The Establishment and Free Exercise Clauses bar Congress from establishing religions and interfering with free religious exercise. How should anarchists feel about that?
Well, the first clause should positively thrill anarchists, what with anarchists’ well-documented skepticism of Congress’s “establishing” anything, let alone something as weighty as a religion! The second shouldn’t seem so bad to anarchists, either, given that it limits state intrusions into people’s personal lives.
The trouble is that the clauses, as applied, are often in tension, such that the satisfaction of one clause entails the violation of the other. To see that this is so, consider the (real) case of an Amish man who refuses to pay taxes for Social Security, arguing that he has a religious duty to care for the Amish elderly without governmental interference. Is it so clear what a faithful application of our two clauses demands?
At first blush, it might seem that the Free Exercise Clause should kick in to allow this man a religious exemption. Indeed, if his religious conviction is sincerely held (which no one doubts), then compelling him to pay taxes for Social Security necessarily means interfering with his free religious exercise.
Suppose, however, that a nonreligious Objectivist insists the next day that she should not have to pay taxes for Social Security, seeing as taxes amount to compulsory altruism (something that the Objectivist philosophy abhors). If the government—having granted the Amish person’s exemption request—denies the Objectivist’s exemption request because it is not motivated by religion, then the government thereby favors religious exemption requests over nonreligious exemption requests. Arguably, because it “respects” religious tax objectors over nonreligious tax objectors, such governmental favoritism runs afoul of the Establishment Clause.
There seem to be three ways for the state to resolve this dilemma. It can, in the first place, deny the Amish person’s exemption request, rendering toothless any accusation that the state improperly favors religious tax objectors. However, this course of action (arguably) puts the state in violation of the Free Exercise Clause, as it entails taxing someone against his religious convictions.
Second, the state can grant the exemption request, thereby precluding accusations of a Free Exercise violation. But the trouble here is that—if the state does not also grant the Objectivist an exemption—the state makes itself vulnerable to accusations of an Establishment Clause violation, seeing as the state is treating religious objectors better than nonreligious objectors.
Finally, the state can grant both the Amish and the Objectivist objectors their requests, opening the door to endless conscience-based requests for exemptions—all of which the state, for consistency’s sake, would have to grant. Soon enough, with everyone claiming conscience-based exemptions, there would be no taxation at all.
It is clear that anarchists find the final option most palatable. It is also clear that the perennial conflict between the two clauses is unlikely to be resolved in favor of this anarchic option any time soon. That being the case, what can anarchists advocate (1) to prevent violations of these important clauses while (2) maintaining some modicum of fealty to anarchist principles?
The answer might lie in the judicial tool of “strict scrutiny.” If deployed, this tool would force the government, in any given case, to show that it is cozying up to religion or restricting free religious exercise in service of a “compelling state interest.” Moreover, this tool would require the government to show that its means (i.e., the laws in question) are “narrowly tailored” to the crucial objectives that the government has in mind. Unlike rational basis review, whereby courts give tremendous deference to legislatures, strict scrutiny forces the government to show that it essentially must enforce the law in question.
To see how this would work in practice, let us return to our tax law, which—we will recall—burdens the free religious exercise of the Amish. Appreciating the gravity of forcing someone to run afoul of his religion, the Court would ask (1) whether the maintenance of our current Social Security System is socially indispensable and (2) whether a tax (rather, than, say, a voluntary lottery) is necessary to the maintenance of that system. Were the Court to find that the answer to both questions is “yes,” then the tax would be levied against everyone equally, and that would be that. But if the Court were to find that the answer to either question is “no,” then the Amish applicant—like all other applicants—would be granted an exemption.
This system ought to appeal to anarchists for two related reasons. In the first place, by requiring the government to provide ample justification for its behavior, it reduces government only to those state actions that can be shown to serve “compelling” interests. Second, by reducing the scope of government, it precludes many state actions that would necessarily violate either the Free Exercise Clause or the Establishment Clause.
Of course, strict scrutiny is no panacea. If war taxes are declared “narrowly tailored” means to the “compelling” end of national security, then the state will have the imprimatur to violate the Free Exercise Clause by taxing pacifists of all religious and ideological dispositions. Meanwhile, if corporate welfare is not deemed “compelling,” then those pacifists who are taxed for war will say (plausibly) that the state—in violation of the Establishment Clause—is privileging those religious people who object to corporate welfare taxes over those religious people who object to war taxes. Even so, strict scrutiny—if deployed more liberally—may allow anarchists to begin hewing away at those features of the state that they find most deplorable. On that basis, it merits anarchists’ support.