Michael C. Dorf: Constitutional Law and a Need For Clarity on Complicity Claims

The Troublingly Widening Gyre of Complicity Claims
Michael C. Dorf, November 1, 2017

Michael C. Dorf Thomas Jefferson was the chief author of the Virginia Statute for Religious Freedom, which James Madison guided through the state legislature. It served as a model for the First Amendment of the US Constitution and contains the following declaration: “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” That principle has played an important role in the interpretation of the Establishment Clause and similar state provisions restricting government aid to religion.

Lately, however, Jefferson’s principle has run amok, as individuals and entities make increasingly demanding claims on the ground that they do not wish to support, or be seen to support, or even to feel as though they are supporting, activities of which they disapprove. The trend reached its apotheosis—or, understood in proper perspective, its nadir—last week, when lawyers for the Department of Justice argued that they should be permitted to hold a seventeen-year-old undocumented immigrant in custody rather than temporarily release her to obtain an abortion at private expense, because releasing her, they claimed, would render the federal government “complicit” in her abortion.

As I shall explain, the government’s argument was wrong, and thus the US Court of Appeals for the DC Circuit, sitting en banc, rightly rejected it. But it was only a small stretch beyond already-over-extended complicity arguments that the Supreme Court has accepted in cases involving union dues and contraception insurance and which the high Court may be ready to extend even further in a pending case involving a baker.

Jane Doe’s Abortion

A seventeen-year-old undocumented immigrant in federal custody discovered she was pregnant and sought an abortion. She managed to comply with Texas state law to obtain a court order entitling her to one. But the federal government—which under Attorney General Sessions and President Trump implacably opposes abortion—balked. Although the federal government was willing to take the girl to a so-called crisis pregnancy center for anti-abortion counseling, it was not willing to permit other people to transport her to have an abortion. Even that minimal level of non-involvement was too much involvement in the girl’s abortion, the oh-so-scrupulous government asserted.

To be sure, a long line of cases makes clear that the federal government need not subsidize abortion, but that is not because the government has rights of conscience in the same way that individuals do. It’s because, with very few exceptions, the Constitution protects negative rights—that is, rights against government interference—rather than positive rights—that is, rights to affirmative government assistance. And given the private funding, there was no serious contention that the government was being asked to fund an abortion.

But let us assume that the government does have rights of conscience. Perhaps the government is the repository for the rights of conscience of the majority (or in the case of President Trump, the minority) of voters who chose the government. Even so, that would at most entail a governmental right not to facilitate abortion or other practices to which the government objects. One would still need to limit this principle, because a too-broad definition of “facilitation” would convert every objectionable private exercise of rights into government participation. And that, in turn, would be the end of rights. In the name of not facilitating objectionable conduct, the government would be effectively forbidding that conduct.

Which is more or less the position the government took in the immigration abortion case. If merely not restraining someone of her liberty amounts to government facilitation of whatever someone chooses to do with that liberty, then there is no liberty.

The Contraception Mandate Litigation

Where did the government lawyers get the idea that their complicity argument was even plausible? Unfortunately, they seem to have gotten it from the Supreme Court.

In order to accommodate religious objections, the Obama administration exempted churches and other religious organizations from the obligation under the Affordable Care Act and its implementing regulations to provide employees with health insurance that covers contraception. That was not good enough for some plaintiffs, however, and in the Hobby Lobby case, the Supreme Court ruled that the Religious Freedom Restoration Act entitled for-profit corporations whose owners object to particular contraceptive methods to opt out of the contraception insurance mandate.

Although the Hobby Lobby ruling was controversial, at least it involved a relatively tractable view of complicity. The members of the Green family who own the Hobby Lobby chain of stores felt that they would be implicated in the employer-based health insurance that their employees obtained.

Yet in the wake of Hobby Lobby, the courts were flooded by a new kind of complaint: Religious entities that were already entitled to an exemptionfrom the contraception mandate complaining that they should not have to fill out the form asking for the exemption, because the act of doing so would itself implicate them in the contraception insurance that women would then receive from other sources.

That claim is preposterous—and I say that even though I am willing, for the sake of argument, to fully credit the view that participating in the provision of contraception insurance is a great evil.

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.

And yet, while not ultimately reaching the merits of an objection to the opt-out mechanism under the contraception mandate closely analogous to the scenario I have just described, in 2016 the Supreme Court took it seriously enough to supervise what was effectively a settlement agreement among the parties. Seeing how far the Obama administration was required to go in response to an extravagant culpability claim may have emboldened the Trump administration to make its own extravagant culpability claim in the immigration abortion case.

Bakers, Florists, and Other “Artists”

Against this backdrop, the claim of Masterpiece Cakeshop in the free speech case currently before the Supreme Court seems almost rock-solid. The owner of a Colorado bakery refused to bake a cake to celebrate a same-sex union on the ground that doing so would engage his “artistry” for a message—that same-sex marriage warrants celebration—of which he disapproves. Whatever else one might say about Masterpiece’s claim, at least the baker was being asked by Colorado to do something that he found objectionable. Unlike the religious plaintiffs who challenged the contraception mandate opt-out procedure and the government in the immigration abortion case, the baker had a remotely plausible reason for feeling complicit in what he regards as immorality.

Yet even if one accordingly feels some sympathy for the likes of Masterpiece Cakeshop, the claim should still lose. The Constitution does not protect people from feeling complicit in what they regard as evil. True, it protects freedom of speech, but as Professors Steven Shiffrin, Seana Shiffrin, and I argue in an amicus brief in Masterpiece, baking a cake—absent a whole lot more—is not speech.

Nor would the denial of the baker’s claim in Masterpiece be a regrettable but inevitable side-effect of honestly construing the Constitution. On the contrary, it would be a triumph of democratic pluralism.

We should not want to live under a constitutional regime in which each of us continually searches for objectionable behavior from which to disassociate ourselves. In a democracy characterized by competing, often wildly different, conceptions of the good, we need a modus vivendi to accomplish much of anything. Acknowledging broad complicity claims would make social cooperation across our differences all but impossible. Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.