Taxes, conscience, and the Constitution.

• Author: Smith, Steven D.

1. TAX EXPENDITURES AND THE CLAIMS OF CONSCIENCE

   Al Agnostic and Betty Basic are neighbors--and citizens. They are also taxpayers. As humans, they do not especially relish paying taxes, but as citizens they understand that taxes are a civic necessity and obligation. Like most citizens, Al and Betty approve of some of the uses to which their tax dollars are devoted, and they disapprove of other uses. Sometimes they disapprove on grounds of policy: they simply do not think that particular expenditures are a good use of public funds. Sometimes their disapproval runs deeper: they might express this deeper opposition by saying that they are opposed "in conscience" to particular expenditures of public money.

   Naturally, the specific expenditures that provoke such scruples differ as between Al and Betty. As an agnostic, Al opposes public expenditures that he sees as supporting or advancing religion. So he objects to the inclusion of religious institutions in publicly-supported programs established to provide social services like job training or drug rehabilitation (the so-called "faith-based initiatives"), and he also opposes the subsidization of religious schools (as in so-called voucher programs). By contrast, Betty is supportive of these types of expenditures. But as an evangelical Christian she is conscientiously opposed to programs that she sees as supporting or condoning premarital sex. And she is especially pained to think that her tax dollars are being used in the public schools to support the teaching of evolution and other ideas that she believes to be false, corrosive of civic virtue, and subversive of what she regards as the saving faith that she hopes to instill in her children and neighbors. (1)

   So, do either Al's or Betty's objections have any sort of constitutional status? More specifically, can Al or Betty plausibly claim a constitutional right to freedom of conscience that is violated when he or she is forced to pay taxes that will be used in part for these objectionable purposes?

   It is not hard to imagine a possible (though perhaps not very viable) argument suggesting that both Al and Betty's objections ought to have constitutional status. Al and Betty might join in urging the proposition that in a community that respects "the sanctity of conscience," citizens should not be forced to subsidize governmental activities to which they are conscientiously opposed. The First Amendment, with its assorted clauses protecting the flee exercise of religion and the freedom of speech, is sometimes viewed as a haven for conscience. (2) So Al and Betty might try to anchor their appeals to conscience in that amendment.

   In the abstract, it should not be hard to appreciate the appeal-and the logic--of this argument. Nor should it be hard to appreciate the overwhelming practical objections that the argument will provoke. After all, many citizens and taxpayers will say, sincerely, that they are opposed in conscience to any number of things that (with the support of their tax dollars) government does. Some citizens are conscientiously opposed to particular (or all) military activities, others to particular government funded programs in the arts or in science, others to an array of "liberal" or "conservative" social programs. We can appreciate the problem if we let our imaginations run just a little and suppose that Al's and Betty's argument were actually accepted by the courts: millions of citizens who have been thus encouraged to develop bloated consciences might thereby excuse themselves from all manner of taxes.

   That nightmare may easily lead us to the opposite conclusion: neither Al nor Betty should be deemed to have a valid objection. More generally, objections of conscience cannot be permitted to excuse citizens from their basic civic obligation to pay taxes, even if these citizens have sincere moral objections (as many surely will) to some of the things government does with their money. (3)

   So there is an intelligible argument for accepting both Al's and Betty's claims of conscience, and there is a realistically more acceptable argument for rejecting both arguments. We can also imagine an argument that might support Betty's claim of conscience but not Al's. After all, our Constitution does not explicitly recognize any "freedom of conscience"--such language was proposed when the First Amendment was drafted, only to be rejected (4)--but the Constitution does have a provision recognizing the right to "free exercise of religion." We can stipulate that Al's and Betty's objections are equally sincere and equally conscientious, but we have also supposed that Betty's objection is grounded in religious belief; Al's is not. So Betty's claims may seem more at home in the Constitution as it is written. (5)

   Can we imagine an argument for the opposite result--for recognizing Al's claim of conscience but not Betty's? At least on first reflection, this alternative seems untenable. As noted, Al cannot as plausibly invoke the protection of the right to "free exercise of religion." Nor can he as easily ground his objection in the rationales that historically were offered for protecting rights of free exercise or of conscience. Claims of conscience were typically asserted in reaction to attempts to coerce people in matters of religion, and according to the classic defenses developed by luminaries like Roger Williams and John Locke and James Madison, (6) such coercion was wrong because forced worship or religiosity is unacceptable to God--it "stincks in God's Nostrills," in Williams's pungent phrase. (7) It is doubtful whether Betty can successfully assert this rationale in this context, (8) but surely Al cannot cogently invoke it: after all, Al does not even believe that God exists.

   So perhaps we should be surprised to learn that a common view today, advocated by jurists like Justice David Souter (9) and by scholars like Noah Feldman, (10) would recognize Al's claim of conscience while politely declining to notice Betty's. Moreover, people who take this view often try to support it by quoting language from venerable sources such as James Madison and Thomas Jefferson. (11) It is a curious position but also a longstanding one--and one that is arguably at the core of the distinctively American commitment to the nonestablishment of religion. Let us investigate that position more closely.

2. FROM CONSCIENCE (THROUGH TAXES) TO NONESTABLISHMENT?

   In Zelman v. Simmons-Harris, (12) the Supreme Court upheld a Cleveland voucher program that included religious schools among the institutions eligible to receive public funding. Dissenting, Justice Souter argued that the program violated the consciences of taxpayers, and he quoted in support of this claim James Madison's famous statement that conscience is offended by any law that would "force a citizen to contribute three pence ... of his property for the support of any ... establishment." (13)

   The basic argument had been made countless times before, of course. And in a sense it seems almost truistic: if the Constitution forbids government to establish religion (a proposition that by now is very well settled (14)), and if the inclusion of religious schools in a more general program of educational support is an establishment of religion (a proposition that remains hotly contested), then it would seem to follow that the Cleveland voucher program violated the Constitution--even if the amount of funding directed to religious schools was relatively small (as it arguably was not). "No aid" separationists have been making this argument almost from time immemorial, (15) or so it seems, and in the last century their position often prevailed (though perhaps less often toward the end of the century than closer to the middle) (16).

   This argument can be made, however, and often is made, without any invocation of freedom of conscience. The "no aid" separationist can simply point out that the First Amendment contains a clause forbidding establishments of religion and then argue that a voucher program including religious schools transgresses this prohibition. There seems to be no need to bring individual conscience into the argument at all. Conversely, "freedom of conscience" would seem to resonate more naturally with the free exercise clause than with the nonestablishment prohibition.

   Why then did Justice Souter emphasize that the allocation of public money to religious education violated the consciences of taxpayers? Though we can only guess at Souter's particular motivations, we can also imagine reasons why "no aid" separationists might want to assert a link between freedom of conscience, taxes, and nonestablishment. Let us briefly notice four such reasons.

   First, a commitment to nonestablishment might be made stronger, and more rhetorically powerful, if tied to a commitment to freedom of conscience. The case for respecting conscience is arguably...