6. Beyond RFRA: What Should We Think of Mutual Duties of Accommodation?

Whew. That was a lot of writing on Hobby Lobby last week, and a lot of reading. I hope it was helpful, interesting, or both. Now, fortunately, I’m finishing up, but I wanted to close with one broader thought, going beyond the purely legal RFRA question. (I should also note that this thought is even more tentative than some of the ones in the earlier posts, precisely because it’s about pragmatic and moral matters on which I’m not expert, rather than on legal matters.)

One common argument in favor of religious exemptions is that, if possible, people should be able to live full lives as Americans without having to violate their religious beliefs — even if that means that our legal system will change in some measure to accommodate those beliefs. In large measure, the American legal system has provided such accommodations. Indeed, at least throughout much of America’s history, it provided them far more than nearly all other countries.

This willingness, I think, has been a source of American strength. It has brought people of all religions to our shores, at a time when such immigration was vital to our prosperity. (I think immigration remains vital to our prosperity even today, but let’s set that debate aside for now.) It has helped America harness the energy of all its residents, minimizing the sense of alienation that religious minorities have felt.

And it has helped America largely avoid the religious conflicts of Europe, conflicts that the Framers were keenly aware could lead even to civil wars. The beneficiaries of such accommodations have been many and varied: Quakers, Catholics, Jews, and many more. I myself am not religious, but I think this tradition of accommodation is worth preserving (recognizing, of course, that not all practices should be accommodated, for the reasons I discussed throughout the past week).

But one source of our nation’s strength, I think, has also been the human tendency to accommodate one’s practices to the demands of a democratic legal system. Of course, many religious beliefs have been famously resistant to change. But many others have indeed shifted over time, including in response to legal pressure, and I think many of the shifts have been for the better.

The most famous example in American history, of course, has been mainstream Mormons’ 1890 renunciation of polygamy. I’m not an expert on the history of Mormonism in the 19th century; my sense is that there were plenty of misdeeds to go around back then, both from Mormons and from non-Mormons. But whether or not it was right (or constitutional under modern standards) for the federal government to pressure Mormons to abandon polygamy, my sense is that the Mormon Church and the nation as a whole is stronger as a result of the Church’s accommodation to mainstream American norms on this subject.

And beyond this, I think there’s been a far deeper accommodation of religious people to American law, which touches on the issue of complicity that I discussed as a legal matter a few days ago.

If you live in a religious pluralistic country — indeed, even if you are a conservative Christian living in a country that is mostly Christian but not in quite the same way that you are — you have to accept that your government will do some things that you disagree with. Indeed, it will do some things that you think are evil. Your fellow citizens will do the same.

Moreover, you will always have some degree of possible complicity with such evil, if you define complicity broadly enough. Most obviously, you will pay taxes. They can be used to fund killing people in what you think are unjust wars (or in any war, if you oppose all war). They can be used to fund killing fetuses through abortions, which you see as murder. They can be used to fund what you see as killing embryos through implantation-preventing contraceptives.

They can be used to fund contraceptives, which you might think are against God’s plan. They can be used to fund blasphemy, the production of idols, labor on the Sabbath, “marriages” that you view as abominations, or whatever else.

Likewise, you (or some of your coreligionists, unless all of you largely retreat from normal economic life) will have employees. Those employees may do things that you think are evil — blasphemous, immoral, murderous — using the salaries you pay them. And if you try to avoid such complicity by firing the employees, the government may (in some circumstances) step in to prevent that, because of the public view that employees have some rights not to lose their jobs based on certain behavior (e.g., their own religious practices, in many states certain political activities, in many states their sexual practices or marital decisions, in some states lawful off-duty activities, and so on).

Necessarily, pretty much all religious groups that still live (at least in law-abiding ways) in America have had to accommodate themselves to this sort of complicity. Perhaps they never had a broad enough view of sinful complicity to lead them to object to, say, paying taxes. But if they did, they either accommodated this obligation or left the country. (Even if they can manage to avoid having to pay income taxes, it’s very hard to live without paying any taxes, including property taxes, sales taxes, excise taxes, and so on.) And it’s good that they have seen their way clear to living law-abiding taxpaying lives in their and our country, even if they condemn some of the things the country does.

Likewise, even employers who oppose abortion or potentially implantation-preventing contraception are generally fine with paying salaries to employees who then use some of the salaries to get abortions or to buy IUDs, and don’t view this as sinful complicity. That’s good, too, for them, for the employees, and more broadly for the nation.

As I mentioned in my post on the substantial burden threshold, RFRA doesn’t authorize courts to decide what sort of complicity is “really” sinful and what sort of complicity isn’t really sinful. If people sincerely believe that some degree of complicity — including that involved in paying taxes — is religiously forbidden, then requiring such complicity counts as a “substantial burden” for legal purposes (though exemption requests may still be rejected if such a rejection is the least restrictive means of serving a compelling government interest). “[They] drew a line, and it is not for [secular courts] to say that the line [they] drew was an unreasonable.”

At the same time, when we as citizens — and potentially as voters deciding when to craft religious exemptions — consider the moral weight of religious objectors’ objections, maybe we might rightly pay some attention to where people draw lines. If objectors define complicity broadly enough, to the point that they become harder and harder to accommodate without substantial losses to taxpayers or substantial interference with others’ private rights, I sympathize less with their claims.

If someone says, “I refuse, for religious reasons, to perform abortions,” I sympathize a lot. There are indeed already laws that let people opt out of direct participation in performing abortions. One can debate whether those laws are a good idea when they bar private employers from insisting that their employees participate in abortions, but I agree that at least the government generally shouldn’t threaten to take away doctors’ licenses (for example) for refusing to perform abortions. Likewise, if someone says, “I refuse, for religious reasons, to fill prescriptions for morning-after contraceptive pills,” I sympathize in considerable measure; some accommodation in such situations may be quite sensible.

But, to go to the other end of the spectrum, if someone says, “I refuse, for religious reasons, to pay any taxes that might end up paying for abortions or morning-after pills,” that person has drawn the line of complicity at a level that puts him beyond feasible accommodation. If that’s his sincere religious belief, then I suppose he’ll have to comply with what he sees as God’s law. But secular law won’t, and needn’t, yield to those beliefs. His rigidity has put him outside the zone of accommodations that our legal system ought to provide.

Likewise, if a pharmacist not only refuses to fill prescriptions for morning-after pills, but refuses to even call over another pharmacist to help that too might be beyond the scope of accommodation. The same might be true if a doctor not only refuses to perform abortions, but refuses to inform a patient that an abortion may be medically called for in the view of secular authorities. (The details of what should be done might vary considerably, depending on whether the pharmacist’s or doctor’s action leads to loss of employment or loss of a license to practice, on whether the action is likely to materially interfere with the patient’s health, and so on.)

And if the person asks, “How can the legal system put me to such a horrible choice, between sinful complicity and punishment?,” the answer may be, “The more broadly you define complicity, the less sympathy we will have for your predicament. The less your views about religious law accommodates the practices of others, the less secular law will accommodate your practices.”

Where exactly the Hobby Lobbies of the world fall on this continuum, I leave to others to decide. More generally, I stress again that I speak here about pragmatic and moral matters on which I have no special expertise, and not about how our current law of religious exemptions operates. But I thought I’d close this series of posts on this slightly broader note, for whatever it might be worth.