Discriminatory state Religious Freedom Restoration acts—proposed most recently in Indiana and Arkansas and coming soon in Louisiana—have been described as reactions to a spate of big wins for the gay and lesbian community, most notably in reaction to marriage equality. The proposed Louisiana version, for instance, would allow private businesses to refuse to recognize same-sex marriage and to deny benefits to same-sex married couples. According to press coverage in recent weeks, these religious freedom acts have their genesis in pushback against LGBT rights. A piece last week in the New York Times claimed, “the campaign by conservatives to make ‘religious liberty’ a rallying cry made its public debut in 2009, when a coalition of conservative evangelical, Roman Catholic, and Eastern Orthodox Christian leaders issued a manifesto they called the Manhattan Declaration, proclaiming that they would not cooperate with any laws that compelled them to recognize same-sex marriages or enable abortions.”
But these religious freedom arguments are actually rooted in an older movement, a decades-old effort to protect religious “conscience” through health care refusal laws. And it’s a movement that goes far beyond cake bakers and florists, sweeping in physicians, pharmacists, and insurers. Unless you see these new RFRAs as of a piece of this much broader, deeper social movement, you are missing the context that helps frame the debate. Doug NeJaime of the University of California–Irvine and UCLA law schools and Reva Siegel of Yale Law School expose these real origins of the new religious freedom claims in their law review article, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” coming out soon in the Yale Law Journal. In their telling, nothing about Indiana is new or surprising.
Indiana Gov. Mike Pence defended his state’s RFRA as recalibrating the balance of civil rights and “religious freedom.” But these are simply not your father’s religious liberty claims. As Siegel and NeJaime note, the claim here is not that a religious individual is being forced to do something that violates his religion, such as shaving his beard; it is that he must be free from endorsing or enabling the behavior of others who are engaging in what he sees as sinful behavior. This was the central claim of the employers who sued in Hobby Lobby. They argued that it was itself sinful to provide health coverage to employees who might then use those benefits to engage in ostensibly sinful conduct. This is the same argument as the business owner’s claim that frosting a cake or arranging the calla lilies for a same-sex wedding is an act of “complicity” in a union that the business owner deems sinful.
Why does this matter? Because as Siegel and NeJaime argue, the new religious objections affect bystanders, ordinary folks in the greater community. These “third parties” are just people (often marginalized people, like gay couples or women seeking birth control) whose beliefs and values are not shared by the religious claimant. The authors point out that these new complicity-based religious conscience claims may well be authentic and sincere, as were the religious freedom claims originally contemplated by Congress when it drafted and passed the RFRA in response to a Supreme Court decision that declined to protect the religious freedom of Native Americans seeking to use peyote in a religious ceremony. But the new RFRAs may hurt third parties in ways these earlier state and federal RFRAs never quite imagined. The intent of this new article is to consider why.
The authors first consider Holt v. Hobbs, the challenge to the Arkansas Department of Corrections brought by a Muslim inmate seeking to wear a slightly longer beard than the policy allowed. The court determined that Gregory Holt was entitled to a religious accommodation, in large part because the costs to the prison of providing that accommodation (vague security claims that were easily dismissed by the court) were so minimal. Holt nowhere claimed that he was aiding and abetting someone else’s sinful conduct. His claim was that his religion demanded that he wear a beard of a certain length.
In drafting the federal RFRA, Congress chose not to protect claims of religious freedom that placed a burden on third-party disfavored minorities. Responding to a federal appellate court case, Thomas v. Anchorage Equal Rights Commission, involving a landlord who didn’t want to rent to unmarried couples for fear of facilitating sin, Congress expressly opted not to enact a statute that would protect these types of claims.
Siegel and NeJaime contend that Hobby Lobby was decided largely on Justice Anthony Kennedy’s assurance, on behalf of the majority, that third parties would not be harmed by the accommodation afforded the religious employers: Employees denied contraceptive coverage would supposedly just receive these same benefits from the government. If the costs had fallen very heavily on women, the authors contend, the majority, or at least Kennedy, would have looked at the case quite differently. (As it turned out, Kennedy was probably optimistic.)
The real incubator of the complicity-based claims in Hobby Lobby was the raft of health care refusal laws passed over the past few decades to protect doctors, nurses, and pharmacists who had religious objections to providing any contraception, sterilization, and abortion services. I wrote about the almost imperceptible expansion of these exemptions a few years ago. These laws originated with the passage of the Church Amendment in 1973, shortly after Roe v. Wade, to ensure that recipients of federal funds would not force any physician or nurse to perform or assist in any abortion or sterilization procedure in violation of their conscience. The authors of the new article are careful to point out that these were laws seeking to be responsive to genuine faith claims, especially for Catholics barred by the doctrine of cooperation from participating in these acts.
State versions of these laws ballooned in the 1990s and 2000s to include conscience objections to contraception, and also to sweep in protection for medical professionals who didn’t want to even counsel patients seeking these services or refer them to other providers who would. Some state versions, like Mississippi’s, expanded the range of health care providers as well, including pharmacists who didn’t want to sell contraception. Soon this type of exemption began to sweep in insurance plans as well. The connection between the actor, the act, and the third-party client was becoming ever more attenuated, without much attention being directed at the costs borne by the third parties.
The crucial shift, according to Siegel and NeJaime, however, was not just that conscience claims were expanding but that religious political movements shifted their arguments. As they put it: “Without change in numbers or belief, religious actors can change from speaking as a majority seeking to enforce traditional morality, to speaking as a minority seeking exemptions from laws that offend traditional morality.” This was a rapid and dramatic about-face, and one that was born in losses on the marriage-equality front. As arguments against marriage equality began to sound more clearly like bigotry, arguments for religious liberty became doubly attractive. What they did was turn to the post-Roe religious conscience template as a strategy for fighting back.
I asked Siegel and NeJaime why it’s so important to see this year’s RFRA fights against the larger backdrop of decades-long “complicity claims” in religious conscience legislation. They explained that, “this is part of a several-decades-long objection to laws that depart from traditional sexual morality, whether concerning contraception, abortion, or same-sex marriage. Those asserting claims about same-sex marriage are self-consciously drawing on objections to abortion and contraception as they advance objections to interacting with persons in same-sex relationships. These conscience objections run beyond the wedding industry to implicate a much broader set of goods and services, including healthcare and employment benefits.”
It’s easy to look at the religious bakers and pizza-makers as victims of religious discrimination, and even easier to suggest that gay patrons of such companies should simply be generous and shop elsewhere. But Siegel and NeJaime detail the myriad harms to third parties that have come about because of the health care exemptions that have been in place for years now. Patients are denied medical services, lose access to prescriptions, may not receive crucial medication, and more, and these refusals may become norms across hospital systems. These refusals legitimize discrimination and stereotypes and also harm human dignity. We have seen how the religious conscience exemptions have played out in recent decades, and the harms are significant and tangible. It’s easy to say religious freedom claims stop at wedding cakes or photographs, but in the health care context, the harms have been broad and systematized.
Looked at in isolation, Indiana’s and Arkansas’ RFRA laws may seem like efforts to strike a fair balance between religious freedom and LGBT rights. But looked at as part of a decades-long enterprise—one that is seeing success every day in the courts—it’s important to see how these complicity claims have brought actual harms to third parties. These movements are neither new, nor limited in scope and ambition, and they are certainly not always harmless.