Last week's oral arguments in Zubik v. Burwell, the consolidated cases about the application of the Affordable Care Act's contraceptive mandate to religious non-profits, ended with a zinger. Speaking on behalf of Little Sisters of the Poor and several other religious auxiliaries, Paul D. Clement concluded, "my clients would love to be a conscientious objector, but the government insists that they be a conscientious collaborator. There is no such thing."
There's just one problem: there is such a thing.
"Conscientious cooperation" was the stance explicitly taken by the Seventh-day Adventist Church to find a mechanism for its men to accept patriotic military obligations without violating the tenets of their faith. (While one might quibble that "cooperation" and "collaboration" are not exactly the same, Merriam-Webster, a favorite resource of Chief Justice John Roberts, lists them as synonyms.) It's worth recalling the history of conscientious cooperation not only to document that it is, in fact, "a thing," but also because it highlights how a faith far more marginalized than contemporary Catholics and evangelicals navigated dueling obligations of God and country.
Almost a century ago, Congress instituted a draft, conscripting young males to bear arms for the nation. Legislators created an out for members of historic peace churches like Quakers and Mennonites. In the military, conscientious objection did not erase obligation but created an alternative: noncombatant service work. The goal, as the architects of the draft made clear, was to acknowledge conscience without encouraging "slackers."
But Seventh-day Adventists' theological teachings on war were more nuanced than total pacifism. They wanted to be patriotic non-combatants, as their objection was to bearing arms, not war writ large. Instead of viewing the draft as an all-or-nothing proposition, in which church members had to be conscripted into any military role or go to jail (a common penalty for conscientious objectors deemed insufficiently sincere by local draft boards), the Adventist church wanted an accommodation. They embraced enlisting--so long as they could serve as noncombatants (e.g., medics). And they called this stance "conscientious cooperation."
During World War II, Carlyle B. Haynes, the head of the Adventist War Service Commission, distinguished conscientious cooperation from both regular participation in war and conscientious objection. As Francis D. Nichol wrote in The Wartime Contribution of Seventh-day Adventists, church members sought a way to serve without engaging in bloodshed. Donning the uniform, he asserted, did not make Adventists complicit in killing because their individual actions as noncombatants were separate from the machinery of battle.
American Adventists thus modeled conscientious cooperation with the federal government. And their experience offers a path forward in contemporary debates over conscientious objection in healthcare.
What the Adventist experience shows is, contra the claims of the petitioners in Zubik, conscientious cooperation is both viable and necessary in a pluralistic society. While conscientious collaboration may not be a formal legal status, it is a theological practice. It distinguishes regulatory compliance from complicity, as the Adventist interaction with the military demonstrates.
Conscientious cooperation recognizes that acts of conscience are not always cost-free. But neither is categorical separation from theologically abhorrent practices necessary: the Adventist Army medic treated the combatant soldier. The Navy did not "hijack" the Adventist corpsman's medical training when instructing him to care for wounded sailors, and the Adventist did not refuse to bandage gunshot wounds on the grounds that a conscript of a different faith followed a different belief system that permitted the use of weapons.
The very procedure being litigated in Zubik is the accommodation that enables religious non-profits to extricate themselves from funding and distributing contraception. Conscientious involvement in the healthcare system in accordance with federal regulations does not mean furnishing contraception; it means recognizing and allowing a larger structure that enables others, namely the government and third-party insurers, to supply contraception. It is possible, in other words, to be associated with a system without directly contravening one's faith, without building obstacles for others, and without bringing down the system (a credible threat, given Congressional gridlock).
Inconveniently for Clement, the Adventist "conscientious cooperation" approach to military service offers a historical precedent of religions working within, not undermining, a regulatory system that challenges their creed. Conscientious cooperation allows religious organizations to express their faith, live their ethical imperatives, and participate in a system without approving of every dimension of the system.
Just as Adventists enlisted as medics rather than fired the weapons of infantrymen, so too is it possible for religious non-profits to avoid directly distributing contraception while signing a form that allows others to do so. It is comparable to conscientiously serving as noncombatants while letting others carry the burden of ammunition, bombs, and missiles. Indeed, Adventists' conscientious cooperation meant living in an environment rife with arms; the singular--or even yearly--need to ink a signature on a form is, in contrast, a rather muted mode of cooperation.
Thus if, as Clement argued, "the government insists that they be a conscientious collaborator," he is not wrong. But neither is the government wrong to insist that conscientious collaboration is real, historical, tenable, and right.