Before the death of Justice Antonin Scalia on February 13, 2016, it appeared relatively easy to predict the outcome of the high-profile religious liberty case before the Supreme Court that term: Zubik v. Burwell, which consolidated seven cases involving thirty-six religious non-profit petitioners, including, most notoriously, the Little Sisters of the Poor. At issue in those cases, as in Hobby Lobby two years prior, was the Affordable Care Act’s so-called contraceptive mandate. More precisely, Zubik focused on whether the “accommodations” to this mandate established by the Obama administration for religious non-profit employers (as opposed to houses of worship) satisfied the terms of the Religious Freedom Restoration Act of 1993, or instead violated the petitioners’ religious liberty under RFRA.
As readers of the news might recall, the Supreme Court decided, effectively, not to decide Zubik, in any event for now. In a May 16, 2016, per curiam order, the Court vacated “the judgments below” and remanded the various cases to the respective Courts of Appeals. The complex legal, political, and moral questions raised by Zubik will not, however, go away, even if the ACA eventually does. Justice Samuel Alito’s majority opinion in Hobby Lobby (2014) holds that judges should defer to petitioners’ sincere belief that a governmental action constitutes a substantial burden on the exercise of religion. Along similar lines, Justice Alito also wrote that “the federal courts have no business addressing…whether [a] religious belief asserted in a RFRA case is reasonable.” But is it reasonable to believe that complying with the regulations at issue—in particular, notifying the Department of Health and Human Services of opposition to coverage of contraceptives—is connected to the provision of contraceptives in a way that is sufficient to make it immoral to do so? What’s more, is such a belief “religious”?
With Justice Scalia’s death, and notwithstanding the Court’s May 16, 2016 order, it appears that what Justice Alito called, in Hobby Lobby, “a difficult and important question of religion and moral philosophy”—namely, the question of the right understanding of the ethics of cooperation in wrongdoing—can no longer be set aside. In Justice Alito’s terms, this question concerns “the circumstances under which it is wrong for a person to perform an act that is innocent in itself but has the effect of enabling or facilitating the commission of an immoral act by another.” The majority decision in Hobby Lobby castigated HHS for “[a]rrogating [to itself] the authority to provide a binding national answer to this religious and philosophical question” and declined to judge whether the petitioners’ own answer was right or wrong. Neither the dissenting justices in Hobby Lobby, however, nor all the lower courts in the cases leading to Zubik showed this same reluctance.
Last spring, shortly before the Supreme Court’s non-decision, the Commonweal editors criticized the USCCB’s over-the-top dramatization of the stakes in Zubik, but refrained from taking a position on the underlying questions. I didn’t know what to think myself, so I devoted a forum I edit, “Ethics in Focus,” to trying to make sense of the petitioners’ arguments. (By way of full disclosure, I edit “Ethics in Focus” for the online, open-access journal Expositions: Interdisciplinary Studies in the Humanities, which is published by the Center for Liberal Education at Villanova University. The forum is a collaboration of VCLE and the King’s College McGowan Center for Ethics and Social Responsibility.)
In Hobby Lobby, Justice Alito cites, in a footnote, three discussions of the ethics of cooperation: one relatively recent discussion by the philosopher David Oderberg, and two older discussions by the Jesuit moralists Thomas J. Higgins and Henry Davis. After my introduction to the forum, the first contribution is by none other than Oderberg, who is a professor of philosophy at the University of Reading in England. (Higgins and Davis, alas, were not available.) The other contributors are Charlie Capps, who is pursuing a J.D. and a Ph.D. in philosophy at the University of Chicago; Tom Cavanaugh, who is a professor of philosophy at the University of San Francisco; and Kate Ward, who is currently a visiting assistant professor of theology at Marquette.