Presentations by Marjorie Kornhauser and Peter Goldberger

Thursday evening, July 6

Marjorie Kornhauser

Marjorie Kornhauser, Professor of Law at Tulane Law School, New Orleans, Louisiana, presented insights into ways the US courts interpret laws governing taxation and conscience. She noted that the primary hope for relief for Conscientious Objectors to Military Taxation is that the Congress will enact a law which the courts will deem constitutional.

Marjorie based her presentation on her article, “For God and Country: Taxing Conscience,” which was published in the Wisconsin Law Review, Volume 1999, Number 5, pages 939-1016.

Dr. Kornhauser told us how her interest in COMT was piqued. As she was researching the general topic of tax resistors, she came across ‘something weird’ - people who weren't paying their taxes because of their conscience, not because they stood to gain financially for their refusal, or out of disloyalty to their country. She soon learned to know Marian Franz, David Bassett, and other leaders and became more and more interested in her discovery. “Surprisingly,” she said, her article “was met with a lot of interest” by her colleagues and law students.

Without a change in the law, Congress says war tax resisters should be treated the same as other tax resisters. Kornhauser said this treatment is wrong, and bad for the country, because of

  1. the First Amendment guarantee of freedom of religion;
  2. international freedom rights; and
  3. the Religious Freedom Restoration Act.

None of these arguments have ever been successful in the courts, and I don't think they're ever going to be, Kornhauser said.

Citing examples of laws Congress has passed which favor religion, Kornhauser said that Congress could pass a Peace Tax Fund bill if it chose to. In her opinion, it would be a good law because it would show tolerance and respect for minorities. These qualities are not required by the Constitution, but would be good for the country.

Marjorie addressed three problems with a peace tax bill. First, the legal problem: Would allowing it violate the establishment clause in the Constitution which says Congress cannot establish religion? Marjorie said it wouldn't.

Second, is the administration problem. The Treasury says it is concerned about the “complexity, confusion, and increased administration” of a peace tax. That argument is laughable, given the already complex tax laws made to benefit many special interests.

The bigger concern is one of policy. Letting people choose where their tax money goes, or may not go, gives some people a ‘second chance’ (after voting for legislators) to decide where taxes are spent. This ‘floodgates’ argument says if COs are allowed an exemption from paying into the military budget, then many other taxpayers who don't like to pay for something will want laws to favor them. That is a legitimate concern, Kornhauser said. However, objection to killing is the ‘strongest universal moral objection,’ and legislation to legalize COMT would ‘benefit greater democracy.’

We believe peace is good and conscience is good, so the law is good, she said.

Peter Goldberger

Peter Goldberger, a criminal defense lawyer from Ardmore, Pennsylvania, has recently taken the COMT cases of Priscilla Adams and Rosa Packard to court. He has been helping war tax resisters for 20 years.

Marjorie Kornhauser had referred to the Supreme Court's ruling on a 1971 draft case, “Conscience may override the demands of a state.” Goldberger said that that ruling only protects absolute, religious pacifists, and excludes Catholics because of their church's ‘just war’ position, as well as non-religious COs. It says, “Congress can discriminate in favor of one particular religious objector” and is, therefore, “a bad doctrine of Constitutional law.”

Goldberger said the Peace Tax Fund bill could pass, even though it compares to the draft law and could be considered discriminatory.

Appealing to international human rights law won't help American COs win their cases, Goldberger said, because Constitutional law is the highest law the courts recognize. International law is only equal to statutory law.

In Adam's and Packard's cases, Goldberger appealed to the 1993 Religious Freedom Restoration Act (RFRA), but lost the appeal. The government has a lot at stake in ruling favorably in cases like these. RFRA creates a CO right against any federal law, Goldberger said. It requires that the government will lose to an individual's conscience unless the government can prove that violating the individual's religious conscience is the least restrictive action [it can take] against the individual.

The courts have said the RFRA law shouldn't be enforced as written, Goldberger said. RFRA potentially opens the floodgates by saying that every person's conscience is a law unto itself. The courts will never admit that the Constitution says that, he said.

In Packard's and Adam's cases, Goldberger argued that religious objectors should be treated at least as well as people assessed tax penalties because of other circumstances. The IRS should not discriminate against COs.

PTF bill would give taxpayers another choice to check off on their tax forms, similar to the choice to have $3.00 designated to the fund for political campaigns, Goldberger said. (In the question and answer time after his talk, Kornhauser disagreed. She said that the peace tax option would more likely be buried deep in the IRS instruction manual, and COs would have to request, complete and return additional forms to qualify.)

Just the asking of the question, ‘Do you want a large percentage of your money to go to the military?’ would be good, said Goldberger. Anything which encourages people to make choices on moral grounds is good.


Responses first centered around the question of the legality of war tax resistance. Isn't it ‘legal’ to refuse to pay for war because war itself is illegal, and by paying taxes for war, COs implicate themselves in the act of war? How do the Nuremberg principles apply to war tax resistance? What about appealing to international law?

Goldberger responded that it is well arguable that war is illegal, but it doesn't logically follow that paying taxes for it is illegal. An individual who pays war taxes would not be prosecuted for war crimes under the Nuremberg principles. One can cite the Nuremberg principles and international treaties to persuade others to become WTRs, but it won't help you win a court case in the United States.

Larry Rosenwald questioned the witness value of the peace tax bill, asking, Is it good to encourage exercise of conscience when it doesn't have consequences (risks)?

Responses included: It's not good that COs have to suffer, and the bill's passage could lead to the next step. Asking for the extension of the legal right to refuse military service will bring awareness. COs still suffer by being different.

Statements by Goldberger and by Wally Nelson showed the supremacy of conscience over law.

Goldberger said, Principles are more important than obedience to law. Wally asked why we stress legality. If we know it's wrong to kill, then, damn it, let's not kill!