3A. Does Requiring Employers to Provide Insurance Covering Certain Behavior Substantially Burden Employers’ Religious Practice?

(For an introduction to this series of posts, see here.)

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1. Some people have argued that RFRA shouldn’t apply in Hobby Lobby because the employer mandate doesn’t require employers to actually do anything they see as sinful. The employers aren’t required to use the implantation-preventing contraceptives that they see as immoral. They aren’t required to administer them, or even handle them. They are just required to provide insurance policies that their employees may then choose to use to buy those contraceptives. (Note thats this argument would apply to employers who are sole proprietors as well as to employers who own the business through a corporation, so I largely won’t focus on the corporation point in this post; for more on that, see this post. [UPDATE: I did add a few sentences to the post below that touch briefly on the corporation / substantial burden interaction, but the bulk of the corporation discussion remains in the earlier post.])

And this argument would be perfectly valid if a RFRA claim is brought by an employer who thinks the only relevant sin is actually using the implantation-preventing contraceptives. If the employer is called to the stand and was asked, “Do you think that it is religiously wrong for you to provide this insurance?,” and the employer says, “no, that’s fine, only using the contraceptives is sinful,” then the employer has admitted that the employer mandate does not impose a substantial burden on his beliefs.

But, unsurprisingly, many people believe that, when some behavior is wrong, many sorts of complicity with that behavior are wrong, too. Many secular people believe this. The law takes this view, in all sorts of contexts. Religious people believe it, too.

True, people disagree about when complicity stops. Some people think that race discrimination itself is wrong, and thus didn’t want to do business in South Africa if they had to discriminate in hiring to do so. Others thought they shouldn’t do business in South Africa even if they could do so without discriminating. Others thought they shouldn’t do business with South African companies. Others may have thought they shouldn’t buy any products made in South Africa. Some people might have thought their complicity would be cut off by the use of the corporate form (“I’m not the one who’s doing business with South African companies, it’s just the corporation that I own that’s doing that”), though I suspect many people would not have taken that view. Where the connection becomes too attenuated, and morally or religiously culpable complicity stops, is a question on which reasonable people will differ.

But for purposes of RFRA, the question isn’t whether a judge or jury agrees with a person’s claim that a law requires him to engage in behavior is sinful — it is whether the person sincerely believes that the behavior is sinful. Likewise, when the person believes that complicity itself is sinful, the question is not whether our secular legal system thinks that he has drawn the right line as to complicity; it is whether he sincerely believes that the complicity is sinful.

2. Thomas v. Review Board (1981) is the classic illustration of this. Thomas had been working at a machinery company, and was transferred to a department that produced tank turrets. Thomas refused to work on such military production, and was fired. Under the Court’s Free Exercise Clause jurisprudence, whether Thomas could claim unemployment compensation turns on whether his refusal to work on war production was an exercise of his religion. The lower court had said that it wasn’t, but the Court reversed (emphasis added):

[The Indiana Supreme Court noted] that 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 ….” The court found this position inconsistent with Thomas’ stated opposition to participation in the production of armaments.

But Thomas’ statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.

Thomas wasn’t, of course, being required to kill anyone using a tank, to fire a tank gun, to ride in a tank helping the gunner, or to assemble a completed tank. But he thought that the religious prohibition went further than that. Even making tank turrets — though not making steel that would go into a tank — was, he thought, itself sinful complicity with sin.

And the Court held that it was for him, not for the secular courts, to figure out where he thought God wanted him to draw a line. The “substantial burden” requirement didn’t require that the connection be “substantial” enough in the secular legal system’s understanding of complicity. (A burden might be insubstantial because it imposes too small a secular cost to count, not because outsiders to a religion think that a causal connection is too weak to count as sinful complicity.)

Likewise, the Hobby Lobby owners drew a line: Providing health insurance — including through their closely held corporation — that covers what they see as tools for homicide is sinful complicity with sin. Providing salaries that employees may use to buy the same tools, or hiring employees who use those tools, is not.

Many of us might draw the line elsewhere (even if we agreed with the judgment that the potentially implantation-preventing contraceptives are sinful). But it is for the owners of Hobby Lobby to draw the line, and not for the courts to second-guess it. Perhaps there is a compelling interest that justifies the substantial burden that the law imposes on the owners — more on that tomorrow — but courts cannot say that the burden is insubstantial simply because they think the complicity is too attenuated.

3. And this should look especially sensible, I think, given how wide an array of judgments our own American legal system has on the subject of complicity.

If you help someone with the purpose of helping him commit his crimes, you’re guilty of the crime itself, as an accomplice. If you help someone knowing that your actions are helping him commit the crime, you aren’t an accomplice under the laws of most states — but you are under the laws of some states.

What’s more, the rules differ for different kinds of conduct. For instance, informing a particular person how to make a bomb, knowing that he plans to make a bomb (even if you have no specific purpose to help him do so), is a crime under federal law. Likewise, knowingly providing assistance to a foreign terrorist organization is a crime even if you don’t have the purpose of advancing the organization’s terrorist goals, but are just trying to promote the organization’s supposedly humanitarian wing, or are trying to teach the organization’s members about international law.

Knowing distribution and even possession of child pornography is banned, chiefly on the grounds that such distribution and possession tend to cause the making of child pornography by creating and sustaining a market for such material. The causal connection between possession of child pornography and the production of child pornography is quite indirect (though real). But the law criminalizes possession nonetheless, based on that connection.

And that’s just the criminal law. If you know or have reason to know that your actions are materially helping someone infringe copyright, you are guilty of contributory copyright infringement. And in some situations, you can be vicariously liable for copyright infringement even if you weren’t negligent — for instance, if a band performs a song in a bar that you own and it turns out that (despite their assurances to the contrary) they weren’t licensed by the owner of the copyright in the song.

Beyond copyright law, people can be liable for negligently facilitating another’s criminal conduct. Landlords can have their property seized if they negligently allowed it to be used for drug transactions. And the list could go on.

Given this widely varying array of judgments about complicity in a single secular legal system, it’s not surprising that people would have still more varied judgments about religious obligation to avoid complicity. And it’s also not surprising that people might feel that God’s demands that they distance themselves from sin would be broader than Caesar’s demands.

And some of the legal system’s judgments about complicity are actually not that different from the judgments that the Hobby Lobby owners make. I suspect that if, for instance, a company had a policy of reimbursing employees for contributions they make to charitable groups that were on a particular list, and one of those groups was known to be a foreign terrorist organization, the company owners and not just the employees could be held criminally liable for providing material support to that organization.

The legal system views the foreign terrorist organization’s crimes as so bad that even indirect financial support for those crimes is felonious complicity. I suspect the same would be true if corporate owners and managers knowingly provided for this payment to a foreign terrorist organization via a corporation, and prosecutors went after the owners and managers directly. Authorization by corporate owners and managers of criminal action makes them criminally complicit in that action. Likewise, the Hobby Lobby owners view the use of certain contraceptives as so evil that even indirect financial support for that evil is sinful complicity that they have a religious obligation to avoid.

Again, this doesn’t mean that Hobby Lobby should win — perhaps there is a compelling interest justifying the substantial burden that the employer mandate imposes. But, under RFRA, the question whether there is such a substantial burden should be based on the Hobby Lobby owners’ sincere judgment about what constitutes culpable complicity with sin, and not on our judgment.