governmental action with which they disagree hardly an appropriate basis either in law or in public policy upon which to rest or extend the jurisdiction of the federal courts.
Plaintiff has also failed to show that his interest in reversing the exemption policies is arguably within the zone of interests protected by the First Amendment.
The abortion clinics themselves obviously are not vested with the requisite governmental authority for a valid constitutional deprivation claim, nor do they in any way impede or interfere with plaintiff's freedom of speech or religion. Insofar as the grant of tax exemptions for such clinics are concerned, while they of course constitute governmental action, it is action which does not violate the Constitution.
Tax exemptions for religious organizations in general have long been held not to constitute an impermissible government sponsorship of religion. Walz v. Tax Commission, 397 U.S. 664, 675, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970); Marker v. Shultz, 158 U.S.App.D.C. 224, 485 F.2d 1003 (1973). More specifically, the grant of an exemption from taxation which is otherwise appropriate, E. g. to providers of health care, does not impermissibly infringe upon the Establishment Clause of the First Amendment merely because abortions are or are not performed by the particular health care organization. See Ward v. St. Anthony's Hospital, 476 F.2d 671 (10th Cir. 1973); Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308, 314 (9th Cir. 1974) (Catholic hospitals which refuse to allow abortions to be performed on their premises are not ineligible for tax exemption). Such exemptions do not foster an excessive governmental entanglement with religion, inhibit the free exercise of religion, or fail to reflect a secular purpose. See Tilton v. Richardson, 403 U.S. 672, 678, 91 S. Ct. 2091, 29 L. Ed. 2d 790 (1971); Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). Different religions take different views on abortion ( Roe v. Wade, 410 U.S. 113, 160-61, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) ) and the Constitution neither requires nor prohibits governmental funding of abortions. Maher v. Roe, 432 U.S. 464, 480, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977). For these reasons, plaintiff's claimed interest cannot be regarded as being within the zone of interests protected by the First Amendment.
To the contrary, it is plaintiff's claim which, if granted, would be violative of the First Amendment. Should the Internal Revenue Service or the Court grant him the relief he seeks, they would do precisely that which the Supreme Court in Tilton, supra, stated government may not do they would entangle government with the tenets of plaintiff's particular religious faith and inhibit the free exercise of religion by those with views opposed to plaintiff's.
See also, Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968).
Finally, even if plaintiff had standing to sue, his claim would be subject to dismissal because the Anti-Injunction Act, 26 U.S.C. § 7421(a), bars any injunctive action brought for the purpose of restraining the assessment or collection of any tax "by any person." Whatever may have been the gloss placed upon that statute by McGlotten v. Connally, 338 F. Supp. 448 (D.D.C.1972) (three-judge court), it is now clear that the law means what its words plainly imply that it prevents the institution of injunction actions to challenge tax exemption rulings in favor of other taxpayers. Bob Jones University v. Simon, 416 U.S. 725, 731, 40 L. Ed. 2d 496, 94 S. Ct. 2038 note 6, (1974); Commissioner v. "Americans United," Inc., 416 U.S. 752, 760-2, 94 S. Ct. 2053, 40 L. Ed. 2d 518 (1974); Enochs v. Williams Packing and Navigation Co., 370 U.S. 1, 82 S. Ct. 1125, 8 L. Ed. 2d 292 (1961); Bittker and Kaufman, Taxes and Civil Rights: "Constitutionalizing" the Internal Revenue Code, 82 Yale L.J. 51, 58 (1972).
For these reasons, defendant's motion to dismiss the claim which challenges the validity of tax exemptions to abortion clinics and other organizations will be granted.
Plaintiff's second claim is that he was denied a promotion to the position of a reviewer position in IRS's Exempt Organizations Branch in violation of the Constitution of the United States and of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a)(1). In support of this claim, plaintiff argues, first, that the grant of tax exemptions to groups favoring abortions
is illegal and that for this reason he should not be denied promotion for failing to implement the policy which establishes such grants, and second, that to deny him a promotion solely because of his unwillingness to process tax exemption applications for purposes which he regards as repugnant to his religious principles violates his rights under Title VII. The first of these contentions has little merit; the second presents a far more substantial question.
In order to prevail on his "illegality" argument, plaintiff must demonstrate, first, that the legality of the decisions of the Internal Revenue Service to grant tax exemption to abortion clinics and to organizations advocating free choice with respect to abortions may be determined by an employee of IRS, that is, by his refusal to implement them; and second, if the answer to the first question is in the affirmative, that the IRS decisions in fact violate the Constitution or laws of the United States. He has failed in both respects.
As has been noted, plaintiff lacks standing to contest the validity of IRS rulings. Unless and until the Congress, or a court of competent jurisdiction in an action by an individual with the requisite standing to sue, determines that a particular tax exemption ruling is invalid, the employees of the Service, as long as they wish to remain in that status, are obliged to implement that ruling. Not merely the concept of a uniform tax policy but the effectiveness of the government of the United States as a functioning entity would be in jeopardy if each employee could take it upon himself to decide which particular laws, regulations, and policies are legal or illegal, and to base his official actions upon that private determination.
The President must "take Care that the Laws be faithfully executed" (U.S.Const., Art. II, sec. 3), and he is not permitted to refrain from executing laws duly enacted by Congress. See National Treasury Employees Union v. Nixon, 160 U.S.App.D.C. 321, 492 F.2d 587 (1974); United States v. Alessio, 528 F.2d 1079 (9th Cir. 1976); Guadamuz v. Ash, 368 F. Supp. 1233 (D.D.C.1973). See also Goldwasser v. Brown, 135 U.S.App.D.C. 222, 230, 417 F.2d 1169, 1177 (1969), Cert. denied, 397 U.S. 922, 90 S. Ct. 918, 25 L. Ed. 2d 103 (1970). Surely an individual employee in the Executive Branch has no greater power in that regard.
Even if plaintiff could, somehow, raise the illegality point, it would not help his case. He has cited various fragments of congressional enactments, old as well as relatively more recent,
in support of his contention that abortion is illegal and so is the exemption from taxation of groups advocating abortion. However, it is clear that these various fragments of legislation are unsupportive of plaintiff's broad thesis. Not one has any bearing on the issue of the legality of tax exemptions for abortion clinics, and all of them, moreover, predate the 1973 Supreme Court decisions which dealt exhaustively with the abortion question in its historical, constitutional, and statutory context.
In Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), the Supreme Court considered in great detail and at length the history and the legality of abortion laws in the United States, at common law in England, and elsewhere, and concluded both that the right to privacy includes the right to an abortion and that state laws which punish the performance of abortions may be unconstitutional as violative of the Due Process Clause of the Fourteenth Amendment. Not only is there no suggestion in these opinions that the Court deemed that Congress had spoken to prohibit abortions,
but they affirmatively hold that, depending on the circumstances, there is a constitutional right to abortion. Thus, there is no basis for plaintiff's claim that the Internal Revenue Service violates federal law when it grants tax exemptions to abortion clinics.
The authority of the Commissioner of Internal Revenue to issue revenue and tax exemption rulings is based on 26 U.S.C. § 7805. He has exercised that authority in accordance with law. 26 C.F.R. 1-501(c)(3)-1(d)(2)(2). No court has struck down his rulings, and the Congress which has ultimate authority over tax policy has not overruled the Commissioner by appropriate legislation. In short, plaintiff has totally failed to support his illegality argument.
Section 703(a)(1) of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1), 42 U.S.C. § 2000e(j) (1970 ed., Supp. V), provides that it "shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." In its 1972 amendments to the Act, Congress added the following definition
The term "religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.