UNITED STATES v. LEE

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ORAL ARGUMENT OF LAWRENCE G. WALLACE, ESQ., ON BEHALF OF THE APPELLANT

Chief Justice Burger: The Court will hear arguments first this morning in the United States against Lee.

Mr. Wallace, you may proceed whenever you are ready.

Mr. Wallace: Mr. Chief Justice, and may it please the Court, the Appellee in this case is a member of the old order Amish religious sect who employed other members of that sect on his farm and in his carpentry shop during the taxable years involved, 1970 through 1977.

He did not withhold social security taxes from their wages or pay the employer's share of those taxes, and after an Internal Revenue Service assessment in 1978, he paid the taxes for one quarter of one year for an employee, and brought this suit for a refund, claiming that the tax as applied violated the free exercise clause of the First Amendment.

The basis for this claim is the belief of the old Amish sect to which he adhered that the members are to care for their aged, their sick, and their unemployed, and do not need any form of social welfare benefits from outside their religious community, and that it is a sin either to accept social security benefits or to pay the social security taxes.

The District Court upheld his claim that the tax was unconstitutional as applied, and the United States appealed to this Court.

Unidentified Justice: At the time he made the first quarterly payment, Mr. Wallace, what were his alternatives?

Was he subject to a likely seizure or levying on his property?

Mr. Wallace: Well, the ordinary enforcement procedures to collect the taxes would be utilized, Mr. Chief Justice, but of course this case has been litigated, and none of those procedures have been put into effect.

The case was tried on a stipulation, and counsel have agreed that the amount of taxes owing will be agreed upon should the United States prevail in this case.

Unidentified Justice: Well, but his act at that time in paying presumably did not compromise his religious beliefs because he had no choice, no real choice.

If he wanted to continue his business, he had to yield to the government's demand.

Mr. Wallace: He at least was willing to make the payment.

I can't really speak for whether that offended his religious beliefs.

He made it under a claim of right to a refund, and perhaps that reconciled it with his belief.

Unidentified Justice: He is still claiming here today--

Mr. Wallace: He is still claiming the right to a refund.

Unidentified Justice: --Mr. Wallace, in the face of that finding of the District Court that it was a sin not only to accept but also a sin to pay these taxes, can the Court go behind that?

Mr. Wallace: Well, I don't--

Unidentified Justice: I mean, do we have to decide this case by accepting--

Mr. Wallace: --We are not asking--

Unidentified Justice: --by accepting that holding, that it is a sin to pay as well as--

Mr. Wallace: --We accept that holding, that that is his religious belief, and--

Unidentified Justice: --But you rely on the balancing aspect.

Mr. Wallace: --We do, Mr. Chief Justice.

Unidentified Justice: But I gather that--

Mr. Wallace: We do ask the Court to look behind that religious view.

Unidentified Justice: --Does that imply then that you don't question that to pay would seriously infringe upon his free exercise rights?

Mr. Wallace: We don't agree with quite that formulation, Justice Brennan.

We don't question that he in good faith and with sincerity believes that it would be a sin to pay the tax, and he is making--

Unidentified Justice: But nevertheless, nevertheless, to the extent that infringes upon free exercise rights, I gather the government's position is that the governmental interest, what, overrides?

Is that it?

Mr. Wallace: --That is our position.

Unidentified Justice: It has to give way to the governmental interest?

Mr. Wallace: That this is not in the circumstances of a generally applicable tax protected by the free exercise clause.

Unidentified Justice: What I am trying to get at is--

Mr. Wallace: They are... to pay a tax assessed on all persons--

Unidentified Justice: --What I am trying to get at--

Mr. Wallace: --for an economic activity.

Unidentified Justice: --Mr. Wallace, wait, will you?

Are you suggesting, then, that this is a strict scrutiny kind of analysis, and that the government interest under strict scrutiny prevails over the free exercise right?

Mr. Wallace: We haven't really suggested a test of that kind.

The Court has spoken in terms of a balancing test in the pertinent cases, looking toward the interest claimed under the free exercise clause and the governmental interest.

I don't know that it is--

Unidentified Justice: Well, what is the test by which we determine that the free exercise right must give way to the governmental interest?

Mr. Wallace: --Well, I am not sure that I can formulate it in an abstract way other than to use what the Court has used, that you examine the claim that is made under the free exercise clause, and the nature of the government's interest, and make a determination.

This claim is quite different from many others that have been before the Court, and we have tried to describe some of those differences in our brief.

I don't really think that the case can be answered with an abstract standard.

Unidentified Justice: Congress attempted to provide some relief for these people, did it not?

Mr. Wallace: It did provide an exemption from the self-employment tax, which we have referred to in our brief, but it was very careful in providing that exemption to limit it only to the self-employment tax, and the committee report specifies that the committee did not want to go beyond that and compromise the principle that social security contributions are not to be a voluntary matter beyond that narrow area.

Unidentified Justice: On the constitutional point, though, if he believes it is a sin for him to pay himself, apparently he also believes that it is a sin for him to pay for workers who are now working on his farm.

Mr. Wallace: Well, the claim does embrace the employees' share of the tax as well as the employer's share.

Under the social security laws, both the employer and the employee are responsible for part of the tax, although as it happens in this case, since he did not withhold anything from the wages of the employees, he himself was responsible for the entire tax.

Unidentified Justice: Mr. Wallace--

Mr. Wallace: He has to pay whether he withholds or not.

Unidentified Justice: --Do you think the exemption with respect to self-employed Amish runs afoul of the establishment clause?

Mr. Wallace: We do not think so, Mr. Justice.

Unidentified Justice: Why?

Mr. Wallace: Although there is admittedly some tension with it, but we think it is a permissible accommodation of values, of religious values that the government can make under a number of this Court's cases that do permit some area of legislative discretion in accommodating religious beliefs with the general requirements of the law, and indeed, we think that the exemption could be extended to the employment taxes if Congress saw fit to do so.

Unidentified Justice: But at present, does it work this way, that the exemption applies to an individual, but if he engaged or employed... how many people before the exemption would not be applicable?

Mr. Wallace: It is not applicable to the employment relationship at all.

Unidentified Justice: So if he had a single employee, the exemption would not be applicable?

Mr. Wallace: To the employment relationship.

Unidentified Justice: Yes.

Mr. Wallace: It is still applicable to his own self-employment.

Unidentified Justice: Of course.

Mr. Wallace: Even though it is not applicable to the wages that he pays to his employee.

Unidentified Justice: Mr. Wallace, perhaps you have stated it, but if so, I have missed it.

What is the situation as to the employees here?

Are they also old order Amish?

Mr. Wallace: The stipulation so states, although it doesn't say how many there are.

The record just doesn't show that.

Unidentified Justice: Would the case be different if they were not?

Mr. Wallace: I think there would be less basis for the claim that there was a right to exclude them under the free exercise clause from social security coverage.

Yes, Mr. Justice.

Unidentified Justice: Is it not true that some of the old order Amish have left the faith?

Mr. Wallace: So far as I am aware--

Unidentified Justice: The record doesn't show this?

Mr. Wallace: --The record does not show this.

The committee report which Congress issued and that it enacted the exemption for self-employment in 1965 did emphasize that the proposed exemption in their belief must be on the basis of individual choice to exclude all members of a religious group from social security coverage would not take account of the variances in individual beliefs within any religious groups, and would deny social security protection to those individuals who want it.

Among the old older Amish, for example, there have been some indications of a change in attitude towards social security, particularly among the younger people.

Some members of the old order Amish who have become eligible for social security benefits have claimed the benefits.

Unidentified Justice: Is this Report Number 213?

Mr. Wallace: That is Number 213.

However, nothing in the record of this case indicates anything of this kind.

Unidentified Justice: Even though you may not have made it as sharply as I am about to state it, I took the sum and substance of your position in the brief to be that the government of the United States can't run a nationwide program like tax collection or social security and one like this if there are these ad hoc exceptions, except as Congress explicitly makes them.

Is that pretty close to your position?

Mr. Wallace: Yes, it is, Mr. Chief Justice.

Unidentified Justice: Well, then, how do you distinguish Sherbert against Verner, or the Thomas case of last year?

Mr. Wallace: Well, we discuss those cases in our brief.

Unidentified Justice: I realize you do.

Mr. Wallace: They involved much more serious problems for the claimant of the free exercise right, choosing between, in the Sherbert case, observance of one's Sabbath or one's economic livelihood, and in the Thomas case something very comparable, because of the loss of employment that was involved there, in order not to perform something that one believed could not be performed.

Here, the Amish, who do not want to be within the social security program, of course, do not have to accept benefits, and there is no indication that they believe that the furnishing of benefits to others in the national community who are covered by the program is in any way in conflict with their beliefs.

Their claim really is that there is, as they see it, an implication in their paying the tax that somehow they will become eligible for the benefits, and that indicates the sin of not planning to take care of their own community.

But that is, with all respect to their belief, a construction that they choose to put on the payment.

So far as Congress is concerned, this is just a generally applicable tax on a commercial relationship, and the employment relationship for engaging in commercial activity.

Unidentified Justice: Well, couldn't you say the same thing about Thomas last year?

Mr. Wallace: Well, in the Thomas case, he was performing work that was contrary to his religious belief, and by denying him unemployment compensation rights for giving up the job for that reason, there would be economic pressure on him to engage in work that is contrary to his religion.

I realize--

Unidentified Justice: I take it, Mr. Wallace, you suggest here that they can pay the taxes; that doesn't stop them from continuing to support their own people.

Mr. Wallace: --That is correct, Mr. Justice.

Unidentified Justice: Which is the distinction from Sherbert and Thomas that you make.

Mr. Wallace: It is the essence of the distinction that we make.

Unidentified Justice: They don't lose what Thomas and Verner, or Sherbert, or whoever it was, would have lost.

Mr. Wallace: Yes.

Unidentified Justice: But that suggests that in the scale of values the economic one is the top one rather than the religious belief of the particular claimant.

Mr. Wallace: Well, all religious beliefs as beliefs stand on the same footing under the Constitution.

A religious group might believe that it is a sin to pay any tax to secular authority, and that as a belief would stand on the same footing as the interpretation of social security tax payments that this group chooses to put on those payments, but that doesn't mean that there is a constitutional right to act on those beliefs and to refuse to pay the taxes that are levied on non-religious grounds generally in the community on the basis of commercial activities.

Unidentified Justice: Mr. Wallace, may I ask, is there anything in this record that suggests that the Amish would stop supporting their own people if they lost this case?

Mr. Wallace: Not at all.

Not at all, Your Honor.

Unidentified Justice: Nothing in the stipulation or otherwise?

Mr. Wallace: Not at all, and--

Unidentified Justice: Is there anything to prevent them from having all of the social security or the other payments of this kind come back to a fund, the same kind of a fund that the Amish use to take care of their needy, in other words, so that it wouldn't come back to assist any individual except through the group operation?

Mr. Wallace: --There is nothing in the law, Mr. Chief Justice, that would prevent a member of the Amish faith who is eligible to receive social security payments from receiving those payments and paying them over to a general fund in the community to care for members of the community.

There may be an impediment to doing that in his religious faith, but there is nothing in the law that requires him to receive the benefits at all if he chooses not to receive the benefits.

This is a right protected by the free enterprise clause.

Unidentified Justice: Mr. Wallace, I would like to ask you to identify what the compelling interest is of the government in requiring the Amish to pay into the social security system under the stipulated facts, which indicate that the Amish will not be withdrawing from the fund, and there is very little in the record that I can find that would focus on the real impact on the government of allowing them not to pay.

Mr. Wallace: Well, Justice O'Connor, we don't really, as we view the case, start from the standpoint that we need to show a compelling interest, but however one characterizes that, the interest is really one set forth in one of the classic opinions of Justice Stone, writing for this Court in one of the cases in Volume 301 of the U. S. Reports that upheld the constitutionality of the Social Security Act itself, and that established that the payments as Congress characterized them are taxes, and not insurance premiums, as is sometimes confused, and on Page 28 of our brief, we have set out the key paragraph of that opinion, and I would like to, if I may, turn our attention to it, because it seems to me to go to the heart of this case.

We don't really feel that the tax, that Congress's power to tax need be justified in terms of whether the Amish will be withdrawing benefits from the fund, the general fund that is collected, a tax as at that time Mr. Justice Stone said for the Court,

"is not an assessment of benefits."

"It is a means of distributing the burden of the cost of government."

"The only benefit to which a taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes."

"Any other view would preclude the levying of taxes except as they are used to compensate for the burden on those who pay them, and would involve the abandonment of the most fundamental principle of government, that it exists primarily to provide for the common good."

There are many contributions made in the community at large that contribute toward the maintenance of the way of life that the Amish have fashioned, and that under Wisconsin against Yoder they have a constitutional right to maintain as they choose to fashion it, but the fact is, it is not only through their efforts that that way of life can be maintained.

There are others in the community in general who are willing, for example, to train themselves in the advanced technology that is needed to defend the Country in today's world, and to protect the constitutional form of government which provides for the free exercise of religion, and others who are willing to serve in the armed forces, et cetera.

The fact that the free exercise clause confers upon a community such as the Amish the right to maintain the way of life that they choose to fashion for their community does not negate the obligations they have to the larger community, including the obligation to pay generally applicable taxes on commercial activities.

Unidentified Justice: How does this square with Thomas of last year?

Mr. Wallace: Well, I realize that in your view, Justice Rehnquist, it probably doesn't.

Unidentified Justice: I don't think it does, but I mean taking the majority in both cases.

Mr. Wallace: Well, I think the burden involved in Thomas, as Justice Brennan pointed out, was of greater magnitude, and here, there is nothing in the payment of taxes that prevents the Amish from maintaining their system of providing for the social welfare of the members of their own community through their own efforts, which is their basic religious teaching, even though the--

Unidentified Justice: The Court... were you finished?

Mr. Wallace: --I am sorry, Mr. Chief Justice.

Unidentified Justice: About 25 years ago... I could not identify the cases... was there not a series of cases of Jehovah's witnesses and other groups, perhaps Quakers, who are strongly opposed to war in any form, who sought to have the aggregate amount of the income taxes levied on them segregated between that part which went to the maintenance of the military and the civilian?

I think the Court did not decide any of them, but regularly certiorari was denied in those cases, for whatever that is worth.

Mr. Wallace: That is correct, Mr. Chief Justice.

One of the most prominent of those more recent cases in which certiorari was denied in 1970 is a case in which we have set out a quotation in our reply brief, on Page 3, called Autenrieth v. Cullen.

In that case a large number of people with very serious, they claimed, conscientious scruples against the activities that the government was engaged in in Vietnam wished not to pay the share of their income taxes that would be attributed to supporting that activity, and the Court of Appeals for the Ninth Circuit rejected that claim, and we have quoted a passage of its opinion, and this Court denied certiorari.

There are other cases collected in our principal brief.

In a way, this is a more serious claim of conscience than we are involved in in this case, and I don't mean in any way not to respect the claim that is being made here, but there is no claim in this case that the religious views of the Amish are offended by the use to which these moneys will actually be put, to take care of the social welfare problems of other persons in the general community, whereas in many of these other cases in which people have claimed a conscientious scruple against paying taxes, they found it contrary to their conscience to have the money spent the government was planning to spend the money.

Here, the money need not be spent in a way that would offend their religious beliefs, but it is the payment of the tax itself which they construe to be a sin.

Now, I do think it is important to keep in mind that while the social security laws do use the word "insurance" and use a trust fund concept, the payments that are involved here have from the beginning been recognized to be taxes and not insurance premiums, as they are sometimes loosely called.

This may be very obvious on the facts of this case in which the payments are due from the employer but the credit is to go toward the account of the employee, for himself or his survivors.

Nonetheless, there can be some confusion about this.

On Page 16 of the Appellee's brief he refers to this as the payment of insurance premiums.

Any possible doubt on this subject was dispelled by a decision of this Court not cited in any of the briefs which I want to call to the Court's attention, and I called it to counsel's attention, Fleming against Nester, decided in 1960, 363 US 603, which made it clear that there is no accrued property right under the system, that it is, as Congress provided, in a savings provision subject to change and adjustment through the normal exercise of the Article I legislative powers.

From the beginning, the cases have construed the payments due as taxes, as Congress characterized them.

I would like to reserve the balance of my time, please.

Chief Justice Burger: Very well.

Mr. Caiazza?

ORAL ARGUMENT OF FRANCIS X. CAIAZZA, ESQ., ON BEHALF OF THE APPELLEE

Mr. Caiazza: Caiazza.

Mr. Chief Justice, and may it please the Court, after listening to the questions asked by the Court and the government's responses thereto, I think I would find it necessary really to depart from the prepared argument that I have made, because I feel that in arguing a question involving... excuse me... questions involving the freedom of religion certainly is a question that has to come from the feelings of the individual practitioner who is arguing the question.

Perhaps it is not permissible and proper for an attorney to become so personally involved with a particular issue.

Maybe I have overstepped my bounds.

But I think the Court has to remember in this case that religion is something like beauty.

Beauty is in the eyes of the beholder.

I think that religion is the same thing.

I think religion also has to be in the eyes of the believer.

Religion means different things to different people.

To some people, it may seam go to church on Sunday, or the Sabbath.

Perhaps it has a social connotation to other people.

But to some people the basic and the underlying principle of religion is the salvation of one's soul.

That basically is what the Amish people are about.

It is pretty hard, really, to describe the Amish people without living with them, without going to see them, visiting their homes, talking to them, and I think by doing that you perhaps gain an insight into what the Amish people are about.

Unidentified Justice: In the Thomas case last spring, didn't the Court say rather clearly that the judges can't get into the business of parsing out the doctrinal differences within a particular faith?

Mr. Caiazza: That is true, Mr. Chief Justice, but I think that is very applicable here, too, because I think in this particular case, what the government has said, that it is really a sin, they admit that it is a sin on behalf of the Amish people to pay into the system, but then what they go on to do is to say, well, that is not that great of a sin.

The Amish people, pure and simple, live by the Book of Timothy.

The Book of Timothy, of course, paraphrased, says, if you don't take care of your own neighbors, you are worse than an infidel.

That is the basic underlying principle of this particular case.

That is the belief of the Amish people.

Unidentified Justice: But isn't this whole social security system an organized way for a country of 200 million people to try to take care of their neighbors in an organized, institutionalized way?

Mr. Caiazza: That is true, but there are exceptions to that.

As an example, Federal employees are not part of the social security system.

They have their own system to take care of themselves.

The Amish have their own system, which is the best system I have ever seen.

They take care of their own.

If they have tragedy, they are there to take care of them.

About two weeks ago--

Unidentified Justice: Counsel, does the record show that any employees of these Amish were not Amish?

Mr. Caiazza: --No, all of the employees of Mr. Lee were members of the old order Amish.

Unidentified Justice: Well, of course, the stipulation doesn't say that in so many words, does it?

Mr. Caiazza: No, it does not, but there were no... I think that it does.

I think the stipulation states that all of the employees were members of the old order Amish.

Mr. Lee did not employ anybody who was not a member of his own sect.

Unidentified Justice: Mr. Caiazza, I gather from what you have said that if you lose this case, the Amish will not stop following their religious principle which, as you say, underlies this whole belief of taking care of their own.

Mr. Caiazza: They will not... right.

Unidentified Justice: They will continue.

Mr. Caiazza: They would continue to take care of their own.

There is no question about that.

Unidentified Justice: Well, is there anything in the record at all that indicates that the payment of these taxes in any wise actually burdens their ability to take care of their own?

Mr. Caiazza: No, but I think it burdens their religious belief.

I think that is the issue.

Again, they do consider it a very serious sin to pay into the system, because what they are doing is denying their faith in the destiny of God.

They believe very frankly in the destiny of God, that God will--

Unidentified Justice: Does that suggest that it is a sin of such consequence that entirely without reference to their ability to take care of their own, it is an offense to their religion to pay--

Mr. Caiazza: --Yes.

I think... I feel very strongly about that.

I think that once a particular group of individuals such as the Amish establish the fact that certain conduct is sinful, and that opinion is a sincere opinion such as the Amish people have, I don't think this Court or the government or anybody else can question the sincerity of that belief, and attach a sin to it as being mortal or venal in nature.

Unidentified Justice: --Well, I didn't understand that the government was questioning at all, and certainly I do not, the sincerity of the belief.

Mr. Caiazza: They weren't questioning the sincerity of the belief, but they are saying the sin would simply be an incidental sin.

It wouldn't be that great.

Unidentified Justice: What about the cases that we discussed with Mr. Wallace?

In the Ninth Circuit case, it was really a political belief.

They were... the objectors were objecting to a particular war.

But in the earlier cases, where the Court declined to review similar holdings, there were religious beliefs asserted against all wars.

Now, that is certainly a profound belief, is it not?

Mr. Caiazza: I think it would be.

Unidentified Justice: And yet these people in these religious groups were required to pay their share of the cost of the World War Two and all other military activities.

How do you distinguish that, if you think you need to distinguish it?

Because the Court didn't decide it.

We merely decided not to review it.

Mr. Caiazza: I think I do need to distinguish that, and I think you have to look at the compelling state interest.

I think the compelling state interest in those instances was such different than the compelling state interest here.

The government has said that the compelling state interest is the broad participation of individuals in the social security laws.

I don't think that... that is what the compelling state interest as far as--

Unidentified Justice: But you do them apparently concede that the government interest may be such in a particular case that would override the free exercise infringement?

Mr. Caiazza: --Very definitely I do.

Unidentified Justice: So that it is a matter of... you concede it is a matter of balancing the competing interests?

Mr. Caiazza: Yes.

I think very definitely.

Unidentified Justice: And you simply say it should be balanced in your favor here.

Mr. Caiazza: Yes, I do.

Unidentified Justice: What about the Federal income tax?

Mr. Caiazza: I think the Federal income tax is different.

I think that the argument has been made--

Unidentified Justice: If it were a sin under some religious beliefs to pay the income tax, would you say that the income tax could nevertheless be collected?

Mr. Caiazza: --Yes.

Again, I think you have to distinguish again between social security and the federal income tax.

Unidentified Justice: And the property tax?

Mr. Caiazza: The Amish people pay all taxes.

They pay income taxes, they pay all property taxes, they pay every tax you and I pay.

Unidentified Justice: Are any of those deemed... Is the payment of any of those taxes deemed to be a sin?

Mr. Caiazza: No.

Unidentified Justice: Mr. Caiazza, suppose we come to the day, as from reading the newspapers we may, when we have to fund the social security system in part, at least, out of general income taxes?

What then would be the Amish position?

Mr. Caiazza: I think that is, of course, a different case than we have here, but I think that... again, I think they would have to take the position that it would still be a sin.

I think if that happens, I think you have the compelling state interest shifting.

Unidentified Justice: You are familiar, I know, with the polygamy decisions and the peyote decisions and the like--

Mr. Caiazza: Yes, I am.

Unidentified Justice: --where because of their illegality, as I recall it, those cases held that free exercise was not protected.

Mr. Caiazza: Yes, sir.

Unidentified Justice: How do you distinguish those cases?

Non-payment of FUTA and FICA taxes is a crime, isn't it?

Mr. Caiazza: That's true.

Unidentified Justice: It can be a crime?

Mr. Caiazza: Yes, it can be.

Unidentified Justice: How do you distinguish those old cases?

Mr. Caiazza: Because I think again, we have to again, I think, look at the compelling state interest.

I think that the crises such as you have cited, if they were permissible under the laws of our country, I think it could lead to chaos.

I don't think that is true as far as the Amish people are concerned, when you consider the social security tax and the number of Amish people that you have in this country.

Unidentified Justice: How can you say there would be chaos if people practiced the Mormon faith as it was some decades ago, where it was a sin not to take several wives, for example?

Would that cause chaos?

Mr. Caiazza: Well, maybe I shouldn't use the word "chaos", but what I--

Unidentified Justice: Or say they smoke the peyote in a ritual periodically.

Would that cause chaos if it were permitted?

Mr. Caiazza: --No, I don't think it would cause chaos, and I would like to back up on that statement, but I think that... certainly I think that the result of the practice of polygamy in this country would be much different than the law not requiring the Amish people to pay into the social security system.

Unidentified Justice: Does your case turn on the fact that they will not participate in the benefits, do you think?

Mr. Caiazza: They never... they do not participate in the benefits.

Unidentified Justice: Well, how can you guarantee that the employees might not at some time be non-members of the sect or might leave the sect before they become eligible for benefits?

Mr. Caiazza: They may leave the sect--

Unidentified Justice: Because there are people who leave the faith, are there not?

Mr. Caiazza: --Yes, there are, very definitely.

There are people that leave the faith.

But I think when you read Mr. Chief Justice Burger's opinion in the Yoder case, he alludes very clearly to the fact that the Amish children in the Yoder case had to he protected, that if they went to school beyond the eighth grade in that particular case, that they would be taught the ways of the world, and I think the same thing is true here as far as... the same reasoning applies as far as the social security is concerned.

If you make social security payments eligible, if you make the Amish people eligible to receive social security, that is there for them to receive, they may receive it and then deny their faith.

That is what some of the older Amish people are concerned about, and I think rightly so.

Unidentified Justice: In other words, the taxpayer here is concerned about protecting his employees from the temptation of accepting welfare benefits later on?

Mr. Caiazza: Yes, I would think so, and I think that same reasoning applies in the Yoder case, as far as the temptation of students going to school beyond the eighth grade, and I think that is what the parents in Yoder were concerned about, and that is what the Amish employers are concerned about--

Unidentified Justice: What would happen if another religion pops up?

We would have to change again, wouldn't we?

Mr. Caiazza: --I don't think that is a concern.

If another religion--

Unidentified Justice: Why not?

Mr. Caiazza: --If another religion such as the Amish popped up, I think the same reasoning would apply.

Unidentified Justice: I didn't say such as the Amish.

Another religion would pop up and say, it's a sin to pay income tax.

Mr. Caiazza: I think that the Amish people date back--

Unidentified Justice: I am not talking about old.

Mr. Caiazza: --Well, I--

Unidentified Justice: They would say, we date back, too.

Mr. Caiazza: --Yes, they would date back, and that same reasoning could apply.

Unidentified Justice: And we would have how many different tax systems in this country?

Mr. Caiazza: I just don't think that that--

Unidentified Justice: Well, isn't everybody is striving for a uniform tax system.

Mr. Caiazza: --I can't see where that is a reality in this particular case, because I don't think--

Unidentified Justice: Why isn't it a reality if we say, you are just like everybody else?

Mr. Caiazza: --Because I think that the Amish people predate back to the 16th century in Switzerland.

They came to this country for religious freedom.

They have established this history from the 16th century.

Unidentified Justice: Didn't some other people come here for religious freedom, too?

Mr. Caiazza: I understand that, but I think that the Amish people can predate their history back to the 16th century.

If there is another religious faith--

Unidentified Justice: You are not asking that the Amish people be given a preferred status under the First Amendment, are you?

Mr. Caiazza: --No, I am not.

Unidentified Justice: But certainly the Amish and the Mormon faith both go back a long way in their belief that a practice proscribed by the Congress was illegal.

Mr. Caiazza: That's true.

Unidentified Justice: And nonetheless, this Court sustained the Congressional action.

Mr. Caiazza: Yes.

I think again if we are going back to the compelling state interest, I think that is what is important here.

I think we have to look at the compelling state interest, and you have to, I think, ask your question whether or not the state interest is justified.

In my opinion, it is not justified in this particular case when we look at the Amish payment into the social security system.

Unidentified Justice: How do we decide whether a compelling state interest is justified or not?

Do the nine of us just get in a room and flip a coin?

Mr. Caiazza: Well, I think you have to look at what the purpose of the social security system is.

I think this is where the compelling state interest comes into play.

The Amish people take care of themselves.

I think the compelling state interest is whether or not the Amish people as a group have the means to care for themselves.

They have taken care of that compelling state interest themselves.

I think that is what is important.

They do have a system whereby they take care of their older people, they take care of their younger people, their sick people.

They do it themselves.

That is the compelling state interest, I think.

Can they take care of the situation themselves?

They have done that since the 16th century.

They have their own social security system.

I think that is what is important.

The compelling state interest is, in my mind, anyway, as far as the Social Security Act is concerned, is to take care of older people, aged people, people that are disabled.

They do that themselves.

They have taken care of the compelling state interest themselves with their own actions and by their own beliefs based upon their belief in God and the destiny of God.

Unidentified Justice: I take it what you are saying to us is that they have their own little social security system and insurance within their own church organization.

Mr. Caiazza: They do.

Unidentified Justice: Well, now, what is to prevent them from having all the returns which came to individual Amish paid into that fund?

Would that be regarded as tainted money, because it has gone into the government and back into the Amish fund?

Mr. Caiazza: I would think that it would be, because I think that what they are doing by paying into the system is denying their belief in the destiny of God.

That is what is important.

Unidentified Justice: Well, when they get it back, haven't they washed that out?

Mr. Caiazza: They don't really take care of each other, though, by the use of moneys.

What they do is, they take care of each other by the use of their physical labor.

Unidentified Justice: They must use money, too, I would think.

Mr. Caiazza: They definitely do.

Of course need money, like anybody else, An order to subsist, but I think that the... I think that the important situation is the fact that when they do pay into the system, what they are doing is denying their belief that their future is guided by the destiny of God.

Unidentified Justice: Mr. Caiazza, I am not clear yet whether you would take the same position you are taking if the employees were not Amish.

Would it still be a sin to pay the tax, the social security tax?

Mr. Caiazza: If the employee of Mr. Lee was not Amish?

Unidentified Justice: Correct.

Mr. Caiazza: All right.

The employer, of course, has his half to Pay and the employee has his half to pay.

Unidentified Justice: Yes.

So would your argument still be that it is a sin to pay the tax?

Mr. Caiazza: I think it would be a sin to pay the employer's half.

It would not be a sin to pay the employee's half.

As a matter of practicality, the Amish people just employ old Amish.

They are a very close-knit community.

They--

Unidentified Justice: But it would be your position that even if non-Amish employees were hired, that it would still constitute a problem?

Mr. Caiazza: --Yes, it would.

Unidentified Justice: Now, would that not in effect mean that the government is running into establishment clause problems, and is in effect favoring the Amish and enabling them to compete in a manner that other people don't have to contend with?

Mr. Caiazza: Of course, there is a lot of tension between the establishment clause and the free exercise clause.

I think when you consider the number of Amish people there are in this country, I think when you consider their general practices of Amish people working together and not employing members who are not members of the old order Amish, I don't think you really run into that question.

If the situation did arise whereby an Amishman did hire an individual who was not a member of the Amish faith, yes, you would have a problem, but as a matter of practicality, that just does not come up because they are a very close community.

They stay within their own bounds.

Unidentified Justice: Wouldn't you, have a similar problem of larger magnitude if the government chose to tax, say, the wine that people of Jewish faith use in their religious rituals, or the people of the Christian faith use in their religious rituals?

Mr. Caiazza: If you would tax the wine that they use?

Unidentified Justice: Yes.

Mr. Caiazza: I really don't know how to answer that question.

I would say that, yes, were taxes that was placed upon the wine that, let's say, was used at a Catholic mass.

I would not know the reason for legislation such as that, but I think that you could run into the same problem if there were taxes placed upon the wine.

Perhaps the problem becomes more paramount if the Catholic priest couldn't buy the vine because of the tax.

I think you would run into a problem there.

But if he could still purchase the wine, I can see nothing wrong with that.

Unidentified Justice: Even though it is heavily taxed?

Mr. Caiazza: Yes, which it is, at least where I come from.

Unidentified Justice: Counsel, many people think it is immoral to fund abortions from the Medicaid component of social security.

Do you think they would have the same right that you are contending for here today?

Mr. Caiazza: Certainly they would have the same right to present their case.

I haven't really thought about that in great detail.

I would have to give you a quick answer.

I would say yes, they would have that right.

Unidentified Justice: They would have the same right.

Mr. Caiazza: Yes, to present their case.

Unidentified Justice: Quite a few people entertain that view.

Mr. Caiazza: I would hate to comment myself on what direction I would go in, but I would certainly think that they would have the right to present that issue, but again I think we get back to the compelling state interest.

Unidentified Justice: It would have a devastating effect on the social security tax, at least on the Medicaid component, if that view prevailed, wouldn't it?

Mr. Caiazza: Yes, sir.

I realize that probably the greatest problem with this case is the fact that we are dealing with taxes.

Of course, social security, I feel, in my mind, is more of an insurance than a tax.

Of course, the name of the Act is the Federal Insurance Contribution Act.

It is set up in a trust fund, and I think that the moneys are distributed basically the sane way that insurance carriers distribute annuity funds.

Unidentified Justice: What about that old decision of Justice Stone?

Wrong?

Mr. Caiazza: Well, I would have to say that--

Unidentified Justice: It was wrong.

Mr. Caiazza: --Of course, that does present problems, but I think that again--

Unidentified Justice: Well, Fleming is against you, too, on that point, isn't it?

Mr. Caiazza: --Yes, sir.

Unidentified Justice: That is wrong, too.

Right?

You say that is wrong, too?

Mr. Caiazza: I would say, yes, in my opinion, it is.

Unidentified Justice: Well, then, just to make it clear, you do take the position that if social security were financed out of general revenues, that you could make the same argument about the regular income tax?

Mr. Caiazza: I don't really think so.

I think if social security was financed out of general revenues, I think your compelling state interest would be different.

Social security funds are set aside.

Many of the Amish people are against many social welfare programs that are really financed by general revenues which come from income tax which they pay, but I don't think that it would be fair or proper to place on the government the responsibility to distinguish where everybody's tax dollar goes on a dollar by dollar basis.

That is not true as far as the Social Security Act is concerned.

The money goes into the system and is paid out of the system.

Unidentified Justice: You are saying the legal question will be different, but would it not be equally a sin for the Amish to pay income tax if the income tax were used to finance welfare programs that would be available to some members--

Mr. Caiazza: Yes.

I think... I think that it would also be... it also could be a sin, but I think again--

Unidentified Justice: --Could be?

It would be, if I understand you.

Mr. Caiazza: --It would be a sin, but I think you get back again to the compelling state interest.

Unidentified Justice: Then you are saying the governmental interest would override.

Mr. Caiazza: It would override it.

That is my position.

I forgot where I was.

Chief Justice Burger: Very well.

Do you have anything further, Mr. Wallace?

ORAL ARGUMENT OF LAWRENCE G. WALLACE, ESQ., ON BEHALF OF THE APPELLANT -- REBUTTAL

Mr. Wallace: I just would like to point out Footnote 11 of our brief, which shows that we long since have reached the point that Mr. Justice Brennan posed in a question where federal funds out of the general revenues are being used for social welfare programs, such as the aid to families with dependent children program, but also they are being used for a supplemental program within the Social Security Act itself that we have documented there.

Other than that, we will rest on our brief, unless there are further questions.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.