Tender and Taint: Money Complicity in Entanglement Jurisprudence

June 16, 2023

SYMPOSIUM

TENDER AND TAINT: MONEY AND COMPLICITY IN ENTANGLEMENT JURISPRUDENCE

Amy J. Sepinwall*

Because liberalism is concerned with individual freedom, it finds that one person is responsible for the conduct of another only under very narrow circumstances. To a large extent, the law reflects this narrow conception of complicity. There is however one glaring exception to the law’s general resistance to complicity claims: where one actor becomes connected to another’s act through a pecuniary contribution, the law’s liberalism falls away. Money forges a cognizable association no matter how tenuous the causal connection and no matter the subsidizer’s attitudes toward the subsidized act. For example, in Burwell v. Hobby Lobby, the Supreme Court recognized complicity arising from an employer-subsidized health plan, even though the employer had no role to play in the ways its employees chose to spend their healthcare dollars. Pecuniary association explains material support cases where donors to the peaceful wing of an advocacy group can nonetheless be guilty of the crime of supporting a foreign terrorist organization if the group has a violent wing; after all, money is fungible, and no matter that the donor might oppose the group’s violence. Janus v. American Federation of State, County, and Municipal Employees, Council 31, where an employee successfully contested his union dues, even though they were not going to fund the union’s political activity, can be understood on similar grounds.

The first aim of this piece is to trace the law’s divergent approaches to shared responsibility. On the one hand, the law’s atomism generally constrains complicity. But the doctrine tells a very different story where money is the means of association. I aim to draw out this divergence across numerous doctrinal areas, including compelled hosting, campaign finance, public accommodations, and school choice.

Given that religion pervades many complicity claims, a second aim of the piece is to survey Christian conceptions of complicity to see if they share secular law’s special solicitude for money. Two findings emerge. First, Christian concerns with purity—along with the inevitable intermingling with the profane that market interactions involve—prompt a heightened focus on pecuniary association. But, second, the understanding of the evil of pecuniary complicity in Christian thought is far more defensible than the one embodied in secular law.

Introduction

When is one person implicated in the conduct of another? Given its commitment to individualism, liberalism provides a narrow answer to this question.¹ One individual shares responsibility for another individual’s act only if the first made a significant causal difference to the second’s act. Further, the contributing actor must at least know that they stand to make this causal difference; on an even narrower version, the first must also endorse the second’s end, or contribute precisely with an eye to seeing the end succeed.²

To a large extent, the law reflects the narrow conception of complicity. For example, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR), the Supreme Court held that a law school may be made to host military recruiters who violate the school’s nondiscrimination policy on the ground that the military’s discrimination is not attributable to the law school, even though it takes place on school grounds.³ The fact that the law school did not seek to foster the military’s end sufficed to negate any attribution of responsibility to the school for the military’s conduct. A similar resistance to complicity claims can be found across virtually all of the cases considering—and ultimately rejecting—wedding vendors’ bids to evade public accommodations laws on religious freedom grounds.⁴ Standards requiring “active complicity” have saved corporations from liability for the human rights abuses of their suppliers.⁵ We can even see limits on the doctrine of standing as embodiments of a liberal commitment to individualism.⁶

There is, however, one glaring exception to the Court’s—or perhaps more accurately, to the Roberts Court’s⁷—general resistance to complicity claims: where one actor becomes connected to another’s act through a pecuniary contribution, the Court’s liberalism falls away. According to the caselaw, money forges a cognizable association no matter how tenuous the causal connection and no matter the subsidizer’s attitudes toward the subsidized act. For example, in Burwell v. Hobby Lobby Stores, Inc., the Court recognized complicity arising from an employer-subsidized health plan, even though the employer had no role to play in the ways its employees chose to spend their healthcare dollars.⁸ Pecuniary association also explains material support cases, where donors to the peaceful wing of an advocacy group can nonetheless be guilty of the crime of supporting a foreign terrorist organization if the group has a violent wing; after all, money is fungible, and no matter that the donor might oppose the group’s violence. Janus v. American Federation of State, County, and Municipal Employees, Council 31, where an employee successfully contested his union dues even though these were not going to fund the union’s political activity, can be understood on similar grounds.⁹

Given that religion pervades many complicity claims, a second aim of the piece is to survey Christian conceptions of complicity to see if they share secular law’s special solicitude for money. Two findings emerge. First, while Christianity understands complicity broadly, its concerns with purity—along with the inevitable intermingling with the profane that market interactions involve—prompt a heightened focus on pecuniary associations. Second, there is nonetheless an important difference in the way that the law and Christian theology treat these associations. Legal doctrine views money as implicating because it views money as an extension of the self. This elision resolves the apparent inconsistency between liberalism and the caselaw recognizing pecuniary association: if I am my money, then my spending money really does connect me in ways more significant than, say, my devoting my institutional home (FAIR) or my labor or my talents (the wedding vendor cases) would. To be sure, one ought to think that one’s home, labor, and talent are far more personal than money. That the doctrine gets this wrong just is the mark of its profanity. But Christian doctrine, focused as it is on purity rather than personhood, avoids this sin. As I will argue, that makes Christian doctrine more defensible than secular law’s implicit equation of one’s person and one’s purse.

The Article begins, in Part I, with liberal and Christian conceptions of complicity. The next three Parts present the Article’s doctrinal survey, which aims to draw out the differential treatment complicity claims receive, depending on whether money is the mode of implication. Parts II and III offer contrasting lines of doctrine in cases involving compelled hosting and compelled support, respectively. Part IV extends the analysis by describing the Court’s strikingly expansive conception of money’s reach through caselaw in which money’s fungibility is taken to an extreme. Part V concludes by assessing the liberal and Christian thought that might explain concerns about money’s taint.

Several words of caution before embarking on the analysis: first, the analysis treats compelled speech and complicity claims together, even while the former are always rooted in free speech concerns, whereas the latter are often rooted in concerns for religious freedom. Running them together is not undue, I believe, because, in many cases, they nonetheless appeal to the same illicit state action. As Jessie Hill notes, “both compelled speech claimants and complicity claimants argue that, by virtue of the challenged law or its implementation, they are forced into guilt by association.”¹⁰ Further, even where the compelled speech claim is not about guilt by association,¹¹ it still concerns a kind of implication, as I describe below.

Second, the analysis is transsubstantive, and so vulnerable to the following objection: the rationales for the law’s treatment of complicity claims within one doctrinal area need not align with the rationales in another; any divergence in outcomes is then explainable because there are different values or considerations at stake within different doctrines. Be that as it may, I am not convinced that the proffered explanation justifies the different outcomes. One way to read the analysis I offer is precisely as an effort to call into doubt the fact that the law does operate with different values or considerations within different doctrines. I aim to show that the considerations the law heeds in one doctrine might give undue weight to the underlying interests while the considerations underpinning a different doctrine might give the underlying interests short shrift. One sees the law’s differential treatment where, for example, the doctrine treats pecuniary implication more seriously than expressive implication.¹² So while the analysis sometimes glosses over the rationales underpinning the doctrines it addresses, this is because I do not take the rationales themselves to be justificatory.

Finally, and again given the transsubstantive nature of the analysis, there will inevitably be cases that appear to defy the account I offer. In some instances, I aim to dispel the appearance, by recasting the apparent counterexamples in ways that harmonize them with my account.¹³ But I acknowledge that not every outlier is susceptible to this recasting. At the end of the day, I shall be satisfied if, through an accretion of examples, a compelling pattern emerges, even if it is one that does not capture all of the cases perfectly. That pattern is instructive—for insights into the sacred and the profane.

Continue reading in the print edition . . .

©2023 Amy J. Sepinwall. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor, Legal Studies and Business Ethics, Wharton, University of Pennsylvania. I would like to thank Netta Barak-Corren, Stephanie Barclay, Alan Brownstein, Nathan Chapman, Nicolas Cornell, Jessie Hill, Paul Horwitz, Michael Helfand, Andrew Koppelman, Chris Lund, Laura Portuondo, Micah Schwartzman, Mark Storslee, Elizabeth Sepper, Nomi Stolzenberg, and Anna Su for wonderfully helpful feedback. This Article also benefited greatly from comments received when it was presented at the Notre Dame Symposium on Liberalism, Christianity, and Constitutionalism, and at the Nootbaar Fellows Workshop at Pepperdine University’s Rick J. Caruso School of Law. I am grateful to the Notre Dame Law Review editors for their careful and thoughtful work.

1See Amy J. Sepinwall, Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby’s Wake, 82 U. Chi. L. Rev. 1897, 1942–44 (2015).

2See, e.g., Eugene Volokh, The Freedom of Speech and Bad Purposes, 63 UCLA L. Rev. 1366, 1409–12 (2016) (“Selling a gun to someone with the purpose of helping him commit a crime makes the seller liable for the crime under an aiding and abetting theory. The same conduct done merely with the knowledge that the buyer will commit a crime, or will very likely commit a crime, is generally not seen as aiding and abetting . . . .”). The standard for accomplice liability under federal criminal law is somewhere between knowledge and intent. The complicit actor must have had foreknowledge of his associate’s crime, such that the complicit actor could have withdrawn from their shared scheme in time. See Rosemond v. United States, 572 U.S. 65, 77–78 (2014).

3547 U.S. 47 (2006).

4See, e.g., Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013) (denying exemption to a wedding photographer who refused services for a lesbian couple’s wedding); Gifford v. McCarthy, 23 N.Y.S.3d 422 (N.Y. App. Div. 2016) (denying exemption to wedding venue owners who refused to host a lesbian couple’s wedding); Klein v. Or. Bureau of Lab. & Indus., 410 P.3d 1051 (Or. Ct. App. 2017) (denying exemption to a bakery owner who refused to take a wedding cake request from a lesbian couple), review denied, 434 P.3d 25 (2018), vacated, 139 S. Ct. 2713 (2019).

5See Richard L. Herz, The Liberalizing Effects of Tort: How Corporate Complicity Liability Under the Alien Tort Statute Advances Constructive Engagement, 21 Harv. Hum. Rts. J. 207, 208, 225 (2008) (describing and critiquing government advocacy to the effect that courts should reject aiding and abetting liability for corporations under the Alien Tort Statute).

6See, e.g., Christian B. Sundquist, The First Principles of Standing: Privilege, System Justification, and the Predictable Incoherence of Article III, 1 Colum. J. Race & L. 119, 151 (2011); Gloria Chan, Reconceptualizing Fatherhood: The Stakes Involved in Newdow, 28 Harv. J.L. & Gender 467, 473 (2005).

7Virtually all of the caselaw I leverage in the analysis is subsequent to 2005, the year of Roberts’s appointment. My speculation is that the dynamic I trace might not have emerged with a Court constituted by other Justices. In this respect, the analysis aligns with, and reinforces, a trend others have identified about the ways in which the First Amendment has increasingly been used over the last few decades to protect economic interests. See, e.g., Frederick Schauer, First Amendment Opportunism, in Eternally Vigilant: Free Speech in the Modern Era 175, 176–77 (Lee C. Bollinger & Geoffrey R. Stone eds., 2002); Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199, 1219 (2015); Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1468–70 (2015); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 198–201. While I largely restrict the analysis to decisions emerging from the Roberts Court, I note that even the canonical earlier cases in which the Court was more hospitable to nonpecuniary complicity claims bear the seeds of the Roberts Court’s turn. Many of these cases analogize the injury of implication to the injury of commandeering or co-optation—i.e., to a violation of property rights. See infra note 88 (discussing Tornillo, Wooley, Hurley, etc.). In this way, they presage the privileging of pecuniary interests that my analysis aims to highlight.

8573 U.S. 682 (2014).

9138 S. Ct. 2448 (2018).

10B. Jessie Hill, Look Who’s Talking: Conscience, Complicity, and Compelled Speech, 97 Ind. L.J. 913, 914 (2022).

11See the compelled commercial disclosure cases, infra notes 81, 83. R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205 (D.C. Cir. 2012); Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 959 (D.C. Cir. 2013), overruled on other grounds by Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014).

12See Part II.

13See infra notes 88, 109.