New Attempt to Get Courts to Legalize Conscientious Objection to War Taxes

There have been many attempts to get U.S. courts to recognize a constitutional or implied statutory right to conscientious objection to military taxation, without success.

Daniel Jenkins is trying again, with a new set of arguments that I’ll try to summarize here. Take note: I’m not a lawyer, so I may be missing a lot of legal nuance.

In , Jenkins withheld part of his federal income tax from the IRS, putting it instead in an escrow account and informing the IRS that he would surrender it to them on the condition that the money would only be used for non-military spending.

In , the IRS sent Jenkins one of their intent-to-levy letters and Jenkins filed a Collection Due Process request. The IRS quickly denied relief, so Jenkins appealed to the Tax Court, which shot down the appeal in , adding a $5,000 “frivolous filing” penalty to boot.

Jenkins then appealed to the 2nd Circuit Court of Appeals. , that court upheld the Tax Court’s ruling, and Jenkins asked the Supreme Court to take his appeal.

The state of law and precedent is, as far as I can tell, something like this:

The First Amendment says, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” So people whose religious beliefs prohibit their participation in certain government programs have asked the courts to exempt them. For instance, in Wisconsin v. Yoder (), the Supreme Court ruled that a state compulsory education law violated the freedom of religion of the Amish people who challenged the law, “for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.”

A challenge to tax laws came a decade later. In U.S. v. Lee (), the Supreme Court ruled that the Old Order Amish could not use the same argument to get out of paying Social Security taxes because:

While there is a conflict between the Amish faith and the obligations imposed by the social security system, not all burdens on religion are unconstitutional. The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.


The tax system could not function if denominations were allowed to challenge it because tax payments were spent in a manner that violates their religious belief. Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.

When I read this, I thought to myself: “Wait a cotton-pickin’ minute!” Didn’t the Old Order Amish get Congress to craft them a legislative exemption to Social Security way back in ? It turns out this exemption only applied to self-employed people. Employers and employees were still liable for FICA, even if they were Old Order Amish.

I would have thought that even this would have blasted a big hole in the argument that the uniform application of the tax laws is “essential” and that “[t]he tax system could not function” without it. After all, if the tax system survived the legislative exception Congress carved out for self-employed Old Order Amish, there’s no reason to expect that it would collapse under the burden of a court-carved exception for the non-self-employed variety. But the Supreme Court thought otherwise.

And that seemed to pretty much shut the door.

But in Congress passed the Religious Freedom Restoration Act, which instructed the courts to apply “strict scrutiny” to cases “where free exercise of religion is substantially burdened” by the government.

So conscientious objectors to military taxation started trying again. In , the 2nd and 3rd Circuit Courts of Appeal turned down appeals that recrafted the old conscientious objection to military taxation legal arguments to see if they could be slipped in under the new Religious Freedom Restoration Act standard. Both circuits said “no dice,” and in the Supreme Court decided not to review these decisions.

And that’s where that stood.

In , the Supreme Court decided Gonzales v. O Centro Espírita Beneficente União do Vegetal. União do Vegetal is a religious group that uses ayahuasca in their ceremonies, a hallucinogenic tea that contains dimethyltryptamine, a substance banned by federal law. The group challenged the application of that law to the participants in their ceremonies, basing their challenge on the Religious Freedom Restoration Act. The government responded that, as with the tax law in Lee, the uniform enforcement of the Controlled Substances Act was essential to an overriding governmental interest.

Last year the Supreme Court ruled, unanimously, that the government was wrong, and that the Religious Freedom Restoration Act requires the government to carve out an exception to the Controlled Substances Act to accommodate the religious practices of União do Vegetal because the government had failed to show that the uniform enforcement of the Act was sufficiently essential to a sufficiently compelling governmental interest.

So when Jenkins filed his 2nd Circuit appeal, he used the O Centro ruling to try and distinguish his 1st Amendment / Religious Freedom Restoration Act arguments from those that the same circuit rejected in .

One problem with this, that the court pointed out when it rejected Jenkins’s appeal, is that when the Supreme Court decided O Centro, it explicitly distinguished the case before it from the tax case Lee. The Court said that in contrast to the current case, Lee showed “that the Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program” and that the tax code was such a program.

Jenkins hopes he can convince the Supreme Court to take another look at Lee, which was decided on Constitutional grounds, and see if its logic still holds up under the Religious Freedom Restoration Act’s standards. He wants the court to view the question this way: Does Lee, or the logic of the circuit courts that relied on Lee, give the IRS a blanket exemption from the Religious Freedom Restoration Act when the Act itself does not allow for such an exemption? If not, then his case should be decided on the merits, which requires a closer look at the extent to which his religious beliefs are violated by the law, and the extent to which accommodating those beliefs would compromise the IRS’s ability to collect taxes.

He’s got another argument, too, that’s very interesting, but I’m on much shakier ground in trying to summarize it because it relies on the Ninth Amendment, where even lawyers and judges fear to tread. This amendment reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This could mean anything or nothing, depending on who you ask. Jenkins hopes that there’s a majority on the Supreme Court who are ready to give the Ninth Amendment some teeth. Appealing to the Court’s conservative majority, Jenkins, in his Supreme Court petition, encourages them to interpret this amendment as über-conservative jurist Robert Bork suggested:

Ninth Amendment scholars propose giving content to its promise to preserve unenumerated rights by looking to this country’s history and tradition. For example, in The Tempting of America: The Political Seduction of the Law (The Free Press ), Robert Bork observes that “[t]he Ninth Amendment appears to serve a parallel function [to the Tenth Amendment’s guarantee of federalism] by guaranteeing that the rights of the people specified already in the state constitutions were not cast in doubt by the fact that only a limited set of rights was guaranteed by the federal charter.”

Jenkins then goes on to argue that “that the individual right of religious conscience not to be compelled to participate in or support military activity was well recognized at the founding of this nation. For example, the New York State Constitution of , which predates and is independent of the United States Constitution and the Bill of Rights, expressly protects persons with ‘scruples of conscience’ from forced military service and requisition for armament. The constitutions of other colonial states also contain liberty of conscience guarantees and religious exemptions from the ‘bearing of arms’. This constitutional right of conscientious objection was preserved by the states at least until the formation of the first permanent national army. It was also preserved and protected by the actions of the early Congress and by the Civil War Congress that instituted the first federal universal military service draft.”

Jenkins has done an impressive amount of research into the history of conscientious objection to military taxation in the United States (see, for instance, The Liberation of Nathan Smith). With this, he hopes to prove that conscientious objection to military taxation was among the “rights… retained by the people” at the time the Constitution was ratified. But for this to work as a legal argument, the Supreme Court not only has to find this evidence compelling, but has to accept Jenkins’s invitation to wade into the Ninth Amendment — something that Court has generally been averse to.