The Volokh Conspiracy
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So the Ninth Circuit (Judges Marsha Berzon and Morgan Christen and District Judge Frederic Block (E.D.N.Y.)) held Monday in U.S. v. Bowman:
Appellant Michael Bowman appeals his conviction on four counts of willful failure to file a tax return …. Bowman argues that the Religious Freedom Restoration Act … required the dismissal of the operative indictment against him because of his religious belief that he must not contribute money used to facilitate abortions….
Both this Circuit and the United States Supreme Court have repeatedly rejected the proposition that a taxpayer may withhold tax money owed because taxes support expenditures the taxpayer finds objectionable: "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." United States v. Lee (1982); Hernandez v. Comm'r (1989) ("[E]ven a substantial burden would be justified by the 'broad public interest in maintaining a sound tax system,' free of 'myriad exceptions flowing from a wide variety of religious beliefs.'") (citing Lee).
Bowman argues that Lee and Hernandez are preempted by RFRA, and that in any event, they are inapposite. He is mistaken on both counts. First, RFRA did not supersede Lee and Hernandez; to the contrary, it restored those cases. RFRA legislatively overturned Employment Division, Department of Human Resources of Oregon v. Smith (1990), which itself overturned the balancing test at the heart of Lee and Hernandez. In so doing, RFRA reinstated the balancing test—and the vitality of Lee and Hernandez.
Bowman's attempt to distinguish Lee and Hernandez fares no better. He asserts that they are distinguishable because the expenditures objected to by the taxpayers in those cases—social security and national defense—are more compelling interests than that of abortion funding. He argues that because funding for abortion providers is a less compelling interest, taxation on that account fails the RFRA balancing test. Bowman's arguments are off the mark. The compelling government interest at issue here is not the funding of abortion providers; it is the administration of a manageable tax system, an interest that clears the balancing test's hurdle.