Conscience clauses

Should a Quaker college be allowed to assert a conscientious objection to collecting federal withholding taxes from its employees, since some of that money pays for warfare, which Quakers believe is forbidden by God?

Question for those who believe that requiring coverage of reproductive health services in employer-paid health insurance plans is a violation of religious freedom if it applies to employers such as hospitals and universities affiliated with churches which oppose contraception:

Some churches, including the Society of Friends (Quakers) and the Mennonites, have a long-standing “testimony” against war. They believe that warfare is always morally wrong.

Should a Quaker-affiliated college be allowed a conscience exemption from the rule requiring it to withhold federal income taxes from its employees’ paychecks? Forcing them to collect money from their employees and send it to the Federal government makes them complicit in warfare in precisely the same way as forcing a Catholic hospital to pay for employee health insurance that includes reproductive health services makes it complicit in the practice of contraception.

If the answer is “no,” why should the religious objection to non-reproductive sex be treated any more gently than the religious objection to killing people? In fact, no one claims that taxing religious pacifists to support the defense budget violates their religious freedom. That makes me believe that the “religious freedom” objection to the Obama rule is entirely spurious. What am I missing?

Footnote Since not covering contraception leads to more pregnancies, and since abortions and, especially, deliveries are much more expensive than birth control pills, eliminating coverage doesn’t actually save money for employers. That’s a clear distinction here; clearly taxes would be lower if we didn’t spend 4% of GDP on the military. But that distinction makes the Obama rule more defensible, not less.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

30 thoughts on “Conscience clauses”

  1. Individual Friends, with the help of Friends organizations, have long practiced war tax resistance – withholding or placing in escrow the portion of their taxes that would go to military expenditures.

    It’s not gone well. I’m sure the lack of support from the people shouting so loudly these days was just an oversight.

    But it was, you know, in the New York Times and everything:

    1. I’m pretty sure Mark used that example because it wasn’t some bizarre hypothetical but was in fact something some people were already advocating and even doing.

      I’m also pretty sure that Rep. Blunt, who has crafted legislation that by his own admission would grant religious exemptions to make medical insurance completely meaningless (ie his own invocation of Christian Science, a faith whose most devout adherents oppose all medical care), is not going to extend similar privileges to other “objections of conscience”.

  2. They aren’t even out of the woods of logical inconsistency if they say that Quakers should have an exemption based upon opposition to war. The followup question is: do you support this sort of conscience exemption if the objection is purely moral in nature without a religious basis? In other words, can an atheist pacifist be required to support war even if a Quaker pacifist is not?

  3. Somebody asked if doctors could opt out of the Virginia rape-their-patients law. (I won’t ask bout the patients opting out, because ‘conscience clauses’ are never about patients, only those who have power over them).


    1. Yes, exactly. And one wonders about those places that allow masturbation and whether they should pass a law to forbid it. And those doctors who kill embryos on the way to the womb in IVF: murderers?!? The permutations are endless.

  4. There’s another thing about conscience clauses: they turn every supposed moral decision into Civil Disobedience Lite. The original idea of civil disobedience was that people would disobey a law they found repugnant, they would be punished for doing so, and the fact of their punishment would inspire such compassion and horror among the general populace (and even the police and judiciary) that the repugnant law would change. That’s most changed to become a delicately choreographed dance between protestors and police about who was going to get arrest and on what charges, but at least civil disobedience had some flavor of putting oneself on the line for one’s beliefs. Conscience clauses shred all that.

    Partly, I think, this change is the result of theocratic megalomania and calculation that no one on the front lines would be willing to risk arrest or other real sanction for these “causes”. But part of it is also the result of growing inequality and the “winner-take-all” society, where losing a job or having a criminal record has become much closer to a one-way ticket to underclass status.

  5. What you are missing (at least from a Mennonite point of view) is that “pay your taxes” is an explicit command in Scripture, and there isn’t in Mennonite doctrine (and I think this is true of most developed Christian theologies) any moral responsibility on the taxpayer for the use to which government puts tax money; there is similarly no moral responsibility on employers for how employees spend their wages. Providing something specific is different than providing money; this is not just a religious principle, but a legal one. (For example, it’s illegal to sell alcohol to someone who is intoxicated; it isn’t illegal to give money to someone intoxicated, even if they spend it on alcohol.)

    This is why the Amish-Mennonite community has been so opposed to Social Security contributions; since they are(or were) CALLED insurance (which is forbidden), there’s a moral responsibility to avoid participating.

    1. So, if we called it “Bananas”, then it would be acceptable to the Mennonite community? Why should its name have more weight than its reality?

  6. From the Quaker point of view, paying taxes is problematic even though one is only indirectly supporting violence. There’s a long history of Friends having religious objections to any action that could support an immoral institution. John Woolman refused to wear cotton or use sugar because slaves produced both. Many early Friends spent time in jail for refusing to pay state-mandated tithes.

    So, in a sense, the Quaker argument against paying war taxes is even stronger than the Catholic argument against providing/being involved with contraception. There’s no doctrine of double effect. Rather there is a long tradition of explicitly refusing to allow any of one’s resources to support actions to which one has a religious objection.

    -Bruce S

  7. “In fact, no one claims that taxing religious pacifists to support the defense budget violates their religious freedom. That makes me believe that the “religious freedom” objection to the Obama rule is entirely spurious. What am I missing?”

    You are missing in general precisely what SamChevre points out specifically in the case of Mennonites – that there is a qualitative distinction between collecting taxes from citizens and institutions (which are used to fund various actions) and compelling citizens and institutions to directly perform those actions.

    Very few people would argue that Quakers’ moral objection to waging war should allow them to opt out of paying taxes (assuming part of those funds are used to wage war). But almost every reasonable person would argue that Quakers’ moral objection to waging war should allow them to opt out of serving in the armed forces if drafted.

    We respect the right of Quakers and other pacifists to participate in the public debate about whether or not to go to war, and we expect that they will argue for a public policy in alignment with their moral vision. But when they lose these debates and the nation does choose to go to war, we expect that they will still pay their taxes just like everyone else. But we don’t expect that they will pull the trigger in combat, even though (in situations where there is a draft) we expect other citizens who are conscripted into the war effort to do just that.

    Similarly very few people would argue that Catholics’ moral objection to contraception should allow them to opt out of paying taxes (assuming part of those funds are used to provide contraceptive services through Medicaid and health insurance plans for government employees). But almost every reasonable person OUGHT to argue that Catholics’ moral objection to contraception should allow them to opt out of directly procuring contraceptives, which is precisely what happens when they are compelled to buy health insurance that pays for contraceptives.

    We respect the right of Catholics and others with a moral objection to contraception to participate in the public debate about whether or not to fund contraceptives with tax dollars, and we expect that they will argue for a public policy in alignment with their moral vision. But when they lose these debates, we expect that they will still pay their taxes just like everyone else. But we shouldn’t expect that they will use their own funds to buy contraceptives.

    And the fact that money is changing hands to a third party insurer is of no difference. Indeed, the HHS mandate covers self-insuring institutions as well, meaning for example that Catholic hospitals that provide free in-system health care to their employees would be forced to directly buy contraceptive drugs and devices and to directly perform surgical sterilizations.

    If, as a general principle you disagree, then surely you must think that the administration’s decision to grant an exemption to religious organizations that employ and serve exclusively members of their own faith community to be unconstitutional and morally wrong. After all, the argument you’re trying to make (we require Quakers to pay taxes that fund war so therefore we should be able to require Catholics to procure contraceptives) does not depend on the degree to which Quakers choose to associate exclusively with their co-religionists.

    1. You didn’t address Mark’s points at all. You simply provided an example of what he is talking about. For starters, the “qualitative distinction” you mention in your first paragraph is nothing of the sort. Those two things are not, in practice, at all different. In both, the government is demanding you pay your money for the purposes involved. If anyone who fundamentally objects to the government mandating that they spend money on a health insurance plan to the extent that they believe that it is a constitutional necessity for them to receive an exemption really takes solace in the fact that the government launders that money for them in one instance is a moral midget, someone who relies upon a comforting fiction to allow them to pretend that they are not engaging in an immoral act. Because that’s what it is: money laundering. Nothing else. As conservatives are clever enough to note in other contexts, but are prepared to ignore when it is convenient for them, a regulation is a tax. If you want to argue that it is not, then please be consistent and not say that, for instance, requiring emissions abatement for power plants is a tax. Pick one or the other.

      And you are correct. Very few people argue that different religious organizations should be relieved of the need to pay their taxes for things that they find morally objectionable. You are mistaken in thinking that this provides any support for your position. All it does is demonstrate that there is a fundamental lack of seriousness in the claims that one should have a religious exemption. Either that, or a lot of people really are completely fooled and allow a bit of accounting legerdemain soothe their conscience. In either case, there’s no reason to take them seriously.

      As for your last point, you have conflated your argument with ours. No one, to my knowledge, has claimed that it is a constitutional necessity to make all religious organizations follow the regulations. It is your side, and yours only, that has said that what your opponents want is unconstitutional. I think that making religious organizations follow regulations is a very important *general* principle, but not one that precludes any exceptions.

      1. If the qualitative distinction is meaningless then you, J. Michael Neal, are responsible for torturing prisoners held by the CIA. You, J. Michael Neal, are responsible for launching a war against Iraq. You, J. Michael Neal, are responsible for shipping firearms to Mexican drug cartels.

        I doubt you believe any of these things, because as far as I can tell almost NOBODY fails to notice the distinction between paying taxes to a government that might use some of those tax dollars unwisely or immorally, and paying for unwise or immoral things out of your own pocket directly.

        1. You conspicuously failed to notice the “If” that began the relevant sentence. *If* you believe that it would be immoral to follow such a regulation, *then* you ought to believe that it would be just as immoral to pay your taxes to do the exact same thing. *If* you believe that civil disobedience is necessary over an act for which you are required to pay for directly, *then* you are morally obligated to do the same over your taxes. I find the idea that there is a distinction here so morally obtuse as to be incomprehensible. *If* you are comforting yourself with that distinction, *then* you are allowing a bit of sleight of hand to cleanse the act for you. You are still contributing to the immoral policy in question, but you have managed to find a rationalization that allows you to pretend that you are virtuous.

          As for your specific accusations, yes, I am at least a little bit responsible for all of those things. The fact that I voted against the original architect of all of the things you listed (phrased to emphasize that the gun transactions you mention started under Bush) does not relieve me of all guilt. It lessens it, but does not remove it entirely. I simply consider that the moral harm done by refusing to pay my taxes would have, and still does, outweigh the good that would be done by not supporting those things at all. I find both life and ethics to be complicated that way.

          People of all stripes seem to have a need to avoid accountability for their actions. Liberals who opposed the Iraq war but who went ahead and paid their taxes do have some responsibility, because they helped to fund it. Being a moral purist is hard, and it often leads to ethically troubling actions just as much as not being a purist does.

    2. Even a conscientious objector has to serve in the armed forces. S/He may not have to pull triggers but they will definitely be doing work that supports those pulling triggers. Similarly, a self-insuring institution doesn’t have to go to a vendor or pharmacy and purchase birth control pills and pass them out; they just have to provide a health care plan that will allow participants who don’t share their objections to buy them themselves.

    1. If “everyone” here is defined as political liberals who would prefer to dismiss those that don’t agree with them as duplicitous demons engaged in arcane conspiracies rather than consider the possibility that there might be honest, intelligent people who look at the world and come to different conclusions than they themselves do about matters of politics and morality – then yes, you are correct.

      1. I guess we learn a little bit more about your agenda, SD. You could have criticized all people who prefer to dismiss duplicity. Instead, it’s only liberals. Tsk, tsk.

        However, I do dismiss the possibility that any one that is both honest and intelligent could fail to prioritize the real harm caused by unwanted pregnancy over the conceptual fantasy of Catholic sexual purity.

        1. Those who do not want to be pregnant can abstain from sex, and thus not have to commit the sin of using contraceptive medication. So it is about sex, and being willing to visit the consequences of sex on the participants (particularly the woman) rather than allowing them (her) to avoid them.

          The real problem I have with sd’s position (and no doubt he speaks for others) is this proposition: ” almost every reasonable person OUGHT to argue that Catholics’ moral objection to contraception should allow them to opt out of directly procuring contraceptives, which is precisely what happens when they are compelled to buy health insurance that pays for contraceptives.”

          The health insurance that I buy pays for lots of medicines that I will never use, including some that I would not want to use even if my medical condition seemed to require it. Buying that insurance does NOT directly procure those medicines. Paying for a health plan for my employees that covers contraceptives if THEY choose to have them does not implicate me, any more than paying them wages implicates me if they do immoral things with their money.

          No Catholic is required by any law or proposed law to procure contraceptives. Some institutions run by Catholics may be required (subject to the ‘compromise’) to pay for insurance that among many other things will cover the cost of contraceptives used by their employees, who may or may not be Catholic and for whose moral behaviour away from the workplace those institutions are definitely not responsible.

  8. The difference is taxation versus direct participation. Quakers don’t get to object to paying taxes for war just as Catholics don’t get to object to paying taxes just because the feds may fund contraception or abortion. But Catholics shouldn’t be required to pay directly for practices they find abhorrent (which unquestionably happens where Catholic employers self-insure) and Quakers should not be required to, say, purchase firearms so that they may participate in the militia.

    This distinction is well-established under the First Amendment in the speech context. So, for instance, the government can tax me to fund government speech that I find objectionable, but it can’t force me to spend money funding speech I find objectionable (see United Foods and Johanns, drawing this distinction with commercial speech, which receives less protection that religious conscience).


    1. So what happens when Christian Scientists self-insure? Scientologists? Members of a faith opposed to organ transplantation?

      Or is it just when Sex appears that religion gets to redefine “health insurance” to poke great big holes in it?

      1. And I still want to know whether the non-religious have the same access to a morally based exemption.

    2. Also note that this “you can’t make us follow the law at home” angle doesn’t apply to all sorts of things. There are a lot of homeschoolers in this country, especially ones motivated by strong religious belief. They have to meet standards (in at least some states), or they don’t get to homeschool.

      More relevantly, a company operating a staff cafeteria has to meet various health codes – health codes the proprietor wouldn’t have to meet in their own kitchen, at home, feeding their family. This is true even if the company’s proprietor doesn’t believe in the Germ Theory Of Disease, and is opposed to hygiene generally.

  9. Don’t even debate the “religious liberty” red herring.

    This is clearly all about kneecapping Obamacare, nothing more.

    Since the theo-con-a-corpor-a-tariat can’t repeal it (and aren’t serious about replacing it), they’ll settle for a tactic that will (1) functionally eviscerate the ACA’s central mechanisms while (2) also supplying a handy “Sex! Religion” rallying cry to get the culture warriors stirred up.

    Extra features: (3) it distracts from the improving economy, (4) favors corporate interests over those of workers (also known as “people”), and (5) gets all up in between women’s legs at the same time!

    It has the hallmarks of Rovian origin, if you ask me.

  10. Another thing I can’t tolerate is the assertion, frequent among the anti gang speaking here, that paying for someone else’s contraception is forcing the immoral act. If the law forced the management of the Catholic hospital to take contraceptives, I’d be totally opposed to that as an invasion of religious liberty. Hell, if the law forced them to proselytize in favor of contraception, I could see it.

    Being forced to support an environment where people under your power are allowed the option of making their own moral decisions, not so much.

    My recollection is that the whole structure of this religion relies on the idea of free will. That the moral choice is of no value if it is forced. It seems to me that the Bishops are actually doing harm to those subject to their control.

  11. TQW II — Just so! It seems Citizens United gave corporations (in addition to free-speech rights ) the ability to go to Hell, sin, get pregnant, have abortions, etc.

    That hospital is going to be in some Big Trouble when God finds out that it took contraceptives.

    It’s amazing what conferring a little personhood will do!

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