Brunson: Religious Tax Protest Before And After RFRA

Sam Brunson (Loyola-Chicago; Google Scholar), Leave Your Conscience at the Court: Religious Tax Protest Before and After RFRA, Canopy Forum on the Interactions of Law & Religion:

In the 1970s and 1980s, a number of Americans objected, on religious grounds, to paying income taxes on the grounds that certain government spending violated their religious beliefs. These religious tax protestors largely came from two traditions: Catholics, who opposed government spending on abortion and Quakers, whose Peace Testimony prohibited them from paying taxes that funded war.

These First Amendment objections proved singularly unavailing. Courts consistently held that the Free Exercise Clause of the Constitution does not excuse tax payments, irrespective of the sincerity and ardor of a religious believer’s objections. This constitutional rule was fundamental and established enough that Justice Scalia referenced it in his opinion in Smith. Tax provisions were almost the Platonic ideal of neutral, generally-applicable laws that Smith held could not violate the First Amendment.

The Religious Freedom Restoration Act, and the state mini-RFRAs that followed, were intended to reverse Smith, requires that even a neutral, generally-applicable law that burdens religious practice must not only fulfill a compelling state interest, but it must be the least restrictive means of fulfilling that interest.

Within a couple years of Smith, religious tax protestors began adding RFRA claims to their noncompliance with the tax law. In this essay, I will look at a couple of those claims (at the federal level, but also at the state level). The RFRA claims turned out to be just as unavailing as the First Amendment claims had been. I will use these cases to show that, while RFRA did change the constitutional landscape, its effects were constrained and proved irrelevant to a large swath of U.S. law.

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