Thursday, May 3, 2018
That's the title of MOJ-friend and Seton Hall law prof Angela Carmella's new paper. The subtitle: "Drawing Lines between 'Participation' and 'Endorsement' in Claims of Moral Complicity".
The owners of small businesses and others involved in for-profit work occasionally refuse to provide a service to a patient, client, or customer on the grounds that to provide the service would render them complicit in immoral conduct in violation of their religious beliefs. Some of these conscientious refusals might be protected by legislation, regulation, or court decision, as in the case of a doctor refusing to perform an abortion, or an employer refusing to provide employees with contraception coverage. The new question raised—and soon to be answered by the U.S. Supreme Court—is whether wedding vendors (bakers, florists, and the like) who refuse to provide goods and services to same-sex couples will be similarly protected or whether they will be required to abide by the non-discrimination norms of public accommodations law. For those weary of religious claims in the culture wars, the very notion that the Court might extend legal protections to wedding vendors in such situations tends to cast doubt more generally on religion-based refusals in the for-profit context.
The purpose of this article is to draw a bright line between the traditional category of complicity claims and this newer category of wedding vendor claims. Traditional claims typically involve health care personnel and others refusing to participate in activities they consider to be immoral—most often those that entail ethical issues surrounding the beginnings and endings of life, such as assisted reproduction and assisted suicide. In contrast, this newer set of claims involve wedding vendors refusing to endorse activities they consider to be immoral, like the marriage of a same-sex couple. Herein lies the critical distinction: participation in immoral activity is not the same thing as endorsement or approbation of someone else’s immoral activity. The wedding vendors concede the distinction, as they expressly claim the right not to endorse a message with which they disagree, but they seek to extend the protections of traditional complicity jurisprudence to their claims. The article contends that the traditional complicity jurisprudence, which allows businesses to refuse to participate in activity they consider immoral, has little, if anything, to say about refusals to approve the conduct of others. The Supreme Court should not extend this jurisprudence to the wedding vendor context.
You can download the paper here.