Conscience and Complicity: Assessing Pleas of Religious Exemptions in <em>Hobby Lobby</em>'s Wake

Abstract

In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (for example, by fighting in a war). In the religious challenges to the Affordable Care Act&#39;s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (for example, by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than the standard that legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives or to university fees that support abortion services. In Hobby Lobby, however, the Supreme Court took the corporate owners at their word: the mere fact that Hobby Lobby believed that it would be complicit, no matter how idiosyncratic that belief, sufficed to qualify it for an exemption. In this way, the Court made elements of an employee&#39;s health-care package the &#34;boss&#39;s business&#34; (to borrow from the nickname of the Democrats&#39; proposed bill to overturn Hobby Lobby).