Guest Post by David S. Oderberg, University of Reading

Re: Further clarity on co-operation and morality

The 2014 US Supreme Court decision in Burwell v. Hobby Lobby was a landmark case on freedom of religion and conscience in the USA. The so-called ‘contraceptive mandate’ of the Affordable Care Act (aka Obamacare) requires employers to provide health insurance cover for contraception used by their employees. The Green family (Evangelical Christian), owners of the Hobby Lobby chain of arts and crafts stores, challenged the mandate as they objected to providing cover for at least those methods of contraception that are abortifacient. They were joined by the Hahn family (Mennonite Christian), owners of a furniture company.

The case wound up at the Supreme Court, where the majority, led by Alito J, agreed with the plaintiffs. Under the Religious Freedom Restoration Act 1993, the plaintiffs were ‘substantially burdened’ in their exercise of religious freedom. They sincerely believed that by providing insurance cover that violated their religious and moral beliefs, they would be complicit in sinful behaviour. Violation of the RFRA, the court decided, meant the plaintiffs were entitled to an ‘accommodation’ or ‘opt-out’ of the contraceptive mandate.

The case is remarkable for a number of reasons. Conscientious objection is not new to the courts, particularly as regards service in war. Nor is Hobby Lobby unusual for recognising that a legal person such as a corporation can have its freedom of religion violated in virtue of what its owners/executives are required to do by law. After all, the contraceptive mandate already exempted churches and other purely religious bodies. In the present case, however, the plaintiff corporations were not religious in nature: it was their owners/executives who claimed a corporate exemption based on their personal religious and ethical beliefs. The judgment thus radically extends the potential scope for religious freedom litigation under RFRA, something that will occupy the courts for many years to come.

Even more notable, however, is the court’s brief but significant flirtation with ‘a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.’ The court cited some traditional works of Catholic moral theology; they also cited a paper of my own published in 2004, entitled ‘The Ethics of Co-operation in Wrongdoing’. In that paper I too draw on traditional moral theology to develop what seems to me to be an independently plausible theory of the ethics of co-operating in the immoral actions of others. The conclusion is – sometimes co-operation is permissible, sometimes it isn’t. The theory behind it utilises various concepts such as proximity, dispensability, immediacy, and formal vs. material co-operation in order to give a method – hardly mathematically precise, but then ethics is just like that, isn’t it? – of deciding on these sorts of case.

Using that theory, my view is that the Hobby Lobby decision was correct. The Supreme Court, however, came to the right conclusion for the wrong reasons, for in the end the majority sidestepped the philosophical questions – not wanting, understandably, to get bogged down in difficult theoretical issues going beyond case law and statute. After all, they’re judges, not philosophers! Still, I think the court erred in its reasoning. It thought that sincerity of religious or ethical belief covered not merely the belief that abortion is wrong, or that abortifacient contraception is wrong – US courts do not second-guess a sincere religious or ethical belief – but also beliefs held by the plaintiffs about whether they would indeed be illicit co-operators.

In my new article, ‘Further Clarity on Co-operation and Morality’, I challenge the reasoning in Hobby Lobby. Courts must not confuse primary beliefs of religion or ethics, where sincerity is not replaced by a reasonableness test, with beliefs about whether, even on the principles laid down by one’s own religious or ethical code, one would count as an illicit co-operator. In my view, the theory of co-operation found in the theology books cited by the Supreme Court is plausible independently of its having been developed by theologians, whether Catholic or otherwise. Being found in a theology book does not make a proposition ipso facto religious in nature. If being an illicit co-operator depended merely on one’s sincere belief that one were, absurd results would follow. Now, various organisations in the US already covered by an opt-out/exemption are challenging the opt-out itself on the ground that they sincerely believe opting-out makes them illicit co-operators. They claim that the very act of opting out is itself a form of co-operation! I submit this can’t be right.

What is the solution? Well, judicial ducking of the hard philosophical questions is not. I am not asking judges to become moral philosophers (although they do a lot of it in their judicial capacity anyway), let alone theologians. The courts simply have to take judicial notice of an ethical theory of co-operation in order that a ‘mere sincerity test’ does not become the guidestone for future cases. Needless to say, I think the theory I defend is the most plausible and workable. In any case, taking judicial notice does not mean referring to a philosophy paper when writing a judgment. It means doing what courts already do when it comes to concepts such as causation, or acts and omissions, or aiding and abetting in the criminal law. That is, legal theorists should develop a jurisprudence of co-operation importing insights from moral philosophy, and that jurisprudence should inform judicial decision-making.

To put the issue more broadly, if freedom of religion and conscience is to have any real meaning in our liberal, secular society, piecemeal ‘conscience clauses’ (as in section 4 of the UK Abortion Act) are not enough. Nor is the generic, broad protection offered by, say, the European Convention on Human Rights or the UN Declaration. In my paper I also analyse the Doogan and Wood UK Supreme Court case on participation in abortion. On its face, the judgment in that case, given the legislation, was correct in going against the midwife plaintiffs. But had there been a worked-out jurisprudence of co-operation in place, backed, preferably, by a Religious Freedom Restoration Act-style statute, the plaintiffs might have stood a better chance of success. And so would future conscientious objectors to various forms of co-operation in what they consider to be immoral acts.

[Edited for typos 14/11/16]