//  7/20/20  //  In-Depth Analysis

In Little Sisters of the Poor v. Pennsylvania, the Supreme Court held that the Trump Administration did not violate norms of administrative law in promulgating an exemption for employers that have religious or moral objections to the “contraceptive mandate” of the Affordable Care Act.  This decision, by a vote of 7-2, appears at first glance to continue the string of decisive wins for religious organizations reflected in Espinoza v. Montana and Our Lady of Guadalupe School v. Morrisey-Berru.

On closer inspection, the decision is better seen as a tenuous 5-4 victory for religious organizations on a key question: when is an entity complicit in acts that it deems sinful but are performed, or potentially performed, by others?  One answer, which commands the votes of five justices, appears to be that the entity is complicit whenever the religious entity believes it is complicit.[1]  The opposing choice – that complicity is subject to judicial review, in light of legal (not religious) principles – is not well-articulated but should be.  The majority’s concept of complicity has the capacity to make the Religious Freedom Restoration Act (RFRA), similar federal and state legislation, and a possibly reinvigorated Free Exercise Clause, instruments for a dramatic expansion of claims – quite often successful – for religious exemption.  As Justice Scalia predicted in Employment Division of Oregon v. Smith, such a result could produce “anarchy,” but would more likely result in judges acting inconsistently, accommodating sympathetic religious claimants and denying relief to those who are not.  


A bit of recent history is required to understand the opinions in Little Sisters.  The Supreme Court’s 2014 decision in Burwell v Hobby Lobby held that the Religious Freedom Restoration Act (RFRA) protected certain corporate entities from the duty to provide employees with health insurance that included coverage for contraceptives.  The employers claimed that paying for insurance that included coverage of contraceptives made them complicit in employees’ use of certain contraceptives, which the employers considered deeply sinful.

In a closely related case, the Court remanded Zubik v Burwell for reconsideration in light of its decision in Hobby Lobby.  Zubik involved one of several compromises developed by HRSA, the sub-agency of HHS tasked with determining the necessary elements of an adequate employer-provided insurance plan, and also empowered to grant exemptions for, among other categories of employers, religious entities.  The accommodation at issue in Zubik allowed the objecting entity to provide its insurer or the government a letter certifying that the entity had a religious or moral objection to paying any part of contraceptives covered under its employees’ insurance policies.  That letter would then trigger a requirement that the insurer pay all costs associated with the employees’ contraceptives.  In Zubik, the employers argued that the accommodation still made them complicit in the insurers’ payment for contraceptives and the employees’ use of contraceptives.

Soon after taking office, the Trump Administration promulgated a wide range of regulations designed to advance its understanding of religious liberty.  These regulations included complete exemption for all objecting entities from the requirement of including contraceptives in their health insurance policies for employees.  Under the original regulation,this exemption was available only to houses of worship and closely related religious entities, but that exemption was extended to any entity that objected on religious or moral grounds.

The new rules, of course, satisfied the employers but often left employees and their dependents without any access to insurance coverage for contraceptives.  Pennsylvania sued to block the new rules, arguing that HRSA’s rulemaking process suffered from substantive and procedural defects.  The new rules, Pennsylvania argued, provided no protection for employees, as required by both the statute and the Court’s remand in Zubik.  In addition, Pennsylvania contended, the rules did not satisfy the Administrative Procedure Act (APA)’s requirements for notice-and-comment rulemaking.

The Opinions

Five Justices joined the majority opinion, written by Justice Thomas, which concluded that HRSA had complied with the APA, and had statutory authority to grant the exemption from the contraceptive mandate to a wide variety of entities.  Most importantly, the Court’s opinion determined that the HRSA exemption was a “reasonable” exercise of its discretion.  The Court argued that Hobby Lobby laid the foundation for this exemption because it held that, “under RFRA, the [government] must accept the sincerely held complicity-based objections of religious entities.”

Justice Alito, joined by Justice Gorsuch, concurred in the judgment and the majority opinion, but argued that the Court should have held that the exemption created by HRSA is compelled by RFRA, and is not just a reasonable exercise of administrative discretion under the applicable statutes.  If that rationale had been accepted by a majority of the court, the decision would have insulated the accommodation from change by a new administration.

Justice Kagan, joined by Justice Breyer, concurred in the judgment of the Court but rejected the majority’s reasoning. While the Court held that the statute authorizes HRSA to grant the challenged accommodation, Justice Kagan argued that the extent of such authority is subject to reasonable debate and therefore should be resolved as a matter of Chevron deference in favor of the agency’s interpretation of the statute.  Even with that deference, however, Justice Kagan said that the exemption would still need to survive a second element of judicial review on remand – whether the exemption demonstrates “reasoned decisionmaking.”  Because the exemption extends to religious entities that have no objection to the contraceptive mandate, and even publicly held corporations that might have only an asserted moral objection to the mandate, Justice Kagan concluded that the exemption was vastly overbroad if rooted in RFRA or Hobby Lobby.

Justice Ginsburg, joined by Justice Sotomayor, dissented.  The Court’s decision, Justice Ginsburg argued, failed to account for the significant harm the exemption would impose on women, and thus departed from the clear intent of the statute to provide equitable funding in employees’ healthcare.  In light of that harm, the government acted improperly in deferring to a employers’ sense of complicity in their employees’ use of insurance-funded contraceptives.

The Complexity of Complicity

The decision addresses a number of interesting questions of administrative law.  But the core dispute remains within the field of religion: under RFRA, should a sincere claim that compliance with a government policy makes one complicit in sin be sufficient to satisfy the element of a “substantial burden” on religion?  The element is critical, because if a claimant can show that her sincere religious exercise has been substantially burdened by the government, the government must satisfy the heavy burden of showing that its regulation – as applied to the claimant – furthers a compelling interest, which cannot be achieved through means that are less restrictive to the claimant.

Justice Thomas’s majority opinion found that a sincere claim of complicity, in a context with significant penalties for non-compliance, represents a substantial burden on religious exercise.  In defending the reasonableness of the exemption scheme, the Court wrote that Hobby Lobby requires courts to accept as protected religious exercise a claimant’s assertion that compliance with a regulation would make the complainant complicit in sinful conduct. “That is, they could not ‘tell the plaintiffs that their beliefs are flawed’ because, in the [government’s] view, ‘the connection between what the objecting parties must do . . . and the end that they find to be morally wrong . . . is simply too attenuated.’”  Hobby Lobby makes a similarly broad assertion that the Court must defer to claimants’ beliefs about their complicity in a sinful act.

The dissenters argued that courts are not bound to accept the claimant’s view of complicity in determining whether a challenged regulation imposes a substantial burden on the claimant.  Courts are competent to decide if a claimant’s religious exercise is substantially burdened when the claimant asserts that compliance with a law would make it complicit in conduct condemned by its faith.  Although Justice Kagan did not address complicity in her opinion concurring in the judgment, she and Justice Breyer joined the portion of Justice Ginsburg’s dissent in Hobby Lobby that similarly analyzed the issue of complicity.

When the Court asserted that it must defer to a complainant’s assertion of complicity in determining the substantiality of a burden on complainant’s religious exercise, it relied entirely on the pre-Smith decision Thomas v. Review Board, as interpreted by Hobby Lobby. In Thomas, the Court held that it could not second-guess a claimant’s decision that his faith’s pacifism prevented him from engaging in particular work in a steel factory, because the work was connected with the manufacture of tanks.  Thomas, a Jehovah’s Witness, said he could work elsewhere in the factory.  But he was fired and denied unemployment compensation.  He challenged the denial of unemployment benefits, but the lower courts relied on the statement of a fellow Jehovah’s Witness that the work Thomas was assigned did not make him complicit in the manufacture of arms.  The Supreme Court ruled for Thomas.

On this question, however, context matters.  The Court’s relevant language is deeply embedded in its Sherbert line of unemployment benefits cases.

We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.

….[T]he guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.

….The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because of an honest conviction that such work was forbidden by his religion.

Despite the Court’s assertions in Hobby Lobby and Little Sisters, Thomas does not stand for the proposition that every “complicity-based objection” must be treated as a substantial burden on religious exercise.  The quoted passages from Thomas show that Chief Justice Burger’s opinion for the majority focused first on the question of whether Thomas’s objection was religious or “merely philosophical.”  This focus reflects the main value of Thomas for those who now invoke it: as a theological question, courts are not competent to decide whether a faith treats as complicit particular acts that are related to those that are inherently wrongful. This observation is uncontroversial.  It fits within under the general heading of “ecclesiastical abstention,” a doctrine that appears in decisions about the ministerial exception, and about internal disputes over governance and property rights in religious organizations.

That first, unremarkable use of deference on matters of complicity must be distinguished from Chief Justice Burger’s second point – one embedded in the administrative task of assessing eligibility for unemployment compensation.  Here, the unemployment compensation administrator had to decide whether Thomas’s assertion that his assigned job would make him complicit with sin constituted “good cause for terminating work”.  As in Sherbert and the other unemployment compensation cases, discrimination against religion or particular faiths represents the primary threat of administrative abuse of discretion.  Practices that seem common, such as respect for certain religious holidays, are likely to be protected, while those that are more unusual or unpopular receive less or no protection. Jehovah’s Witnesses have regularly been the subject of such treatment.

That is the extent of Thomas’s engagement with complicity.  Across a broad range of religious claims, I seriously doubt that Justices Alito or Thomas would respect the breadth of deference they give to “complicity-based claims” in Hobby Lobby or Little Sisters.  Imagine that a school district, by popular vote, approves a bond issue to improve health education in public schools.  The vast majority of the funds will go to sex education in middle schools and high schools.  The curriculum will not be abstinence-based, and will include discussion about contraception and prevention of sexually transmitted diseases (STDs).  In addition, the school nurse’s office will make condoms available to students in order to address the relatively high rates of teen pregnancy and STDs.  A property taxpayer, who has no children attending public school but lives within the district, files suit under the state version of RFRA.  She asks for return of her tax payments for the bond issue because she believes that the use of the bond proceeds (itemized on her property tax statement) makes her complicit in teaching and other acts that violate core principles of her faith.

If you take seriously the Court’s opinions in Hobby Lobby and Little Sisters, you would think that the taxpayer is complicit in such violations.  On what basis could the Court distinguish protected employer complicity from unprotected taxpayer objections?  The answer cannot be that the originally proposed accommodation in Little Sisters – apparently ratified by the Court in Hobby Lobby – implicated the organizations in wrongful conduct but the bond issue did not.  Indeed, the reverse seems more accurate.  The proposed accommodation in Zubik and Little Sisters would have allowed the organizations to comply with the law simply by notifying the government or their health insurers of their objection.  After that, the only parties involved would be the government, the insurance company, and any employees or dependents who sought coverage for contraceptives.  By contrast, the taxpayer annually and directly subsidizes a curriculum that directly contradicts her faith.

With Hobby Lobby’s elevation of “complicity-based objections” to privileged status under RFRA, we seem to be left with only two possibilities for measuring legally relevant complicity. The first option is to follow to its conclusion the logic of Justice Alito and Thomas’s opinions for the Court in Hobby Lobby and Little Sisters. Complicity would end only at the random point at which the judge decides that the claimant is not complicit in an alleged wrong.  We fear that this decision will be made for discriminatory reasons, either because of the content of the faith or, as in Hobby Lobby and Little Sisters, the political salience of the asserted wrong.  The unbounded, and unfounded, protection afforded to “complicity-based objections” will continue to invite abuse unless it is either constrained by a secular legal concept of complicity or recognized as a mistaken interpretation of Thomas v. Review Board.

The second option would be to treat complicity as a secular legal matter, rather than an insulated claim of faith, and measure the claimant’s proximity to wrongdoing in light of  ordinary doctrines of tort and criminal law.  Those well-established doctrines constrain the meaning of complicity to concepts of conspiracy or aiding and abetting, concepts that generally require some level of wrongful intent on the part of one held complicit.  This option has significant benefits.  It keeps courts from deciding theological issues and limits the scope of “complicity-based objections.”  That limitation should also work to lift some or all of the burden that an accommodation would impose on third parties (such as employees), who were of primary concern in Justice Ginsburg’s dissents in Hobby Lobby and Little Sisters.  In both cases, the employer was indeed complicit in harm, but the legally relevant injury was to the employees’ interests in access to contraceptives, rather than the employer’s interest in keeping its distance from conduct it viewed as sinful.

(Originally posted on The George Washington Law Review, On the Docket, July 19, 2020)

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