and safety.
Complicity-based conscience claims differ from these other claims. Because complicity claims single out other citizens as sinners, their accommodation can inflict targeted harm. Complicity claims are increasingly entangled in culture-war politics as a means of mobilizing the faithful against the practices of people who depart from traditional morality. For these reasons, accommodation of the claims is fraught with significance not only for the claimants but also for those whose conduct the claimants condemn. These third-party effects need to be taken into account in weighing whether and how the government should accommodate complicity-based claims of conscience.
Why Hobby Lobby May Help
Supreme Court decisions have often limited the accommodation of religious liberty out of a concern about third-party harm. In the initial outcry over the Court's expansive interpretation of RFRA in Hobby Lobby, few paused to notice the language of limitation in the decision. The dissenting opinion by Justice Ruth Bader Ginsburg wasn't the only one to invoke third-party harm as a limiting principle on accommodating claims of conscience. The majority opinion by Justice Samuel Alito and the concurring opinion by Justice Anthony Kennedy also did so.
In fact, concern about third-party harm structured the majority's decision. The Court did not hold that religious liberty trumped the government's interest in women's health. Instead, it recognized the claim for accommodation on the narrower ground that the government could promote women's access to contraception by means that did not burden the plaintiffs' religious liberty. In fact, the majority opinion emphasized that the government could accommodate the plaintiffs' religious beliefs with "precisely zero" effect on their female employees because the government could in theory provide contraception without involving the employer.
The Court's reasoning in Hobby Lobby shows that the courts must take third-party harm into account in applying RFRA. Under the law, whenever the government "substantially burdens" a person's exercise of religion, it must demonstrate two things: the burden furthers a "compelling governmental interest" and is the "least restrictive means" of doing so.
These considerations are directly relevant to third-party harm. For example, if granting a religious accommodation would inflict harm on people protected by an antidiscrimination law or undermine societal values and goals the law promotes, unencumbered enforcement of the law is the least restrictive means of achieving the government's compelling ends. If, however, the government can accommodate the religious claimant in ways that do not impair pursuit of the compelling interests in banning discrimination, RFRA requires the accommodation.
This interpretation of the law does not dictate the outcome of a specific case, but it suggests that any accommodation of religious exercise must minimize, to the extent feasible, adverse effects on third parties.
Why adopt this approach to religious exemptions rather than refuse to accommodate conscience claims altogether? As a practical matter, more than 20 states now have RFRA-equivalent statutes and numerous other states have bills under consideration that adopt language similar to the federal statute. A large body of federal and state law authorizes wide-ranging religious exemption claims, and many judges have responded sympathetically to broad interpretations of these laws.
There also remain good reasons to respect claims of religious conscience. Laws of general application can inflict significant injury on religious groups, even if the laws do not single out those groups in invidious ways. At the same time, we need principled limits on the accommodation of a particular subset of conscience claims-complicity-based conscience claims. One group of citizens should not be singled out to bear significant costs of another's religious practice. The government may have to limit complicity-based conscience claims to avoid harming third parties who do not share the claimants' beliefs. This approach respects claims to religious freedom and the rights of other citizens-standing by conscience while recognizing its new role in culture-war conflicts.
