Thursday, November 02, 2017

Complicity and Mandates

by Michael Dorf

In my latest Verdict column, I criticize the federal government's argument defending its initial refusal to permit a 17-year-old undocumented immigrant to temporarily leave federal custody for an abortion at private expense on the ground that thus releasing her would render the government complicit in the abortion. I explain that this is an extravagant view of complicity but that the government could be excused for thinking it might succeed because a similarly extravagant view of complicity might well have succeeded in the litigation challenging the exemption procedures from the Obamacare contraception mandate had the case not ultimately been resolved via a more or less forced settlement. There, the plaintiffs argued that having to ask for an exemption from the obligation to provide contraception insurance would itself implicate them in the provision of contraception insurance that would ultimately be provided by others. In the column, I liken that argument to the following hypothetical example:
Suppose that I, as an ethical vegan, do not wish to facilitate the consumption of animal products by others (as I most assuredly do not). It would be understandable for me to ask my boss to excuse me from, say, cooking and serving cheeseburgers at a company picnic. It would be absurd for me to complain that my boss should not make me ask to be exempt from such a duty, because when I ask, that will result in somebody else serving the cheeseburgers, which will implicate me. Even if that is actually how I feel, and even if I regard the raising, exploitation, and slaughter of cows and steers to make cheeseburgers as immoral (which I do), a definition of complicity that goes this far is unworkable.
My column then turns to Masterpiece Cakeshop and argues for a narrow definition of complicity more generally, essentially on grounds of democratic pluralism. We are a diverse People with diverse beliefs and practices. If we are to get along with one another, we must be able to understand that dealing with one another does not usually render us complicit in one another's choices. Here I want to add a few words about how that principle interacts with the difference between laws that prohibit conduct and laws that mandate conduct.

Suppose that, according to Smith's religion, he must periodically engage in peyote rituals. A law bans all peyote use. Under the Religious Freedom Restoration Act (RFRA) and similar state law provisions, Smith will be entitled to an exemption from the law. Others will be entitled to exemptions from other general laws (i.e., laws that do not target religion specifically) that forbid them from engaging in practices they believe to be religious obligations. In such cases, the claim is straightforward. The claimant has a religious obligation; the law forbids the fulfillment of that obligation; the claimant, if successful, will be exempt from the law. Such cases may or may not succeed, but they do not raise issues of complicity.

Complicity only arises when the government mandates certain conduct. The government rarely mandates conduct, however. The plaintiffs in NFIB v. Sebelius were wrong about a lot of things, in my view, but they were right that straight-up mandates are unusual. Jury service and the draft are two instances, mostly known because they stand out.

However, the government very frequently imposes conditional mandates. If you operate a restaurant, you must obey special rules about how you store and handle food. If you drive a car, you must wear a seatbelt. If you operate a hotel, you must accept customers regardless of race. Etc.

Most conditional mandates can also be phrased as prohibitions. You may not operate a restaurant that fails to comply with the rules about storing and handling food. You may not drive a car while not wearing a seatbelt. If you operate a hotel, you may not discriminate based on race. Etc.

By contrast, not all prohibitions can be rephrased as mandates. Simple prohibitions don't really mandate anything. E.g., one can refrain from using peyote without affirmatively doing any other particular thing. Accordingly, despite the possibility of reframing most mandates as prohibitions, it is analytically useful to distinguish between, on one hand, mandates (conditional or absolute), and, on the other hand, prohibitions that cannot be reframed as mandates.

Useful why? Because conditional mandates but not prohibitions (that cannot be rephrased as conditional mandates) can give rise to complicity claims. The owners of Hobby Lobby, Masterpiece Cakeshop, and other businesses who claim on grounds of religion or otherwise that they do not wish to perform some legally required act because doing so will implicate them in what they regard as the sins of others are only able to make that claim because the law to which they object can be phrased as a mandate.

Well, so what? Maybe that point is mildly interesting, but does it have any consequences? I think it does.

One argument against complicity claims is itself conditional. In response to Masterpiece and its owner, the following objection is sometimes made:

Objection:  No one is forcing you to bake a cake for a same-sex wedding celebration, because no one told you that you had to operate a bakery.

To which others in turn respond like this:

Response: Well that's a tough choice to which you're putting the baker. You're telling him that as the price of practicing his favored trade he must give up his religion or his right not to speak. That's not fair.

I confess that in the past I have found sufficient force to the Response to dissuade me from posing the Objection (and accordingly, the brief that the Shiffrins and I filed in Masterpiece does not rely on the Objection). However, now that I have reflected on the fact that only mandates give rise to complicity claims, I find the Response somewhat less persuasive and thus the Objection somewhat more forceful.

Why? Because I think that Response does not adequately reckon with the ancillary powers of the state when it regulates the market.

Suppose the government told random people who happened to be skilled home bakers that they had to start baking wedding cakes for strangers. Even if the involuntary bakers were fairly compensated, I can't imagine such a policy enjoying any support. We might think it's unconstitutional on Thirteenth Amendment grounds, but even if not, we would almost universally condemn the mandatory baking law as an enormous governmental overreach. We know that because simple mandates--as opposed to conditional mandates--are incredibly rare.

And yet, even though there is either a constitutional right or a very strongly felt moral right not to be compelled to bake cakes for people for whom we don't want to bake cakes, if one chooses to enter the baking business, one can be subject to extremely intrusive mandates relating to, among other things, tax collection, occupational safety and health conditions, wages and hours for employees, sanitary conditions of facilities, discrimination, and more. Although strong libertarians object to many of these conditional obligations, since the late 1930s, it has been settled among constitutional lawyers and most of the general public, that such conditional obligations are perfectly acceptable.

We routinely take for granted that if someone voluntarily enters a business, he subjects himself to all sorts of onerous obligations that would be seen as severe restrictions on liberty in the absence of the business undertaking. That fact, I want to suggest, makes the Objection more plausible. We can concede that it substantially infringes liberty to require someone to do something that, she feels, renders her complicit in evil; but we can deny that the infringement is worse--either quantitatively or qualitatively--than all of the other sorts of substantial infringements on liberty that we routinely expect people to accept as a condition of running a business.