Recommended Citation
Danieli Evans, Religious Objections to the Death Penalty After Hobby Lobby, 27 STAN. L. & POL'Y REV. ONLINE 1 (2015), https://digitalcommons.law.uw.edu/faculty-articles/1078
Publication Title
Stanford Law & Policy Review Online
Keywords
death penalty, death qualification, jurors, religious freedom laws, Religious Freedom Restoration Act, complicity-based claims
Document Type
Article
Abstract
In Glossip v. Gross, the Supreme Court held that in order to prevail on the claim that a method of execution is cruel and unusual punishment, petitioners must prove that there is an available alternative that entails a lesser risk of pain. In this case, the state was using a method that is allegedly more painful than drugs used in the past because manufacturers of the preferable drugs objected to selling them for the purpose of executions. These manufacturers are not alone in their desire to boycott the death penalty. Many religious groups have declared opposition to the death penalty, and jurors regularly report that their religious beliefs prevent them from imposing the death penalty. Simultaneously, the law has recently become friendlier to religious objections to government policies. In Burwell v. Hobby Lobby, the Court recognized a new kind of religious freedom claim—which has been described as a “complicity-based consciousness claim” —in which a religious believer objects to a law that arguably makes him or her help another person commit an action that he or she believes is a sin. Hobby Lobby struck down a law requiring employers to cover contraceptives in their employees’ health insurance, holding that religious employers who oppose contraception should not be required to indirectly subsidize its use. Following Hobby Lobby, religious nonprofits have challenged the requirement that they file a form declaring their religious objection to contraceptives, because this obligates their insurance company to cover them, and thereby facilitates their employees’ use of contraceptives.
In this short essay, I consider how the logic of the complicity-based claims in Hobby Lobby and subsequent nonprofit cases could be applied to challenge the common policy of “death qualifying” jurors in capital punishment cases— removing any juror who reports conscientious opposition to the death penalty. I argue that just like religious nonprofits that object to reporting a religious objection to contraceptives on the grounds that it enables someone else to provide contraceptives, a juror might object to reporting a religious objection to the death penalty on the grounds that it will enable someone else to replace them who is more likely to impose the death penalty.