What Does the Supreme Court’s Hobby Lobby Decision Mean for War Tax Resisters?
A talk by attorney Peter Goldberger
National War Tax Resistance Gathering
Earlham School of Religion
November 8, 2014
(The full text of the talk is below, or watch it on Vimeo)
When I learned there was a meeting of the National War Tax Resistance Coordinating Committee focused on Quaker themes, to be held at Earlham School of Religion in November 2014, I raised the question whether we didn’t want to talk about the Supreme Court decision from the spring of 2014, the Hobby Lobby case under the Religious Freedom Restoration Act, to explore whether there was anything in there that war tax resisters could use. Wouldn’t it be fun to talk about that? Lonnie Valentine and Ruth Benn responded, “Well, do you want to come out and do that? We can fit you in.” So that’s what happened; I talked myself onto the program. When the Court’s decision came out, I wanted to think about it from this point of view. There was a lot that was being said in the spring about it, and I wanted to sort through more seriously what was true and what was not true, what was nonsense and what was less nonsense. In particular, I wanted to ask the question whether there was something useful in it for conscientious objectors to taxes for military purposes.
So that’s the topic for this evening: the Religious Freedom Restoration Act, and particularly the Supreme Court decision in the Hobby Lobby case. But before I get to the details of that subject, I’m going to indulge myself, and persecute you little—and maybe interest you—by putting that specific topic into a larger context. Hopefully this will not turn into the whole hour and a half that I’m capable of once I get wound up and started, about what interests me about law for pacifists and resisters and the concepts that I work with when I handle those cases.
I know a lot of you, and I know that a lot of you are not mostly interested in the legal aspects of resistance. I totally respect that. If I didn’t respect that, and if I wasn’t very fond of you, I wouldn’t have been doing this work for the last thirty years. But I think there is some value in knowing and understanding about the legal concepts, so I am going to take advantage of the position that I’m in right now by laying some of that on you from my point of view.
So, these are some basic ideas and concepts and some inter-related issues that war tax resisters may or may not think about—sometimes they try to think about and are confused about, and sometimes are in the background and they’re not thinking about them—but which are relevant to war tax resistance in my mind, coming from the perspective of a pacifist lawyer.
I start out by saying that there is truth, to my mind, in each of two fundamentally opposing views about law in our society. On the one hand, law is in fact a deeply civilizing force. It’s a device by which communities channel and resolve conflicts that would otherwise lead to violence. The institutions of law establish a place for people who are in conflict, after private efforts fail, to take their problems, at least in theory, to a neutral, respected, government-supplied forum for those disputes to be resolved impartially and with finality—that is, people respect the system and they accept the result whether it’s in their favor or not. That’s the way the legal system is supposed to work. In that forum, conflicting parties can be represented by lawyers, who work like this: the lawyers get between the adversaries; they deflect and depersonalize the conflict, and mediate the dispute within the legal forum. At least, that’s what I like to think. That’s why God created lawyers in the year 1150, in the Middle Ages in England—sort of—to perform that function.
Of course, you heard me say “government-supplied forum,” right? This obviously leads immediately to the other side of the coin. The system of law is a device through which the state exercises power over individuals. It monopolizes the legitimate use of violence and threats of violence, including the power of arrest and imprisonment. Behind every courtroom, as Lenny Bruce said, there is a cell. The law is a forum of nonviolent conflict resolution; it is also violence in sheep’s clothing. Both of those statements are true. Finally, in a system of genuine law—not in a system of sham formalisms, legalistic formalisms—the government itself is bound by law. And that is one essential protection against totalitarianism.
A basic belief that religions often have in the sanctity of the individual—and which many people hold outside of religion—inevitably comes into conflict with even the most just and well-ordered system of law. That’s because law and government are always designed, in whatever society, to work better for some than for others. Even in the best systems, the ones that strive for the greatest good for the greatest number, for fairness through predictability and uniformity and equality, who offer the highest levels of democracy and civil liberties—even in those systems—law cannot account for every individual situation, and it cannot account for the individual conscience.
The only governmental system that is fundamentally consistent with the idea that God speaks to each individual directly and equally—to steal a concept from my Quaker friends—is, as the saying goes, “Every man a law unto himself.” And of course, that is no system of law at all.
The inter-related issues that we’re talking about this evening arise against that background. The concepts that I want to talk about for a few minutes—and then from them into the Hobby Lobby discussion—are civil disobedience, conscientious objection, and free exercise of religion: three different concepts that are related to one another, and yet are different from one another.
“Civil disobedience,” you will notice right off the bat, is a way of describing or defining nonviolent direct action in relation to law. Just to say “civil disobedience” is to acknowledge a system of law, outside of the idea of direct action on the basis of principles. We don’t think of a person who simply goes about doing whatever he or she must because the person believes it to be right, without concern for what the reaction or the response will be from society, we don’t think of that person as engaging in civil disobedience. Examples that come to mind are the Quakers holding meeting for worship in the street when it was forbidden in England to have a Quaker meeting house. They weren’t protesting the law against establishing churches that were not of the Church of England; they were simply doing that which God commanded them to do. The Ministry of the Catholic Worker is like that, it seems to me. They really couldn’t care less what the law is, about what they do. They support; they oppose—that’s not the way they think.
When direct action anticipates, or even seeks, a confrontation with authority, on the other hand—particularly when it seeks to change the legal order through that confrontation—then we begin to call it “civil disobedience.” Viewed in this way, many social and political philosophers—including very conservative ones, by the way—describe civil disobedience as an essential part of the democratic process, as part of how law reform is achieved, even though it’s technically illegal. That view of civil disobedience tends also to place value on the cheerful—or at least the willing—acceptance of legal penalties by the resister as part of civil disobedience within the legal system as defined.
Of course, civil disobedience is not only a way of having democratic input into the political process; it’s also a form of individual witness against injustice. The perspective on civil disobedience which views it as a witness against injustice, where injustice in part is taking its form in law, is a more common view, I think, among activists, than the view that I described a moment ago as being held by political philosophers about civil disobedience. I find that in tax resisters; when they talk about civil disobedience they will talk about it that way.
Conscientious tax resisters tend to balance what they feel to be the moral consequences of complicity, even indirect complicity, with organized, intentional, indiscriminate violence, against the practical risks of nonpayment. Contrary to popular belief, as you know very well, these risks are much more likely to be financial than penal in the case of war tax resistance, and in fact even the financial risks are random and unpredictable. And in my thirty-some years of experience I have certainly come to the conclusion that tax resistance is very unlikely to result—almost zero chance, actually, of resulting—in criminal consequences when it is done in keeping with the counseling philosophy and principles which are emphasized by NWTRCC. In every case that I know of where an anti-war tax resister has gone to jail in the last twenty years—not the whole thirty years—has been someone who was outside the network, didn’t know the network existed, made his or her own decisions of what to do and how to do it, got in trouble, and then reached out for help.
When we think of civil disobedience as a form of protest against unjust laws, usually we’re talking about breaking those laws openly. This is often said to be part of the definition of what constitutes civil disobedience. But this is not always so. There are cases where the law demands that the person take a certain action, and the person just can’t take that action, and then their refusal to take the action—as was true under the draft, for example—is likely to result in a direct, open public confrontation in which that person is clearly identified to the government. Refusal of military taxes by the early Quakers, for example, was tax resistance of that kind, because there was a direct imposition of a military tax. The organized abolitionist resistance to the fugitive slave laws was like that: the law put a direct obligation on citizens in the North to refuse aid and to betray fugitive slaves who made it out of slave states. But, in my opinion, when Thoreau refused to pay the poll tax, or when you folks violate federal tax laws today, it’s really not the same, because of the indirect nature of the obligation that requires a multi-step process of moral reasoning to get to that point. And the public nature of it is not inherent, it’s not necessary, because the individual is not necessarily in the sights of the government at the time of doing it.
There are also laws that require that people refrain from certain conduct, and when they then do that conduct, there is also civil disobedience. Laws against harboring deserters can be like that, or against providing sanctuary to undocumented immigrants. I think of Elizabeth Cady Stanton, who lived in the same little town in New Jersey where I grew up, although almost a century earlier. She was prevented from voting there in 1880 — 40 years before the law allowed it. Stanton’s dear friend and lifelong political partner, Susan B. Anthony, was arrested for voting in Rochester, New York, in 1872. It was against the law for women to vote, but they went ahead and attempted to do what they believed was right anyway, and Anthony was arrested for it. Another Quaker, by the way. Troublemakers!
The most massive and effective popular resistance to an unjust law in American history was not conscientious in motive or nonviolent. That was the disobedience of Prohibition. But it caused the law to change. People would not follow that law, and by refusing to follow the law, they caused the law to change.
Also, in contradiction to the political philosophers who write about civil disobedience being, by definition, open and involving confrontation, I hold up as the prime counterexample the Underground Railroad, which was not conducted in public, not conducted openly. Its members did not seek out or embrace punishment, did not hope to fill the jails. They wanted to help slaves make it to Canada—not to the North, where they would be sent back; to Canada. And the same, in my opinion, is also true of the secret illegal abortion provider network called Clergy Consultation Service that existed in the years before Roe v. Wade. In fact the first conscious illegal action that I ever took was helping a friend get an illegal abortion in 1969, a couple of years before Roe, by providing a ride to one of these places where she would meet someone who would meet someone who would take her to a place where she would get an abortion that she needed.
It also does not seem to me that American civil activists have generally accepted the Gandhian principle of embracing punishment as part of civil disobedience. Thoreau did, but I think the American tradition in civil disobedience is more in line with Anne Hutchinson, the Puritan heretic who defended herself in the Massachusetts colonial court against the charge of heresy by denying she had done anything wrong, and trying to avoid being hanged. Good for her.
Many Vietnam draft resisters mounted legal defenses; they went to court. A whole network of progressive lawyers sprung up around them to try to mitigate their punishment, to see how few could be convicted. I was involved in the tail end of that.
I said at the beginning that civil disobedience is a kind of direct action defined in relation to law. The second category that I want to talk about is conscientious objection, which also may sometimes be defined in relation to law, but not necessarily.
Conscientious objection is the demand for an individual exemption from legal compulsion on the grounds of personal conscience. Conscientious objection, by its nature, does not seek to change the law in question. The people who are conscientious objectors may also be seeking to change the law, but conscientious objection itself is not, unlike civil disobedience, an action directed at changing an unjust law. Rather, it seeks an accommodation under the law.
Because of the emphasis of conscientious objection on what is acceptable to the individual, the refusal of a legally unrecognized or unrecognizable C.O. to accept induction or to seek removal from the military or to obey orders, cannot always be described as an act of civil disobedience. However, it is certainly not disqualified from being conscientious objection by the fact that it doesn’t fit the definition that the powers-that-be have assigned to that category at that time. A purely personal witness—laudable though it is, and worthy of great respect and full support—is not a form of civil disobedience.
Now, there is another fascinating complication to all this in the American legal process. There’s another aspect of civil disobedience in relation to these categories that is unique to America, given the fact that in our courts can interpret the law—statutory law and particularly constitution law—and sometimes in that way change what we thought was the law. So, assume, for example, that Reverend Martin Luther King, Jr., leads a march in the street in Birmingham, and that this action violates a city ordinance that prohibits marches in the street. But his lawyers say that the ordinance is unconstitutional. His lawyers may be right, they may be wrong; we’ll find out later after the marchers go to jail. Is that civil disobedience, or is that law reform in the legal system? In America that’s complicated.
The Freedom Riders, when they rode buses into segregated waiting rooms in the South—either in 1949, the first time, or in 1961, 1962, the second time—it was already illegal to segregate those waiting rooms. The Supreme Court has said in 1940-something that the Interstate Commerce Act prohibited racial segregation in interstate bus facilities. Those Freedom Riders were enforcing the law that had already been declared; that’s not civil disobedience, but it was treated that way. A “test case” posture is a problematic case.
But sometimes people pose test cases, carrying their disobedience into court in the form of a test case, in a way that is really a protest gesture, in my opinion. It’s a little controversial for me to say this, but a test case can be disguised as a legal argument, and not really be—even to an out-of-the-mainstream lawyer like me—a legitimate legal argument. An example, if I may say so, is the so-called “Nuremberg defense,” mounted first by one of my heroes, Quaker lawyer and law professor Harrop Freeman, an early leader in the Fellowship of Reconciliation. He advanced that position in the Tax Court in 1958, on behalf of the renowned F.O.R. leader, A.J. Muste, another American pacifist hero. The case was decided by the Tax Court in 1961, rejecting the defense. There is just no serious legal argument that the Nuremberg principles actually provided a defense to A.J. Muste, or to any of you, to refuse to pay income taxes. It was a dramatic gesture, it was a good rhetorical ploy, it didn’t cost much to try, it didn’t get anybody into more trouble—I’m not saying they did the wrong thing by doing it—but I don’t think that’s a law reform effort. I don’t think there was any chance the court was going to recognize that as a legal argument. Even I wouldn’t call it a legal argument.
But, to show you that my idea of a winning argument is not always right, in 1965 the Supreme Court gave a definition to conscientious objection under the draft that I wouldn’t have bet a nickel on when the case was coming up (if I had not been a high school sophomore at the time). The Court interpreted the words “religious training and belief,” as used in the draft law, to mean something which did not require training and did not have to be religious. So, what do you know? Strange things can happen when the right case is brought to the right court at the right time. So, just because I say something with this confident tone of voice does not make me right. Bear that in mind.
Now, you would think, being a normal, intelligent person, that when Daniel Seeger and Elliott Welsh took their cases to the Supreme Court in 1965 and 1970 to be recognized as conscientious objectors, despite saying that they were not religious, and the law as written required that they be religious, that if they were going to win that case, it might have been on First Amendment grounds. You would not expect them to win under the statute, not by interpreting the statute to mean something that was almost the opposite of what it actually said. Maybe the Supreme Court would say, “Well, the statute is unconstitutional, because it doesn’t go far enough to protect beliefs equally,” or something like that. But they didn’t. And maybe they would have said, “Look, being an agnostic”—an agnostic Quaker, as Dan Seeger said he was—”that is a religion. We don’t care what you say yourself about whether your belief is religious; we’re not talking about whether you feel religious. We’re talking about whether you qualify as ‘religious’ as that term is defined in a law. The word means what the statute, as interpreted by the Supreme Court, defines it to mean. And we’re saying agnostic is religious.” Then, on that basis, you might have thought they would win under the Free Exercise Clause, but they didn’t—in Welsh, four Justices said a non-religious person is “religious” under the statute, no matter what he says about himself, and one Justice (making a majority in Welsh’s favor) said that for Congress to privilege religious beliefs over non-religious ones violated the Establishment Clause. Not one Justice relied on the Free Exercise Clause. And now we’re getting a lot closer to what I’m actually here to talk about tonight.
First of all, just to remind you, the Free Exercise Clause is the part of the First Amendment that assures each adherent of a minority faith the right to practice his or her religion without state interference. Taken literally, the Free Exercise Clause would seem to establish a general right of conscientious objection to any and all laws for religious people. When a law requires everyone to engage in certain conduct, and that conduct violates some people’s religion, or the law prohibits conduct and that conduct is required by some people’s religion, doesn’t the law violate the Free Exercise Clause as applied to those people? Well, logic would say yes, but for all of its history the Supreme Court has said no to that question.
The Supreme Court has never wavered from the position that the Free Exercise Clause “embraces two concepts: freedom to believe, and freedom to act; the first is absolute, the second, in the nature of things, cannot be.” And guess what case they said that in? The 1878 Reynolds decision, ruling against a Mormon for engaging in polygamy. That’s the foundation of American religious freedom law under the Free Exercise Clause. Polygamy was not the best First Amendment test case to take at that time, or at any time, obviously. But that’s the principle, and that principle has stuck for more than 135 years. The court has obviously always been concerned with the implications of the Free Exercise Clause if meaningfully enforced. Those implications would be that the conscience of every citizen is in fact a law unto itself, at least the religious conscience. So, that ain’t happening.
The Mormon cases have not been undermined since the 1870s. In Gillette v. United States, 1971, a hundred years later, the Supreme Court said there is no constitutional right under the Free Exercise Clause to be a conscientious objector, either under the draft or the military—none—that the rights of conscientious objectors are those granted by statutory or administrative law, and nothing more. Did you know—some of you know—but you should know, there was no conscientious objector provision for people who changed their beliefs after joining the military until 1965. And hardly a C.O. provision under the draft before 1940—and not a very good one until 1948, which still had plenty of problems.
In particular, the Supreme Court in the Gillette case said that the government could choose to limit C.O. status to those who oppose all wars, like the Quakers and Mennonites who had lobbied for the law to be passed—a law that was written to basically describe their own belief system—and not Catholics or others who subscribe to a “just war” theology. Hey, you want the law to protect you? You go lobby the military in 1940 to get the law passed, like the Quaker and Mennonite lawyers did. That’s a little cynical, but in Gillette, it was sincere Catholic C.O.s who lost the case, because the statute did not protect them.
Then in 1982 the Supreme Court upheld the limitations on the way Congress had drafted the exemption that it grants to groups like the Amish, who object on religious grounds to participating in Social Security. It’s a case called Lee—a very important name to remember for where we’re going in a few minutes. And in the Lee case, talking about the Amish and Social Security, the Supreme Court repeated a line used by a concurring justice in an opinion fifty years earlier about compulsory ROTC in the University of California system, saying that the Free Exercise Clause “obviously” would not support a pacifist’s claim to be exempt from paying taxes that support warmaking or military preparations. Obviously. It wasn’t even the case that was in front of them; this was an analogy to what the Amish were asking for, that is, a greater exemption than they had been given, which was insufficient to protect them—because look, it would be perfectly analogous to war tax resisters, and everybody knows the idea of legal protection for war tax resisters is a ridiculous, facetious argument. So said the Supreme Court in 1982.
The high water mark for the most generous interpretation of the First Amendment Free Exercise Clause was an opinion in 1972 by the Nixon-appointed Chief Justice, Warren Burger, for a nearly unanimous court, in a case called Wisconsin v. Yoder, in which the court sustained the Free Exercise claim of Amish parents to withdraw their children from school after eighth grade, even though they were below the age of compulsory schooling. And the court’s decision combines discussion of the rights of families, the primary role of parents in child upbringing, so forth and so on, so it’s not even premised entirely on religious freedom grounds. A year later, applying that precedent, a federal judge in Philadelphia ruled that the American Friend Service Committee was protected by the Free Exercise Clause from having to withhold income taxes from its war-objecting employees. That decision was overturned by the Supreme Court in 1974 on procedural grounds, leaving the precedent in limbo, you could say—I will say—I do say. For nearly twenty years after the Yoder decision in 1982, the Supreme Court continued to say that this is the test that they’re applying, but they never actually ruled in favor of a religious objector in any other case. They found some reason, in every case they took, to rule against the individual and in favor of the state.
And then in 1990 the Supreme Court did a U-turn. They abandoned the pretext of the Yoder case entirely in a case called Smith v. Oregon, written by Justice Scalia. The Smith decision upheld a denial of unemployment compensation to Native American drug and alcohol counselors who had applied for unemployed compensation benefits after losing their jobs in the state of Oregon. Why were they fired? Why did they lose their jobs? Because they used peyote in their religious ceremonies. The court declared a new rule. The court said in 1990, in the Smith case, that the Free Exercise Clause does not require any religious exemption from a generally applicable law, so long as that law is not designed to interfere with religion, and it doesn’t discriminate against particular religions.
So just to explain that principle with a concrete example, let’s say your town passes a law saying that no church can have stained glass windows. Invalid, because it’s directed at religion. But now let’s say your town passes a law saying no building in our town can have stained glass windows. Valid, even if the only buildings in town with colored windows are churches, and even if people have come to the city council complaining about these ugly colored windows in the neighboring churches and asking for the law to be passed.
Religious Freedom Restoration Act
The religious community saw the Supreme Court decision in Smith as a major threat to freedom of conscience, and an amazing coalition of groups—conservative, progressive, and everything in between, from the religious establishment and the religious fringe—got together and lobbied for the creation of something called the Religious Freedom Restoration Act. In 1993 that law was approved, and it went into effect in 1994. This was a law passed by Congress that attempted to re-establish by legislative fiat the same standard that the Supreme Court had been using at the high water mark of its Free Exercise jurisprudence, that is, in Yoder. Congress said, This is the test that courts have to apply to individuals who object to being required to comply with any state or federal law to which they have a religious objection.
The rule established by RFRA—the Religious Freedom Restoration Act—was basically that an individual objection to compliance with any law has to be accommodated if it is possible to do so. The way the RFRA rule is framed is in these terms: the religious objection has to be honored unless (a) the law serves a compelling governmental interest, and (b) the infringement on conscience is the least restrictive alternative for dealing with the problem of objection—the least restrictive of individual liberty that is feasible. That’s a very strict test.
There ensued a push and a pull between Congress, religious groups and the Supreme Court. In 1996 the Supreme Court ruled that Congress had exceeded its bounds by applying RFRA to state government action. Under our federal system, Congress can only legislate about things it has authority in the Constitution to legislate about; the states themselves are the primary authority for the government of each separate state. Congress had no valid authority to tell states that they had to accommodate religious objectors to their own laws, the Supreme Court decided. But there was no problem with Congress telling federal agencies that they had to accommodate religious objections. Congress defines and controls all the federal agencies. Whatever part of the Constitution authorizes Congress to create this or that agency—be it the war power or the taxing power or whatever—they can tell the federal agency, when you implement this law, you have to do it this way. So RFRA stands to this day as a general limitation on the power of federal agencies, including the military and the IRS.
Confirming that interpretation, the Supreme Court in 2006 applied RFRA to overrule the Drug Enforcement Administration and allow a small New Mexico religious group to import a psychedelic tea leaf from South America which they used in their religious ceremonies. That decision was written by Supreme Court Justice John Roberts, our very conservative, pro-religion Chief Justice of the United States. What he said was, in effect, “It doesn’t matter if I like this law or don’t like this law; it doesn’t matter if this law is consistent or inconsistent with prior Supreme Court constitutional decisions. Congress passed this law; this is what it says; it has to be enforced according to the way it’s written.” And that’s what they did.
Affordable Care Act; provisions for religious nonprofits; corporations go to court
So, comes now 2012, 2013, and Congress passes—just barely—a major reform of the American health insurance system. This law is a thousand pages long or more, and one of its provisions says that every plan of health insurance approved under this law—and health insurance plans have to be approved, once they are newly created, or substantially changed if they existed before the Affordable Care Act, “Obamacare,” went into effect—must provide coverage for all fourteen forms of birth control that are approved by the Food and Drug Administration. Each plan must do so at no additional cost; the insurance policy can’t cost more because of that coverage. Congress says in the law that this coverage is mandatory for two reasons: it is important both for the public health of the United States, and for the protection of women’s equality rights, that women have access to birth control.
Now the ACA has a provision making churches exempt from the birth control coverage aspect of the law, if they object on religious grounds. Further, nonprofit, religiously affiliated organizations are provided an opportunity to say they are conscientious objectors, that they have a religious belief against some or all forms of birth control, and cannot in conscience provide these forms of birth control to their employees. And then, in that instance, there’s a side-stepping mechanism, and the insurance company has to provide those employees—the women, mostly—of those religiously affiliated non-profits with the coverage directly. The employees don’t go without; they get the same insurance from their insurance company but separately, not—on paper—from the employer. But for-profit corporations are not covered by this C.O. provision. Kind of like conscientious objectors to all war and selective objectors, as I mentioned earlier—Congress has passed an opt-out provision for some but not all objectors.
So, now we have a tale of two families: The Green family in Oklahoma owns a chain of craft stories called Hobby Lobby. You might have passed a Hobby Lobby store on Route 40 on your way in here, on your left; there are hundreds of them all over the country. The Greens are super-fundamentalist Christians. They believe that they must live out their fundamentalist Christian beliefs in every aspect of their life. Hobby Lobby is closed on Sunday, even if all the other stores in the mall are open. Hobby Lobby gives millions of dollars to Christian evangelical missionary charities around the world. Hobby Lobby buys newspaper ads in newspapers in major cities around the world telling people that they can save themselves by turning to Christ.
And the Hobby Lobby owners, who are members of the Green family, say, “We object to four of the fourteen forms of birth control that are covered by the law because those four forms prevent a fertilized egg from implanting on the wall of the uterus. We define human life in our church as beginning when the egg is fertilized, before it’s implanted. Therefore, to us this form of birth control is tantamount to an abortion, and it violates our religion.”
The Hahn family, in Lancaster, Pennsylvania—Mennonites, generally pacifists, people we might think of as progressive in a lot of ways—also have the same belief about the origins of human life. And they own a company called Conestoga Wood Specialties. It’s not as big as Hobby Lobby, but it’s no mom-and-pop store either. They have some four hundred employees. It’s a big company. Very well respected, well liked folks in their community. They say, “These forms of birth control violate our religious principles”—and understand, we are one step removed from using the birth control; none of these people are using the birth control—”We can’t provide insurance that provides access to the birth control for women who work for us, even if those women don’t share our beliefs and want to use this birth control. Our religion prohibits us from doing that action, even though it is at least two steps removed from the sin.”
The two companies sue the Department of Health and Human Services, separately, in different parts of the country, saying the failure to give us a similar objection, C.O. provision for the nonprofit religious institutions that are not churches, violates the Religious Freedom Restoration Act. Remember, churches are completely exempt, nonprofit religious institutions, including church-affiliated colleges like Earlham, would be exempt if they had the objection and went through the process of filling out the form and being recognized.
These for-profit corporations—not the families themselves, but the corporations—are the ones who have the employees. The families are the individuals who own and run the corporations. The corporations are providing the insurance. The corporations have the employees. The corporations sue the government and say, We’re entitled to the same exemption under RFRA—not under the Free Exercise Clause, under RFRA—because this is a government program requiring us to do something that our religion prohibits, and that while the law may or may not serve a compelling governmental interest, it is not the least restrictive means of achieving that interest and dealing with people who object, to give us no exemption. You could give our businesses the same exemption you’re giving to Notre Dame or Saint Joseph’s University.
These family businesses brought their case to court. In one federal appeals circuit, the one that I’m in, in Philadelphia—the Hahns, the Mennonites, the Conestoga Wood family—they lose their case, because corporations don’t have a right to free exercise of religion under the Religious Freedom Restoration Act, says the court. A corporation can’t exercise religion; it’s nonsense to say otherwise. Corporations don’t have religious consciences or beliefs. In the Tenth Circuit, in another part of the country, on the other hand, Hobby Lobby wins. So the issue goes to the Supreme Court, because there’s a conflict between the two regional appeals courts. In June 2014, the Supreme Court decides in favor of the corporations.
The most controversial issue in the case is whether corporations are protected by the Religious Freedom Restoration Act—a subject which perhaps you would be glad to hear, I will hardly mention not at all. Do you want a one-sentence explanation for why the Supreme Court said they do? This is the theory: Corporations are vehicles through which human beings carry out purposes; one of the things people do to accomplish joint goals is organize their lives, under our legal system, in corporations. Churches are often incorporated. Businesses are incorporated. Some businesses are incorporated by religious people to make money and fulfill their values at the same time. So it makes sense that the Kosher butcher shop cannot be told, “You must sell meat prepared in this way and not that way”—if it violates Jewish religious principles, even if the butcher shop is incorporated. Similarly, the store that exists for the purpose of selling habits for nuns and collars for priests, owned by some Catholic family that’s choosing to make their living running a Catholic bookstore and garb store—that is a way that a religious person can carry out their beliefs. So for these reasons, five to four, the Supreme Court ruled that RFRA does protect corporations, including for-profit corporations, as well as nonprofits, if they are closely held (such as by the members of one family) and operated in part to express and live out the values of the owners.
Remember, this is the way RFRA is framed: no federal law or regulation can penalize any person for acting or refusing to act as required by law, unless the government can prove in court that both of two conditions exist: the particular requirement that the person objects to on religious grounds serves a compelling government interest—and the Supreme Court explains in the Hobby Lobby case that this means what they call the marginal interest in not exempting the people who object. So it’s not enough to say, “This law—Obamacare—serves the public interest by providing health insurance to more people, which is in the interest of the public health of the United States.” The government would have to prove that that purpose requires not extending the birth control exemptions further. And, relatedly, that the least restrictive means of achieving that compelling governmental interest are being used.
In talking about least restrictive means, the Supreme Court says in the opinion, the court can take into account the cost to the government of accommodation, and any impact the accommodation would have on third parties. So they do talk about, “Well, are we taking away anything from the women who work for these companies, who may want to use these forms of birth control, who don’t share the same religious beliefs necessarily?” And they say, not in this case, because the insurance company can be and is required to provide the coverage without the participation of the objecting employer. So the women break even, says the majority. A powerful dissent by Justice Ginsburg, coincidentally joined by all the other women on the Supreme Court, and all the other members of the Supreme Court who are not Catholic—which, by the way, is a minority of the Supreme Court at the moment, believe it or not—says, this is not true. But we’re not getting into who has the better argument.
What it means to war tax resisters
What I’m going to talk about for the next couple minutes, and then open up for questions, is what does the majority say RFRA means, and what does that mean, potentially, for those of you who come to tax resistance through religious belief? Those who are not religious, if you want to show support for the rest, keep listening. But this is a religious freedom law. This is not a general conscience law. Now remember, I pointed out that I would have been wrong about the draft cases—when they addressed the question of what counts as “religion” —so I don’t want to define that too narrowly, but right now I think we’re just talking about religion as conventionally understood.
This is where we are on June 30, 2014, with the Supreme Court decision in Hobby Lobby. What does it mean for tax resisters? Some commentary that I read on the Internet, for example, right afterward, said, “Oh, this means we don’t have to pay taxes if we have a religious motive for not paying.” Well, let’s start with the fact that that very same quote from that 1982 Amish case is in the Hobby Lobby decision, again. So here we are [bottom of page 52 at link]:
“Our holding in Lee [the Amish Social Security case] turned primarily on the special problems associated with a national system of taxation. We noted in that case that the obligation to pay a Social Security tax is not fundamentally different from the obligation to pay income tax. Based on that premise we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular government expenditures. If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget could be identified by those individuals as being devoted to war-related activities, such individuals would have a similarly valid claim to be exempt. The tax system could not function if denominations were allowed to challenge the tax system because payments were made by the government and spent in a manner that violates their religious beliefs.”
Well, you may be thinking, Lee was a Free Exercise case. RFRA grants rights that are stronger than Free Exercise, remember? Justice Alito’s decision continues:
“Lee was a Free Exercise case; not a RFRA case. But if the issue in Lee were analyzed under RFRA, the fundamental point would be there is simply no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of government expenditures funded by tax dollars, allowing tax-payers to withhold a portion of their tax obligations on religious grounds would lead to chaos.”
This is the Hobby Lobby case quoting the Lee decision, the Amish Social Security decision —although it is completely not a case that is presented before them, and they usually go out of their way not to decide cases other than those which are strictly speaking being presented and requiring decision—this is the only issue that they go out of their way to speak about in the decision, other than the decision that is before them.
Well, does that mean that someone could not come to court and say, “Well what you said is obvious, we can show you is not? Because we have this idea called the Religious Freedom Peace Tax Act, in which, for those who would be satisfied by it—which wouldn’t be everybody that’s an objector to spending tax money on warmaking—but for those who would be satisfied by it, their money would be channeled and segregated into non-military uses, and they would pay the full amount of tax.” Doesn’t that answer the objection that’s being made there?
So it seems to me, to start out with something positive, that it is arguable that the Religious Freedom Restoration Act, as interpreted by the Supreme Court—despite careless language on a matter not before them, of which no evidence had been presented, of course—makes the Peace Tax Fund Act unnecessary, that the Peace Tax Fund Act has been enacted, and it is called the Religious Freedom Restoration Act, unless the government can show that that system wouldn’t work, because it’s a system that generates all the same amount of tax money. Just a thought.
It’s important that the court also noted, in several other places in the decision—somewhat inconsistently, in my opinion, with the quote from and reliance on Lee—that the Religious Freedom Restoration Act does not simply re-enact pre-Smith Supreme Court decisions, but clearly goes further than those decisions ever went. So contentions that were held not to be valid Free Exercise arguments in the time before 1990, which would be pretty much any argument a war tax resister made under the Free Exercise Clause, are not binding precedent on courts applying RFRA, according to passages that can be quoted from the Hobby Lobby decision. All cases previously litigated under the Free Exercise Clause could, if they have logical merit, be presented again by reference to the stronger, more supportive standards of RFRA.
Second, the Supreme Court points out that RFRA gives a broad definition of “exercise of religion,” broader than had ever been articulated by the Supreme Court in a First Amendment case. Specifically, it defines “exercise of religion” as “any action which is impelled by the person’s religious belief, whether or not compelled by or central to that belief.” This definition of religious entitlement to exemption is inconsistent with the military conscientious objector laws, which in my opinion are invalidated by RFRA for being too narrow, for discriminating against certain beliefs, like “just war” theory, which RFRA does not allow, and for requiring that the belief of a military conscientious objector seeking discharge be central—not just religious, but at the center of that person’s religion. That’s flatly inconsistent with RFRA as articulated in Hobby Lobby. The decision points out, for example, that the business practices of a religious person can be an exercise of that person’s religion—obviously not the center of that person’s religious life, but an expression, perhaps, of the person’s religious life. That exact point, of course, is essential to the holding in Hobby Lobby.
I can’t say that my Peace Tax Fund idea is definitely correct. I can’t say the invalidation of the narrow military C.O. rules is definitely correct. But these are serious arguments. These are not fanciful arguments. They are directly predicated on the reasoning of the Hobby Lobby decision interpreting the RFRA statute which, by its terms applies to all federal agencies.
On the other hand, let’s think about the Peace Fund Tax a little bit more. In the end, the Supreme Court said it isn’t true that the court can’t require the government to spend any money to create a new accommodation. That would be inconsistent with RFRA, the court said. That is, a RFRA decision can impose on the government a new cost to implement the accommodation of an objection. But we don’t have to decide how much of a cost, because in the Hobby Lobby situation there’s already a system that’s been put in place to help religious colleges, the Catholic and fundamentalist colleges that have this objection, so we could just apply that same system to similarly religiously motivated for-profit companies, and it wouldn’t be an expensive proposition. The Peace Tax Fund would require the establishment of a new mechanism, which would be more expensive than extending the existing mechanism for birth control exemptions, but it wouldn’t be very expensive. And interestingly, when the court is talking about expense it says, “drop in the bucket compared to the whole cost of the program,” and by “the program” it turns out they mean the whole cost of Obamacare, which they describe as a trillion dollars over ten years—a figure I think they got from Fox News. That’s a way to make any number seem small; that’s an example of what is called “legal argument.”
Hobby Lobby’s interpretation of RFRA also raises a question of whether civil or criminal penalties can be imposed on religious war tax resisters who refuse to pay voluntarily but leave themselves open to involuntary collection. If your religion says, as some religious tax resisters do, “I don’t necessarily object to the government forcing my bank to turn over money from my account; I just cannot be the one who writes the check,” then it seems to me that RFRA as interpreted by Hobby Lobby says you can’t charge the religious resister extra for that, that is, the late payment penalty, the negligence penalty, the levy fee, and so forth.
Turning this around a bit to consideration of the religious employer, it would seem to me to say that the Yearly Meeting, the Mennonite Central Committee, the church that says, “We cannot, without violating our religion, participate in the tax withholding system against the employees whose religious beliefs forbid them to pay for war, because our religion sympathizes with refusing to pay for war even though it doesn’t compel it. We honor the conscience of our members; upholding of the conscience of our individual members who are acting in accordance with our tradition is one of our great religious missions as a religious community. Therefore, we must comply, as a matter of religion, with a request not to withhold.” The church doesn’t stop the government from getting the taxes. It doesn’t say the employee is not required to pay. In that situation, perhaps RFRA authorizes a religious employer to refuse—including the for-profit employer whose religion tells them, and the not-for-profit that is not a church, that tells them, this is what we have to do under our religion, as we understand that religion.
Consider for a moment that the Greens and Hahns are actually wrong about the difference between birth control and abortion. Their definition of when the prevention of a pregnancy counts as an abortion, their religious view, is contrary to the accepted view of science and of the American medical profession. It is also contrary to the courts’ legal definition of what constitutes an abortion. Yet the Supreme Court specifically responds that that point is irrelevant, because we’re talking about a religious belief, and the court cannot question the rationality of a religious belief, only, at most, its sincerity. So the fact that Philadelphia Yearly Meeting draws the line here, and Friends General Conference perhaps draws the line there, and a Quaker employer draws the line somewhere else, does not mean that any of them is entitled to less respect and protection under RFRA. Each religious conscience draws the line where that person or entity draws the line, according to the Hobby Lobby decision, and then gets the same protection. The court says so explicitly.
Third intriguing point, which arose less than one week after the Hobby Lobby decision. In Hobby Lobby, the court said RFRA entitles the for-profit challengers to the same accommodation that Health and Human Services has provided to others—there’s a simple form to fill out; you just say, “I object on religious grounds”—unlike the military C.O. process, you don’t have to write four essays and be cross-examined by three people, and then appeal six levels—you just fill out a simple form, you say “I object, and this is the name of my insurance company.” That accommodation was acceptable to the Greens and to the Hahns, and must be extended to them as it has been extended to nonprofits.
Less than a week later, comes before the Supreme Court a request for an emergency injunction, a stay of a case that’s pending on appeal in a lower court for a nonprofit, religiously affiliated college in the midwest called Wheaton College. Wheaton says, “Our religion forbids us to tell you the name of our insurance company; we will tell you that we are objectors, but we can’t answer the second question, because that facilitates the provision of insurance that we object to; that’s where we draw the line; we can’t be complicit in that way; we can’t facilitate.” Compare, for a moment, Philadelphia Yearly Meeting, which I represent. Their position is that when they have an objecting employee, they will withhold the tax amount but put the money aside in a bank account. They do this without regard to whether it’s legal or not; they just count on me to protect them each time it comes into court, which I have done three times so far and will do again. But I am also authorized, when the IRS agent calls, to tell IRS the name of the bank where the money is put aside. PYM’s religion does not forbid them to have me do that. And I know that, because the decision of whether I had authority to tell the IRS agent the name of the bank was decided in meeting for worship by the representative meeting—the second highest level of Friends decision-making in the Philadelphia region, and I was at that meeting. So that’s where they draw the line. But Wheaton College says, “We can’t tell you the name of our insurance company, because then you’ll just go provide these abortions to our employees in the form of IUDs.” And the Supreme Court, six to three, granted a stay to Wheaton College, that said that while their appeal was pending they did not have to fill out the form.
The three female members of the Supreme Court wrote another blistering dissent saying, “Wait a minute, didn’t you just say four days ago that the right to accommodation depended on it being at no cost to the women employees, that they could readily be guaranteed the coverage? And now, however long this appeal goes on—this is ridiculous,” say the dissenters. “Let me explain to you,” they say, “how ridiculous it is. It’s like some Quaker trying to be a conscientious objector to the draft and getting approved for C.O. status, and on his way out of the hearing where he has just been approved, the chairman of the draft board says, ‘You realize of course we’ll just draft someone else in your place,’ and the conscientious objector say, ‘Oh no, you can’t do that, that would violate my religion; you have to have one less soldier after you approve me for C.O. status.’ That’s what you’re saying, Wheaton College. Is that what RFRA requires?,” ask the dissenters. Now of course that’s three. And it’s not a majority Supreme Court decision; it’s just a decision to grant a stay. The case might never come to the Supreme Court for an actual decision on the merits. Who knows what will happen with this appeal? But it was intriguing, I thought, that it took only four days for this college to push the RFRA decision—kind of like I’m suggesting—they were in the Supreme Court four days later, pushing the line for themselves.
And finally—well, I actually touched on this one already, which was—what about religious employers who are not themselves the objectors, even if the individuals are in a special class of people who don’t get equal consideration in the Supreme Court? Maybe a religiously motivated employer who has an objection would now be protected by RFRA. Now, how to make that happen? I just want to get back and remind you of the 1974 Supreme Court case of American Friends Service Committee that I mentioned an hour ago when I started talking—what was the procedural basis on which the AFSC lost that case in the Supreme Court? It was a law called the Tax Anti-Injunction Act, which says that you cannot go to court and get an order against the IRS not to collect a tax that you claim is invalid as to you—that all tax cases get litigated on the defense; that is, if you have any argument you want to make, any issue you want to raise about the invalidity of what the IRS is doing, wait until they come after you and raise it. That has to be the posture; there is a prohibition against enjoining the collection or assessment of a tax.
That procedural decision stands. That law was not overruled by RFRA. So the idea, “Well let’s just go to court and assert these rights, let’s file a class action against the IRS, let’s file a civil rights case against the IRS—No. There is no federal jurisdiction over such cases, by virtue of the AFSC case decided in 1974, is what I would say. So there is a greater problem getting into court with these issues. But once a person is brought into court—dragged into court by the IRS—I hope that person will come to NWTRCC for advice, and that NWTRCC will send them to a good lawyer. I appreciate NWTRCC in so many ways, including that one. And thank you all for listening.
Peter Goldberger is an attorney in Ardmore, Pennsylvania, and the longtime legal consultant to NWTRCC.