Conscience, Speech, and Money

Note — Volume 97, Issue 2

97 Va. L. Rev. 317
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The Establishment Clause is often interpreted as prohibiting taxation to promote religion on the grounds that such taxation infringes on taxpayers’ freedom of conscience. Critics have argued that this idea, called the “Jeffersonian proposition,” is open to two objections. The equality objection says that taxation to promote religion does not violate the freedom of conscience any more than taxation to promote other views to which taxpayers may conscientiously object. But if the Jeffersonian proposition is construed broadly to cover any government speech with which taxpayers disagree, it faces an anarchy objection. No government can function properly without support for government speech. So proponents of the Jeffersonian proposition face a dilemma: either discriminate against those with non-religious conscientious claims or confront the anarchical consequences of a general right of conscientious objection to government speech. Most proponents of the Jeffersonian proposition have grasped the first horn of this dilemma by denying the equality objection. Rejecting that approach, this Article confronts the anarchy objection by developing a balancing account of the freedom of conscience. According to this account, the state may override claims of conscience when it has a legitimate interest in compelling support for speech. When it comes to religious speech, however, the state may not have any countervailing interest to balance against freedom of conscience. Under those circumstances, the Jeffersonian proposition may be vindicated. By showing how this argument is consistent with much of existing compelled support doctrine under the Free Speech Clause of the First Amendment, and by defending it against objections that compelled support does not implicate the freedoms of conscience, association, or speech, this Article argues for the Jeffersonian proposition’s continued place in our understanding of the First Amendment.

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  Volume 97 / Issue 2  

Prosecuting Federal Crimes in State Courts

By Michael G. Collins and Jonathan Remy Nash
97 Va. L. Rev. 243

Conscience, Speech, and Money

By Micah Schwartzman
97 Va. L. Rev. 317

Toward Recognition of a Monetary Threshold in Campaign Finance Disclosure Law

By E. Rebecca Gantt
97 Va. L. Rev. 385

The Untold Story of Rhode Island v. Innis: Justice Potter Stewart and the Development of Modern Self-Incrimination Doctrine

By Jesse Stewart
97 Va. L. Rev. 431