The Case for Complicity-Based Religious Accommodations
12 Tennessee Journal of Law & Policy, 2017, Forthcoming
35 Pages Posted: 25 Jun 2017 Last revised: 26 Jul 2017
Date Written: June 25, 2017
In recent years, religious objectors in high-profile religious liberty cases such as Burwell v. Hobby Lobby and Zubik v. Burwell have claimed that government policy would force them to become complicit in the moral wrongdoing of third parties. In their article Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516 (2015), Professors Douglas NeJaime and Reva Siegel argue that these complicity-based religious liberty claims should be disfavored. According to their theory, complicity-based claims differ from other religious liberty claims in both "form" and "social logic" because they impose "material" and "dignitary harms" on third parties.
This article argues that NeJaime and Siegel's third party harm theory is fundamentally flawed, and that complicity-based religious accommodations are both a traditional and necessary part of the American legal framework. Part I examines past Supreme Court precedent in the area of free exercise and finds significant support for complicity-based accommodations. Part II reevaluates the magnitude and legitimacy of the asserted third party harms, then weighs the inconveniences imposed on third parties against the injuries to religious claimants should accommodations be weakened or withdrawn. Part III contends that culture war conflicts will not be resolved through the elimination of religious accommodations in the complicity context, and proposes a subsidiarity-based alternative to imposing coercive legal penalties on religious objectors.
Keywords: religious freedom, religious liberty, accommodations, RFRA, religious freedom restoration act, NeJaime, Siegel, First Amendment, free exercise
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