Thursday, July 12, 2018

Complicity Jurisprudence as the Next Conservative Opt-Out from Modernity

by Neil H. Buchanan

How much interaction with unpleasant reality must anyone be expected to endure?  That would not seem to be a particularly pressing legal issue, but it seems that it has been keeping the Supreme Court's arch-conservatives up at night.  Americans who wish that they did not have to go out in the world and interact with other people of different religions, races, beliefs, and political views seem to have found salvation (pun intended) in a bloc of justices who are eager to protect fragile conservatives from being "complicit" in things that make them uncomfortable.

That is the thesis of my new Verdict column, in which I tie together the Court's recent anti-union case (Janus v. AFSCME) and its run of cases in which Christian conservatives have been unexpectedly validated by a Court that says that they do not have to do things that they view as immoral.  My tone in the column is unsympathetic to the people who beg the courts to allow them not to participate in any way in unpleasant things, but I do want to spend some time here giving the instinct to self-separate its due.

It is, of course somewhat ironic that conservatives are so committed to allowing themselves to be isolated from things that they find icky, because one of the big memes coming out of the 2016 election was that liberals had hidden in bubbles and thus did not know how angry Trump's supporters were.  This meme is nonsense, of course, but conservatives have gotten plenty of liberals to believe it, reinforcing the idea that liberals cannot bear to deal with the much-touted Real Americans that Republicans claim to champion.

The argument in my Verdict column is based in part on the oral argument in Janus, in which Justices Kennedy and Alito went on the attack against the unions' lawyer.  Kennedy's big point was that the plaintiff in the case did not like unions, and even though his dues were not being used to do any of the political things that make conservatives hate unions (the dues instead being used to prevent free-riding by people who benefit from the union's negotiations with state and local governments), the unions would have more political influence if AFSCME won the case.

Why does that matter -- so much so that Kennedy said it was "the end of the case" when the union's lawyer stated that unions will have less influence if they lost the case?  Because the plaintiff does not want unions to have influence, and so his being required to pay money to allow the union to do what it does is to require him to keep the union alive.  And we can't have that.  Anti-union people must, we are told, never be in a position where they in any way assist unions, even for a perfectly good reason (and even when the anti-union people have personally gained from the activity).

This means that the Court's conservatives have now extended their tender embrace of conservative Christians to include non-religious conservatives as well.  In Hobby Lobby, Little Sisters of the Poor, and Masterpiece Cakeshop, movement conservatives have been pushing a line of argument that says that people must not be required to do anything that feels (to the believer) like participation in a sin, because people have the right not to be complicit.  In Janus, we learn that -- religion aside -- even a person who is simply paying for benefits that he receives cannot be compelled to do so because he becomes complicit in the perpetuation of unions.

As I noted above, I actually do understand the underlying motivation behind such feelings.  This, after all, is often the purpose of boycotts, where people decide that a person or organization should not be supported because of a disagreement about an issue of concern.  Even short of boycotts, simple shopping decisions can be made in part on this basis.  As a vegan, for example, I am willing to eat at restaurants that serve animal products, but I will not go to a steak house (even if it serves salads and vegetables).  It is an arbitrary and contingent decision, but it is my decision.

I also understand the sense that one does not want to be part of something that supports what one thinks of as evil.  I have long chafed, for example, when American presidents issue proclamations saying that "the American people grieve" at the death of someone whom I think of as awful.  You don't speak for all of us, Mr. President.  Shut up! 

But it becomes rather messy when we start to think about the ways in which people can feel that they are somehow complicit in a larger picture.  A person who hates unions probably also opposes prevailing wage laws, which means that he is living in a society where governments that purport to represent him are supporting an economic philosophy that he opposes.  Indeed, a government that adopts the policies that a union would have asked it to adopt (even when there is no union) could be seen as insulting the very sensibilities that the Janus plaintiff wanted to have protected.  The public/private distinction, in other words, is one of the gray areas that hovers over this entire discussion.

The most obvious area in which people can find complicity, however, is in the direct actions of governments.  An acquaintance once told me that he did not think governments should permit abortion because that permission made him complicit in abortions.  Note that he did not say that the government should not pay for abortions, although he obviously believed that to be obvious as a threshold matter.  He said that having a government refuse to ban abortion made him complicit when women exercised their legal rights to control their bodies.  After the Court's recent run of cases, and with a new hyper-conservative justice soon to join the others, I wager that arguments like that are going to receive a respectful hearing, at least.

The "taxpayer standing" cases grapple with this problem, too.  When citizens opposed to the Vietnam War said that they should not be forced to pay for an immoral war, the Court said that they had to live with what their duly elected government chose to do.  There are all kinds of practical reasons not to allow taxpayers to opt out of particular payments, but the bigger issue was that they were part of a society that has diverse views, and sometimes "your government" will not represent you in the most direct sense of that term.  That is how life in a representative democracy must work.

What about the tax deduction for charitable contributions?  In the famous Bob Jones University case, the Court acknowledged that such a deduction amounts to a public subsidy, because (for example) a $1000 donation to a charity will only cost a donor in the 37 percent marginal tax bracket $630, with the remaining $370 coming from "the Treasury," which actually means "everyone else."  Thus, if I give money to an animal rights organization, even hunters and people who are hostile to veganism are giving money to my favored charity.

It also works the other way, of course, with plenty of recognized 501(c)(3) organizations committed to causes that I find repugnant.  Should we say that "it all averages out," and everyone can go home happy (or not too unhappy, at least)?  Not if being complicit in sin is our concern, and not even if simply being asked to do something that keeps a union alive is a constitutional problem.  After all, the U.S. government in the aggregate has done a lot more to harm unions than to help them over the past generation or so, but the Janus plaintiff was not told to be happy that he was on the winning side more often than not.

And it is not merely a matter of disliking the activities of some nonprofits.  The charitable deduction could be read as a violation of the Establishment Clause, because such deductions transfer money from the Treasury to churches, but the Court has (perhaps understandably, but still somewhat arbitrarily) said that there is no violation even of an explicit prohibition against government support of religion.

In my Verdict column, I wonder aloud whether the minimum wage might be deemed unconstitutional because it forces companies like Hobby Lobby to pay people enough money to go off and commit sins.  As I note, that fanciful formulation might not be fanciful for much longer.  Similarly, Justice Ginsburg's Hobby Lobby dissent points out that religious people have challenged the minimum wage directly, saying that it violates their religious beliefs to have to pay more than the market would bear.

That line of logic could also be extended to say that nonprofit organizations should not receive tax-exempt status, because some Christians believe in something called the Prosperity Gospel, which holds that the accumulation of more and more money is the highest calling of people on Earth.  Why should anyone subsidize nonprofits at all, if God wants us to maximize profits rather than agreeing to forgo them?  (There would, of course, still be a tax exemption for the churches that preach the gospel.  Hypocrisy is not always a sin, apparently.)

In the end, the thing that worries me so much about the emergence of what we might call Complicity Jurisprudence is that it is so arbitrary.  People understandably made jokes when we found out that Mike Pence will not allow himself to be alone with any woman other than his wife, because even though he is apparently acting upon a sincere religious belief, he seems to be utterly disconnected from social reality.  I can think of plenty of ways in which I am supporting things that I do not like, but I do not expect the Courts to say that my discomfort is a constitutional violation or that I should be given special treatment in society.

I am usually quite skeptical of slippery slope arguments, but with a sympathetic Court, I fear that the religious and ideological preferences of conservatives are being turned into a new excuse to allow them to set their desires above everyone else's.

2 comments:

Joe said...

Judge Amy Coney Barrett wrote an law review article that got some play because of a reference to the possibility the Fourteenth Amendment was illegitimate. But, a key point of the article is that some sort of lines, not always totally principled, a sort of pragmatic line drawing, has to be drawn when applying the Constitution. If the very ratification of the 14A could be deemed illegitimate, originalism might not always work. etc.

The application of conservative principles in areas such as need to avoid complicity cannot in real life be consistently applied so in practice arbitrary line drawing is used that at times furthers certain religious beliefs. So, e.g., an evenhanded application of principle would seem to warrant allowing women to follow their religious beliefs when choosing whether or not to have an abortion, use birth control etc. This would apply to government provided health insurance, including as required (to avoid a tax penalty) for employers.

But, that isn't the case, is it? Not funding abortion is seen as necessary to protect your friend. I myself, however, think it immoral to selectively deny poor woman the choice to use funds in that fashion. The line is wrong and unjustly applied. That is the result of extreme arguments sometimes. It also isn't merely biased choices like this. At some point, it is simply impractical to avoid any sort of complicity given the myriad of religions, possible problems etc. So, lines are draw, again sometimes arbitrary.

Sensible evenhanded lines are the proper route to sound protection of religious liberty.

David Ricardo said...

While conservatives have no problem with the argument that a person like the Bigoted Baker should not be forced to participate in commercial activities that in his opinion violate his freedom of religion, they have no problem having the government engage in direct support of sectarian religious education in the form of payments to schools that teach a sectarian religion.

If the First Amendment meant anything, it would mean that taxpayer money cannot be used to promote a specific religion, but conservatives have no problem with this because the specific religion that is promoted is the 'right' religion (pun intended). Of course once Muslims schools try to participate in government subsidies it will be explained that this is not allowed.

I am not a Christian. Yet my tax dollars are used to directly support the Christian religion. While I do not agree with government providing an exception for the bigots who wish to deny the LGBT community basic rights because doing so would violate their religious beliefs, I do wish they would be consistent and no hypocritical and recognize my right not to have my tax dollars promote their religion with which I do not agree.