Religious Liberty for Politically Active Minority Groups: A Response to NeJaime and Siegel

Douglas NeJaime and Reva Siegel have offered an elaborately reasoned argument against claims of conscience with respect to healthcare and marriage, claims that they call “complicity-based conscience claims.” I appreciate that they have avoided some of the exaggerations of more strident opponents of exemptions in these contexts. I even agree with some of what they say. But their reasonable tone cannot conceal their remarkable conclusion. They appear to say that religious conservatives should forfeit their right to conscientious objection on these issues because too many of them also engage in political speech on these issues. This claim that dissenters must choose which of their rights to exercise, or that their rights subsist only so long as they are not exercised too vigorously, is at odds with both freedom of speech and freedom of religion. After briefly summarizing NeJaime and Siegel’s argument, I will consider their asserted government interests in descending order of generality and then their concept of complicity claims. Neither the political meaning of conscientious objection, nor the dignitary harm of receiving a civilly communicated refusal to assist behavior that a conscientious objector views as immoral, creates a compelling government interest that overrides the right to conscientious objection. And while preventing significant material harm generally is a compelling interest, and one that is sometimes present in these cases, it cannot be presumed just because conservative Christians are numerous. Finally, “complicity claim” is a fuzzy category with no legal significance. It is irrelevant to NeJaime and Siegel’s claims.