     Case: 11-20789    Document: 00511826483         Page: 1     Date Filed: 04/18/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                           FILED
                                                                          April 18, 2012

                                    No. 11-20789                          Lyle W. Cayce
                                  Summary Calendar                             Clerk



RUSSELL W. HAMNER,

                                                  Plaintiff-Appellant
v.

UNITED STATES OF AMERICA,

                                                  Defendant-Appellee



              Appeal from the United States District Court for the
                          Southern District of Texas
                           USDC No. 4:11-cv-02577



Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        In this case, Plaintiff-Appellant Russell Hamner appeals the district
court’s dismissal of his action for failure to state a claim. Hamner alleges that
the Social Security Act violates the Establishment and Free Exercise Clauses of
the First Amendment.
        This is the second lawsuit that Hamner has brought alleging that the
Social Security Act violates the First Amendment. His previous lawsuit was

       *
         Pursuant to FIFTHCIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in FIFTH
CIR. R. 47.5.4.
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                                       No. 11-20789

dismissed without prejudice for failure to state a claim. See Hamner v. United
States, 396 F. App’x 156 (5th Cir. 2010) (unpublished). In this second suit,
Hamner brings similarly frivolous claims. Hamner argues that Social Security
is a “charity” program, and that payment of Social Security taxes, as well as the
subsequent administration of the Social Security program, either interferes with
his exercise of Christian charity or forces him to participate in a Christian
charity.1
       First, it is well-accepted that the collection of taxes under the Social
Security Act does not violate the Free Exercise Clause. See United States v. Lee,
455 U.S. 252, 257–61 (1982) (holding that payment of Social Security taxes does
not violate the Free Exercise Clause); Droz v. C.I.R., 48 F.3d 1120, 1122–24 (9th
Cir. 1995) (same); Bethel Baptist Church v. United States, 822 F.2d 1334,
1338–40 (3d Cir. 1987) (same). Hamner fails to present any credible argument
explaining how the administration of the Social Security system interferes with
his exercise of religion and this claim is largely repetitive of the one we already
rejected in his previous lawsuit. See Hamner, 396 F. App’x at 157.
       Second, Hamner claims that the Social Security Act establishes religion
in violation of the Establishment Clause. A “statute violates the Establishment
Clause if (1) it does not have a secular purpose, (2) its principal or primary effect
advances or inhibits religion, or (3) it creates excessive government
entanglement with religion.” Croft v. Perry, 624 F.3d 157, 166 (5th Cir. 2010)
(citing Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971)). Beyond claiming that
charity is solely a Christian activity, Hamner does not allege any relationship


       1
         The government argues that Hamner lacks taxpayer standing under Flast v. Cohen,
392 U.S. 83 (1968), based on Hamner’s arguments on appeal. We acknowledge the force of the
position that either Hamner is a taxpayer arguing that his taxes are being spent on “benefits”
in violation of the Establishment Clause, or Hamner lacks the standing to sue in federal court,
yet because Hamner is proceeding pro se and offers a confused explanation of how this second
lawsuit is different from his first, we choose to consider the merits of Hamner’s claims.

                                              2
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                                 No. 11-20789

between the Social Security program and religion, and he does not dispute that
the program has a valid secular purpose. Similarly, other courts that have
considered the issue have found that the Social Security program does not run
afoul of the Establishment Clause. See, e.g., Droz, 48 F.3d at 1124–25 (stating
that the Social Security program neither advances nor prohibits religion, does
not excessively entangle the government with religion, and has a valid secular
purpose); Bethel Baptist Church, 822 F.2d at 1340–41 (same); Ballinger v. C.I.R.,
728 F.2d 1287, 1292 (10th Cir. 1984) (same); Hatcher v. C.I.R., 688 F.2d 82,
83–84) (10th Cir. 1979) (same); Jaggard v. C.I.R., 582 F.2d 1189, 1190 (8th Cir.
1978) (per curiam) (same).      Finding this logic persuasive to uphold the
constitutionality of the Social Security program and any taxes used to fund its
purpose, we reject Hamner’s challenge to the Social Security Act under the
Establishment Clause.
      Because this lawsuit repeats claims that we already rejected and
otherwise lacks merit, we AFFIRM the judgment of the district court.




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