Both conservatives and liberals aren’t being straight about the Religious Freedom Restoration Act

Everybody's Lost Their Goddamn Mind Over Religious Freedom

You want to know the weirdest thing about the fight over Indiana’s state-level version of the federal Religious Freedom Restoration Act (RFRA)? It’s totally at odds with the origins of that first federal law.

Indiana’s law is being championed by religious conservatives and opposed by secular liberals. In an intense press conference on Tuesday, embattled Republican Governor Mike Pence declared, “I believe religious liberty is our first freedom.” But the original RFRA was signed into law by Democrat Bill Clinton in 1993 after the state of Oregon refused to pay unemployment insurance to a couple of Native Americans who got canned as drug-rehab counselors for using peyote in religious ceremonies. RFRA was passed to remedy such an obvious injustice and its main sponsor in the House was liberal congressman Charles Schumer, who’s expected to become the next Senate Minority Leader and is most famous for trying to ban every goddamned good-time substance known to mankind, from Four Loko to powdered caffeine to “delicious-looking detergent.”

Weirder still: Arch-conservative Jesse Helms, a hardcore Christian who was an unapologetic homophobe, was one of just three senators who voted against the law. Writing for the majority in Employment Division v. Smith, the drug warrior Antonin Scalia thundered that letting religion provide a loophole in such an instance “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

[...]

From a libertarian perspective, there’s an easy enough way to resolve the current conflict between demands for religious freedom and equality. It doesn’t fully satisfy either side but it has the virtue of preserving a pluralistic society and minimizing intervention into everyday life.

The starting point should be to focus on discrimination by the government, which was the impetus behind the original federal RFRA—Oregon refused to pay out unemployment based on religiously based drug use. Conservatives typically say they believe in limited government and individual rights and that the government shouldn’t play favorites or accord certain people or classes of people special treatment (this is their argument against affirmative action). If they mean what they say in other contexts, conservatives should be in the forefront of pushing for marriage equality, as the state has no case for treating individuals differently under the law.

For their part, liberals should recognize the limits to and wisdom of injecting state power into every possible relationship in the country. As wrong and stupid as I think it is for a particular individual or business to discriminate against a customer or neighbor based on sexual orientation (or race, gender, and class for that matter), that should be the business’s decision, especially if the business is only one service provider among many.

Nobody should be forced to do something they don’t want to do, whether it’s bake cakes for gay weddings or decorate cakes with anti-gay slurs. To me, whether a person’s or a business’s decision is based in religion is immaterial.

Whatever you may think of Jack Phillips’s refusal to bake a wedding cake for gay customers, there’s something as or more disturbing about the court ruling against the owner of Lakewood, Colorado’s Masterpiece Cakeshop. Not only was the baker forced to change his store policy, he and his staff were required to attend sensitivity training. That sounds like something out of China during the Cultural Revolution. It doesn’t help that Phillips offered to make the original complainants any sort of item but a wedding cake.

Most Americans don’t agree with Phillips’s beliefs in this case, but such disagreements are one of the prices we pay for living in a free society, in which we seriously recognize and respect that different people have different value systems. It’s worth noting that in the segregated South, very different rules applied. It was common, for instance, that local and state governments and laws actively prevented businesses from treating customers equally. When laws were not openly racist, “citizen’s councils” and terror groups such as the Ku Klux Klan enforced a de facto standard against businesses that treated all customers equally. This is not the case today with regards to gays and lesbians.

By the same token, any individuals or businesses that exclude certain sorts of business can’t exactly bitch and moan when people decide to publicize such policies and organize boycotts, as is happening to the entire state of Indiana now.

Supporters of state-level RFRAs should own the fact that, as Apple’s Cook says, such laws absolutely do allow discrimination (more precisely, they allow defendants to use religious beliefs as a defense in certain court proceedings). Indiana Governor Mike Pence now says he hopes to fix the law with more legislation. “The issue here is still is tolerance a two-way street,” he told ABC News over the weekend. Of course it is, and the same right that allows a business to opt out of serving some customers also allows others to respond by taking their business elsewhere. Last year, Arizona Governor Jan Brewer vetoed a RFRA-style bill precisely because of possible economic fallout. [...]

Read the whole thing for embedded links and more. I think the ideas presented in this article make a lot of sense, but I doubt many supporters on either side of the conflict will embrace them. And the history of this law... so much irony!

     

Can the IRS create powers for itself?

Powers based on the "Horse Act of 1884"? So far, the judge says "no":

IRS Beats A Dead Horse, Argues For Regulations At Appeals Court

Does the Internal Revenue Service have the right to regulate tax preparers?

[...]

The crux of the plaintiffs’ argument is this: Congress never gave the IRS the authority to license tax preparers, and the IRS can’t give itself that power.

U.S. District Court Judge James E. Boasberg agreed. In January 2013, he issued an opinion that would bar the IRS from regulating tax preparers, days before the new tax season officially opened for business. You can read the opinion here (downloads as a pdf).

The IRS appealed that decision and here we are, eight months later, back in court.

Oral arguments in the case were colorful, often punctuated by queries from the judges and occasionally, a joke or two. During arguments, the judges appeared skeptical of the IRS’ reliance on an 1884 statute, the “Enabling Act of 1884,” also referred to as the “Horse Act of 1884″ as sufficient authority to regulate tax preparers. The statute was the result of a post-Civil War concern about the abuse of the claim process for the value of dead horses and lost property during the war. To stem the tide of abuse, Congress granted the Secretary of the Treasury the authority to regulate the admission of agents representing claimants before the Treasury Department (the rise of the modern day Enrolled Agents), and to penalize those who failed to comply with the regulations. The Treasury published guidance for those agents – and that guidance is what eventually evolved into Circular 230. If that name rings a bell, you might have seen “Circular 230 language” at the bottom of attorney and tax professional emails.

The IRS argues that the law still allows for regulation of tax preparers. The statute predates the modern income Tax Code which was codified in 1913. Much has changed since – including Congress’ apparent reluctance to pass any laws granting the IRS specific authority to regulate preparers.

The amount of time that passed from the 1884 case and now didn’t go without notice in front of the panel. Consider this brief exchange between Justice Department Tax Division lawyer Gilbert Rothenberg and the panel:

Panel: That’s how many years?
Rothenberg: That’s about a century.
Judge: And then after a century, Treasury suddenly decides these words empower us to do this…?

Another exchange revolved around two simple conjunctions: “and” and “or.” Under the law, there are four criteria to be considered an agent. The statute uses the word “and” to connect the four but, as argued by Rothenberger, the IRS believes that “and” could also mean “or.” The panel didn’t seem convinced.

[...]

Shortly after the amicus brief in support of the plaintiffs was filed, I called up one of the parties, Joe Kristan, to ask him about his participation. Kristan is a CPA and authors the informative and entertaining Tax Update Blog. He doesn’t have an actual dog in this fight: CPAs are exempt from most of the regulations. So why, I asked, was he involved? He offered a laundry list of reasons: it’s bad law, bad policy and bad for the consumer.

In addition to the arguments cited by the plaintiffs that the IRS doesn’t have the authority to regulate tax preparers – and Congress has never stepped in to give them that power – Kristan has concerns about handing over even more power to the agency. Using an analogy from my profession, Kristan compared the law to giving the prosecutors the right to regulate defense attorneys.

During our call, we both agreed that there are bad tax preparers out there but Kristan used that fact to seize upon one of the main criticisms of the IRS scheme: there are ways of dealing with bad acts and these regulations won’t keep the bad preparers honest. It doesn’t, for example, deal with the issue of fraud in the industry. And, he says, those who can manipulate the system will now have the equivalent of a “seal of approval” from IRS, giving consumers a false sense of security.

But what about those education requirements and the competency exams? Kristan shrugs off the notion that some testing keeps taxpayers safe, saying that the test is a “literacy test, not a competency test.” He does believe that tax professionals should keep their credentials up and their skills sharp but feels that should be voluntary. The real problem with tax compliance issues, he says, simply won’t be resolved through more regulation. [...]

I believe the appeal by the IRS is still pending. But if it should fail (and IMO, that seems likely), congress is poised to give the increase in powers to the IRS: House bill would give IRS authority to regulate tax pros.

This link about the Horse Act of 1884 is interesting. It explains how it eventually lead to the creation of the designation of "Enrolled Agent".

Also see:

IRS' 'dead horse' tax preparer regulation argument doesn't appear to move federal appeals court