Like most people, I do not know exactly all that is contained in the tax-related proposals that have emerged from the House and the Senate, and I'm not sure what will be in the tax legislation that eventually is enacted and signed into law -- if anything is. (Given that things so rarely get "signed into law" these days, it's hard for me to be confident that anything will be.) These two proposals contain some specifics that strike me as good policy and some that do not. The process that is producing the proposals and that will (perhaps) eventually produce the legislation is, in my view, impossible to admire, but -- again -- I'm afraid it's been a while since our national legislature did much legislating.
My social-media feeds and the commentary I'm reading -- particularly from public Catholics, including bishops -- are largely skeptical, critical, or worse about these proposals. My sense is that some skepticism and criticism are warranted, but also that some of the denunciations are exaggerated, underinformed, and/or overwrought. We'll see.
What, if anything, do "Catholic Legal Theory" or the Church's social-teaching tradition have to say about all this? Judging, again, from my social-media streams, many are confident that the answer is "a lot of very specific things." I don't think that's right. A few thoughts . . .
First, although it's not a distinctively "Catholic" position, it is a position that Catholics and everyone else should endorse that, generally speaking, that law-making should be characterized by "regular order", due consideration, deliberation, and transparency. At present, our federal law-making is not.
Next, I feel confident that the Gospel and the social-teaching tradition do not prescribe any particular mechanisms for political communities' important task of raising the funds necessary to do what political communities ought to do. As I see it, a political community's taxation policies should be seen as, and should function as, a mechanism for that task, and (pretty much) only that task.
Third, this mechanism should function well, not poorly. That is, it should efficiently, justly, and intelligently raise the necessary funds, in ways that do not create counter-productive incentives and wasteful losses, that are constrained by law and due-process norms, and that impose proportionate burdens across the board.
Fourth, political communities should be willing, in normal circumstances (i.e., not war), raise as much money (through taxation and other means) as they want to spend, and should not spend more than they are willing to raise.
With these four points in mind, I'm inclined to think that the taxation mechanism should not be used for policy purposes other than raising funds, although I realize that, in our world, it is used for other purposes (e.g., encouraging and subsidizing home ownership), even though I wish it were not. I'd like to see those other purposes pursued in more transparent and direct ways.
My colleague, Mark Movsesian, has done a short and helpful video for the Federalist Society explaining the basic background and issues in Masterpiece Cakeshop v. Colorado Civil Rights Commission, on for oral argument tomorrow at the Supreme Court.
Friday, December 1, 2017
Mark Rienzi and Stephanie Barclay have posted their forthcoming paper, "Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions," on SSRN. Here is the abstract:
In the wake of Hobby Lobby and now in anticipation of Masterpiece Cakeshop, the notion that religious exemptions are dangerously out of step with norms of constitutional jurisprudence has taken on renewed popularity within the academy. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey. And such a scheme will result in a tidal wave of religious claimants striking down government action at every turn.
Our article presents a novel observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenge offered as a default remedy elsewhere in constitutional adjudication. Furthermore, under this form of as-applied adjudication, courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror exemptions critics fear in the context of religious exercise. This is true even in the hotly debated context of anti-discrimination laws.
The article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. In fact, religious cases as a percentage of the total reported case load appear to have decreased after Hobby Lobby. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.
