Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics

Byron York, Evangelical Leader Shows How GOP Can Finesse Gay Marriage, Wash. Examiner, Mar. 27, 2014, http://washingtonexaminer.com/evangelical-leader-shows-how-gop-can-finesse-gay-marriage/article/2546413 [http://perma.cc/QQ9F-YN78].

134 S. Ct. 2751 (2014).

42 U.S.C. § 2000bb-1(a) to (b) (2012).

But cf. Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J.L. & Gender 35, 78-80 (2015) (suggesting that the claim of for-profit corporations was within the contemplation of both free exercise law and RFRA). The coverage of corporate claimants continues to be debated. See, e.g., Letter from Robert P. Bartlett III, Professor, Univ. of Cal. Berkeley Sch. of Law, et al. to Ctrs. for Medicare & Medicaid Servs., Dep’t of Health & Human Servs. (Oct. 8, 2014), http://ssrn.com/abstract=2507305 [http://perma.cc/V2BV-9LJY] (commenting on the proposed definition of “eligible organization” for the purposes of the coverage of certain preventative services under the ACA); Letter from Lyman P. Q. Johnson, Professor, Washington & Lee Univ. Sch. of Law, et al. to Ctrs. for Medicare & Medicaid Servs., Dep’t of Health & Human Servs. (Oct. 20, 2014), http://scholarlycommons.law.wlu.edu/wlufac/377 [http://perma.cc/6XY9-S7AP] (same).

But see Amy J. Sepinwall, Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby’s Wake, 82 U. Chi. L. Rev. (forthcoming 2015), http://ssrn.com/abstract=2496218 [http://perma.cc/JDW8-6YT8]; Nomi Maya Stolzenberg, It’s About Money: The Fundamental Contradiction of Hobby Lobby, 88 S. Cal. L. Rev. (forthcoming 2015), http://weblaw.usc.edu/centers/clhc/events/feature/documents/Stolzenbergspaper.pdf [http://perma.cc/5XYZ-67MM].

In the 2013 Supreme Court term alone, religious exemption claims of this kind appeared in Hobby Lobby, 134 S. Ct. 2751; Wheaton College v. Burwell, 134 S. Ct. 2806 (2014); Little Sisters of the Poor Home for the Aged v. Sebelius, 134 S. Ct. 1022 (2013); and Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. Ct. App. 2013), cert. denied, 134 S. Ct. 1787 (2014).

See, e.g., Odgaard v. Iowa Civil Rights Comm’n, No. CV046451 (Iowa Dist. Ct. Apr. 3, 2014); Elane Photography, 309 P.3d 53; Complaint, Arlene’s Flowers, Inc. v. Ferguson, No. 13-2-01898-2 (Wash. Super. Ct. Aug. 1, 2013).

See, e.g., Mullins v. Masterpiece Cakeshop, Inc., No. CR2013-0008 (Colo. Admin. Ct. Dec. 6, 2013).

See infra Part I.B.

Hobby Lobby, 134 S. Ct. at 2760 (“The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”). We probe the accuracy of this claim infra Part V.

See infra Part I.A.

As examples throughout illustrate, complicity-based religious objections are expressed about persons who act outside of traditional family roles; engage in contraception, abortion, or assisted reproduction; cohabit or have children outside marriage; have nonmarital or same-sex sex; or enter a relationship with or marry a person of the same sex. The religious claimants seek exemptions from laws designed to protect others whose beliefs and actions the claimants condemn.

See infra Part III.

See infra Part IV.

See infra note 152.

See infra Part III.B.

See infra Part III.B.

See, e.g., Thomas C. Berg, Religious Accommodation and the Welfare State, 38 Harv. J.L. & Gender 103 (2015) (raising concerns with third-party harm in an account that is deeply sympathetic to claims for religious accommodation).

See infra notes 79, 105.

See infra Part V.

Brief for Respondents at 14, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) (Nos. 13-354, 13-356). The plaintiffs termed the contraceptives “abortifacients” on the basis of their religious belief that pregnancy begins at fertilization (rather than implantation) of an egg. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1122 (10th Cir. 2012) (“[O]ne aspect of the Greens’ religious commitment is a belief that human life begins when sperm fertilizes an egg.”). The contraceptives at issue in Hobby Lobby operate before implantation of a fertilized egg in the uterus, the point at which medical science (and federal law) understand pregnancy to begin. In fact, several of these contraceptives operate before ovulation. See infra note 273.

See Brief for Respondents, supra note 21, at 9 (emphasis added).

Catholic doctrine on “cooperation” and “scandal” admonishes Catholics to avoid “complicity in the sins of others.” 2 Bernard Häring, The Law of Christ 494-517 (Edwin G. Kaiser trans., Newman Press 1963) (1954). For more contemporary texts, see Anthony Fisher, Catholic Bioethics for a New Millennium 69-98 (2012); 3 Germain Grisez, The Way of the Lord Jesus: Difficult Moral Questions 871-97 (1997). Principles of cooperation address the circumstances under which an individual or institution can be involved in others’ illicit actions. The Catechism of the Catholic Church explains:

Sin is a personal act. Moreover, we have a responsibility for the sins committed by others when we cooperate in them:

- by participating directly and voluntarily in them;

- by ordering, advising, praising, or approving them;

- by not disclosing or not hindering them when we have an obligation to do so;

- by protecting evil-doers.

Catechism of the Catholic Church pt. 3, ¶ 1868. Formal cooperation, which is morally wrong, occurs when the individual intends the other’s illicit action. Material cooperation, which can be morally licit, occurs when the individual does not intend the object of the other’s action. Even cooperation that in other respects appears morally licit is proscribed if it results in scandal. Id. ¶ 2284 (defining scandal as “an attitude or behavior that leads another to do evil”). Scandal occurs when the individual or institution engages in conduct that appears to sanction someone else’s wrongful behavior. Id. ¶¶ 2284, 2286 (explaining that “[t]he person who gives scandal becomes his neighbor’s tempter” and that “[s]candal can be provoked by laws or institutions, by fashion or opinion”). As we explain in Part IV, the U.S. Conference of Catholic Bishops (USCCB) has applied these concepts in the context of Catholic-run healthcare delivery. See Ethical and Religious Directives for Catholic Health Care Services, U.S. Conf. Cath. Bishops, app. at 29 (1995) [hereinafter 1995 Religious Directives for Catholic Health Care Services] (outlining the principles governing cooperation).

See Hobby Lobby, 134 S. Ct. at 2765 (describing the Greens as “Christians”); Alan Rappeport, Family Behind Hobby Lobby Has New Project: Bible Museum, N.Y. Times, July 17, 2014, http://www.nytimes.com/2014/07/17/us/politics/family-that-owns-hobby-lobby-plans-bible-museum-in-washington.html [http://perma.cc/GU56-SERE] (describing the Greens as an “evangelical Christian family”). The Greens own Hobby Lobby through a trust of which each family member is a trustee. Hobby Lobby, 134 S. Ct. at 2765 n.15.

Evangelical Protestants do not have the same elaborately developed concept of cooperation. Compare Brief of 67 Catholic Theologians and Ethicists as Amici Curiae in Support of Hobby Lobby and Conestoga et al., Hobby Lobby, 134 S. Ct. 2751 (Nos. 13-354, 13-356), with Brief of 38 Protestant Theologians, Southeastern Baptist Theological Seminary, Coalition of African American Pastors, Manhattan Declaration, and Instep International as Amici Curiae in Support of Hobby Lobby and Conestoga et al., Hobby Lobby, 134 S. Ct. 2751 (Nos. 13-354, 13-356).

134 S. Ct. at 2765 (quoting Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs., 724 F.3d 377, 382 (3d Cir. 2013)).

135 S. Ct. 853 (2015).

Holt asserted his claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), a statute that shares significant common ground with RFRA. See Hobby Lobby, 134 S. Ct. at 2761 (explaining that RLUIPA “imposes the same general test as RFRA but on a more limited category of governmental actions” and that “RLUIPA amended RFRA’s definition of the ‘exercise of religion’”).

Even though Holt believed he should not trim his beard at all, he asked only for permission to grow a half-inch beard. See Holt, 135 S. Ct. at 861.

Id. at 867.

Id. (Ginsburg, J., concurring).

See 42 U.S.C. § 2000bb(a)(4)-(b)(1) (2012).

374 U.S. 398 (1963).

406 U.S. 205 (1972).

494 U.S. 872 (1990). RFRA explicitly responded to Smith, where the Court, in holding that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability,’” id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)), articulated a standard that most viewed as significantly less protective of religious liberty than prior case law had been. There is debate over whether RFRA “restore[d] the compelling interest test as set forth in [Sherbert] and [Yoder],” as would be suggested by the language of § 2000bb(b)(1), or merely restored the less demanding standard consistent with the state of the law the “day before Smith.” Compare 139 Cong. Rec. 26178 (1993) (statement of Sen. Edward M. Kennedy) (explaining that RFRA was “designed to restore the compelling interest test for deciding free exercise claims”), with H.R. Rep. No. 103-88, at 15 (1993) (“The amendments . . . make clear that the purpose of the statute is to ‘turn the clock back’ to the day before Smith was decided.”). On this point, see Ira C. Lupu, Of Time and the RFRA: A Lawyer’s Guide to the Religious Freedom Restoration Act, 56 Mont. L. Rev. 171, 193-98 (1995).

See, e.g., Thomas C. Berg, What Same-Sex-Marriage and Religious-Liberty Claims Have in Common, 5 Nw. J.L. & Soc. Pol’y 206, 221 (2010) (describing Yoder as involving an Amish practice that “ran against the strong social norm”); see also Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1420 (1990) (observing that “[j]udicially enforceable exemptions under the free exercise clause . . . ensure that unpopular or unfamiliar faiths will receive the same consideration afforded mainstream or generally respected religions by the representative branches”).

Sherbert, 374 U.S. 398 (involving a Seventh-day Adventist who observed a Saturday Sabbath); Yoder, 406 U.S. 205 (involving members of Amish communities who opposed formal education of children after the eighth grade); Smith, 494 U.S. 872 (involving members of the Native American Church who used peyote as part of religious practice). Even after RFRA, the Court’s central pre-Hobby Lobby precedent applying the statute featured minority religious claimants—“a religious sect with origins in the Amazon Rainforest”—seeking space to engage in an anomalous religious ritual—“drinking a sacramental tea . . . that contains a hallucinogen.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 423 (2006).

374 U.S. at 409.

406 U.S. at 209. While Yoder involved claims relating to the conduct of others—the claimants’ children—it did not feature a complicity claim. The claimants did not object to being made complicit in the sins of their children, but rather asserted their own religious duty to comply with religious principles regarding the rearing of their children. See id. at 211 (“[T]hey view secondary school education as an impermissible exposure of their children to a ‘worldly’ influence in conflict with their beliefs.”).

494 U.S. at 874.

Id. at 911-12, 916 (Blackmun, J., dissenting).

Brief of Synagogue Council of America et al. as Amici Curiae at 12, Sherbert, 374 U.S. 398 (No. 526).

374 U.S. at 407. Nonetheless, in this situation, the employer may experience a modest increase in its unemployment tax rate. See Laurence H. Tribe, American Constitutional Law 1199 (2d ed. 1988); Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L. Rev. 1465, 1513 & n.154 (1999).

406 U.S. at 215. In fact, over the objection of Justice Douglas’s dissenting opinion, the Court dismissed as “highly speculative” the state’s concern with “the possibility that some [Amish] children will choose to leave the Amish community, and that if this occurs they will be ill-equipped for life.” Id. at 224.

In addition to explicit reference to Sherbert, Yoder, and Smith, RFRA also refers to “prior Federal court rulings.” 42 U.S.C. § 2000bb(a)(5) (2012). The only pre-RFRA Supreme Court free exercise decision that includes a claim involving complicity is Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981). In that case, the claimant, a Jehovah’s Witness, was denied unemployment benefits after refusing employment because “his religious beliefs forbade participation in the production of armaments.” Id. at 709. The claim in Thomas differs from the complicity-based conscience claims we are examining in that it does not single out a particular group of citizens as sinning. And in the relatively few times when Thomas appears in the legislative history of RFRA, it concerns matters having nothing to do with complicity claims. See, e.g., Religious Freedom Restoration Act of 1991: Hearing on H.R. 2797 Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 102d Cong. 121 (1992) (statement of Rep. Stephen J. Solarz) (quoting Thomas for the proposition that the government must use “the least restrictive means of achieving a compelling state interest,” 450 U.S. at 718); id. at 153 (statement of Edward McGlynn Gaffney, Jr., Dean and Professor of Law, Valparaiso University School of Law) (citing Thomas in a string citation of unemployment compensation cases).

“[P]rior Federal court rulings” might also include Bob Jones University v. United States, 461 U.S. 574 (1983). After refusing to admit African-American students, Bob Jones University shifted to a policy of refusing to admit unmarried African-American students before ultimately settling on a policy admitting such students but maintaining a disciplinary rule prohibiting interracial dating and marriage, as well as advocacy of interracial marriage. Id. at 580-81. The university defended its policy on religious free exercise grounds, which the Court rejected. Id. at 603-04. While accommodating this religious exercise claim would have inflicted third-party harms, we do not understand the claim as complicity-based. The university did not object to students’ interracial dating and marriage because the university would be complicit in the students’ sinful conduct, but rather because the university deemed such conduct to violate the religious principles governing the faith community.

165 F.3d 692, 696, 718 (9th Cir. 1999), rev’d en banc on other grounds, 220 F.3d 1134 (9th Cir. 2000). RFRA had passed the Senate 97-3 (after passing by voice vote in the House). U.S. Senate Roll Call Vote No. 331, 103d Cong. (Oct. 27, 1993); 139 Cong. Rec. 9680-87 (1993). After the Court struck down RFRA as applied to the states, in City of Boerne v. Flores, 521 U.S. 507, 511 (1997), Congress considered a new religious liberties bill, the Religious Liberty Protection Act (RLPA), which would have applied the RFRA standard to the states pursuant to Congress’s Commerce Clause authority. Religious Liberty Protection Act of 1998, § 2(a), H.R. 4019, 105th Cong. (1998); H.R. Rep. No. 106-219, at 12-13 (1999). As it considered this bill, however, lawmakers were confronted with the decision of the Ninth Circuit Court of Appeals in Thomas. This became a significant focus of congressional debate over RLPA. See, e.g., Religious Liberty: Hearing Before the S. Comm. on the Judiciary, 106th Cong. 148, 161 (1999); H.R. Rep. No. 106-219, at 14, 38.

Congressional members, including Representative Jerrold Nadler, expressed “concern[] that this legislation, as drafted, would not simply act as a shield to protect religious liberty, but could also be used by some as a sword to attack the rights of many Americans, including unmarried couples, single parents, [and] lesbians and gays.” H.R. Rep. No. 106-219, at 41.

Congressional support for RLPA fell apart, and Representative Nadler introduced an amendment that would have foreclosed the use of RLPA to avoid antidiscrimination law. 145 Cong. Rec. 16,233-34 (1999). While the House passed RLPA without the Nadler amendment, 145 Cong. Rec. 16,245 (1999), the bill never came up for a vote in the Senate, H.R. 1,691, 106th Cong. (1999) (recording that on November 19, 1999, the bill was received in the Senate, read twice, and referred to the Senate Committee on the Judiciary). See also 145 Cong. Rec. 31,077 (1999) (listing referred measures).

Cases featuring conflicts between religious exemption claims and antidiscrimination law existed at the time that Congress passed RFRA. See Lupu, supra note 35, at 208-10; William P. Marshall, The Religious Freedom Restoration Act: Establishment, Equal Protection and Free Speech Concerns, 56 Mont. L. Rev. 227, 228 (1995).

See infra Part V.B.

See, e.g., Frederick Mark Gedicks, One Cheer for Hobby Lobby: Improbable Alternatives, Truly Strict Scrutiny, and Third-Party Employee Burdens, 38 Harv. J.L. & Gender 153, 172 (2015); Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49 Harv. C.R.-C.L. L. Rev. 343, 356-57 (2014); Jonathan C. Lipson, On Balance: Religious Liberty and Third-Party Harms, 84 Minn. L. Rev. 589, 622 (2000); Ira C. Lupu & Robert W. Tuttle, Same-Sex Family Equality and Religious Freedom, 5 Nw. J.L. & Soc. Pol’y 274, 290-91 & n.84 (2010); James M. Oleske, Jr., The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages, 50 Harv. C.R.-C.L. L. Rev. 99 (2015); Robert M. O’Neil, Religious Freedom and Nondiscrimination: State RFRA Laws Versus Civil Rights, 32 U.C. Davis L. Rev. 785, 801 (1999); Elizabeth Sepper, Gendering Corporate Conscience, 38 Harv. J.L. & Gender 193, 206 (2015); Marty Lederman, Hobby Lobby Part X—A Quick Word on the Conestoga Wood Reply Brief, Balkinization (Mar. 12, 2014, 12:22 PM), http://balkin.blogspot.com/2014/03/hobby-lobby-part-x-quick-word-on.html [http://perma.cc/5ZL6-XRRD]. For an argument in favor of a more systematic approach to third-party harm in religious accommodation law, see generally Kara Loewentheil, When Free Exercise Is a Burden: Protecting “Third Parties” in Religious Accommodation Law, 62 Drake L. Rev. 433 (2014).

E.g., Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 304-05 (1985); United States v. Lee, 455 U.S. 252, 261 (1982). Lower courts also have enforced sex discrimination laws against employers despite those employers’ requests for religious exemptions. See, e.g., Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1399 (4th Cir. 1990) (holding that a religious school must comply with federal law requiring equal pay for men and women); EEOC. v. Fremont Christian Sch., 781 F.2d 1362, 1368 (9th Cir. 1986) (same); Ganzy v. Allen Christian Sch., 995 F. Supp. 340, 350 (E.D.N.Y. 1998) (holding that a religious school could not rely on its religious opposition to premarital sex as a pretext for pregnancy discrimination, and noting that “it remains fundamental that religious motives may not be a mask for sex discrimination in the workplace”).

Lee, 455 U.S. at 261. Only in limited circumstances, for example in the context of the ministerial exception for religious institutions, has the Court accommodated religious liberty claims despite direct effects on specific third parties. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012). The ministerial exception is a judicially created doctrine grounded in both establishment and free exercise principles; this doctrine can shield churches from some claims by employees, including clergy, whose jobs entail substantial religious obligations. See id. at 702. We note also that, in certain circumstances, Title VII allows religious organizations to discriminate in employment on the basis of religion. See 42 U.S.C. § 2000e-1(a) (2012).

Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985). On this point, see Gedicks & Van Tassell, supra note 50, at 357-59.

Cutter v. Wilkinson, 544 U.S. 709, 720 (2005). Similarly, in the Title VII context, courts have denied claims to accommodation by employees where the accommodation would burden fellow employees and other third parties. See Noesen v. Med. Staffing Network, Inc., 232 F. App’x 581, 584-85 (7th Cir. 2007) (ruling that “an accommodation that requires other employees to assume a disproportionate workload (or divert them from their regular work) is an undue hardship as a matter of law”); Endres v. Ind. State Police, 349 F.3d 922, 925-26 (7th Cir. 2003); Wilson v. U.S. W. Commc’ns, 58 F.3d 1337, 1338 (8th Cir. 1995).

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2780 (2014).

See id. at 2780, 2782 (explaining that the government could itself “assume the cost of providing” the contraceptives or could replicate the accommodation provided for religiously affiliated nonprofit organizations). Nonetheless, the Court reserved the question of whether the accommodation provided to religiously affiliated nonprofits would survive a challenge under RFRA. Id. at 2782.

Significant uncertainty remains. In the wake of Hobby Lobby, the government sought comments on a proposal to extend to closely held for-profit corporations the accommodations offered to religiously affiliated nonprofits. See 79 Fed. Reg. 51,118 (Aug. 27, 2014); 79 Fed. Reg. 51,092 (Aug. 27, 2014) (to be codified at 26 C.F.R. pt. 54, 29 C.F.R. pt. 2510, 29 C.F.R. pt. 2590, and 45 C.F.R. pt. 147). But as of this writing the government has not yet adopted the proposal. Meanwhile, religiously affiliated nonprofits continue to challenge those accommodation mechanisms. It is not clear how these challenges will be resolved. Cf. Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 265 (D.C. Cir. 2014) (observing that the accommodations proposed by the religiously affiliated nonprofits “would add steps . . . or pose other financial, logistical, informational, and administrative burdens,” as reason to reject those challenges). For commentators questioning the accuracy of the Court’s premises, see Gedicks, supra note 50, at 159-62; and Andrew Koppelman & Frederick Mark Gedicks, Is Hobby Lobby Worse for Religious Liberty Than Smith?, 9 St. Thomas J.L. & Pub. Pol’y (forthcoming 2015) (on file with authors). We observe also that the majority focused on the material effects of the accommodation, but not its social meaning. See infra notes 272-275 and accompanying text.

Hobby Lobby, 134 S. Ct. at 2779-80.

Id. at 2786 (Kennedy, J., concurring).

Id.; id. at 2799 (Ginsburg, J., dissenting) (noting “compelling interests in public health and women’s well being”); see also id. at 2787-88 (“‘The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.’ Congress acted on that understanding when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs.” (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992))).

Transcript of Oral Argument at 33, Hobby Lobby, 134 S. Ct. 2751 (2014) (Nos. 13-354, 13-356).

134 S. Ct. at 2787 (Kennedy, J., concurring). Striking a similar note, Justice Kennedy noted in his concurrence in Board of Education of Kiryas Joel Village School District v. Grumet: “[A] religious accommodation demands careful scrutiny to ensure that it does not so burden nonadherents or discriminate against other religions as to become an establishment.” 512 U.S. 687, 722 (1994) (Kennedy, J., concurring). In her Hobby Lobby dissent, Justice Ginsburg also made this point: “Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.” 134 S. Ct. at 2790 (Ginsburg, J., dissenting).

Hobby Lobby, 134 S. Ct. at 2782. But see supra note 57 (observing several respects in which the majority’s claim is incorrect).

Id. at 2760 (emphasis added).

134 S. Ct. 2806, 2807 (2014).

Id. at 2808 (Sotomayor, J., dissenting) (emphasis added). Other religiously affiliated nonprofits have raised similar challenges. See, e.g., Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 379 (6th Cir. 2014); Reply in Support of Emergency Application for Injunction Pending Appellate Review or, in the Alternative, Petition for Writ of Certiorari & Injunction Pending Resolution at 8, Little Sisters of the Poor Home for the Aged v. Sebelius, 134 S. Ct. 1022 (2014) (No. 13A691).

Wheaton Coll., 134 S. Ct. at 2807. Unlike in Hobby Lobby, see 134 S. Ct. at 2758, there was no alternative accommodation in place, see Wheaton Coll., 134 S. Ct. at 2807. Accordingly, in lieu of the form to which Wheaton College objected, the Court required the college to “inform[] the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” Id.

In response to Wheaton College, the government issued interim final regulations allowing religiously affiliated nonprofits to use the alternative notice procedure required by the Court in that case. Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed. Reg. 51,092 (Aug. 27, 2014) (to be codified at 26 C.F.R. pt. 54, 29 C.F.R. pt. 2510, 29 C.F.R. pt. 2590, and 45 C.F.R. pt. 147). These regulations were immediately challenged and enjoined by a federal district court. See Ave Maria Univ. v. Burwell, No. 2-13-cv-630, 2014 WL 5471048 (M.D. Fla. Oct. 28, 2014). But see Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014) (rejecting a challenge to accommodations offered to religiously affiliated nonprofits). The government also sought comments on a proposal to make the same accommodation mechanisms available to for-profit corporations that meet the new definition of “eligible organizations.” Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed. Reg. 51,118.

See, e.g., Supplemental Authority Letter of Defendant-Appellant Aloha Bed & Breakfast at 1, Cervelli v. Aloha Bed & Breakfast, No. CAAP-13-0000806 (Haw. Ct. App. July 25, 2014) (“alert[ing] the Court to pertinent supplemental authority,” in the form of the Hobby Lobby decision, to defend a bed-and-breakfast that discriminated against a same-sex couple); see also Emma Margolin, How Hobby Lobby Will Reverberate Throughout the LGBT Community, MSNBC (July 7, 2014,), http://www.msnbc.com/msnbc/hobby-lobby-reverberate-throughout-lgbt-community [http://perma.cc/377E-5982] (“‘I do think that ruling will have a major impact,’ said the Rev. Terry Fox, a Southern Baptist minister in Wichita, Kansas, and a leader of the successful movement to ban same-sex marriage in that state. ‘The Supreme Court has given a strong statement that people have a right in business if they have religious convictions to take a stand.’”); Greg Stohr, Gay Marriage Stirs Backlash as Businesses Assert Religion, Bloomberg (July 18, 2014), http://www.bloomberg.com/news/2014-07-18/gay-marriage-stirs-backlash-as-businesses-assert-religion.html [http://perma.cc/9ZGR-P2PA] (suggesting that Hobby Lobby “added fuel” to the debate over whether businesses should be exempted from laws requiring them to serve same-sex couples).

See Carl H. Esbeck, Differences: Real and Rhetorical—Responding to Non-Discrimination Executive Order and Religious Freedom, Berkley Center for Religion, Peace & World Aff.: Cornerstone (July 22, 2014), http://berkleycenter.georgetown.edu/rfp/blog/non-discrimination-executive-order-and-religious-freedom/responses/differences-real-and-rhetorical [http://perma.cc/2JZH-9XZJ]; Letter from Stanley Carlson-Thies, President, Institutional Religious Freedom Alliance, et al., to President Barack Obama, at 1 (June 25, 2014), http://www.irfalliance.org/wp-content/uploads/2014/06/LGBT-EO-letter-to--President-6-25-2014-w-additional-signatures.pdf [http://perma.cc/2T8Z-KGDV].

Many healthcare refusal laws cover both religious and moral objections. See infra note 103 and accompanying text.

Healthcare providers do not generally have legal obligations to accept specific patients, but legal and professional standards may regulate healthcare providers in the selection of patients and impose obligations on providers once care has commenced. See Elizabeth Sepper, Conscientious Refusals of Care, in Oxford Handbook of American Health Law (Glenn Cohen et al. eds., forthcoming 2015) (manuscript at 2) (on file with authors).

See Kathleen M. Boozang, Deciding the Fate of Religious Hospitals in the Emerging Health Care Market, 31 Hous. L. Rev. 1429, 1446-75 (1995) (examining conflicts between conscience claims and patients’ rights rooted in professional ethics, common law, and constitutional doctrine).

See, e.g., Brownfield v. Daniel Freeman Marina Hosp., 256 Cal. Rptr. 240 (Ct. App. 1989); Hummel v. Reiss, 589 A.2d 1041 (N.J. Super. Ct. App. Div. 1991), aff’d, 608 A.2d 1341 (N.J. 1992).

See, e.g., N. Coast Women’s Care Med. Grp., Inc. v. San Diego Cnty. Superior Ct., 189 P.3d 959 (Cal. 2008) (denying doctors’ claims that free exercise rights exempt them from compliance with state antidiscrimination law regarding provision of reproductive healthcare to a lesbian patient). Outside the antidiscrimination domain, some states maintain regulations regarding hospital responses to sexual assault, requiring hospitals to provide victims with “[m]edically and factually accurate written and oral information about emergency contraception.” Ill. Admin. Code tit. 77, § 545.60(a)(3) (2010); see also N.M. Stat. Ann. § 24-10D-3(A) (West 2014).

See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261 (1990); Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965).

Many of the statutes have not been authoritatively construed. Litigation over healthcare refusal laws appears to have been more common in the 1970s, when these laws first appeared, than in more recent years. See, e.g., Doe v. Rampton, 366 F. Supp. 189, 193 (C.D. Utah 1973); Doe v. Bridgeton Hosp. Ass’n, Inc., 366 A.2d 641, 647 (N.J. 1976). For a recent litigated example in the professional ethics context relating to pharmacists, see Noesen v. State Department of Regulation and Licensing, Pharmacy Examining Board, 751 N.W.2d 385, 388, 391 (Wis. Ct. App. 2008), which affirmed that a pharmacist who objected to participating in “certain tasks . . . for contraceptive purposes” and therefore refused to fill a contraception prescription or to transfer the prescription to another store departed from the standard of care. There is also pending litigation by pharmacies and pharmacists challenging, on free exercise grounds, a Washington Board of Pharmacy regulation requiring pharmacies to deliver all lawfully prescribed medications, including emergency contraceptives. See Stormans, Inc. v. Wiesman, No. 12-35221 (9th Cir. argued Nov. 20, 2014); see also Stormans, Inc. v. Selecky, 854 F. Supp. 2d 925 (W.D. Wash. 2012). Some state refusal laws indicate that refusal does not constitute unprofessional conduct. See, e.g., Ga. Comp. R. & Regs. 480-5-.03(n) (2014) (providing that “[i]t shall not be considered unprofessional conduct for any pharmacist to refuse to fill any prescription based on his/her professional judgment or ethical or moral beliefs”). More broadly, some state refusal laws provide that the refusal cannot form the basis for civil, criminal, or administrative liability. See, e.g., Miss. Code Ann. § 41-107-5 (West 2014).

The Church Amendment was passed as part of the Health Programs Extension Act of 1973, Pub. L. No. 93-45, § 401(b)-(c), 87 Stat. 91, 95.

410 U.S. 113. Throughout the 1960s and early 1970s, conscience arguments circulated in debates over war and abortion. Jeremy Kessler explains that “it was during the 1960s that major religious organizations, the press, and the federal judiciary all came to embrace the individual conscientious objector as a legitimate and even laudable kind of citizen.” Jeremy Kessler, The Legal Origins of Catholic Conscientious Objection 1-2 (Jan. 20, 2014) (unpublished manuscript) (on file with authors). He emphasizes that Catholics played a prominent role “as they used the legal language of conscience to both criticize the American state and insist upon the compatibility of Catholic and American identity.” Id.

In the 1960s, “conscience talk” spread from conflict over war to conflict over abortion. See id. In this era, conscience appeared on both sides of the abortion conflict, and in support of religious and secular claims. See Linda Greenhouse & Reva B. Siegel, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (2d ed. 2012) (excerpting sources in the decade before Roe in which conscience was invoked on both sides of the abortion debate, more commonly to assert the case for access to abortion). After Roe protected a woman’s choice to end a pregnancy, conscience was increasingly associated with claims to exemption from the responsibility to perform abortions.

See Taylor v. St. Vincent’s Hosp., 369 F. Supp. 948 (D. Mont. 1973) (dissolving the preliminary injunction, granted on October 27, 1992, in light of the Church Amendment). For discussion of this decision, see Sara Dubow, “A Constitutional Right Rendered Utterly Meaningless”: Religious Exemptions and Reproductive Politics, 1973-2014, 27 J. Pol’y Hist. 1, 6 (2015).

See Dubow, supra note 80, at 1. The Senate first passed the Amendment by a 92-1 vote, the House passed a slightly revised version 372-1, and the Senate ultimately passed the final bill that included the provision in a unanimous 94-0 vote. See id. at 25-26 n.2. The Church Amendment emerged at a time when more Republicans than Democrats supported increased access to abortion, and Republicans were just beginning to use the abortion issue to distinguish themselves from Democrats. See Greenhouse & Siegel, supra note 79, at 113, 207, 224, 263; Linda Greenhouse & Reva B. Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 Yale L.J. 2028, 2034, 2082 n.191 (2011). Nonetheless, some reproductive rights advocates did express concern about the statute’s coverage of institutional entities. See Harriet F. Pilpel & Dorothy E. Patton, Abortion, Conscience and the Constitution: An Examination of Federal Institutional Conscience Clauses, 6 Colum. Hum. Rts. L. Rev. 279, 280 (1974-75). For Pilpel’s role as an architect of modern privacy law, see generally Leigh Ann Wheeler, How Sex Became a Civil Liberty (2013).

42 U.S.C. § 300a-7(b)(1) (2012) (emphasis added).

42 U.S.C. § 300a-7(b)(2)(A) (2012). Women’s rights advocates raised objections to this institutional coverage at the time. See Pilpel & Patton, supra note 81.

A handful of healthcare refusal laws existed at the state level before the Church Amendment. See, e.g., Act of Feb. 17, 1969, No. 61, § 8, 1969 Ark. Acts 177 (codified as amended at Ark. Code Ann. § 20-16-601 (West 2014)); Act of Apr. 3, 1972, ch. 72-132, §§ 1-6, 1972 Fla. Laws 412, 413-14 (codified as amended at Fla. Stat. Ann. § 381.0051(5) (West 2014)).

42 U.S.C. § 300a-7(c)(1)(B) (2012) (prohibiting federal funding recipients from discriminating against “any physician or other health care personnel . . . because he performed or assisted in the performance of a lawful sterilization procedure or abortion [or] because he refused to perform or assist in the performance of such a procedure or abortion”). Willing providers were merely protected from discrimination if they previously performed the procedure or performed it off-site; they had no right to an accommodation allowing them to perform the procedure at an objecting institution. See Elizabeth Sepper, Taking Conscience Seriously, 98 Va. L. Rev. 1501, 1512-13 (2012).

42 U.S.C. § 300a-7(c)(1)(B) (emphasis added). Notably, the Amendment did not provide an exception to protect the health or life of the patient.

119 Cong. Rec. 9597 (daily ed. Mar. 27, 1973) (statement of Sen. Long).

Id. (statement of Sen. Long); id. (statement of Sen. Church) (“The Senator is correct.”). As Senator Church’s response suggests, the focus of the legislation was not on complicity. Still, the language of “assistance,” as well as the coverage of institutions, might be seen to draw on the logic of complicity. However we read the Church Amendment itself, the concept of complicity, as we now show, drove expansion of healthcare refusals legislation in the ensuing decades.

Between the decision in Roe and July 1973, fifteen states passed conscience clauses regarding abortion. By the close of 1974, twenty-eight states had laws allowing physicians to refuse to participate in abortions, and twenty-seven states had laws that applied to hospitals. See A Review of State Abortion Laws Enacted Since January 1973, 3 Fam. Plan./Population Rep. 88, 88-94 (1974); Dubow, supra note 80, at 25 n.3. Some of these early laws went beyond the Church Amendment by covering contraception in addition to abortion and/or sterilization, see, e.g., Act of Mar. 7, 1973, No. 235, §4, 1973 Ark. Acts 778, 780 (codified as amended at Ark. Code Ann. § 20-16-304 (West 2014)), by protecting only individuals who objected to the procedures, rather than also including those whose conscience supported the procedures, see, e.g., Act of Mar. 21, 1974, ch. 177, § 4, 1974 Minn. Laws 265, 267 (codified as amended at Minn. Stat. Ann. § 145.414 (West 2014)), and by including medical personnel beyond doctors and nurses, see, e.g., Act of Oct. 3, 1973, ch. 624, § 1903, 1973 Me. Laws 1259, 1260 (codified as amended at Me. Rev. Stat. Ann. tit. 22, § 1903(4) (2014)).

A range of potential factors may account for the widespread inclusion of contraception. Religious objections to contraception, most notably from Catholics, clearly predated the inclusion of contraception in healthcare refusal laws. But in the 1990s, new types of contraceptives, including emergency contraception, entered the market, see Office of Population Research, History of Plan B OTC, Princeton U., http://ec.princeton.edu/pills/planbhistory.html [http://perma.cc/WG4S-Z6KW], eliciting objections from some who, as a matter of religious conviction, believed them to be “abortifacients.” Around the same time, states began to pass contraceptive equity laws that required healthcare insurance to include coverage of ordinary forms of contraception; these laws often included exemptions for religious employers. See, e.g., Women’s Contraception Equity Act, ch. 538, 1999 Cal. Stat. 3718, 3719 (codified as amended at Cal. Ins. Code § 10123.196(a)(1) (West 2015)); An Act Requiring Health Insurers To Cover Prescription Birth Control, Pub. Act No. 99-79, §§ 1(b)-(c), 1999 Conn. Pub. Acts 198, 198-99 (codified as amended at Conn. Gen. Stat. Ann. § 38a-503e(a) (West 2015)).

Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 245(a), 110 Stat. 1321, 1321-245 (codified as amended at 42 U.S.C. § 238n(a) (2012)).

See, e.g., Ark. Code Ann. § 20-16-304 (2014); Colo. Rev. Stat. Ann. § 25-6-102 (2014); Fla. Stat. Ann. § 381.0051 (West 2014); 745 Ill. Comp. Stat. § 70/4 (2014). See generally Adam Sonfield, Rights vs. Responsibilities: Professional Standards and Provider Refusals, Guttmacher Rep. on Pub. Pol’y, Aug. 2005, http://www.guttmacher.org/pubs/tgr/08/3/gr080307.pdf [http://perma.cc/7APA-Y7D4].

Colo. Rev. Stat. Ann. § 25-6-102 (2014) (emphasis added).

Mississippi Health Care Rights of Conscience Act, ch. 568, § 2(a), 2004 Miss. Laws 977, 978.

Miss. Code Ann. § 41-107-3(a) (West 2014). For a law that also dramatically increases the number of covered individuals, see Okla. Stat. Ann. tit. 63, § 1-741(B) (West 2014), providing that “[n]o person may be required to perform, induce or participate in medical procedures which result in an abortion which are in preparation for an abortion or which involve aftercare of an abortion patient . . . .”.

Miss. Code Ann. § 41-107-3(b) (West 2014). For another particularly broad refusal statute in terms of covered acts, actors, and services, see Wash. Rev. Code Ann. § 48.43.065 (West 2014), providing that “[n]o individual health care provider, religiously sponsored health carrier, or health care facility may be required by law or contract in any circumstances to participate in the provision of or payment for a specific service if they object to so doing for reason of conscience or religion. No person may be discriminated against in employment or professional privileges because of such objection.”

While Arkansas’s family planning statute, enacted in 1973, covered pharmacists, Act of Mar. 7, 1973, No. 235, § 4(c), 1973 Ark. Acts 778, 780 (codified as amended at Ark. Code Ann. § 20-16-304 (West 2014)), South Dakota seems to have initiated the recent wave of laws that included pharmacists. See Act of Mar. 13, 1998, ch. 226, 1998 S.D. Sess. Laws 292, 293 (codified as amended at S.D. Codified Laws § 36-11-70 (2015)) (“No pharmacist may be required to dispense medication if there is reason to believe that the medication would be used to: (1) Cause an abortion; or (2) Destroy an unborn child as defined in subdivision 22-1-2(50A)[.]”); S.D. Codified Laws § 22-1-2(50A) (2015) (defining “unborn child” as “an individual organism of the species homo sapiens from fertilization until live birth”). Other states followed. See, e.g., Ga. Comp. R. & Regs. 480-5-03 (2005); 745 Ill. Comp. Stat. §§ 70/3-/4 (2014); Miss. Code Ann. § 41-107-5 (West 2006). On consideration of third-party harm in this context, see Lora Cicconi, Pharmacist Refusals and Third-Party Interests: A Proposed Judicial Approach to Pharmacist Conscience Clauses, 54 UCLA L. Rev. 709 (2007).

See, e.g., 42 U.S.C. § 1395w-22(j)(3)(B) (2012) (creating an exemption for managed care providers covering reimbursement for abortion counseling and referral services).

Balanced Budget Act of 1997, Pub. L. No. 105-33, § 1852(j)(3)(B), 111 Stat. 251, 295 (codified as amended at 42 U.S.C. § 1395w-22(j)(3)(B) (2012)). For similar legislation, see 42 U.S.C. § 1396u-2(b)(3)(B) (2012). Shortly thereafter when Congress passed a contraceptive equity law that required health insurance plans and carriers participating in the Federal Employees’ Health Benefits Program to include contraceptives in prescription drug coverage, it exempted existing and future plans with religious objections to covering contraceptives. Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105-277, § 656(b), 112 Stat. 2681, 2681-530 (1998) (“Nothing in this section shall apply to a contract with . . . any existing or future plan, if the plan objects to such coverage on the basis of religious beliefs.”).

Consolidated Appropriations Act of 2005, Pub. L. No. 108-447, § 508(d), 118 Stat. 2809, 3163 (2004) (“[T]he term ‘health care entity’ includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.”). That provision was repeated annually in subsequent appropriations bills. See, e.g., Consolidated Appropriations Act of 2010, Pub. L. No. 111-117, § 508(d), 123 Stat. 3034, 3280 (2009).

See Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, 73 Fed. Reg. 78072, 78097 (Dec. 19, 2008). The Obama Administration reversed the regulations in part in 2011, after receiving public comments regarding the attenuated relationship between the covered acts and the performance of an abortion. Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968-02 (Feb. 23, 2011) (codified at 45 C.F.R. pt. 88 (2014)).

We observe another striking difference between the earlier and later legislation. While the Church Amendment protected from discrimination both those who performed and those who refused to perform an abortion, subsequent healthcare refusal laws provided protection only to those who refused to perform the procedure. See Sepper, supra note 85, at 1512 (“Only in the exceptional case does legislation acknowledge the willing individual provider.”). State laws that protect from discrimination those willing to perform an abortion, see Ky. Rev. Stat. Ann. § 311.800(5)(b)-(c) (West 2014); Mich. Comp. Laws § 333.20184 (2014), cover only “prior or off-site performance.” Sepper, supra note 85, at 1512.

Indeed, some laws allow refusals without even explicitly invoking conscience. See Sepper, supra note 85, at 1510 (citing Haw. Rev. Stat. § 453-16(e) (2011); and 20 Pa. Cons. Stat. § 5424 (2012)).

See supra notes 7-8 and accompanying text.

See, e.g., infra notes 124-129, 132-133 and accompanying text (documenting support for conscience claims in the Manhattan Declaration and by the Family Research Council); infra notes 140-141 and accompanying text (documenting the Republican Party platform’s support for complicity-based conscience claims).

The cross-denominational claims on complicity growing out of this coalition have begun to shape religious liberties law. In Hobby Lobby, when Justice Alito discussed the religious beliefs of the claimants, who are not Catholic, he appealed to Catholic sources on cooperation. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2778 n.34 (2014) (citing Thomas J. Higgins, Man as Man: The Science and Art of Ethics 353, 355 (1949); and Henry Davis, Moral and Pastoral Theology 341 (1935)).

See infra notes 175-179 and accompanying text.

It has become so common for religious leaders to speak to political questions that the Alliance Defending Freedom (ADF) now objects to the restrictions on religious institutions supporting particular candidates that are imposed as a condition for these institutions securing tax-exempt status. See Speak Up.: Protect and Promote the Rights of Our Churches, Alliance Defending Freedom, http://www.alliancedefendingfreedom.org/content/docs/issues/church/Pulpit-Freedom-Sunday-FAQ.pdf [http://perma.cc/U4KM-9FT7] (describing a campaign “to generate test cases” to end IRS restrictions “on the rights of pastors to use moral and biblical standards to support or oppose candidates for public office”); see also Pulpit Freedom Sunday, Alliance Defending Freedom, http://www.alliancedefendingfreedom.org/pulpitfreedom [http://perma.cc/3HV3-BHXQ] (noting that thousands of pastors “violated the [restrictions],” “preached an election sermon,” and support ADF’s position).

Other examples are too numerous to count. Religious faith moved many of those who both supported and opposed segregation earlier in our nation’s history. See, e.g., William N. Eskridge, Jr., Noah’s Curse: How Religion Often Conflates Status, Belief, and Conduct To Resist Antidiscrimination Norms, 45 Ga. L. Rev. 657, 669-670, 678-79 (2011). And examples of political action grounded in religious identity are common in other countries. See Nancy L. Rosenblum, Religious Parties, Religious Political Identity, and the Cold Shoulder of Liberal Democratic Thought, 6 Ethical Theory & Moral Prac. 23, 24-27 (2003) (analyzing religious parties and religious political identity in democratic societies).

At the time of Roe, evangelical Protestants had a variety of positions on abortion and had not mobilized in politics against abortion, in part because they saw abortion as a “Catholic issue” with which they did not wish to be associated. See Greenhouse & Siegel, supra note 81, at 2063.

For evolving views on abortion asserted by various religious denominations in the decade before and after Roe, see Greenhouse & Siegel, supra note 79, at 69-80; and Greenhouse & Siegel, supra note 81, at 2063 n.132.

In the late 1970s, Republican leaders helped build a political coalition of evangelical Protestants and Catholics to oppose abortion. See Greenhouse & Siegel, supra note 81, at 2065–67 (drawing on historical accounts, as well as sources recounting the recollections of participants); see also Michele McKeegan, Abortion Politics: Mutiny in the Ranks of the Right 20-21 (1992); Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373, 420-24 (2007); Deana A. Rohlinger & Jill Quadagno, Framing Faith: Explaining Cooperation and Conflict in the US Conservative Christian Political Movement, 8 Soc. Movement Stud. 341, 345-49 (2009). This cross-denominational organizational work continued in the 1990s. See, e.g., Evangelicals and Catholics Together: The Christian Mission in the Third Millennium, First Things, May 1994, at 15.

Manhattan Declaration: A Call of Christian Conscience, Manhattan Declaration (Nov. 2009), http://manhattandeclaration.org/man_dec_resources/Manhattan_Declaration_full_text.pdf [http://perma.cc/MGW8-7WTE]. See generally Manhattan Declaration, http://manhattandeclaration.org [http://perma.cc/3XB9-2TV2]. The first signers included leading social conservative advocates, such as Gary Bauer, Brian Brown, James Dobson, Maggie Gallagher, Tony Perkins, and Alan Sears, and religious figures, such as the Reverend Jonathan Falwell, the Reverend Jim Garlow, the Reverend Ken Hutcherson, Bishop Harry Jackson, a number of Roman Catholic archbishops, and the primate of the Orthodox Church in America. See List of Religious & Organizational Leaders Signatories, Manhattan Declaration, http://manhattandeclaration.org/man_dec_resources/list_of_religious_leaders.pdf [http://perma.cc/6U2Q-3FPM]; see also Laurie Goodstein, Christian Leaders Unite on Political Issues, N.Y. Times, Nov. 20, 2009, http://www.nytimes.com/2009/11/20/us/politics/20alliance.html [http://perma.cc/EF85-5Z34].

See Manhattan Declaration: We Make the Following Declaration, Manhattan Declaration, http://manhattandeclaration.org/#2 [http://perma.cc/EG8R-XNMB].

Manhattan Declaration, supra note 112, at 7-8.

Id. at 5.

Id. at 3.

The America We Seek: A Statement of Pro-Life Principle and Concern, First Things, May 1996, http://www.firstthings.com/article/1996/05/005-the-america-we-seek-a-statement-of-pro-life-principle-and-concern [http://perma.cc/A7P8-8QCD].

The 700 Club—March 26, 2014, Christian Broadcasting Network (Mar. 26, 2014), http://www.cbn.com/tv/3394811325001 [http://perma.cc/B345-MV36] (video at 22:50). As Alan Keyes boldly asserted at a 2006 Protecting Life and Marriage Rally, “Abortion does at the physical level what homosexual marriage does at the institutional level.” Ryan Woodard, Speakers Rally Against Abortion, Gay Marriage, Rapid City J., Oct. 16, 2006, http://www.rapidcityjournal.com/news/local/article_4cd6bab0-77f1-547b-9857-97e41fc52b2b.html [http://perma.cc/XAH4-P2TW]; see also Anthony Esolen, Marriage Is Not a Water Fountain, Pub. Discourse (Sept. 29, 2014), http://www.thepublicdiscourse.com/2014/09/13730 [http://perma.cc/7ZX7-ZDCT] (connecting same-sex marriage to the broader debate over sex and family, including sexual liberty, abortion, gendered notions of parenting, and no-fault divorce, such that “the whole sexual revolution is at issue”).

See supra note 21; see also infra note 273.

See, e.g., Bishop Burke on the Dignity of Human Life and Civic Responsibility, Zenit (Jan. 10, 2004), http://www.zenit.org/en/articles/bishop-burke-on-the-dignity-of-human-life-and-civic-responsibility [http://perma.cc/PP8Y-VH8N] (printing a pastoral letter from Bishop Raymond Burke of Wisconsin, stating: “The port of entry for the culture of death in our society has been the abandonment of the respect for the procreative meaning of the conjugal act. It is the contraceptive way of thinking, the fear of the life-giving dimension of conjugal love, which very much sustains that culture.”); Brian Clowes, The “Contraceptive Mentality” and Its Consequences, LifeIssues.net, http://www.lifeissues.net/writers/clo/clo_10contraceptivrmind.html [http://perma.cc/X286-6CLL] (“And once a person, Catholic or non-Catholic, has adopted the aberrant contraceptive mentality, other disordered views and behaviors follow in their wake.”); Albert Mohler, Can Christians Use Birth Control?, AlbertMohler.com (June 5, 2012), http://www.albertmohler.com/2012/06/05/can-christians-use-birth-control-4 [http://perma.cc/3CGX-QE7P] (“[W]e must start with a rejection of the contraceptive mentality that sees pregnancy and children as impositions to be avoided rather than as gifts to be received, loved, and nurtured. This contraceptive mentality is an insidious attack upon God’s glory in creation, and the Creator’s gift of procreation to the married couple.”); Jerry J. Pokorsky, Obama and the New Evangelization, Cath. Thing (July 9, 2014), http://www.thecatholicthing.org/2014/07/09/obama-and-the-new-evangelization [http://perma.cc/ZA8G-PJL5] (discussing “[t]he consequences of the sexual revolution and the widespread availability of contraception” and asserting that “[t]he contraceptive mentality reduces men and women to mere objects of sexual pleasure, destroys marriages and is arguably the ultimate justification for ‘gay marriage’”).

A number of amicus briefs in Hobby Lobby made claims in opposition to contraception generally, rather than confining opposition to the four methods identified by Hobby Lobby. See Brief of 67 Catholic Theologians and Ethicists as Amici Curiae in Support of Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corp., supra note 25, at 12; Brief of Beverly LaHaye Institute and Janice Shaw Crouse, Ph.D. as Amici Curiae in Support of Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp., et al. at 20-21, Hobby Lobby, 134 S. Ct. 2751 (2014) (Nos. 13-354, 13-356); Brief of Amicus Curiae Women Speak for Themselves in Support of Hobby Lobby Stores, Inc. and Conestoga Wood Specialties, et al. at 24-26, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) (Nos. 13-354, 13-356).

A brief filed in support of Hobby Lobby by Women Speak for Themselves, a project of the non-denominational Chiaroscuro Institute, argued that “the persistence or worsening of high rates of unintended pregnancy, abortion, STIs [sexually transmitted infections], and nonmarital births are the ‘logical’ results of the new marketplace for sex and marriage made possible by increasingly available contraception and legal abortion.” Brief of Amicus Curiae Women Speak for Themselves in Support of Hobby Lobby Stores, Inc. and Conestoga Wood Specialties, et al., supra note 121, at 25. In contemporaneous writing, the brief’s lead author remarked that “the churches opposing the Mandate hold, and teach women and men to maintain, an understanding of the sacredness of sexual intercourse, and its intrinsic connection with the procreating of new, vulnerable, human life.” Helen M. Alvaré, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 Vill. L. Rev. 379, 435 (2013).

See, e.g., Newland v. Sebelius, 542 F. App’x 706 (10th Cir. 2013); Autocam Corp. v. Sebelius, 730 F.3d 618 (6th Cir. 2013), vacated by Autocam Corp. v. Burwell, 134 S. Ct. 2901 (2014). The Hobby Lobby decision applies to claimants with such objections. See Lyle Denniston, Wider Impact of Hobby Lobby Ruling?, SCOTUSBlog (July 1, 2015, 12:05 PM), http://www.scotusblog.com/2014/07/wider-impact-of-hobby-lobby-ruling [http://perma.cc/34HM-AJSN]. And, of course, many religiously affiliated nonprofit organizations continue to assert complicity-based objections to the religious accommodations offered by the government from the contraceptive coverage requirement. See Geneva Coll. v. Sec’y of U.S. Dep’t of Health & Human Servs., Nos. 13–3536, 14–1374, 14–1376, 14–1377, 2015 WL 543067 (3d Cir. Feb. 11, 2015); Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014).

Manhattan Declaration, supra note 112, at 3, 7.

See id. at 7-9. Robert George’s strong endorsement of judicially enforced religious exemptions arguably departs from his earlier views. See James M. Oleske, Jr., The Born-Again Champion of Conscience, 128 Harv. L. Rev. F. 75 (2015) (reviewing Robert P. George, Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism (2013)), http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience [http://perma.cc/FT9E-7U6Z].

Letter from Robert George, Timothy George & Chuck Colson to All Signers of the Manhattan Declaration (Dec. 2, 2009) [hereinafter Letter from Robert George et al.] (on file with authors).

For a list of some of those who have endorsed the Manifesto, see supra note 112. Those who sign on to the Declaration are exhorted to engage in politics. When the document was first disseminated, its recipients were asked to “let [their] representatives know what [they] think about the issues,” including the then-pending ACA. Letter from Robert George et al., supra note 126.

Letter from Robert George et al., supra note 126; see also Dante Chinni & James Gimpel, Our Patchwork Nation 53 (2010).

See E-mail from Jim Oliver, Christian Motorcyclists Ass’n (CMA), to CMA Brothers and Leaders (Dec. 3, 2009, 08:34 AM EST) (on file with authors).

FRC was founded by evangelical Christian leaders and eventually merged with Focus on the Family, a Christian evangelical ministry. FAQs, Fam. Res. Council (2015), http://www.frc.org/faqs [http://perma.cc/ZL88-GMJD]; History of Family Research Council, Fam. Res. Council (2015), http://www.frc.org/historymission [http://perma.cc/FB6U-3QRP]. FRC’s self-described “mission is to advance faith, family and freedom in public policy and the culture from a Christian worldview.” Vision and Mission Statements, Fam. Res. Council (2015), http://www.frc.org/mission-statement [http://perma.cc/34MP-ZXCP].

FRC “believes that homosexual conduct is harmful” and “supports state and federal constitutional amendments” banning same-sex marriage. Homosexuality, Fam. Res. Council (2015), http://www.frc.org/homosexuality [http://perma.cc/3KDG-C4E2]. And it seeks to “build a culture of life” and to ensure that Roe’s “grave error will be corrected.” Abortion, Fam. Res. Council (2015), http://www.frc.org/abortion [http://perma.cc/8ACK-MZMK].

Hostility to Religion: The Growing Threat to Religious Liberty in the United States, Fam. Res. Council 22 (July 30, 2014), http://downloads.frc.org/EF/EF14G83.pdf [http://perma.cc/6GR5-A3ZR].

Conscience Protection, Fam. Res. Council (2015), http://www.frc.org/conscience-protection [http://perma.cc/Z3D7-UEUJ].

See Watchmen on the Wall 2014: Schedule of Events, Fam. Res. Council (May 9, 2014), http://www.watchmenpastors.org/wp-content/uploads/2014/05/Abbreviated-schedule.pdf [http://perma.cc/9KME-77T8] (listing some of the various churches represented).

See Elizabeth Dias, Watchmen on the Wall: Pastors Prepare To Take Back America, Time, May 30, 2014, http://time.com/138134/watchmen-on-the-wall-pastors-prepare-to-take-back-america [http://perma.cc/SH74-QYW4].

Id. The 2014 conference speakers included elected officials, social movement advocates, and pastors from Christian churches from around the country. See Watchmen on the Wall 2014: Schedule of Events, supra note 134.

Watchmen on the Wall 2013: Schedule of Events, Fam. Res. Council (May 13, 2013), http://downloads.frc.org/EF/EF13E28.pdf [http://perma.cc/U5G4-PMZ8].

See Dias, supra note 135. For another example of an effort to mobilize evangelical pastors, see Jason Horowitz, Evangelicals Aim To Mobilize an Army for Republicans in 2016, N.Y. Times, Mar. 15, 2015, http://www.nytimes.com/2015/03/16/us/evangelicals-aim-to-mobilize-an-army-for-republicans-in-2016.html [http://perma.cc/M8XJ-R8X6] (quoting David Lane, founder of the American Renewal Project, speaking to an audience of pastors: “‘If the Lord were to call 1,000 pastors in America—1,000—and they ended up with an average of 300 volunteers per campaign in 2016, that would be 300,000 grass-root, precinct-level, evangelical conservatives coming from the bottom up . . . . It would change America.’”).

For example, FRC connected pastors with Republican lawmakers at “Watchmen on the Wall.” See Dias, supra note 135.

See Republican Platform 2012: We Believe in America, Republican Nat’l Convention 10, 12, 14 (2012), http://www.presidency.ucsb.edu/papers_pdf/101961.pdf [http://perma.cc/QM2E-5CPV].

Id. at 12.

Republican Party Platform of 2000, Am. Presidency Project (July 31, 2000), http://www.presidency.ucsb.edu/ws/index.php?pid=25849 [http://perma.cc/2NG2-7AXW] (“Because we treasure freedom of conscience, we oppose attempts to compel individuals or institutions to violate their moral standards in providing health-related services.”). The Republican platform began to champion “conscience” in 1996. See Republican Party Platform of 1996, Am. Presidency Project (Aug. 12, 1996), http://www.presidency.ucsb.edu/ws/index.php?pid=25848 [http://perma.cc/CC5Z-JFD3] (“[T]he extraordinary things about our country . . . result when men and women live in obedience to their conscience, not to the state.”).

S. 1467, 112th Cong. § 3(a) (2011). While seeking to amend the ACA, the Blunt Amendment itself was proposed as an amendment to a highway-funding bill. 158 Cong. Rec. S538 (daily ed. Feb. 9, 2012) (recording the amendment proposed by Sen. Blunt). The Amendment also provided that no “individual or institutional health care provider” could be required “to provide, participate in, or refer for a specific item or service contrary to the provider’s religious beliefs or moral convictions.” S. 1467 § 3(a).

See, e.g., N.C. Aizenman & Rosalind S. Helderman, Birth Control Exemption Bill, the ‘Blunt Amendment,’ Killed in Senate, Wash. Post, Mar. 1, 2012, http://www.washingtonpost.com/national/health-science/birth-control-exemption-bill-the-blunt-amendment-killed-in-senate/2012/03/01/gIQA4tXjkR_story.html [http://perma.cc/5N9K-CAVH]. The ACA already included a refusal provision relating to abortion: “No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions.” 42 U.S.C. § 18023(b)(4) (2012).

See Aizenman & Helderman, supra note 144.

Id.

Janet Adamy, Are Firms Entitled to Religious Protections?, Wall St. J., Mar. 21, 2014, http://www.wsj.com/articles/SB10001424052702304026304579451342576281698 [http://perma.cc/5CWL-WYS9] (“In 2012, a lawyer for the Becket Fund for Religious Liberty, a nonprofit Washington law firm, called Hobby Lobby’s general counsel to inform him of the health law’s contraception requirement and to ask whether the company wanted to file a suit.”). At that point, David Green, the founder of Hobby Lobby, was “shocked to discover Hobby Lobby was in fact offering in its insurance plan some of the emergency contraceptives at issue. He called for the insurer to revoke that coverage and signed onto the lawsuit.” Id. See also Verified Complaint ¶¶ 14-15, Hobby Lobby Stores, Inc. v. Sebelius, No. 5:12-cv-01000-HE (W.D. Okla. Sept. 12, 2012) (seeking declaratory and injunctive relief against the ACA’s contraceptive coverage requirement).

Verified Complaint, Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013) (No. 5:12-cv-06744) (raising RFRA and free exercise challenges); Verified Complaint, supra note 147 (same).

Senator Roy Blunt himself had predicted that the Supreme Court would ultimately resolve the issue. See Jennifer Haberkorn & Kate Nocera, Blunt Amendment Defeated in Senate, Politico, Mar. 1, 2012, http://www.politico.com/news/stories/0312/73497.html [http://perma.cc/2DX4-UKD3]. Blunt filed an amicus brief along with other members of Congress supporting the challengers in Hobby Lobby and later issued a statement praising the decision. See Brief of Amici Curiae Members of Congress in Support of Respondents, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) (Nos. 13-354, 13-356); Press Release, Roy Blunt, Senator Blunt Applauds Supreme Court Decision in Hobby Lobby, Conestoga Wood (June 30, 2014), http://www.blunt.senate.gov/public/index.cfm/news?ID=1a41b7fb-f3d8-4296-b8c9-ed857f1a3478 [http://perma.cc/CU8R-U5VC].

Bishop James Conley, Op-Ed., Hobby Lobby Decision Is Also a Mandate, S. Neb. Reg., July 11, 2014, http://www.lincolndiocese.org/op-ed/bishop-s-column/2093-hobby-lobby-decision-is-also-a-mandate [http://perma.cc/L2F2-L88C] (quoting Pope Francis, Evangelii Gaudium, Vatican Press ¶ 19 (Nov. 24, 3013), http://w2.vatican.va/content/dam/francesco/pdf/apost_exhortations/documents/papa-francesco_esortazione-ap_20131124_evangelii-gaudium_en.pdf [http://perma.cc/E7MJ-GAVS] (quoting Matthew 28:19-20)).

See Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2119 (1996); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1113 (1997). In the sexual orientation context, see Douglas NeJaime, Marriage Inequality: Same-Sex Relationships, Religious Exemptions, and the Perpetuation of Sexual Orientation Discrimination, 100 Calif. L. Rev. 1169, 1212-13 (2012).

To see this argument made by the cross-denominational coalition itself, see Ryan T. Anderson, The Defense of Marriage Isn’t Over, Pub. Discourse (Oct. 8, 2014), http://www.thepublicdiscourse.com/2014/10/13889 [http://perma.cc/UA54-7EH5], which argues that “[p]rotecting religious liberty and the rights of conscience is the embodiment of a principled pluralism that fosters a more diverse civil sphere. Indeed, tolerance is essential to promoting peaceful coexistence even amid disagreement”; and Thomas M. Messner, From Culture Wars to Conscience Wars: Emerging Threats to Conscience, Heritage Found. (Apr. 13, 2011), http://www.heritage.org/research/reports/2011/04/from-culture-wars-to-conscience-wars-emerging-threats-to-conscience [http://perma.cc/5HBD-WBCX], which argues that “[i]n pluralistic societies where consensus is elusive, protecting religious liberty and rights of conscience is one of the most effective and principled ways to promote social peace and civic fraternity.” Legal scholars supportive of religious exemptions in these settings—for instance, for wedding-related, for-profit businesses—commonly argue that such exemptions will reduce or resolve conflict. See, e.g., Berg, supra note 36, at 207 (“[R]ecognizing same-sex marriage without significant religious exemptions will multiply the number of conflicts and create new legal exposure for objectors, either immediately or in the long term.”); Robin Fretwell Wilson, The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes between Religion and the State, 53 B.C. L. Rev. 1417, 1431 (2012) (arguing that accommodations “impose some costs on both sides, but also turn down the temperature on heated social debates”). For an insightful response, see Elizabeth Sepper, Doctoring Discrimination in the Same-Sex Marriage Debates, 89 Ind. L.J. 703, 752-56 (2014).

Legislation, Ams. United for Life, http://www.aul.org/legislative-resources [http://perma.cc/B4HP-4PBL].

Defending Life 2015: Celebrating Ten Years of Defending Life, Ams. United for Life 292, 305 (2015), http://aul.org/downloads/defending-life-2015/AUL_Defending_Life_2015.pdf [http://perma.cc/F24W-2BBA].

Healthcare Freedom of Conscience Act: Model Legislation and Policy Guide for the 2014 Legislative Year, Ams. United for Life (2013), http://www.aul.org/downloads/2014-Legislative-Guides/ROC/Healthcare_Freedom_of_Conscience_Act_-_2014_LG.pdf [http://perma.cc/SD4B-E2VC] [hereinafter Healthcare Freedom of Conscience Act].

Id. § 2(a)(3).

Id. § 3(b).

Id. § 3(f).

See Legislative Victories, Ams. United For Life, http://www.aul.org/legislative-resources/legislative-victories [http://perma.cc/6YKD-9NZ8]; see also Heather D. Boonstra & Elizabeth Nash, A Surge of State Abortion Restrictions Puts Providers—and the Women They Serve—in the Crosshairs, Guttmacher Pol’y Rev., Winter 2014, at 9, http://www.guttmacher.org/pubs/gpr/17/1/gpr170109.pdf [http://perma.cc/9T8N-YEH6] (discussing a new wave of state-level anti-abortion measures introduced in the past three years).

See Mississippi 2014 Report Card, Ams. United for Life, http://www.aul.org/states/mississippi [http://perma.cc/GVZ9-GJGK] [hereinafter Mississippi 2014]. AUL has a state director in Mississippi. See Legislation, Ams. United for Life, supra note 153.

See Mississippi 2014, Ams. United for Life, supra note 160.

Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014).

See Legislation, Ams. United for Life, supra note 153 (explaining that the organization’s model laws, which include its Freedom of Conscience Act, “help legislators enact new pro-life laws . . . while continuing to roll back Roe v. Wade in the courts”). On this point, see Cathleen Kaveny, The Right To Refuse: How Broad Should Conscience Protections Be?, Commonweal, May 8, 2009, at 6 (“Many prolife arguments for abortion conscience clauses take this form: ‘A decent society ought to ban abortion, but at the very least, it ought to protect those morally courageous doctors who refuse to perform it.’ This appeal to conscience is provisional. When we are in political power, we will try to ban abortion, when we are out of power, we will claim the protections of conscience.”).

See supra note 151 and accompanying text.

Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965).

The USCCB was previously known as the National Conference of Catholic Bishops.

See, e.g., Ethical and Religious Directives for Catholic Health Care Services: Fifth Edition, U.S. Conf. Cath. Bishops 36 (Nov. 17, 2009), http://www.usccb.org/issues-and-action/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifth-edition-2009.pdf [http://perma.cc/5GTX-FSUF] [hereinafter 2009 Religious Directives for Catholic Health Care Services] (“If a Catholic health care organization is considering entering into an arrangement with another organization that may be involved in activities judged morally wrong by the Church, participation in such activities must be li- mited to what is in accord with the moral principles governing cooperation.”); id. at 37 (“The possibility of scandal must be considered when applying the principles governing cooperation.”).

Catholic Health Care in the United States, Cath. Health Ass’n U.S. 1 (Jan. 2014), https://www.chausa.org/docs/default-source/general-files/cha_miniprofile_final.pdf [http://perma.cc/J3WL-Z4SA].

See Danny Westneat, Is Catholic Church Taking Over Health Care in Washington?, Seattle Times, May 22, 2013, http://seattletimes.com/html/localnews/2021029685_westneat22xml.html [http://perma.cc/7LCU-MLUY]. Hospital mergers have substantially extended the reach and influence of Catholic healthcare in rural Washington. See Kirk Johnson, Hospital Mergers Reset Abortion-Access Battle, N.Y. Times, May 12, 2013, http://www.nytimes.com/2013/05/13/us/hospital-mergers-in-northwest-raise-issue-of-abortion-barriers.html [http://perma.cc/6MX9-TJZG] (“Ten counties out of 39 in the state would have 100 percent of their hospital beds in Catholic health system hands by year’s end if all the proposed mergers went through.”).

Jennifer Harper, Doctors Face Religious Conflicts at Hospitals, Wash. Times, Apr. 14, 2010, http://www.washingtontimes.com/news/2010/apr/14/doctors-report-religious-conflicts-at-hospitals [http://perma.cc/TN3T-UDBE].

See Karen Branz, Ranking the Nation’s 25 Largest Healthcare Systems by Employees, Dark Daily (Aug. 25, 2010), http://www.darkdaily.com/ranking-the-nations-25-largest-healthcare-systems-by-employees-825 [http://perma.cc/E9B6-CDVJ]. Religious hospitals, of course, do not necessarily claim belief systems that support restrictions on access to abortion and contraception.

See Kent Greenawalt, Objections in Conscience to Medical Procedures: Does Religion Make a Difference?, 2006 U. Ill. L. Rev. 799, 824 (“[T]here certainly are nonreligious hospitals—public and private—in areas where many people condemn abortion. The directors of such hospitals might wish not to have abortions performed there for moral or political reasons, and their moral reasons might be religiously informed. They might wish to have hospital policy reflect their sense of what is morally acceptable practice.”). The New York Times, for instance, reported that in Mississippi, “hospitals, especially in conservative and rural areas, have refused to grant privileges to abortion clinic doctors in order to avoid controversy.” Campbell Robertson & Erik Eckholm, Judges Block Abortion Curb in Mississippi, N.Y. Times, July 29, 2014, http://www.nytimes.com/2014/07/30/us/mississippi-abortion-clinic-federal-court-blocks-closing.html [http://perma.cc/N7WX-83L2].

See Editorial, Moralists at the Pharmacy, N.Y. Times, Apr. 3, 2005, http://www.nytimes.com/2005/04/03/opinion/03sun2.html [http://perma.cc/B9MF-M9WU] (describing a series of denials of contraception and support for these refusals by Pharmacists for Life); Rob Stein, Pharmacists’ Rights at Front of New Debate; Because of Beliefs, Some Refuse To Fill Birth Control Prescriptions, Wash. Post, Mar. 28, 2005, http://www.washingtonpost.com/wp-dyn/articles/A5490-2005Mar27.html [http://perma.cc/GA27-GDVQ] (same); see also Rob Stein, ‘Pro-Life’ Drugstores Market Beliefs, Wash. Post, June 16, 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/06/15/AR2008061502180.html [http://perma.cc/J37X-UBEE] (reporting on the proliferation of pharmacies refusing to stock birth control). Cross-denominational organizing against contraception continued during the ACA debates. See Tom Howell Jr., Holy Alliance: Catholics, Southern Baptists Unite Against Obamacare Contraception Mandate, Wash. Times, June 21, 2013, http://www.washingtontimes.com/news/2013/jun/21/catholics-southern-baptists-against-obamacare [http://perma.cc/3MP8-7VTT].

See Lynn D. Wardle, Religious Liberties: “Conscience Exemptions”, Engage, Feb. 2013, at 77, http://www.fed-soc.org/library/doclib/20130628_ConscienceExemptions.pdf [http://perma.cc/CDJ3-EEJX] (“At least forty-seven states and the District of Columbia also have enacted conscience-protection laws relating to abortion. Likewise, when it appeared that some state [sic] might legalize same-sex marriage, and especially since 2003 when the [sic] Massachusetts became the first state to announce that it would legalize same-sex marriage, there has been proposal, discussion, and some limited adoption of ‘conscience exemptions’ that protect some individuals and entities with religious or moral objection to same-sex marriage from any legal duty to or liability for declining to assist in creating same-sex marriages.” (internal citations omitted)); Letter from Robin Fretwell Wilson, Class of 1958 Law Alumni Professor of Law, Wash. & Lee Univ. Sch. of Law et al. to Brian E. Frosh, Chairman, Judicial Proceedings Comm., Md. State Senate 2, 6 & n.15 (Jan. 31, 2012), http://mirrorofjustice.blogs.com/files/maryland-letter.pdf [http://perma.cc/CC5R-KZKC] (arguing for “marriage conscience protection” in the same-sex marriage context by appealing to laws “accommodating health care professionals who conscientiously object to participating in medical procedures such as abortion or sterilization”). For scholarly analysis connecting exemptions in the same-sex marriage context to those in the healthcare, and specifically abortion, context, see Berg, supra note 36, at 233-34; and Robin Fretwell Wilson, Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context, in Same-Sex Marriage and Religious Liberty: Emerging Conflicts 77, 77-81 (Douglas Laycock et al. eds., 2008). For a response, see Sepper, supra note 152.

See, e.g., Robert P. George, Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism 145-46 (2013); Ryan T. Anderson, Marriage: Where Do We Go From Here?, Nat’l Rev. (May 22, 2014, 4:00 AM), http://www.nationalreview.com/article/378538/marriage-where-do-we-go-here-ryan-t-anderson [http://perma.cc/5A7X-XSJ9]; David Crary, Associated Press, Losing Streak Lengthens for Foes of Gay Marriage, Huffington Post (June 15, 2014, 1:00 PM), http://www.huffingtonpost.com/2014/06/15/gay-marriage-opponents_n_5496806.html [http://perma.cc/GK2V-ACJP] (noting remarks by National Organization for Marriage’s Brian Brown); Carson Holloway, Premature Talk of Surrender on Same-Sex Marriage, Pub. Discourse (May 15, 2014), http://www.thepublicdiscourse.com/2014/05/13106 [http://perma.cc/4WPM-DBW5].

Anderson is a fellow at the Heritage Foundation, the editor of Public Discourse, the Witherspoon Institute’s online journal, and the co-author of a leading defense of “traditional marriage.” See Sherif Girgis, Ryan T. Anderson & Robert P. George, What Is Marriage? Man and Woman: A Defense (2012). Justice Alito cited this book in his dissenting opinion in United States v. Windsor, 133 S. Ct. 2675, 2715, 2718 (2013) (Alito, J., dissenting), where the majority voted to strike down Section 3 of the federal Defense of Marriage Act.

Ryan T. Anderson, The Roe of Marriage, Nat’l Rev., Aug. 11, 2014, https://www.nationalreview.com/nrd/articles/383581/roe-marriage [http://perma.cc/DQW7-DHE9].

Id. Anderson makes the same sequence of arguments in other places. See, e.g., Ryan T. Anderson, 7 Reasons Why the Current Marriage Debate Is Nothing Like the Debate on Interracial Marriage, Daily Signal (Aug. 27, 2014), http://dailysignal.com/2014/08/27/7-reasons-current-marriage-debate-nothing-like-debate-interracial-marriage [http://perma.cc/XU2F-SE5Y]. For similar claims, see Russell D. Moore, Same-Sex Marriage and the Future, Moore to the Point (Apr. 15, 2014), http://www.russellmoore.com/2014/04/15/same-sex-marriage-and-the-future [http://perma.cc/2VT9-2VGT].

See Anderson, supra note 177; see also Richard Fausset & Alan Blinder, States Renew Fight To Stop Gay Marriage, N.Y. Times, Jan. 28, 2015, http://www.nytimes.com/2015/01/29/us/battles-over-same-sex-marriage-roil-statehouses-ahead-of-supreme-courts-decision.html [http://perma.cc/668E-YTQF] (quoting South Carolina Republican state senator Lee Bright, who introduced legislation that would exempt government employees from duties to issue marriage licenses to same-sex couples: “We have similar language for folks that work in health care that don’t want to participate in abortions.”); Wardle, supra note 174, at 77-78. An ADF representative explains: “Are the situations morally different between a health-care provider and a business owner? Each person’s conscience is being wrongly violated. . . . [T]he same breach of conscience occurs . . . because both facilitate inherently immoral activity.” Jeffrey J. Ventrella, Resist or Accommodate Evil: There Is No “Third Way”, Pub. Discourse (Jan. 27, 2015), http://www.thepublicdiscourse.com/2015/01/14264 [http://perma.cc/J3ET-T28R].

See, e.g., Answer Brief of Campaign for California Families on the Merits, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999); Brief of Ass’n of Maryland Families & Liberty Counsel as Amici Curiae in Support of Appellants, Conaway v. Deane, 932 A.2d 571 (Md. 2007) (No. 44).

See Reva B. Siegel, The Supreme Court, 2012 Term—Foreword: Equality Divided, 127 Harv. L. Rev. 1, 78-79 (2013) (tracing debates in law and politics over allegations of bigotry). Litigation over anti-sodomy laws from the 1980s through the early 2000s relied on traditional norms to justify criminal prohibitions on homosexuality. See, e.g., Brief of Concerned Women for America Education & Legal Defense Foundation in Support of Petitioner at 2, Bowers v. Hardwick, 478 U.S. 186 (1986) (No. 85-140) (arguing that laws that would grant “legal protection to those who engage in homosexuality . . . are an affront to public morality and our dedication to family life”); Brief of the Rutherford Institute et al. as Amici Curiae in Support of the Petitioner at 18-19, Bowers, 478 U.S. 186 (No. 85-140) (describing “homosexual conduct” as “perverse and deviant”). Subsequent litigation focused less on sex and more on marriage, yet continued to draw on traditional morality for the purpose of preserving restrictions on same-sex sex. See, e.g., Brief of the Family Research Council, Inc. & Focus on the Family as Amici Curiae in Support of the Respondent at 10, Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02-102). On the layering of anti-gay arguments, see William N. Eskridge, Jr., No Promo Homo: The Sedimentation of Antigay Discourse and the Channeling Effect of Judicial Review, 75 N.Y.U. L. Rev. 1327, 1331, 1346 (2000).

For discussion of the evolving justifications for opposing same-sex marriage, see Siegel, supra note 181, at 83-84 & n.422. See also William N. Eskridge, Jr., Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive, 57 UCLA L. Rev. 1333, 1353 (2010); Douglas NeJaime, Marriage, Biology, and Gender, 98 Iowa L. Rev. Bull. 83, 89-93 (2013).

See, e.g., Brief of Robert P. George et al. as Amici Curiae in Support of Hollingsworth & Bipartisan Legal Advisory Group Addressing the Merits & Supporting Reversal at 20-23, Hollingsworth v. Perry, 133 S. Ct. 786 (2012) (Nos. 12-144, 12-307).

See, e.g., Brief of Manhattan Declaration as Amicus Curiae in Support of Respondent Bipartisan Legal Advisory Group Addressing the Merits & Supporting Reversal at 15, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307) (“Religious freedom is our first, most cherished liberty, and its guarantee is threatened today by the redefinition of marriage. Such redefinition in practice would bring a new orthodoxy that circumscribes the ability of the Christian faithful to put their beliefs into practice.”); Brief of the Becket Fund for Religious Liberty as Amicus Curiae in Support of Hollingsworth & the Bipartisan Legal Advisory Group Addressing the Merits at 5, Hollingsworth, 133 S. Ct. 786 (Nos. 12-144, 12-307) (arguing that “the threat to religious liberty” furnished “a rational basis for Congress to proceed cautiously by enacting DOMA and for the people of California to return to the traditional definition of marriage by voting for Proposition 8”).

See Richard Fausset & Alan Blinder, States Weigh Legislation To Let Businesses Refuse To Serve Gay Couples, N.Y. Times, Mar. 5, 2015, http://www.nytimes.com/2015/03/06/us/anticipating-nationwide-right-to-same-sex-marriage-states-weigh-religious-exemption-bills.html [https://perma.cc/FH32-829R]; see also Anderson, supra note 152 (“Governmental recognition of same-sex relationships as marriages need not and should not require any third party to recognize a same-sex relationship as a marriage. We must vigorously advance the arguments for a classically liberal form of limited government and highlight the importance of religious liberty.”).

See Complaint at 5-13, Arlene’s Flowers, Inc. v. Ferguson, No. 13-2-01898-2 (Wash. Super. Ct. Aug. 1, 2013) (asserting that a florist who voted against same-sex marriage in the state referendum is now being coerced by the state’s antidiscrimination laws into violating her religious beliefs and thus seeks an exemption); Ryan T. Anderson & Leslie Ford, Protecting Religious Liberty in the State Marriage Debate, Heritage Found. (Apr. 10, 2014), http://www.heritage.org/research/reports/2014/04/protecting-religious-liberty-in-the-state-marriage-debate [http://perma.cc/3MDG-LVBG] (“Even in jurisdictions that have redefined marriage, individuals and businesses that believe marriage is between a man and a woman should be free to live in accord with their moral and religious convictions.”).

See, e.g., 750 Ill. Comp. Stat. Ann. 5/209(a-5) (West 2014) (“Nothing in this Act shall be construed to require any religious denomination . . . or any minister, clergy, or officiant acting as a representative of a religious denomination . . . to solemnize any marriage.”). Of course, this largely restates constitutional constraints. See Douglas Laycock, Afterword to Same-Sex Marriage and Religious Liberty: Emerging Conflicts, supra note 174, at 189, 200.

See Sepper, supra note 152, at 745 (“Granting a license and officiating a marriage come closer to the direct and proximate involvement exempted by medical conscience clauses. Both are central to the marriage, and the officiant is as proximate as a cooperator could possibly be to the act.”).

Anderson, supra note 152; see also Ryan T. Anderson, Government to Ordained Ministers: Celebrate Same-Sex Wedding or Go to Jail, Daily Signal (Oct. 18, 2014), http://dailysignal.com/2014/10/18/government-ordained-ministers-celebrate-sex-wedding-go-jail [http://perma.cc/CV9B-367M] (moving from the example of “ordained ministers . . . in their own chapel” to “any third party [having] to recognize a same-sex relationship as a marriage”); Ryan T. Anderson, Why These Citizens Voted To Repeal a Bad ‘Civil Rights’ Law, Daily Signal (Dec. 10, 2014), http://dailysignal.com/2014/12/10/citizens-voted-repeal-bad-civil-rights-law [http://perma.cc/5VVM-DJM8] (“[N]o one has the right to have the government force a particular minister to marry them, or a certain photographer to capture the first kiss, or a baker to bake the wedding cake.”).

See supra notes 7-8 and accompanying text. Up to this point, the religious claimants have not prevailed in litigation, nor have states passing marriage equality legislation included religious exemptions from antidiscrimination law that cover for-profit businesses. Nonetheless, litigation continues, and legislative activity has shifted to more conservative states lacking antidiscrimination laws that include sexual orientation.

Mullins v. Masterpiece Cakeshop, Inc., No. CR2013-0008, slip op. at 3 (Colo. Admin. Ct. Dec. 6, 2013).

Id.

Complaint at 2, Odgaard v. Iowa Civil Rights Comm’n, No. CV046451 (Iowa Dist. Ct. Oct. 7, 2013); see also Elane Photography, LLC v. Willock, 284 P.3d 428, 440 (N.M. Ct. App. 2012) (discussing how the owners of a photography company litigated for an exemption from a state antidiscrimination law because it forced them “to photograph [a lesbian client’s] ceremony, and thus engage in conduct [they] believe is disobedient to God’s commands”).

Exemption proponents, for instance, use the language of “facilitation” and “participation.” See, e.g., Letter from Robin Fretwell Wilson et al. to Pat Quinn, Governor of Ill. (Dec. 18, 2012), http://mirrorofjustice.blogs.com/files/ill-letter-12-2012.pdf [http://perma.cc/N7X9-SHWY]; Pending Illinois Same-Sex Marriage Bill Would Be Worst in US in Protecting Religious Liberty, Thomas More Soc’y 2 (May 29, 2013), http://illinoisfamily.org/110files/uploads/2013/07/144752590-Thomas-More-Society-Letter-to-IL-House-Reps-Regarding-Same-Sex-Marriage-Pending-Illinois-Same-Sex-Marriage-Bill-Would-Be-Worst-in-US-in-Protecting-R.pdf [http://perma.cc/M3J3-M2UF]. On the reach of these concepts in the same-sex marriage context, see NeJaime, supra note 151, at 1230-35.

Letter from Robin Fretwell Wilson et al. to Pat Quinn, supra note 194, at 3. The “marriage conscience protection” advanced in the Wilson letter, for example, was supported by the Thomas More Society and the Illinois Family Institute. See Thomas More Soc’y, supra note 194. While some proponents of accommodation have proposed a limitation based on “substantial hardship” to the same-sex couple, it is unclear what exactly would constitute an inability to “obtain . . . employment benefits . . . without substantial hardship.” Letter from Robin Fretwell Wilson et al. to Pat Quinn, supra note 194, at 3.

For an argument that some religious employers should refuse to provide employee spousal benefits to same-sex couples, see Gerard V. Bradley et al., The Implications of Extending Marriage Benefits to Same-Sex Couples, Pub. Discourse (Feb. 22, 2015), http://www.thepublicdiscourse.com/2015/02/14522 [http://perma.cc/EM2Z-L6N8].

See supra note 152 and accompanying text.

See, e.g., Berg, supra note 36, at 208; Douglas Laycock, Religious Liberty and the Culture Wars, 2014 U. Ill. L. Rev. 839, 852, 878.

Brian Brown, the Executive Director of the National Organization for Marriage, recently explained how work against same-sex marriage will continue even if the Supreme Court recognizes a nationwide right for same-sex couples: “There’s a ton that will happen on religious liberty. We’re already preemptively moving in this direction.” Richard Wolf, Gay Marriage, Once Inconceivable, Now Appears Inevitable, USA Today, Oct. 6, 2014, http://www.usatoday.com/story/news/politics/2014/10/02/supreme-court-gay-lesbian-marriage/16264389 [http://perma.cc/GP9L-AZZQ]; see also Anderson, supra note 152 (“Whatever happens, it is essential to take the long view and to be ready to bear witness to the truth even if law and culture grow increasingly hostile. There are lessons to be learned from the pro-life movement.”).

See, e.g., Letter from Robin Fretwell Wilson et al. to Pat Quinn, supra note 194, at 15 (“In short, nondiscrimination statutes enacted years ago now take on a whole new level of significance, with a much greater need for religious exemptions. A Marriage Bill that provides no protection to individual objectors (other than authorized celebrants, who are already protected by the Constitution) would effectively leave any individual who refuses to assist with same-sex wedding ceremonies open to suit, whether framed as sexual orientation discrimination, sex discrimination, or, where applicable, marital-status discrimination.”).

The proposed “marriage conscience protection” would allow “individuals and small businesses” to refuse to “(A) provide goods or services that assist or promote the solemnization or celebration of any marriage, or provide counseling or other services that directly facilitate the perpetuation of any marriage; or (B) provide benefits to any spouse of an employee,” and would allow “religious organizations” to refuse to “treat as valid any marriage.” Letter from Robin Fretwell Wilson et al. to Pat Quinn, supra note 194, at 2, 3 (emphasis added). With this language, not only would some wedding venues be permitted to turn away same-sex couples, but some restaurants would also be permitted to refuse to provide space for a same-sex couple’s anniversary dinner years after their wedding. And some employers would be allowed to refuse to provide family benefits to LGBT employees at any point in time. On the expansive reach of these provisions, see NeJaime, supra note 151, at 1230-32.

See, e.g., S.B. 1062, 51st Leg., 2d Reg. Sess. (Ariz. 2014); H.B. 2453, 85th Leg., Reg. Sess. (Kan. 2014). Indeed, some social conservative advocates have begun to refer to LGBT nondiscrimination measures as “forced participation ordinances” to highlight their impact on those with complicity-based objections. See Mont. Family Found., Montana: True Tolerance vs. Forced Participation, Citizen Link (May 16, 2014), http://www.citizenlink.com/2014/05/16/montana-true-tolerance-vs-forced-participation [http://perma.cc/KG3X-DFS8].

States have considered both sexual-orientation-specific measures and broad RFRAs clearly aimed at same-sex couples. See, e.g., Ariz. S.B. 1062; Kan. H.B. 2453.

Letter from Stanley Carlson-Thies to Barack Obama, supra note 70, at 1. Even though the President did not provide such an exemption, the possibility of claims to exemption in this context continues to be debated. Compare Esbeck, supra note 70 (arguing that accommodations can be claimed under an existing executive order applying to religious employers and under RFRA), with Marty Lederman, Why the Law Does Not (and Should Not) Allow Religiously Motivated Contractors To Discriminate Against Their LGBT Employees, Balkinization (July 31, 2014), http://balkin.blogspot.com/2014/07/why-law-does-not-and-should-not-allow.html [http://perma.cc/26CP-ET8C] (challenging Esbeck’s arguments).

Detecting the potential for religious accommodations to undermine employment nondiscrimination legislation in a post-Hobby Lobby world, major LGBT rights organizations withdrew their support for the recent version of the Employment Non-Discrimination Act (ENDA) that included a religious exemption much broader than that in Title VII. See Chris Johnson, Major Legal Groups Won’t Support ENDA Because of Religious Exemption, Wash. Blade (June 5, 2014), http://www.washingtonblade.com/2014/06/05/nclr-wont-support-enda-religious-exemption [http://perma.cc/R2XX-EVHU]; Chris Johnson, State LGBT Groups Split on ENDA’s Religious Exemption, Wash. Blade (June 12, 2014), http://www.washingtonblade.com/2014/06/12/state-lgbt-groups-split-enda-religious-exemption [http://perma.cc/AFB6-HU2R].

H.R. 3133, 113th Cong. (2013); see also S. 1808, 113th Cong. (2013) (having nearly identical language).

In fact, this is what the American College of Obstetricians and Gynecologists (ACOG) recommends. See The Limits of Conscientious Refusal in Reproductive Medicine, Am. Coll. Obstetricians & Gynecologists 5 (2007), http://www.acog.org/-/media/Committee-Opinions/Committee-on-Ethics/co385.pdf [http://perma.cc/5RSR-QF9X] (recommending that “at the very least . . . systems be in place for counseling and referral, particularly in resource-poor areas where conscientious refusals have significant potential to limit patient choice,” and that “[i]nstitutions . . . work toward structures that reduce the impact on patients of professionals’ refusals to provide standard reproductive services”).

These refusal laws appear to contradict professional guidance. The ACOG document instructs: “In an emergency in which referral is not possible or might negatively affect a patient’s physical or mental health, providers have an obligation to provide medically indicated and requested care regardless of the provider’s personal moral objections.” Id.

See, e.g., Mich. Comp. Laws Ann. § 333.20181 (West 2014) (not imposing any employer notice requirement or creating any exceptions for emergency situations); Minn. Stat. Ann. § 145.414 (West 2013) (same); Miss. Code. Ann. § 41-107-5 (2004) (same); see also Sonfield, supra note 92 (“Only a handful of these laws specifically provide an exception to refusal rights in emergency circumstances; most do not require health care providers to notify their employers if they intend to opt-out of certain services, and only three require any notice to patients; and about a dozen go so far as to allow providers to refuse to provide information.”). Nonetheless, the federal Emergency Medical Treatment and Active Labor Act requires hospitals to stabilize patients with an “emergency medical condition” or in active labor, and provides directives regarding transfer of patients to other hospitals. See 42 U.S.C. § 1395dd (2012).

See, e.g., Ark. Code Ann. § 20-16-304 (West 2014); Miss. Code Ann. § 41-107-5 (2004); Ga. Comp. R. & Regs. § 480-5-.03(n) (2001).

There has been little litigation to clarify the scope of the exemptions and their relationship to professional duties and obligations. See, e.g., Noesen v. State Dep’t of Regulation & Licensing, Pharmacy Examining Bd., 751 N.W.2d 385 (Wis. Ct. App. 2008); Complaint, Means v. U.S. Conference of Catholic Bishops, No. 2:13-cv-14916 (E.D. Mich. Nov. 29, 2013).

See Am. Coll. Obstetricians & Gynecologists, supra note 206, at 1 (“In an emergency . . . providers have an obligation to provide medically indicated and requested care.”); id. at 5 (“[A]t the very least . . . systems [must] be in place for counseling and referral . . . .”); Am. Pharmacists Ass’n, 1997-1998 Policy Committee Report, Pharmacist Conscience Clause (1998) (“Pharmacists choosing to excuse themselves from such a situation continue to have a responsibility to the patient—ensuring that the patient will be referred to another pharmacist or be channeled into another available health system.”).

The Directives provide that “Catholic health care services must adopt these Directives as policy, require adherence to them within the institution as a condition for medical privileges and employment, and provide appropriate instruction regarding the Directives for administration, medical and nursing staff, and other personnel.” 1995 Religious Directives for Catholic Health Care Services, supra note 23, at 7. Of course, the Directives bind not only Catholics but also non-Catholics administering healthcare in Catholic-run facilities. See Jean deBlois & Kevin D. O’Rourke, The Revised Ethical and Religious Directives for Catholic Health Care Services: Seeking Understanding in a Changing Environment 5 (1996) (explaining that the Directives “call on non-Catholics as well as Catholics to manage and administer Catholic healthcare facilities in accord with the norms contained in [the Directives]”). Nonetheless, it should be noted that at least in the context of medical malpractice litigation, USCCB has argued that while the Directives “‘provide authoritative guidance on certain moral issues that face Catholic health care today,’ . . . [t]he USCCB has no mechanism to enforce them . . . [and] does not credential doctors, hospitals, or other health care providers.” Defendant’s Motion to Dismiss at 6-7, Means, No. 2:13-cv-14916 (E.D. Mich. Mar. 12, 2013) (quoting 1995 Religious Directives for Catholic Health Care Services, supra note 23, at 3-4).

Ann Kutney-Lee et al., Distinct Enough? A National Examination of Catholic Hospital Affiliation and Patient Perceptions of Care, 39 Health Care Mgmt. Rev. 134, 135 (2014) (“In certain areas, Catholic hospitals are the primary or only hospital available.”).

As merely one example, 60 Minutes reported in 2000 that a New Hampshire woman endured an eighty-mile cab ride in order to obtain an emergency abortion after being turned away by the Catholic hospital in her area. See Brietta R. Clark, When Free Exercise Exemptions Undermine Religious Liberty and the Liberty of Conscience: A Case Study of the Catholic Hospital Conflict, 82 Or. L. Rev. 625, 626-27 (2003). The Catholic hospital may govern healthcare according to Catholic principles even though Catholics do not constitute a majority faith in the particular community. See Lisa C. Ikemoto, When a Hospital Becomes Catholic, 47 Mercer L. Rev. 1087, 1102-03 (1996) (reporting that “[o]f the forty-six Catholic sole community providers, only two are located in counties where Catholics constitute a majority of the population”).

See Reed Abelson, Catholic Hospitals Expand, Religious Strings Attached, N.Y. Times, Feb. 20, 2012, http://www.nytimes.com/2012/02/21/health/policy/growth-of-catholic-hospitals-may-limit-access-to-reproductive-care.html [http://perma.cc/3NJ5-XKD7]. Such concern may grow as the ACA produces additional consolidation in the healthcare industry. See Elizabeth B. Deutsch, Note, Expanding Conscience, Shrinking Care: The Crisis in Access to Reproductive Care and the Affordable Care Act’s Nondiscrimination Mandate, 124 Yale L.J. 2470 (2015).

1995 Religious Directives for Catholic Health Care Services, supra note 23, at 25, 27 (after noting that “[i]n ever-increasing ways, Catholic health care providers have been involved with other health care organizations and providers,” instructing hospitals to act “in accord with the moral principles governing cooperation” and warning that “[t]he possibility of scandal . . . is an important factor that should be considered when applying the principles governing cooperation”); see also M. Cathleen Kaveny & James F. Keenan, Ethical Issues in Health-Care Restructuring, 56 Theological Stud. 136, 144-45 (1995) (explaining how changes in healthcare delivery and payment, including mergers and partnerships involving Catholic hospitals, prompted increased concern regarding principles of cooperation).

The implications of increasing consolidation in the healthcare field are not limited to abortion. Care regarding miscarriages may be affected as well. See Lori R. Freedman et al., When There’s a Heartbeat: Miscarriage Management in Catholic-Owned Hospitals, 98 Am. J. Pub. Health 1774 (2008) (finding that physicians at Catholic-owned hospitals were restricted in their ability to undertake urgent uterine evacuation for miscarrying patients). Catholic-run healthcare systems may also proscribe access to contraception on a widespread basis. For instance, when the local hospital in Bartlesville, Oklahoma, was acquired by a Catholic healthcare organization, the parent company issued a directive apparently attempting to prohibit local doctors with admitting privileges at the hospital from prescribing contraceptives for the purpose of birth control. See Kelli Williams, Reports: JPMC Doctors No Longer Allowed To Prescribe Birth Control, Bartlesville Examiner-Enterprise (Okla.), Mar. 29, 2014, http://examiner-enterprise.com/news/local-news/reports-jpmc-doctors-no-longer-allowed-prescribe-birth-control [http://perma.cc/GJE5-HUM6]. A representative from the Catholic healthcare organization that had acquired the local hospital explained: “Consistent with all Catholic health care organizations, St. John Health System operates in accordance with the Ethical and Religious Directives for Catholic Health Facilities.” Id. After the reporting of the issue, the healthcare organization issued a statement explaining that “St. John Health System operates in accordance with the Ethical and Religious Directives for Catholic Health Care Services, and therefore does not approve or support contraceptive practices,” but noting that “[w]hile our physicians agree to abide by the Directives, they also have the ability to prescribe medications, including hormonal medications, in accordance with their independent professional medical judgment.” St. John’s Health System Responds to Birth Control Issue, Bartlesville Examiner-Enterprise (Okla.), Mar. 31, 2014, http://examiner-enterprise.com/news/local-news/st-john-health-system-responds-birth-control-issue [http://perma.cc/6ZB2-LN47]. As this situation suggests, issues arise when a religious hospital seeks compliance from physicians who simply affiliate with it. See Ikemoto, supra note 214, at 1102 n.84 (explaining that in Lane County, Oregon, a Catholic health system not only provided about seventy percent of hospital services but also required physicians joining its integrated delivery network to cease abortion and alternative insemination services).

1995 Religious Directives for Catholic Health Care Services, supra note 23, at 27 (“Cooperation, which in all other respects is morally appropriate, may be refused because of the scandal that would be caused in the circumstances.”)

Id. at 19. With regard to the 1995 provisions discussed here, the most recent 2009 Directives retain essentially the same guidance on issues regarding abortion, sterilization, and contraception. 2009 Religious Directives for Catholic Health Care Services, supra note 167. Yet while the 1995 Directives included an Appendix on cooperation, these most recent Directives omit this Appendix. See id. at 35-36 (“This new edition of the Ethical and Religious Directives omits the appendix concerning cooperation, which was contained in the 1995 edition. Experience has shown that the brief articulation of the principles of cooperation that was presented there did not sufficiently forestall certain possible misinterpretations and in practice gave rise to problems in concrete applications of the principles.”). The USCCB is currently working on revisions to the specific Directives pertaining to “collaboration with non-Catholic health entities . . . .” Bishops Approve Items on Liturgy, Ethical and Religious Directives, Cause for Canonization at General Assembly, U.S. Conf. Cath. Bishops (Nov. 11, 2014), http://www.usccb.org/news/2014/14-186.cfm [http://perma.cc/6T5E-RB29].

For instance, in Wisconsin, a pharmacist who refused, based on the notion of complicity, to fill a prescription for contraception also refused, based on the notion of complicity, to provide an alternative means for the customer to obtain her medication. According to the state’s Pharmacy Examining Board, which disciplined the pharmacist, when the customer asked “where she could go to have her prescription refilled, [the pharmacist] stated that he would not tell her because he did not want to be a part in her receiving the contraceptives.” See Amended Final Decision and Order ¶ 28, Neil Noesen, No. LS031009PHM (Wis. Pharmacy Examining Bd. Oct. 29, 2008).

2009 Religious Directives for Catholic Health Care Services, supra note 167, at 20 (emphasis added).

Some Catholic thinkers and healthcare practitioners take the position that the provision of factually relevant information does not constitute proscribed cooperation. See, e.g., Michael R. Panicola & Ronald P. Hamel, Conscience, Cooperation, and Full Disclosure: Can Catholic Health Care Providers Disclose “Prohibited Options” to Patients Following Genetic Testing?, Health Progress 52 (2006). For broader discussions of the application of cooperation, see Cathleen Kaveny, Law’s Virtues: Fostering Autonomy and Solidarity in American Society 245-51 (2012), which explains the principles regarding cooperation and scandal, including how they have been applied in the context of healthcare; M. Cathleen Kaveny, Appropriation of Evil: Cooperation’s Mirror Image, 61 Theological Stud. 280, 284 (2000), which argues that “[t]he Catholic moral tradition has developed an elaborate and sometimes abstruse matrix for evaluating cases of cooperation with evil. . . . [T]he matrix is not designed automatically to generate undebatable answers to what are undeniably complicated questions . . . .”; and M. Cathleen Kaveny, Complicity with Evil, 42 Criterion 20, 24-26 (2003), which reviews the Roman Catholic manualist tradition of cooperation.

See supra Part II.C. In response to a federal rule that would require an organization with religious objections to providing healthcare services to refer the patient to an alternate provider or notify the government of the refusal to provide the patient relevant services, a cross-denominational group of Catholic and evangelical organizations objected on the grounds that the requirements would impose “a duty on the conscientious objector to refer for the very item or procedure to which it has a religious or moral objection.” See Letter from Galen Carey et al. to Office of Refugee Resettlement 5 (Feb. 20, 2015), http://www.usccb.org/about/general-counsel/rulemaking/upload/02-20-15-comments-UM.pdf [http://perma.cc/QY5M-YYLG].

See Brownfield v. Daniel Freeman Marina Hosp., 208 Cal. App. 3d. 405, 409 (1989).

See id. In some situations, refusals can function as a de facto bar to goods or services. With emergency contraceptives, a narrow time window may render the availability of alternatives moot. For example, a forty-two-year-old married mother of two reported being denied emergency contraception by both her primary care physician and her internist, leaving her no other way to obtain the prescription within the seventy-two-hour effectiveness window. Having run out of time to have a prescription filled, she became pregnant and, due to health concerns, obtained an abortion. She explained that the refusal made it “impossible for [her] to get emergency contraception that would have prevented the pregnancy” and forced her into an “awful, painful, sickening” choice to have an abortion. Dana L., Op-Ed, What Happens When There Is No Plan B?, Wash. Post, June 4, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/06/02/AR2006060201405.html [http://perma.cc/W5VU-UKAQ].

Complaint at 2, Means v. U.S. Conference of Catholic Bishops, No. 2:13-cv-14916 (E.D. Mich. Nov. 29, 2013). The patient’s complaint alleges that she was nearly sent home a third time, despite presenting with severe pain and signs of infection, and was only treated when the fetus eventually breached her cervix. Id. at 3. It further alleges that the Directives required the hospital “to abide by their terms, even when doing so places a woman’s health or life at risk.” Id. at 2. In moving to dismiss on jurisdictional grounds, USCCB challenged the plaintiff’s assertion that the hospital’s alleged treatment was required by the Directives. See Defendant United States Conference of Catholic Bishops, Inc.’s Motion to Dismiss, supra note 213, at 6-7. On this point, see Cathleen Kaveny, The ACLU Takes on the Bishops: Tragedy at a Catholic Hospital Leads to a Misguided Lawsuit, Commonweal, Jan. 10, 2014, https://www.commonwealmagazine.org/aclu-takes-bishops [https://perma.cc/6T9T-YL56], who states that “when it comes to secular law, what makes the directives binding on the Catholic hospital are their inclusion in its bylaws—a decision made by its religious sponsor, not the USCCB or even the local bishop.” Kaveny also argues that the Directives do allow a hospital to induce labor in situations like the plaintiff’s under the principle of double-effect. In such a case, the death of the unborn child, who would not have survived anyway, is not intended; it is foreseen and accepted as a side effect of treating the mother’s illness. Id.

ACLU Sues Bishops on Behalf of Pregnant Woman: Press Release, Am. C.L. Union (Dec. 2, 2013), https://www.aclu.org/religion-belief-womens-rights/aclu-sues-bishops-behalf-pregnant-woman-denied-care-catholic-hospital [https://perma.cc/WPV9-TSDQ].

See supra Part III.A; see also Letter from Galen Carey et al., supra note 223.

For a vivid depiction of the “climate of extreme hostility to the practice of abortion” prevailing in Alabama, see Planned Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1330, 1334 (M.D. Ala. 2014).

The market share of commercial actors without a religious affiliation thus becomes relevant. For instance, Wal-Mart initially refused to carry emergency contraception. But the company reversed its decision partly in response to concern that it served as the only pharmacy in some areas of the country. See Michael Barbaro, In Reversal, Wal-Mart Will Sell Contraceptive, N.Y. Times, Mar. 4, 2006, http://www.nytimes.com/2006/03/04/business/04walmart.html [http://perma.cc/87RU-8FKQ]. Nonetheless, Wal-Mart announced that it would carry emergency contraception while also allowing individual pharmacists to refuse service and refer customers to another pharmacist or pharmacy. See id.

See Sepper, supra note 72 (manuscript at 12).

See, e.g., N. Coast Women’s Care Med. Grp., Inc. v. San Diego Cnty. Superior Court, 189 P.3d 959 (Cal. 2008). On the potential impact of healthcare refusal laws on same-sex couples, see Sepper, supra note 152, at 758.

Healthcare Freedom of Conscience Act, supra note 155, § 2(a)(3). And Maryland’s healthcare refusal law specifically covers “artificial insemination.” Md. Code Ann., Health-Gen. § 20-214 (LexisNexis 2014).

John Rivera, CRS Revising HIV Prevention Document, Cath. Relief Services. Newswire (Aug. 31, 2012), http://http://newswire.crs.org/crs-to-revise-hiv-prevention-document [http://perma.cc/3YQA-XVXA]; see also Engaging Faith-Based Organizations in HIV Prevention: A Training Manual for Programme Managers, United Nations Population Fund 10 (2007), http://www.unfpa.org/webdav/site/global/shared/documents/publications/2007/HIVTrainingManual_eng.pdf [http://perma.cc/QL4S-RCVT]. Most recently, LGBT advocates have raised concern over whether employers might object to providing insurance that covers Pre-exposure Prophylaxis (PrEP), a daily drug regimen that has been recommended to reduce the risk of HIV transmission for some men who have sex with men. See Matt Baume, Does Hobby Lobby Have To Pay for My PrEP?, Advocate.com (Oct. 27, 2014, 7:00 AM), http://www.advocate.com/31-days-prep/2014/10/27/does-hobby-lobby-have-pay-my-prep [http://perma.cc/ZB2Z-3AS7]. On the federal government’s guidelines regarding PrEP, see Preexposure Prophylaxis for the Prevention of HIV Infection in the United States, U.S. Pub. Health Service (2014), http://www.cdc.gov/hiv/pdf/PrEPguidelines2014.pdf [http://perma.cc/49UM-SBSJ].

See Mireya Navarro, Ethics of Giving AIDS Advice Troubles Catholic Hospitals, N.Y. Times, Jan. 3, 1993, http://www.nytimes.com/1993/01/03/nyregion/ethics-of-giving-aids-advice-troubles-catholic-hospitals.html [http://perma.cc/UL97-H23Z] (explaining a Catholic hospital’s “official policy” on HIV/AIDS care that “staff cannot counsel patients on condoms . . . or refer them out for such counseling”).

See supra Part II.C. In addition, the AUL model healthcare refusal act, see supra note 153, would allow such denials.

See Carol Kuruvilla, Pennsylvania Bridal Shop Turns Away Lesbian Couple To Avoid Breaking ‘God’s Law’, N.Y. Daily News, Aug. 9, 2014, http://www.nydailynews.com/news/national/pennsylvania-bridal-shop-don-serve-lesbians-article-1.1898001 [http://perma.cc/G8CB-ML7X]; Meghan Packer, Bakery Denies Cake to Gay Couple, WFMZ (Aug. 13, 2014), http://www.wfmz.com/news/bakery-denies-cake-to-gay-couple/27463270 [http://perma.cc/47MK-BJZX].

See supra note 202.

These might include nondiscrimination obligations relating to both sex and marital status.

Cf. Oleske, supra note 50, at 136 (“As the debate increasingly moves from blue states to purple and red states, exemptions that provide protection to business owners who oppose same-sex marriage on religious grounds may well find greater political support.” (footnote omitted)). In some regions, refusing service to same-sex couples may help, not hurt, the business itself. See Mark Meredith & Will C. Holden, Cake Shop Says Business Booming Since Refusal To Serve Gay Couple, Fox 31 Denver (July 30, 2012), http://kdvr.com/2012/07/30/denver-cake-shop-refuses-service-to-gay-couple [http://perma.cc/USF9-XRG9].

In prohibiting refusals of service in public accommodations, Congress appreciated their capacity to impose “humiliations.” 110 Cong. Rec. 6531 (1964) (statement of Sen. Humphrey). Bruce Ackerman explains how the Congress that passed the Civil Rights Act, and specifically Title II’s prohibition on discrimination in public accommodations, understood the social meaning conveyed by refusals that impose “institutionalized humiliation.” 3 Bruce Ackerman, We the People: The Civil Rights Revolution 142 (2014). Indeed, Ackerman links this to the legacy of Brown v. Board of Education, 347 U.S. 483 (1954), in which the Court recognized that subordinated groups do not choose the social meanings imposed on them by society’s institutions. See Ackerman, supra, at 150. For commentary drawing on this history, see Marvin Lim & Louise Melling, Inconvenience or Indignity? Religious Exemptions to Public Accommodations Laws, 22 J.L. & Pol’y 705 (2014); and Louise Melling, Religious Refusals to Public Accommodations Laws: Four Reasons To Say No, 38 Harv. J.L. & Gender 177 (2015).

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 250 (1964) (quoting S. Rep. No. 88-872, at 16-17 (1964)).

Some readers have questioned whether it would raise First Amendment issues to make expressive conduct an element of harm in religious accommodation cases. At issue is conduct—conduct that is motivated by religious convictions and often has a clear and sometimes even expressly articulated pejorative social meaning. It is hard to see why the First Amendment would apply any differently to a religiously motivated refusal to serve than a racially motivated refusal to serve of the sort at issue in the paradigmatic cases considered by Congress in enacting Title II. See supra note 241 and accompanying text. The Court has repeatedly upheld restrictions on conduct against First Amendment challenge, even when the law singles out conduct with reference to the beliefs that animated it. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (“[M]otive plays the same role under the Wisconsin [penalty enhancement] statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge.”). Business owners with religious objections to same-sex marriage who serve customers in compliance with antidiscrimination laws are still free to voice their objections to same-sex marriage.

Plaintiffs’ Motion for Preliminary Injunction & Opening Brief at 9, Hobby Lobby Stores, Inc. v. Sebelius, No. 5:12-cv-01000-HE (W.D. Okla. Sept. 12, 2012).

See infra text accompanying notes 272-273.

Rachel C., Review for Sweet Cakes, Yelp (Jan. 17, 2013), http://www.yelp.com/user_details?userid=a4fuAn84fRddJTt7jJEo7g [http://perma.cc/7VBA-CY7P].

Alix G., Review for Here Comes the Bride, Yelp (Aug. 16, 2011), http://www.yelp.com/user_details?userid=3sMW6WLn3wVbmy-knXNd3g [http://perma.cc/M75S-PRYS]. On the potential psychological harms of religiously based refusal of service, see Sepper, supra note 152, at 759.

Pharmacy Refusals 101, Nat’l Women’s L. Center, 2 (Apr. 24, 2012), http://www.nwlc.org/sites/default/files/pdfs/pharmacy_refusals_101_4.19.12.pdf [http://perma.cc/4UJG-Z6PE].

See Pharmacist Cites Sin in Birth Control Case, Wash. Times, Oct. 11, 2004, http://www.washingtontimes.com/news/2004/oct/11/20041011-115311-7515r [http://perma.cc/Z2WU-6KMA] (describing the refusal at a Wisconsin K-Mart in the Noesen litigation discussed supra at notes 77 and 220); Nat’l Women’s L. Center, supra note 248 (describing a refusal at a Seattle Rite-Aid).

Cf. Andrew Koppelman, Antidiscrimination Law and Social Equality 69 (1996) (“Stigma inflicts its greatest harm when the individual is part of the same community of shared meanings as those who stigmatize him.”).

On the relationship between same-sex marriage objections and sexual orientation discrimination, see generally NeJaime, supra note 151. Of course, from the perspective of the religious objector, there may be a distinction between the sin and the sinner.

Eileen Loh Harrist, Bitter Pill: Though Emergency Contraception Is Legal—and Similar to the Common Birth-Control Pill—It’s Not Always Easy To Obtain in Louisiana, Gambit (Nov. 23, 2004), http://www.bestofneworleans.com/gambit/bitter-pill/Content?oid=1243558 [http://perma.cc/FG5P-PNR6].

Affidavit of Tammy Ludwig ¶ 27, Danquah v. Univ. of Med. & Dentistry of N.J., No. 2:11-cv-06377 (D.N.J. Nov. 22, 2011).

Alison S., Review for Masterpiece Cakeshop, Yelp (July 30, 2012), http://www.yelp.com/not_recommended_reviews/masterpiece-cakeshop-lakewood?not_recommended_start=10 [http://perma.cc/D3CM-TLYJ].

Jennifer J., Review for Masterpiece Cakeshop, Yelp (Aug. 10, 2012), http://www.yelp.com/not_recommended_reviews/masterpiece-cakeshop-lakewood?not_recommended_start=10 [http://perma.cc/K2K2-5RU7]. Cf. Chai R. Feldblum, Moral Conflict and Conflicting Liberties, in Same-Sex Marriage and Religious Liberty: Emerging Conflicts, supra note 174, at 123, 153 (“If I am denied a job, an apartment, a room at a hotel, a table at a restaurant, or a procedure by a doctor because I am a lesbian, that is a deep, intense, and tangible hurt.”).

Notice and Final Order at 10, McCarthy v. Liberty Ridge Farm, LLC, Nos. 10157952, 10157963 (N.Y. Div. Hum. Rts. July 2, 2014).

Id.

Id. at 11.

See supra Part III.

Oregon bakery owners who refused to sell cakes for same-sex weddings were recently featured at the 2014 Values Voter Summit, which is sponsored by the Family Research Council, on a panel called “Marriage in America: The Road Ahead,” along with Eric Teetsel, the Manhattan Declaration’s executive director. See VVS 2015 Schedule, Values Voter Summit (2015), http://www.valuesvotersummit.org/schedule [http://perma.cc/Z97F-E3T8] (displaying the schedule from the 2014 Values Voter Summit). The Values Voter Summit “was created in 2006 to provide a forum to help inform and mobilize citizens across America to preserve the bedrock values of traditional marriage, religious liberty, sanctity of life and limited government that make our nation strong.” VVS 2015: About VVS, Values Voter Summit (2015), http://www.valuesvotersummit.org/about [http://perma.cc/JDY6-5CT5].

Entire sections of ADF’s website are dedicated to its work on behalf of the florist who refused to provide flowers for a same-sex couple’s wedding and the photographer who refused to photograph a same-sex commitment ceremony. The Cost of Being a Christian, Alliance Defending Freedom, https://www.alliancedefendingfreedom.org/Home/Detail/4333 [http://perma.cc/7AJD-A7CM]; The Story of Barronelle Stutzman, Alliance Defending Freedom, https://www.alliancedefendingfreedom.org/arlenes-flowers [http://perma.cc/D8YX-Q33Q].

Conley, supra note 150; see also Defending Religious Liberty in America, Alliance Defending Freedom, http://www.alliancedefendingfreedom.org/issues/religious-liberty [http://perma.cc/S9RY-UQU2] (stating that religious liberty “[k]eep[s] the Door Open for the Spread of the Gospel”).

42 U.S.C. § 2000bb–1(a) to (b) (2012).

RFRA does not explicitly mention third-party harm. This is not surprising given the specific cases to which Congress referred when it enacted the statute. As we observed in Part I, the free exercise claims in Sherbert, Yoder, and Smith—the cases mentioned in RFRA—did not focus on the conduct of persons outside the faith community.

We focus on how third-party harm arises under the “compelling governmental interest” and “least restrictive means” prongs of RFRA. For cases discussing questions of complicity under the “substantial burden” analysis, see, for example, Geneva College v. Secretary of United States Department of Health & Human Services., Nos. 13-3536, 14-1374, 14-1376, 14-1377, 2015 WL 543067 (3d Cir. Feb. 11, 2015); and Priests for Life v. United States Department of Health & Human Services., 772 F.3d 229 (D.C. Cir. 2014).

See supra Part I.B and note 64.

See supra notes 51-54 and accompanying text.

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2787 (2014) (Kennedy, J., concurring).

Id. at 2781 n.37 (majority opinion) (citing Cutter v. Wilkinson, 544 U. S. 709, 720 (2005)).

See Roberts v. U.S. Jaycees, 468 U.S. 609, 626 (1984) (in addressing a First Amendment challenge to a law proscribing sex discrimination, the Court observed “the importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women”) (emphasis added); see also Neil S. Siegel & Reva B. Siegel, Compelling Interests and Contraception, 47 Conn. L. Rev. 1025, 1032-35 (2015).

See Koppelman, supra note 250, at 8 (explaining that “‘the antidiscrimination project’ seeks to reconstruct social reality to eliminate or marginalize the shared meanings, practices, and institutions that unjustifiably single out certain groups of citizens for stigma and disadvantage”).

Hobby Lobby, 134 S. Ct. at 2760.

See supra note 57 and accompanying text (reporting on the pending proposal to offer the accommodations available to religiously affiliated nonprofits to some for-profit corporations, and on continuing litigation over the adequacy of those accommodations).

Judgments about contraception have long been entangled in beliefs about women’s natural role as mothers. A year after Justice Bradley explained that “the constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood,” Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., concurring), Congress criminalized contraception. The Comstock Act was premised on the view that it was obscene to separate sex and procreation. Act of Mar. 3, 1873, ch. 258, 17 Stat. 598 (prohibiting circulation in U.S. mail of information regarding contraception, which was deemed obscene) (repealed 1909); see also Carol Flora Brooks, The Early History of the Anti-Contraceptive Laws in Massachusetts and Connecticut, 18 Am. Q. 3, 3 (1966) (describing the enactment of a Connecticut law criminalizing contraception that was modeled on the Comstock Act and later declared unconstitutional in Griswold v. Connecticut, 381 U.S. 479 (1965)). In this period, women who indulged in sex while endeavoring to avoid its natural procreative consequences were condemned as engaging in “physiological sin.” See Reva B. Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 292-96 (1992) (quoting doctors on the sins and health harms of preventing pregnancy). For an account that ties judgments about the use of contraception in the nineteenth and twentieth century to gendered double standards in sex and parenting, see Neil S. Siegel & Reva B. Siegel, Contraception as a Sex Equality Right, 124 Yale L.J. F. 349 (2015), http://www.yalelawjournal.org/forum/contraception-as-a-sex-equality-right [http://perma.cc/MHL9-QRC9]. For an illustration of how religious refusal of contraception can make a woman feel “like a whore,” see text accompanying note 252; cf. Kristin Luker, Taking Chances: Abortion and the Decision Not To Contracept 44 (1975) (explaining that a woman may avoid taking steps, such as accessing and using contraception, that “notify [others] that she is participating in sexual behavior which she has reason to suppose they will disapprove” on religious and other grounds).

In Hobby Lobby, the plaintiffs asserted a claim for religious exemption based on the belief that pregnancy begins at fertilization (rather than implantation) of an egg. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1122 (10th Cir. 2013). By contrast, the scientific community and federal law define pregnancy as beginning with the implantation of a fertilized egg in a woman’s uterus. See Rachel Benson Gold, The Implications of Defining When a Woman Is Pregnant, Guttmacher Rep. on Pub. Pol’y, May 2005, at 7, https://www.guttmacher.org/pubs/tgr/08/2/gr080207.html [http://perma.cc/NA27-ARWD] (“According to both the scientific community and long-standing federal policy, a woman is considered pregnant only when a fertilized egg has implanted in the wall of her uterus . . . .”).

The methods of contraception characterized as abortifacients in Hobby Lobby do not operate post-implantation, and so do not cause abortion in the view of medical science or the federal government. See, e.g., Brief of Physicians for Reproductive Health et al. as Amici Curiae Supporting Defendants-Appellees at 10-12, Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (2013) (No. 13-1144), 2013 WL 1792349 (citing authority); James Trussell & Eleanor Bimla Schwartz, Emergency Contraception, in Contraceptive Technology 113, 121 (Robert A. Hatcher et al. eds., 20th ed. 2011). In fact, all but one of the challenged contraceptive methods are now understood to operate before ovulation, and so may well not count as abortifacients even under the plaintiffs’ religious definition of pregnancy. See Kristina Gemzell-Danielsson et al., Emergency Contraception—Mechanisms of Action, 87 Contraception 300 (2013).

One observer points to evidence suggesting that advocates intend to blur the line between abortion and contraception, including the fact that advocates (1) have characterized contraceptive methods as abortifacients, when the contraceptives in question do not satisfy their religious definition of abortifacients; and (2) have appealed to religious criteria for defining abortifacients in some contexts but not in others, so as to avoid condemning popular methods of contraception. See Joerg Dreweke, Contraception Is Not Abortion: The Strategic Campaign of Antiabortion Groups To Persuade the Public Otherwise, Guttmacher Pol’y Rev., Fall 2014, at 14, http://www.guttmacher.org/pubs/gpr/17/4/gpr170414.html [http://perma.cc/D8YF-27MF]. Efforts to stigmatize contraception as “the new abortion” might appeal to some critics of contraception. Cf. supra notes 120-123 and accompanying text (discussing Christians who condemn the “contraceptive mentality” and who argue that contraception harms women).

See Siegel & Siegel, supra note 268, at 1028 (observing that the government’s compelling interest in providing employees access to contraception “encompass[es] not only core concerns of the community in promoting public health and facilitating women’s integration in the workplace,” but also “crucial concerns of the employees who are the intended beneficiaries of federal law’s contraceptive coverage requirement—interests that sound in bodily integrity, personal autonomy, and equal citizenship”). As the Department of Health and Human Services explained: “Researchers have shown that access to contraception improves the social and economic status of women. Contraceptive access . . . allow[s] women to achieve equal status as healthy and productive members of the job force.” Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725-01 (Feb. 15, 2012). Cf. Hobby Lobby, 134 S. Ct. at 2779-80 (discussing the government’s asserted interests in requiring employers to provide employees insurance for contraception, including “‘public health’ and ‘gender equality’” (citing Griswold, 381 U.S. 479)).

We know that religious refusals to provide contraception in a face-to-face encounter can demean and stigmatize. For illustrations of the dignitary dimensions of the transaction, see supra notes 248-252 and accompanying text. Providing and withholding insurance may present a different case. Some have argued that because insurance benefits are fungible goods, the rerouting of benefits through an alternative mechanism neither harms the statutory beneficiaries nor undermines the government’s interest. See Berg, supra note 18, at 124-25 (citing Vikram David Amar & Alan E. Brownstein, The Narrow (and Proper) Way for the Court To Rule in Hobby Lobby’s Favor, Verdict (Apr. 11, 2014), http://verdict.justia.com/2014/04/11/narrow-proper-way-court-rule-hobby-lobbys-favor [http://perma.cc/6UDL-F929] (“The benefits provided by the Act . . . are fungible, intangible goods that can be provided by either the public or private sector. And the Act’s beneficiaries have no reason to care about the source of the insurance.”)). Whether a government accommodation expresses the message that contraception is sinful would depend on the way the government structures the accommodation.

See Loewentheil, supra note 50, at 495 (“[T]here may be cases in which the state could conceivably have produced a more narrowly tailored practical solution to a given problem, but could not produce a more narrowly tailored solution that would respect the expressive equality norms at stake . . . .”).

At least one commentator sympathetic to religious refusals has suggested that religious objectors comply with antidiscrimination laws while voicing their objections. See Russell Nieli, Gay Weddings and the Shopkeeper’s Dilemma, Pub. Discourse (Dec. 17, 2014), http://www.thepublicdiscourse.com/2014/12/14190 [http://perma.cc/4A6A-EYTV] (encouraging business owners to “obey the law and serve gay weddings, but [to] make it known publicly that you believe that the law forcing you to do this is unjust, needs to be changed, and is obeyed only out of your respect for law and the democratic process”); see also Russell Nieli, Challenging Unjust Laws Takes Prudence, Courage, and Common Sense, Pub. Discourse (Jan. 28, 2015), http://www.thepublicdiscourse.com/2015/01/14335 [http://perma.cc/H5UJ-LEGK] (“Even if, under the ‘hostile work environment’ exception, a workplace sign of protest were prohibited, nothing would prevent a business owner from taking out ads in local media publicly announcing his conscience-based objections to serving same-sex weddings.”). Speech may in fact serve to quell some concerns with the apparent sanctioning of conduct—concerns associated with complicity claims sounding in scandal. (For a discussion of scandal as occurring when the individual or institution engages in conduct that appears to sanction someone else’s wrongful behavior, see supra note 23.).

Many states have their own RFRAs that track the federal RFRA. To the extent they do, our analysis of the federal RFRA will be relevant. On state RFRAs, see Christopher C. Lund, Religious Liberty After Gonzales: A Look at State RFRAs, 55 S.D. L. Rev. 466 (2010); and Eugene Volokh, 1A. What Is the Religious Freedom Restoration Act?, Volokh Conspiracy (Dec. 2, 2013, 7:43 AM), http://volokh.com/2013/12/02/1a-religious-freedom-restoration-act [http://perma.cc/43MG-QXAQ].

Complicity-based conscience claims are being made to support “marriage conscience protection” provisions in state legislation codifying same-sex marriage. See, e.g., Letter from Robin Fretwell Wilson et al. to Pat Quinn, supra note 194. Some state legislatures have considered statutes that would allow businesses to refuse service to same-sex couples based on notions of complicity. See, e.g., H.B. 2453, 85th Leg., Reg. Sess. (Kan. 2014), http://www.kslegislature.org/li/b2013_14/measures/hb2453 [http://perma.cc/R2LC-P9VC]; S.B. 1428, 126th Leg., 2d Reg. Sess. (Me. 2014), http://www.mainelegislature.org/legis/bills/display_ps.asp?paper=SP0514&snum=126 [http://perma.cc/M8YS-U6DN].

Some healthcare refusal laws do not provide an exception for emergency situations. See, e.g., Mich. Comp. Laws Ann. § 333.20181 (West 2014); Minn. Stat. Ann. § 145.414 (West 2014); Miss. Code Ann. § 41-107-5 (West 2014); see also Sonfield, supra note 92. And some of these laws permit providers to withhold referrals or other information that would notify patients of restrictions on services and enable them to find alternative providers. See, e.g., 42 U.S.C. § 238n (2012); Ark. Code Ann. § 20-16-304 (West 2014); Colo. Rev. Stat. Ann. § 25-6-102 (West 2014); Fla. Stat. Ann. § 381.0051 (West 2014); Miss. Code Ann. § 41-107-3 (West 2014); see also Sonfield, supra note 92.

Proposals to balance access against accommodation have been extensively considered by scholars of health law and bioethics. For a helpful summary, see Sepper, supra note 72 (manuscript at 9).

See Berg, supra note 18, at 139 (noting a problem “if religious objectors are numerous or large enough to hold market power over the matter in question”); cf. Att’y Gen. v. Desilets, 636 N.E.2d 233, 240 (Mass. 1994) (inquiring into whether accommodation of a complicity-based conscience claim from state housing law that prohibited marital status discrimination would “significantly imped[e] the availability of rental housing for people who are cohabiting or wish to cohabit”).

See Thomas C. Berg, Minority Religions and the Religion Clauses, 82 Wash. U. L.Q. 919, 968 (2004) (“Exemptions prompt the worry that granting one will invite a series of future claims whose cumulative effect on social interests will be damaging. But the smaller and more unconventional the group, the fewer the likely prospective claims.”). As Martha Minow has observed in her treatment of conflicts between civil rights laws and religious objections: “Because of the size of relevant religious groups, exemptions would enormously affect the number of workplaces and other settings where the antidiscrimination norm is bent or broken.” Martha Minow, Should Religious Groups Be Exempt from Civil Rights Laws?, 48 B.C. L. Rev. 781, 822-23 (2007).

See supra Part IV.A; see also Ikemoto, supra note 214, at 1102; Laycock, supra note 197, at 848, 879.

See, e.g., Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274, 283 (Alaska 1994) (“The government views acts of discrimination as independent social evils even if the prospective tenants ultimately find housing. Allowing housing discrimination that degrades individuals, affronts human dignity, and limits one’s opportunities results in harming the government’s transactional interest in preventing such discrimination.”).

See supra notes 51-54 and accompanying text; see also Holt v. Hobbs, 135 S. Ct. 853, 867 (2015) (Ginsburg, J., concurring) (“[A]ccommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.”).

Complicity claims are asserted by religious claimants who represent minority faiths in the United States. See, e.g., John Reinan, Taxi Proposal Gets Sharp Response, Star Trib. (Minneapolis), Feb. 27, 2007, http://www.startribune.com/local/11586646.html [http://perma.cc/9G2F-EDAN] (explaining that the Minnesota chapter of the Muslim American Society instructed that taxi drivers should not carry “passengers with alcohol ‘because it involves cooperating in sin according to Islam’”).

Recent empirical work suggests that the religion of a claimant seeking accommodation in court correlates with the likelihood of accommodation being granted, with Catholics and Protestants, for instance, having higher success rates than Muslims. See Michael Heise & Gregory C. Sisk, Free Exercise of Religion Before the Bench: Empirical Evidence from the Federal Courts, 88 Notre Dame L. Rev. 1371 (2013); Gregory C. Sisk & Michael Heise, Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts, 98 Iowa L. Rev. 231 (2012). On judicial accommodation, see Mark Tushnet, “Of Church and State and the Supreme Court”: Kurland Revisited, 1989 Sup. Ct. Rev. 373, 383, which argues that “[t]he less familiar the claim is—that is, the less connected it is to the kinds of worship that the Justices of the Supreme Court are accustomed to—the less likely it is that they will regard infringements on those forms of worship as really serious.” On legislative exemptions, see William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 318 (1991), which suggests that “[l]egislators are more likely to be aware of majoritarian religious practices (their own) when they fashion general regulations, and thus are unlikely to place disabilities on those practices. Similarly, they are less likely to be concerned with religious practices outside their religious tradition and accordingly are more likely to place burdens on those practices inadvertently.”

Cf. Greenawalt, supra note 172, at 821 (“A legislator might think that protecting conscience is so important that persons should not be made to act against conscience, however odd the basis for their judgments. But a legislator who believes that a particular procedure is seriously wrongful, and should be performed as little as possible, might approve a right of refusal independent of any special sensitivity about the conscience of those who refuse.”).

See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965). Concerns are heightened by the combination of institutional exemptions and increasing mergers involving Catholic hospitals. See Martha Minow, On Being a Religious Professional: The Religious Turn in Professional Ethics, 150 U. Pa. L. Rev. 661, 683-84 (2001) (“[T]he number of mergers between Catholic and non-Catholic hospitals is rising sharply. In about half of the mergers over the past decade, all or some reproductive health services previously provided by the non-Catholic institution have been eliminated. State attorneys general, entrusted with the responsibility of approving such mergers, . . . could consider the impact of the mergers on the constitutionally-protected right for individuals to make their own reproductive choices.”).

Cf. Laura S. Underkuffler, Odious Discrimination and the Religious Exemption Question, 32 Cardozo L. Rev. 2069 (2011) (addressing claims to religious exemptions from antidiscrimination laws that include race, sex, religion, sexual orientation, and gender identity). In the LGBT context, see NeJaime, supra note 151, at 1226-29, 1236; and Oleske, supra note 50, at 144. For the sex equality dimensions in the healthcare context, see Sepper, supra note 72 (manuscript at 19); and Sepper, supra note 50, at 208-11. As Laurence Tribe has shown, liberty and equality “are profoundly interlocked in a legal double helix.” Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893, 1898 (2004).

See H.R. 3133, 113th Cong. (2013); S. 1808, 113th Cong. (2013); H.B. 2453, 85th Leg., Reg. Sess. (Kan. 2014).

See Mary Anne Case, Why “Live-And-Let-Live” Is Not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights, 88 S. Cal. L. Rev. (forthcoming 2015) (manuscript at 19) (on file with authors) (“The constitutional concerns are compounded when one considers . . . that the brunt of the proposed exemptions will fall almost exclusively on individual members of historically disadvantaged groups, notably gay men, lesbians and other women, creating equal protection problems.”); Oleske, supra note 50, at 144 (“Only after same-sex couples were allowed to marry was there an effort to allow business owners to discriminate for religious reasons, and such an ‘unusual deviation from the usual tradition’ would appear to be ‘strong evidence’ under Windsor of an unconstitutional intent ‘to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.’”); Letter from Dale Carpenter, Douglas NeJaime, Andrew Koppelman, Ira C. Lupu & William P. Marshall to Michael Madigan, Speaker, Ill. House of Representatives, at 10 (Oct. 15, 2013) (on file with authors) (“[T]he inclusion of the proviso means that the law would single out lesbians and gay men, carving out from antidiscrimination law only this discrete group, a form of discrimination that may well be unconstitutional.” (citing United States v. Windsor, 133 S. Ct. 2675 (2013))).

See supra note 53 and accompanying text. On the general conflict between accommodation and the Establishment Clause, see also Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2802 n.25 (2014) (Ginsburg, J., dissenting), which explains that “the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause”; and Tribe, supra note 43, at 1195, which warns that “unbounded tolerance of governmental accommodation in the name of free exercise neutrality could eviscerate the establishment clause.” In fact, some scholars have argued that independent Establishment Clause violations may arise in some of these contexts. See, e.g., Nelson Tebbe, Religion and Marriage Equality Statutes, 9 Harv. L. & Pol’y Rev. 25, 46-52 (2015). For instance, in the same-sex marriage context, legislative exemptions from antidiscrimination laws impose costs on same-sex couples. See id. at 47-48. Some statutory regimes, such as healthcare refusals legislation, may avoid these issues by covering both religious and moral objections. See id. at 44. Nonetheless, exemptions in the healthcare context may still raise constitutional issues by “impos[ing] restraints that are too severe on private actors,” including the employers. Greenawalt, supra note 172, at 821.

See, e.g., Richard W. Garnett, Religious Freedom and the Nondiscrimination Norm, in Matters of Faith: Religious Experience and Legal Response 194 (Austin Sarat ed. 2012); Abner S. Greene, Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground?, 9 Harv. L. & Pol’y Rev. 161 (2015); John D. Inazu, A Confident Pluralism, 88 S. Cal. L. Rev. (forthcoming 2015), http://ssrn.com/abstract=2470788 [http://perma.cc/3922-MCZM]; see also supra note 152.

See generally McConnell, supra note 36.

See, e.g., Berg, supra note 36, at 207-08, 211-12, 216, 218, 226-28; Wilson, supra note 152, at 1437, 1482-83, 1487-89, 1508; Ryan T. Anderson, Sexual Liberty and Religious Liberty Can Coexist. Here’s How, Daily Signal (Nov. 9, 2014), http://dailysignal.com/print/?post_id=164652 [http://perma.cc/NN7P-PB7A].

See Nancy L. Rosenblum, Introduction to Obligations of Citizenship and Demands of Faith: Religious Accommodation in Pluralist Democracies 3, 15 (Nancy L. Rosenblum ed., 2000) (explaining that “integralism” is “a set of challenges to democratic government in the name of faith”); Rosenblum, supra note 108, at 25 (describing “integralism” as “the view that values and practices in every sphere must be religious and congruent”); see also Mark Jensen, The Integralist Objection to Political Liberalism, 31 Soc. Theory & Prac. 157 (2005). On the distinct, specific tradition of Catholic integralism, see Christopher van der Krogt, Catholic Fundamentalism or Catholic Integralism?, in To Strive and Not To Yield: Essays in Honour of Colin Brown 123 (James Veitch ed., 1992).

Nancy L. Rosenblum, Faith in America: Political Theory’s Logic of Autonomy and Logic of Congruence, in Religion and Democracy in the United States: Danger or Opportunity? 382, 384 (Alan Wolfe & Ira Katznelson eds., 2010). As Paul Horwitz explains, this integralist perspective is also reflected in claims that seek to bring religion further into the commercial sphere and the public square. See Paul Horwitz, Comment, The Hobby Lobby Moment, 128 Harv. L. Rev. 154, 180 (2014) (“To a growing and increasingly visible extent, a range of faiths and sects take an ‘integralist’ view that sees ‘religion not as one isolated aspect of human existence but rather as a comprehensive system more or less present in all domains of the individual’s life.’”) (quoting Kenneth D. Wald, Religion and the Workplace: A Social Science Perspective, 30 Comp. Lab. L. & Pol’y J. 471, 474 (2009)). Some scholarly commentators supporting broader religious exemptions for for-profit corporations have drawn on the integralist ethos animating some of today’s claimants. See Ronald J. Colombo, The Naked Private Square, 51 Hous. L. Rev. 1, 18 (2013) (“Although religious integralism is not ordinarily a feature of mainstream Protestantism in America, it is a feature of the fastest growing religious groups in America: Islam, Orthodox Judaism, Mormonism, fundamentalist and evangelical Protestantism, and the more traditional expressions of Catholicism.”).

See supra Part III.A; see also supra note 108 (describing ADF’s campaign to end IRS regulations that condition religious institutions’ tax-exempt status on restrictions on supporting particular candidates).

Conley, supra note 150.