Tuesday, April 22, 2008

Would Government Penalties for "Too Many" Children Violate Religious Freedom?

Yesterday, USA Today published a column by Oliver "Buzz" Thomas entitled "Might Our Religion Be Killing Us?" Thomas answers the question with a "yes," arguing that the opposition of some religious groups to abortion and birth control and their encouragement of large families is harmful to the environment.

Thomas asks, "instead of providing tax breaks for having more children, shouldn't Congress be providing incentives for having fewer?"

What if the federal or state government imposed tax penalties upon couples who had, say, more than two children? Would this violate religious freedom?

It is not clear how courts would answer. At the outset, a court would consider whether having more than two children is the sort of "religious exercise" protected by the law. To be sure, having children is different, at some level, from prayer, evangelism, baptism, and communion. At the same time, many couples believe that having many children demonstrates obedience to God; even more believe that abortion and artificial birth control are sinful.

A courts would also ask whether the tax penalty is a legally cognizable "burden" on religious exercise. Assuming the court found that the tax penalty burdened religious exercise, it would then likely consider whether the burden was justified by some "compelling governmental interest." At this point, the government would likely invoke arguments about environmental Armageddon. In response, the couple with three kids would argue that the existence of their third child, by itself, will not bring about the ruination of the planet.

A claim under the Free Exercise Clause might not get very far, as the government would be able to argue that the tax penalty on "excess" children is a "facially neutral, generally applicable" rule that doesn't even implicate the Clause, as interpreted by the Supreme Court in Employment Division v. Smith. However, the Religious Freedom Restoration Act (for which Buzz Thomas actively lobbied) still applies to the federal government.

In any event, it is worth noting the irony of a liberal suggesting that the government should interfere with "reproductive freedom" by pressuring married couples to use birth control, have abortions, or abstain from sexual relations.