Friday, July 10, 2015
I thought to add three quick thoughts to the points in Rick's post below on complicity, dignity harms, and other matters, with which I largely agree (my full response to the points made in the article by Professors Siegel and NeJaime may be found in the article to which Rick kindly links).
First, as to complicity-based claims for religious exemption. The core claim of the paper by Professors Siegel and NeJaime is that the sorts of exemptions requested in Hobby Lobby and several subsequent controversies are "distinctive" in "form and social logic" because of the issue of complicity in the wrongful conduct of others, a feature that was not present in previous religious exemption cases. Professors Siegel and NeJaime do seem at certain places to say that complicity focuses on the wrongful acts of others. But at several other points, they are much more interested in the third party's character than in his conduct. They write, for example, that complicity-based exemption claims are distinctive because they focus on the accomplice's "relationship to the third party," or that such claims are "oriented toward third parties who do not share the claimant’s beliefs about the conduct in question," or that such claims are really about conflicts between the "traditional morality" of the accomplice and the other sort of morality (progressive morality?) of the third party.
This sort of movement from conduct to character is nicely captured in their comments about Thomas v. Review Board. For those that may not remember, Thomas concerned a request for religious accommodation that also was based on an objection dependent on the concept (if not the precise language) of complicity: “Thomas admitted before the referee that he would not object to working for United States Steel or Inland Steel…produc[ing] the raw product necessary for the production of any kind of tank…‘[because I] would not be a direct party to whoever they shipped it to [and] would not be…chargeable in…conscience.” By contrast, working on tank turrets, Thomas believed, would render him a “direct party to”—that is, someone who aided or assisted—those third parties who contributed to the war effort. Professors NeJaime and Siegel purport to distinguish Thomas on the ground that Thomas did not “single out a particular group of citizens as sinning.”
That's both incorrect and irrelevant. It's incorrect because Thomas did single out those citizens to whom weaponry would be shipped and who would use it in ways to which he objected in conscience. And it's irrelevant because it mistakes the relevant issue as character rather than conduct. Singling out the morality or the character traits of third parties makes no difference, since the conduct, not the character, of the third party is what matters for complicity-based claims. Of course, the conflation of conduct and character is a recognizable though deeply regrettable move in many of the sorts of disputes implicating these issues. But, at least historically, accomplice liability (in criminal law, for example, where it is most at home) focuses on the conduct, not character, of the principal in addition to the state of mind of the accomplice (as Rick notes). And Thomas is hardly the only case in the accommodation canon that looks like this. I list some others in the paper.
Second, on dignitary harms, I'd point out the following interesting language in Justice Kennedy's concurrence in Hobby Lobby: "In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts." Liberties conflict in our legal system; do we gain something by noting that dignities conflict as well? Is Kennedy saying that Hobby Lobby could have asserted that the contraception mandate injured its dignity? That seems to be the way he sees its statutory claim. And that injury gives rise to...what? Here the plaintiff was relying on RFRA. Could it have relied on the Due Process Clause? Suppose that in a hypothetical future case (after RFRA is repealed), this sort of dignity claim conflicts with the sort of dignity claim favored by Professors Siegel and NeJaime--a "traditional morality" claim against a "progressive morality" claim. What sort of standard will we use to adjudge such disputes? May one hope against hope that the Supreme Court will forebear from constitutionalizing the true foundations of human nature and identity?
Third, suppose we were to constitutionalize dignitary harm in the way advocated here and elsewhere. And suppose we were to do so after the fashion sometimes advocated by third-party-harm scholars. We could say, for example, that religious accommodations that impose dignitary harms on third parties (substantial, or important, or material, harms, to be sure) violate the Establishment Clause. I wonder what then happens to the Establishment Clause grounds for the ministerial exception. Does the Establishment Clause cannibalize itself? As I say in the paper, I bet Cheryl Perich and many other plaintiffs who are losers in ministerial exception cases suffer quite significant dignitary harms. They are surely judged, stigmatized, demeaned, and injured in all sorts of ways (quite unpleasant ways in Ms. Perich's case). Is that kind of substantial dignitary injury, which could now be protected by the Establishment Clause, a new limit on the scope of the ministerial exception?