Complicity in the Violation of Moral Imperatives
by Sherry F. Colb
I think we need to have a conversation about complicity. I do not refer here to criminal accountability for another person's crimes. I refer instead to the wish to avoid moral complicity that excuses people from having to abide by a law or rule or expectation that applies to them. Take the example of people who work at fake abortion clinics, sometimes called "crisis pregnancy centers," where they lie to patients about how far along they are and about the (nonexistent) link between abortion and breast cancer. Though lying is (apparently) religiously permissible, these places of righteousness and zygote rescue have consistently resisted attempts to make them tell patients where they can go to end an unwanted pregnancy, and the reason has to do with complicity. Letting a woman know where she could go for a real abortion would make the believers in forced pregnancy and childbirth feel like accomplices in that abortion.To show respect for a person's moral code, we tend to accommodate such complicity concerns, either legally, socially, or both. The Supreme Court has been especially accommodating in this regard. In Fulton v. Philadelphia, for instance, Philadelphia had contracts with Catholic Social Services (CSS) and others who screen foster parents. The contract required the screeners to refrain from sexual orientation discrimination. The Supreme Court nonetheless held that compelling CSS to consider same-sex couples would violate the latter's right against discrimination based on religion. Since there is no commandment that says "thou shalt not evaluate the homes of same sex couples for foster placement," the Court seemed to have been accommodating a complicity concern. If you believe same sex relations are sinful, then giving a same-sex couple a positive rating (based on factors that do not include sinfulness) could seem like complicity in the couple's sinful sexual conduct.
In another case, Zubik v. Burwell, the Little Sisters of the Poor and other religious non-profits objected to an Obama administration regulation implementing the Affordable Care Act to require that they either provide health insurance that covers contraception to employees or submit a written objection that, in the objectors' view, would lead the government to provide the contraception-covering insurance. A later case described the Little Sisters' objection this way: they believe "that deliberately avoiding reproduction through medical means is immoral." Other religious actors have objected only to those forms of contraception that they consider abortifacients. In Zubik and other cases, the objectors said that letting them opt out was insufficient accommodation. They objected to having to submit a written opt-out because its submission would render them accomplices in the ostensibly immoral contraception or in an "abortion" of the unimplanted zygote. Instead of resolving the merits, the Court asked the parties to work out a resolution, but then in the subsequent case, Little Sisters of the Poor v. Pennsylvania, the Court--over a dissent by Justices Ginsburg and Sotomayor--approved a Trump administration rule that essentially gave the religious claimants the extremely broad exemption they had sought.
Interestingly, though, the Court does not always honor efforts to avoid complicity in conduct that a person regards as immoral. In Carson v. Makin, the Court struck down a Maine school voucher program that offered vouchers (because the state is too spread out to provide public schools for everyone) only for secular schools. The schools that complained were religious institutions that exclude children of same-sex couples, expel gay children and trans children, and require teachers, staff, and students in grades 7 through 12 to declare their fidelity to Jesus Christ. Some substantial fraction of the people of Maine likely feel complicit in this classic bullying behavior by the schools that they are, for now, compelled to subsidize through vouchers. I know that I would rather my tax dollars go to support a boxing match than to the hotbeds of bigotry, bullying, and brainwashing that prevailed in Carson. But the Supreme Court apparently does not care about protecting against that sort of complicity.
The Court has accordingly identified the evils that count for complicity claims, and those evils do not include homophobia or other ugly religiously-motivated bigotry. Therefore, we may all eventually become accomplices in the enforcement of such bigotry. In the hands of this Court, the Free Exercise Clause confers a right to persecute the weak. If a religiously scrupled employer believes that loud noises cause abortions and thus refuses to hire women of child-bearing age to work in his factory, then he has a decent chance of receiving an exemption from Title VII.
If I were able to exercise such robust rights against complicity, I would insist that a government workplace employing me not serve any animal products at the annual picnic. I would insist that the employer buy leather-free furniture. And if it was my job to hang up people's coats, I would assert my prerogative to leave leather and fur garments in a pile on the floor rather than hanging them up with the nonviolent jackets.
But the Supreme Court will never accommodate any of that because my conscientious objections are not features of the reactionary super-majority's version of Christianity. Despite its insistence otherwise, the Court is not neutral when it comes to morality. It overruled Roe v. Wade because "some believe fervently" that a zygote is a baby, and it has little problem with bigotry in the name of religion. That is why I designed and purchased a T-shirt that bears the line "NOT MY COURT." I want it known that I am not a willing accomplice in the projection of immoral priorities onto the words of the U.S. Constitution.