For God and Country: Taxing Conscience

Wisconsin Law Review, p. 939, 1999

Posted: 5 Jan 2000

Abstract

Although the majority may rule in American democracy, the voice of the minority is not silent. The United States honors and protects the voice of the minority, so much so that the voice of dissent has been called the organizing symbol of the First Amendment. One of the most honored and protected voices in this country is that of the conscientious objector to war.

Some conscientious objectors refuse to pay all or part of their taxes because they believe it is just as immoral for them to pay for bullets as it is to shoot them. Currently, Congress treats these war tax resisters, or peace taxpayers as they are sometimes called, in the same manner as all other tax protesters, including those who claim wages are not income or that they are not citizens of the United States. This Article argues that this treatment is wrong for the war tax resisters and wrong for the country.

A peace tax fund would ameliorate this situation for all parties concerned by allowing war tax resisters to pay their entire tax liability without any of it being used for military purposes. Conscientious objectors would benefit because they would no longer have to make a choice between their consciences and the law. The country as a whole would benefit through decreased compliance costs, increased revenues, and increased respect for the tax system. Contrary to the Treasury's concerns, a peace tax fund would not create undue administrative burdens on the IRS, nor would it open the floodgates to other taxpayers claiming the right to specify where their tax dollars should go.

Although the First Amendment, as currently interpreted, does not require that conscientious objectors to war be treated differently from other taxpayers, Congress may make such accommodations. Indeed, as Justice Scalia noted in Employment Department of Human Resources of Oregon v. Smith, 492 U.S. 872, 890 (1990), it is natural for Congress to enact legislation promoting this country's deeply rooted values. Current tax law already contains some accommodations for religious beliefs generally. Congress has also specifically displayed concern for conscientious objectors, not just for their own benefit but also for the benefit of the entire country. In Gillette v. United States, 401 U.S, 437, 445 (1971), the Supreme Court stated that the conscientious objector's exemption from the draft stemmed from congressional "recognition of the value of conscientious action to the democratic community at large, and from respect for the general proposition that fundamental principles of conscience and religious duty may sometimes override the demands of the secular state." By enacting a Peace Tax Fund Congress would once again benefit the greater democracy as well as the individual taxpayers who conscientiously object to war.

JEL Classification: K34, K42, H20, H24

Suggested Citation

Kornhauser, Marjorie E., For God and Country: Taxing Conscience. Wisconsin Law Review, p. 939, 1999, Available at SSRN: https://ssrn.com/abstract=201088

Marjorie E. Kornhauser (Contact Author)

Tulane University School of Law ( email )

6329 Freret Street
New Orleans, LA 70118
United States

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