Texas Monthly, Inc. v. Bullock
Concurring Opinion
with whom Justice O’Connor joins, concurring in the judgment.
The Texas statute at issue touches upon values that underlie three different Clauses of the First Amendment: the Free Exercise Clause, the Establishment Clause, and the Press Clause. As indicated by the number of opinions issued in this case today, harmonizing these several values is not an easy task.
The Free Exercise Clause value suggests that a State may not impose a tax on spreading the gospel. See Follett v. McCormick, 321 U. S. 573 (1944), and Murdock v. Pennsylvania, 319 U. S. 105 (1943). The Establishment Clause value suggests that a State may not give a tax break to those who spread the gospel that it does not also give to others who actively might advocate disbelief in religion. See Torcaso v. Watkins, 367 U. S. 488, 495 (1961); Everson v. Board of Education of Ewing, 330 U. S. 1, 15-16 (1947). The Press Clause value suggests that a State may not tax the sale of some publications, but not others, based on their content, absent a compelling reason for doing so. See Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 231 (1987).
It perhaps is fairly easy to reconcile the Free Exercise and Press Clause values. If the Free Exercise Clause suggests that a State may not tax the sale of religious literature by a religious organization, this fact alone would give a State a compelling reason to exclude this category of sales from an otherwise general sales tax. In this respect, I agree gener
I find it more difficult to reconcile in this case the Free Exercise and Establishment Clause values. The Free Exercise Clause suggests that a special exemption for religious books is required. The Establishment Clause suggests that a special exemption for religious books is forbidden. This tension between mandated and prohibited religious exemptions is well recognized. See, e. g., Walz v. Tax Comm’n of New York City, 397 U. S. 664, 668-669 (1970). Of course, identifying the problem does not resolve it.
Justice Brennan’s opinion, in its Part IV, would resolve the tension between the Free Exercise and Establishment Clause values simply by subordinating the Free Exercise value, even, it seems to me, at the expense of longstanding, precedents. See ante, at 21-25 (repudiating Follett and Murdock to the extent inconsistent with the newfound proposition that a State generally may tax the sale of a Bible by a church). Justice Scalia’s opinion, conversely, would'subordinate the Establishment Clause value. This position, it seems to me, runs afoul of the previously settled notion that government may not favor religious belief over disbelief. See, e. g., Wallace v. Jaffree, 472 U. S. 38, 53 (1985); Welsh v. United States, 398 U. S. 333, 356 (1970) (Harlan, J., concurring in result); Epperson v. Arkansas, 393 U. S. 97, 103-104 (1968); Abington School District v. Schempp, 374 U. S. 203, 218, 220 (1963); Torcaso v. Watkins, 367 U. S., at 495.
Perhaps it is a vain desire, but I would like to decide the present case without necessarily sacrificing either the Free Exercise Clause value or the Establishment Clause value. It is possible for a State to write a tax-exemption statute consistent with both values: for example, a state statute might exempt the sale not only of religious literature distributed by a religious organization but also of philosophical literature distributed by nonreligious organizations devoted to such matters of conscience as life and death, good and evil, being
To recognize this possible reconciliation of the competing First Amendment considerations is one thing; to impose it upon a State as its only legislative choice is something else. Justice Scalia rightly points out, post, at 42, that the Free Exercise and Establishment Clauses often appear like Scylla and Charybdis, leaving a State little room to maneuver between them. The Press Clause adds yet a third hazard to a State’s safe passage through the legislative waters concerning the taxation of books and journals. We in the Judiciary must be wary of interpreting these three constitutional Clauses in a manner that negates the legislative role altogether.
I believe we can avoid most of these difficulties with a narrow resolution of the case before us. We need not decide today the extent to which the Free Exercise Clause requires a tax exemption for the sale of religious literature by a religious organization; in other words, defining the ultimate scope of Follett and Murdock may be left for another day. We need decide here only whether a tax exemption limited to the sale of religious literature by religious organizations violates the Establishment Clause. I conclude that it does.
In this case, by confining the tax exemption exclusively to the sale of religious publications, Texas engaged in preferential support for the communication of religious messages. Although some forms of accommodating religion are constitutionally permissible, see Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987), this one surely is not. A statutory preference for the dissemination of religious ideas offends our most basic understanding of what the Establishment Clause is all about and hence is constitutionally intolerable. See Wallace
At oral argument, appellees suggested that the statute at issue here exempted from taxation the sale of atheistic literature distributed by an atheistic organization. Tr. of Oral Arg. 33. If true, this statute might survive Establishment Clause scrutiny, as well as Free Exercise and Press Clause scrutiny. But, as appellees were quick to concede at argument, the record contains nothing to support this facially implausible interpretation of the statute. Ibid. Thus, constrained to construe this Texas statute as exempting religious literature alone, I concur in the holding that it contravenes the Establishment Clause, and in remanding the case for further proceedings not inconsistent with this holding.
Opinion of the Court
announced the judgment of the Court and delivered an opinion, in which Justice Marshall and Justice Stevens join.
Texas exempts from its sales tax “[pjeriodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith.” Tex. Tax Code Ann. §151.312 (1982). The question presented is whether this exemption violates the Establishment Clause or the Free Press Clause of the First Amendment when the State denies a like exemption for other publications. We hold that, when confined exclusively to publications advancing the tenets of a religious faith, the exemption runs afoul of the Establishment Clause; accordingly, we need not reach the question whether it contravenes the Free Press Clause as well.
I
Prior to October 2, 1984, Texas exempted from its sales and use tax magazine subscriptions running half a year or longer and entered as second class mail. Tex. Tax Code Ann. §151.320 (1982). This exemption was repealed as of October 2, 1984, before being reinstated effective October 1, 1987. Tex. Tax Code Ann. §151.320 (Supp. 1988-1989). Throughout this 3-year period, Texas continued to exempt from its sales and use tax periodicals published or distributed by a religious faith consisting entirely of writings promulgating the teaching of the faith, along with books consisting
Appellant Texas Monthly, Inc., publishes a general interest magazine of the same name. Appellant is not a religious faith, and its magazine does not contain only articles promulgating the teaching of a religious faith. Thus, it was required during this 3-year period to collect and remit to the State the applicable sales tax on the price of qualifying subscription sales. Tex. Tax Code Ann. §§ 151.051, 151.052, 151.401 (1982 and Supp. 1988-1989). In 1985, appellant paid sales taxes of $149,107.74 under protest and sued to recover those payments in state court.
The District Court of Travis County, Texas, ruled that an exclusive exemption for religious periodicals had “no basis . . . other than the promotion of religion itself, a prohibited reason” under the Establishment Clause. App. to Juris. Statement 47. The court also found the exemption unconstitutional because it discriminated on the basis of the content of publications, presumably in violation of the Free Press Clause. Id., at 42. Declaring itself “without power to rewrite the statute to make religious periodicals subject to tax,” id., at 47, the court struck down the tax as applied to nonreligious periodicals and ordered the State to refund the amount of tax Texas Monthly had paid, plus interest. Id., at 43.
The Court of Appeals, Third Supreme Judicial District of Texas, reversed by a 2-to-l vote. 731 S. W. 2d 160 (1987). Applying the tripartite test enunciated in Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971), the court held, first, that the exemption served the secular purpose of preserving separation between church and state. Second, the court asserted that the exemption did not have the primary effect of advancing or inhibiting religion, because “the effect of religious tax exemptions such as § 151.312 is to permit religious organizations to be independent of government support or sanction.” 731 S. W. 2d, at 163. The court considered it irrele
In addition, the court rejected Texas Monthly’s claim that the exemption violated the Free Press Clause because it discriminated among publications on the basis of their content. The court read our decision in Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221 (1987), to preclude only those taxes that are imposed solely on the press or targeted at a small group within the press. Because Texas’ exemption encompassed only a minority of publications, leaving the bulk of subscription sales subject to tax, the court reasoned that it escaped the strictures of the Free Press Clause as we had interpreted it.
now reverse. We noted probable jurisdiction, 485 U. S. 958 (1988), and now reverse.
As a preliminary matter, Texas argues that appellant lacks standing to challenge the constitutionality of the exemption. It claims that if this Court were to declare the exemption
The State’s contention is misguided. In Arkansas Writers’ Project, supra, at 227, we rejected a similar argument, “for it would effectively insulate underinclusive statutes from constitutional challenge, a proposition we soundly rejected in Orr v. Orr, 440 U. S. 268, 272 (1979).” It is not for us to decide whether the correct response as a matter of state law to a finding that a state tax exemption is unconstitutional is to eliminate the exemption, to curtail it, to broaden it, or to invalidate the tax altogether. Nor does it make any difference — contrary to the State’s suggestion — that Texas Monthly seeks only a refund and not prospective relief, as did the appellant in Arkansas Writers’ Project. A live controversy persists over Texas Monthly’s right to recover the $149,107.74 it paid, plus interest. Texas cannot strip appellant of standing by changing the law after taking its money.
Ill
In proscribing all laws “respecting an establishment of religion,” the Constitution prohibits, at the very least, legislation that constitutes an endorsement of one or another set of religious beliefs or of religion generally. It is part of our settled jurisprudence that “the Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or
Thus, in Widmar v. Vincent, 454 U. S. 263 (1981), we held that a state university that makes its facilities available to registered student groups may not deny equal access to a registered student group desiring to use those facilities for religious worship or discussion. Although religious groups benefit from access to university facilities, a state university may not discriminate against them based on the content of their speech, and the university need not ban all student group meetings on campus in order to avoid providing any assistance to religion. Similarly, in Mueller v. Allen, supra, we upheld a state income tax deduction for the cost of tuition, transportation, and nonreligious textbooks paid by a taxpayer for the benefit of a dependent. To be sure, the deduction aided parochial schools and parents whose children attended them, as well as nonsectarian private schools and their pupils’ parents. We did not conclude, however, that
In all of these cases, however, we emphasized that the benefits derived by religious organizations flowed to a large number of nonreligious groups as well. Indeed, were those benefits confined to religious organizations, they could not have appeared other than as state sponsorship of religion; if that were so, we would not have hesitated to strike them down for lacking a secular purpose and effect. See, e. g., School Dist. of Grand Rapids v. Ball, supra (invalidating state-funded educational programs in private schools, where 40 of the 41 beneficiaries were religious schools); Estate of Thornton v. Caldor, Inc., 472 U. S. 703 (1985) (finding vio-lative of the Establishment Clause a statute providing Sabbath observers with an unconditional right not to work on their chosen Sabbath).
In Widmar v. Vincent, we noted that an open forum in a public university would not betray state approval of religion so long as the forum was available “to a broad class of nonreligious as well as religious speakers.” 454 U. S., at 274. “The provision of benefits to so broad a spectrum of groups,” we said, “is an important index of secular effect.” Ibid. We concluded that the primary effect of an open forum would not be to advance religion, “[a]t least in the absence of empirical evidence that religious groups will dominate” it. Id., at 275. Likewise, in Mueller v. Allen, we deemed it “particularly significant,” 463 U. S., at 396, that “the deduction is available for educational expenses incurred by all parents, including those whose children attend public schools and those whose children attend nonsectarian private schools or sectarian private schools.” Id., at 397.
“To the extent that religious institutions sponsor the secular activities that this legislation is designed to promote, it is consistent with neutrality to grant them an exemption just as other organizations devoting resources to these projects receive exemptions. ... As long as the breadth of exemption includes groups that pursue cultural, moral, or spiritual improvement in multifarious secular ways, including, I would suppose, groups whose avowed tenets may be antitheological, atheistic, or agnostic, I can see no lack of neutrality in extending the benefit of the exemption to organized religious groups.”3 Id., at 697 (separate opinion) (footnote omitted).
How expansive the class of exempt organizations or activities must be to withstand constitutional assault depends upon the State’s secular aim in granting a tax exemption. If the State chose to subsidize, by means of a tax exemption, all groups that contributed to the community’s cultural, intellectual, and moral betterment, then the exemption for religious publications could be retained, provided that the exemption swept as widely as the property tax exemption we upheld in
It is not our responsibility to specify which permissible secular objectives, if any, the State should pursue to justify a tax exemption for religious periodicals. That charge rests with the Texas Legislature. Our task, and that of the Texas courts, is rather to ensure that any scheme of exemptions
IV
A
In defense of its sales tax exemption for religious publications, Texas claims that it has a compelling interest in avoiding violations of the Free Exercise and Establishment Clauses, and that the exemption serves that end. Without such an exemption, Texas contends, its sales tax might trammel free exercise rights, as did the flat license tax this Court struck down as applied to proselytizing by Jehovah’s Witnesses in Murdock v. Pennsylvania, 319 U. S. 105 (1943). In addition, Texas argues that an exemption for religious publications neither advances nor inhibits religion, as required by the Establishment Clause, and that its elimination would entangle church and state to a greater degree than the exemption itself.
B
Texas’ further claim that the Establishment Clause mandates, or at least favors, its sales tax exemption for religious periodicals is equally unconvincing. Not only does the exemption seem a blatant endorsement of religion, but it appears, on its face, to produce greater state entanglement with religion than the denial of an exemption. As Justice Stevens has noted: “[There exists an] overriding interest in keeping the government — whether it be the legislature or the courts — out of the business of evaluating the relative merits of differing religious claims. The risk that governmental approval of some and disapproval of others will be perceived as favoring one religion over another is an important risk the Establishment Clause was designed to preclude.” Id., at 263, n. 2 (concurring in judgment). See Bob Jones University v. United States, 461 U. S., at 604, n. 30. The prospect of inconsistent treatment and government embroilment in controversies over religious doctrine seems especially baleful where, as in the case of Texas’ sales tax exemption, a statute requires that public officials determine whether some message or activity is consistent with “the teaching of the faith.” See, e. g., Jones v. Wolf, 443 U. S. 595 (1979); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696 (1976); Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440 (1969).
On the record before us, neither the Free Exercise Clause nor the Establishment Clause prevents Texas from withdrawing its current exemption for religious publications if it chooses not to expand it to promote some legitimate secular aim.
C
Our conclusion today is admittedly in tension with some unnecessarily sweeping statements in Murdock v. Pennsylvania, 319 U. S. 105 (1943), and Follett v. McCormick, 321 U. S. 573 (1944). To the extent that language in those opinions is inconsistent with our decision here, based on the evolution in our thinking about the Religion Clauses over the last 45 years, we disavow it.
If one accepts the majority’s characterization of the critical issues in Murdock and Follett, those decisions are easily compatible with our holding here. In striking down application of the town ordinance to Jehovah’s Witnesses in Follett — an ordinance the Court found to be “in all material respects the same,” 321 U. S., at 574, as the one whose application it restricted in Murdock — the Court declared that only a single “narrow” question was presented: “It is whether a flat license tax as applied to one who earns his livelihood as an evangelist or preacher in his home town is constitutional.” 321 U. S.,
To the extent that our opinions in Murdock and Follett might be read, however, to suggest that the States and the Federal Government may never tax the sale of religious or other publications, we reject those dicta.
V
We conclude that Texas’ sales tax exemption for religious publications violates the First Amendment, as made applicable to the States by the Fourteenth Amendment. Accordingly, the judgment of the Texas Court of Appeals is reversed, and the case is remanded for further proceedings.
It is so ordered.
Justice O’Connor’s concurrence in Wallace v. Jaffree, 472 U. S. 38 (1985), properly emphasized this point:
“[T]he Establishment Clause is infringed when the government makes adherence to religion relevant to a person’s standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it ‘sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’ [Lynch v. Donnelly, 465 U. S. 668, 688 (1984) (O’Connor, J., concurring).] Under this view, Lemon’s inquiry as to the purpose and effect of a statute requires courts to examine whether government’s purpose is to endorse religion and whether the statute actually conveys a message of endorsement.” Id., at 69.
See also Lynch v. Donnelly, 465 U. S. 668, 701 (1984) (Brennan, J., dissenting) (the Establishment Clause was designed to prevent “religious chauvinism” that tells “minority religious groups, as well as . . . those who
Although we found it “unnecessary to justify the tax exemption on the social welfare services or ‘good works’ that some churches perform for parishioners and others,” Walz v. Tax Comm'n, 397 U. S., at 674, we in no way intimated that the exemption would have been valid had it applied only to the property of religious groups or had it lacked a permissible secular objective. Rather, we concluded that the State might reasonably have determined that religious groups generally contribute to the cultural and moral improvement of the community, perform useful social services, and enhance a desirable pluralism of viewpoint and enterprise, just as do the host of other nonprofit organizations that qualified for the exemption. It is because the set of organizations defined by these secular objectives was so large that we saw no need to inquire into the secular benefits provided by religious groups that sought to avail themselves of the exemption. In addition, we noted that inquiry into the particular contributions of each religious group “would introduce an element of governmental evaluation and standards as to the worth of particular social welfare programs, thus producing a kind of continuing day-to-day relationship which the policy of neutrality seeks to minimize.” Ibid. We therefore upheld the State’s classification of religious organizations among the socially beneficial associations whose activities it desired to foster. Had the State defined the class of subsidized activities more narrowly — to encompass only “charitable” works, for example — more searching scrutiny would have been necessary, notwithstanding the greater intermingling of government and religion that
The dissent's accusation that we have distorted or misdescribed the Court’s holding in Walz, post, at 33-38, is simply mistaken. The Court expressly stated in Walz that the legislative purpose of New York’s property tax exemption was not to accommodate religion. Rather, “New York, in common with the other States, has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its ‘moral or mental improvement,’ should not be inhibited in their activities by property taxation or the hazard of loss of those properties for nonpayment of taxes.” 397 U. S., at 672. Churches, we found, were reasonably classified among a diverse array of nonprofit groups that promoted this end. But it was only because churches, along with numerous other groups, produced these public benefits that we approved their exemption from property tax. The Court said quite plainly: “The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest. Qualification for tax exemption is not perpetual or immutable: some tax-exempt groups lose that status w'hen their activities
Nor is our'reading of Walz by any means novel. Indeed, it has been the Court’s accepted understanding of the holding in Walz for almost 20 years. In Gillette v. United States, 401 U. S. 437, 454 (1971), we said: “‘Neutrality’ in matters of religion is not inconsistent with ‘benevolence’ by way of exemptions from onerous duties, Walz v. Tax Comm’n, 397 U. S., at 669, so long as an exemption is tailored broadly enough that it reflects valid secular purposes.” We read Walz to stand for the same proposition in Committee for Public Education and Religious Liberty v. Nyquist, 413 U. S. 756, 793-794 (1973). “Without intimating whether this factor alone might have controlling significance in another context in some future case,” we noted that the breadth of an exemption for religious groups is unquestionably an “important factor” in assessing its constitutionality. Id., at 794. Our opinion today builds on established precedents; it does not repudiate them.
The fact that Texas grants other sales tax exemptions (e. g., for sales of food, agricultural items, and property used in the manufacture of articles for ultimate sale) for different purposes does not rescue the exemption for religious periodicals from invalidation. What is crucial is that any subsidy afforded religious organizations be warranted by some overarching secular purpose that justifies like benefits for nonreligious groups. There is no evidence in the record, and Texas does not argue in its brief to this Court, that the exemption for religious periodicals was grounded in some secular legislative policy that motivated similar tax breaks for nonreligious activi
Not only did the property tax exemption sustained in Walz v. Tax Comm’n of New York City, 397 U. S. 664 (1970), extend to a large number of nonreligious organizations that ostensibly served an expressly articulated secular objective that religious groups could reasonably be thought to advance as well; it also failed to single out religious proselytizing as an activity deserving of public assistance.
Texas’ sales and use tax provides a model of such an exemption when it frees, inter alia, organizations “created for religious, educational, or charitable purposes” from the payment of sales and use tax on items they purchase, rent, or consume. Tex. Tax Code Ann. § 151.310(a)(1) (1982). In view of this provision, the special exemption for publications carrying religious messages suggests even more strongly the State’s sponsorship of religion.
In light of this holding, we need not address Texas Monthly’s contention that the sales tax exemption also violates the Free Press Clause as we interpreted it in Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221 (1987).
Contrary to the dissent’s claims, post, at 29-30, 38, 42, we in no way suggest that all benefits conferred exclusively upon religious groups or upon individuals on account of their religious beliefs are forbidden by the Establishment Clause unless they are mandated by the Free Exercise Clause. Our decisions in Zorach v. Clauson, 343 U. S. 306 (1952), and Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987), offer two examples. Similarly, if the Air Force provided a sufficiently broad exemption from its dress requirements for servicemen whose religious faiths commanded them to wear certain headgear or other attire, see Goldman v. Weinberger, 475 U. S. 503 (1986), that exemption presumably would not be invalid under the Establishment Clause even though this Court has not found it to be required by the Free Exercise Clause.
All of these cases, however, involve legislative exemptions that did not, or would not, impose substantial burdens on nonbeneficiaries while allowing others to act according to their religious beliefs, or that were designed to alleviate government intrusions that might significantly deter adherents of a particular faith from conduct protected by the Free Exercise Clause. New York City’s decision to release students from public schools so that
Texas’ tax exemption, by contrast, does not remove a demonstrated and possibly grave imposition on religious activity sheltered by the Free Exercise Clause. Moreover, it burdens nonbeneficiaries by increasing their tax bills by whatever amount is needed to offset the benefit bestowed on subscribers to religious publications. The fact that such exemptions are of long standing cannot shield them from the strictures of the Establishment Clause. As we said in Walz v. Tax Comm’n, 397 U. S., at 678, “no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.”
At trial, Texas’ Supervisor for Sales Tax Policy testified that the Comptroller’s Office did not in fact heed the statutory command to grant
In Murdock v. Pennsylvania, 319 U. S., at 109, n. 7, the Court noted that Seventh-day Adventist missionaries, who sold religious literature while proselytizing door to door in a manner akin to Jehovah’s Witnesses, earned on average only $65 per month in 1941, half of which they were permitted to keep in order to pay their traveling and living expenses. The license fee whose application was challenged in Murdock amounted to $1.50 for one day, $7 for one week, $12 for two weeks, and $20 for three weeks. Id., at 106. If towns were permitted to levy such fees from itinerant preachers whose average earnings totaled only $32.50 per month before income taxes because their sales of religious literature were merely incidental to their primary evangelical mission, then they could easily throttle such missionary work. A Seventh-day Adventist who spent each day in a different town would have to pay $45 in fees over the course of a 30-day month; if his income were only $32.50, he could not even afford the necessary licenses, let alone support himself once he had met his legal obligations.
For example, in Murdock, supra, at 111, the Court wrote: “The constitutional rights of those spreading their religious beliefs through the spoken and printed word are not to be gauged by standards governing retailers or wholesalers of books. The right to use the press for expressing one’s views is not to be measured by the protection afforded commercial handbills. . . . Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way.” In our view, this passage suggests nothing more than that commercial speech is on a different footing for constitutional purposes than other types of speech. Reading it to bar all taxes that might impede the dissemination of printed messages other than commercial advertisements would go well beyond the language of the passage and be difficult to reconcile with the Court’s approval of income and property taxes levied on preachers (and presumably political pamphleteers or literary authors). 319 U. S., at 112. In any event, we reject this broad reading, whether or not the Coui’t intended the passage to bear that meaning.
Thus, the Court noted in Murdock, supra, at 109, that the proselytizing done by Jehovah’s Witnesses “is as evangelical as the revival meeting” and “occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits.” The Court further emphasized that the dissemination of their views in this manner was not adventitious to Jehovah’s Witnesses’ primary beliefs, but rather was regarded by them as a duty imposed on them by God. 319 U. S., at 108. For its part, the city defended its tax as a legitimate levy on commercial activity, id., at 110, and apparently never contended that exceptions for religious evangelists would cause administrative difficulties or produce excessive state entanglement with religion.
Concurring Opinion
concurring in the judgment.
The Texas law at issue here discriminates on the basis of the content of publications: it provides that “[pjeriodicals . . . that consist wholly of writings promulgating the teaching of (a religious faith). . . are exempted” from the burdens of the sales tax law. Tex. Tax Code Ann. § 161.312 (1982). Thus,
Dissenting Opinion
with whom The Chief Justice and Justice Kennedy join, dissenting.
As a judicial demolition project, today’s decision is impressive. The machinery employed by the opinions of Justice Brennan and Justice Blackmun is no more substantial than the antinomy that accommodation of religion may be required but not permitted, and the bold but unsupportable assertion (given such realities as the text of the Declaration of Independence, the national Thanksgiving Day proclaimed by every President since Lincoln, the inscriptions on our coins, the words of our Pledge of Allegiance, the invocation with
When one expands the inquiry to sales taxes on items other than publications and to other types of taxes such as property, income, amusement, and motor vehicle taxes — all of which are likewise affected by today’s holding — the Court’s accomplishment is even more impressive. At least 45 States provide exemptions for religious groups without analogous exemptions for other types of nonprofit institutions.
I dissent because I find no basis in the text of the Constitution, the decisions of this Court, or the traditions of our people for disapproving this longstanding and widespread practice.
I
The opinions of Justice Brennan and Justice Black-mun proceed as though this were a matter of first impression. It is not. Nineteen years ago, in Walz v. Tax Comm’n of New York City, 397 U. S. 664 (1970), we considered and rejected an Establishment Clause challenge that was in all relevant respects identical. Since today’s opinions barely acknowledge the Court’s decision in that case (as opposed to the separate concurrences of Justices Brennan and Harlan), it requires some discussion here. Walz involved
We further concluded that the exemption did not have the primary effect of sponsoring religious activity. We noted that, although tax exemptions may have the same economic effect as state subsidies, for Establishment Clause purposes such “indirect economic benefit” is significantly different.
“The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state. . . . There is no genuine nexus between tax exemption and establishment of religion.” Id., at 675.
also recognized this distinction in his concurring opinion:
*35 “Tax. exemptions and general subsidies, however, are qualitatively different. Though both provide economic assistance, they do so in fundamentally different ways. A subsidy involves the direct transfer of public monies to the subsidized enterprise and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer.” Id., at 690 (footnote omitted).
See also id., at 691 (“Tax exemptions . . . constitute mere passive state involvement with religion and not the affirmative involvement characteristic of outright governmental subsidy”).
Third, we held that the New York exemption did not produce unacceptable government entanglement with religion. In fact, quite to the contrary. Since the exemptions avoided the “tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes,” id., at 674, we found that their elimination would increase government’s involvement with religious institutions, id., at 674-676. See also id., at 691 (Brennan, J., concurring) (“[I]t cannot realistically be said that termination of religious tax exemptions would quantitatively lessen the extent of state involvement with religion”).
We recognized in Walz that the exemption of religion from various taxes had existed without challenge in the law of all 50 States and the National Government before, during, and after the framing of the First Amendment’s Religion Clauses, and had achieved “undeviating acceptance” throughout the 200-year history of our Nation. “Few concepts,” we said, “are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference.” Id., at 676-677. See also id., at 681 (Brennan, J., concurring) (noting the “the undeviating ac
It should be apparent from this discussion that Walz, which we have reaffirmed on numerous occasions in the last two decades, e. g., Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987), is utterly dispositive of the Establishment Clause claim before us here. The Court invalidates § 151.312 of the Texas Tax Code only by distorting the holding of that case and radically altering the well-settled Establishment Clause jurisprudence which that case represents.
Justice Brennan explains away Walz by asserting that “[t]he breadth of New York’s property tax exemption was essential to our holding that it was ‘not aimed at establishing, sponsoring, or supporting religion.’” Ante, at 12 (quoting Walz, 397 U. S., at 674). This is not a plausible reading of the opinion. At the outset of its discussion concerning the permissibility of the legislative purpose, the Walz Court did discuss the fact that the New York tax exemption applied not just to religions but to certain other “nonprofit” groups, including “hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups.” Id., at 673. The finding of valid legislative purpose was not rested upon that, however, but upon the more direct proposition that “exemption constitutes a reasonable and balanced attempt to guard against” the “latent dangers” of governmental hostility towards religion “inherent in the imposition of property taxes.” Ibid. The venerable federal legislation that the Court cited to support its holding was not legislation that exempted religion along with other things, but legislation that exempted religion alone. See, e. g., ch. 17, 6 Stat. 116 (1813) (remitting duties paid on the importation of plates for printing Bibles); ch. 91, 6 Stat. 346 (1826) (remitting duties paid on the importation of church vestments, furniture, and paintings); ch. 259, 6 Stat. 600 (1834) (remitting duties paid on the importation of church bells). Moreover, if the Court had in
Today’s opinions go beyond misdescribing Walz, however. In repudiating what Walz in fact approved, they achieve a revolution in bur Establishment Clause jurisprudence, effectively overruling other cases that were based, as Walz was, on the “accommodation of religion” rationale. According to Justice Brennan’s opinion, no law is constitutional whose “benefits [are] confined to religious organizations,” ante, at 11 — except, of course, those laws that are unconstitutional unless they contain benefits confined to religious organizations, see ante, at 17-18. See also Justice Blackmun’s opinion, ante, at 28. Our jurisprudence affords no support for this unlikely proposition. Walz is just one of a long line of cases in which we have recognized that “the government may (and sometimes must) accommodate religious practices and that it may do so without violating the - Establishment Clause.” Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136, 144-145 (1987); see McConnell, Accommodation of Religion, 1985 S. Ct. Rev. 1, 3. In such cases as Sherbert v. Verner, 374 U. S. 398 (1963), Wisconsin v. Yoder, 406 U. S. 205 (1972), Thomas v. Review Bd. of Ind. Employment Security Div., 450 U. S. 707 (1981), and Hobbie v. Unemployment Appeals Comm’n of Fla., supra, we held that the Free Exercise Clause of the First Amendment required religious beliefs to be accommodated by granting religion-specific exemptions from otherwise applicable laws. We have often made clear, however, that “[t]he limits of permissible state accommodation to religion are by no means coextensive with the noninterference mandated by the Free Exercise Clause.” Walz, 397 U. S., at 673. See also Hobbie, supra, at 144-145, and n. 10; Gillette v. United States, 401 U. S. 437, 453 (1971); Braunfeld v. Brown, 366 U. S. 599, 605-608 (1961) (plurality opinion); Wallace v. Jaffree, 472 U. S. 38, 82 (1985) (O’Connor, J., concurring).
The novelty of today’s holding is obscured by Justice Brennan’s citation and description of many eases in which “breadth of coverage” ivas relevant to the First Amendment determination. See ante, at 10-11. Breadth of coverage is essential to constitutionality whenever a law’s benefiting of religious activity is sought to be defended not specifically (or not exclusively) as an intentional and reasonable accommodation of religion, but as merely the incidental consequence of seeking to benefit all activity that achieves a particular secular goal. But that is a different rationale — more commonly invoked than accommodation of religion but, as our cases
It is not always easy to determine when accommodation slides over into promotion, and neutrality into favoritism, but the withholding of a tax upon the dissemination of religious materials is not even a close case. The subjects of the exemption before us consist exclusively of “writings promulgating the teaching of the faith” and “writings sacred to a reli
I am willing to acknowledge, however, that Murdock and Follett are narrowly distinguishable. But what follows from that is not the facile conclusion that therefore the State has no “compelling interest in avoiding violations of the Free Ex
Although Justice Brennan’s opinion places almost its entire reliance upon the “purpose” prong of Lemon, it alludes briefly to the second prong as well, finding that § 151.312 has the impermissible “effect of sponsoring certain religious tenets or religious belief in general,” ante, at 17. Once again, Walz stands in stark opposition to this assertion, but it may be useful to explain why. Quite obviously, a sales tax exemption aids religion, since it makes it less costly for religions to disseminate their beliefs. Cf. Murdock, supra, at 112-113. But that has never been enough to strike down an enactment under the Establishment Clause. “A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose.” Corporation of Presiding Bishop, supra, at 337 (emphasis in original). The Court has consistently rejected “the argument that any program which in some manner aids an institution with a religious affiliation” violates the Establishment Clause. Muel
Finally, and least persuasively of all, Justice Brennan suggests that § 151.312 violates the “excessive government entanglement” aspect of Lemon, 403 U. S., at 613. Ante, at 20-21. It is plain that the exemption does not foster the sort of “comprehensive, discriminating, and continuing state surveillance” necessary to run afoul of that test. 403 U. S., at 619. A State does not excessively involve itself in religious affairs merely by examining material to determine whether it is religious or secular in nature. Mueller v. Allen, supra, at 403; Meek v. Pittenger, 421 U. S. 349, 359-362 (1975) (upholding loans of nonreligious textbooks to religious schools); Board of Education of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (1968) (same). In Mueller, for instance, we held that state officials’ examination of textbooks to determine whether they were “books and materials used in the
II
Having found that this statute does not violate the Establishment Clause of the First Amendment, I must consider whether it violates the Press Clause, pursuant to our decision two Terms ago in Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221 (1987). Although I dissented in Ragland, even accepting it to be correct I cannot conclude as readily as does Justice White, ante, at 26, that it applies here.
The tax exemption at issue in Ragland, which we held to be unconstitutional because rontent based, applied to trade publications and sports magazines along with religious periodicals and sacred writings, and hence could not be justified as an accommodation of religion. If the purpose of accommodating religion can support action that might otherwise violate the Establishment Clause, I see no reason why it does not also support action that might otherwise violate the Press Clause or the Speech Clause. To hold otherwise would be to narrow the accommodation principle enormously, leaving it applicable to only nonexpressive religious worship. I do not
It is absurd to think that a State which chooses to prohibit booksellers from making stories about seduction available to children of tender years cannot make an exception for stories contained in sacred writings (e. g., the story of Susanna and the Two Elders, Daniel 13:1-65). And it is beyond imagination that the sort of tax exemption permitted (indeed, required) by Murdock and Follett would have to be withdrawn if door-to-door salesmen of commercial magazines demanded equal treatment with Seventh-day Adventists on Press Clause grounds. And it is impossible to believe that the State is constitutionally prohibited from taxing Texas Monthly magazine more heavily than the Holy Bible.
* * *
Today’s decision introduces a new strain of irrationality in our Religion Clause jurisprudence. I have no idea how to reconcile it with Zorach (which seems a much harder case of accommodation), with Walz (which seems precisely in point), and with Corporation of Presiding Bishop (on which the ink is hardly dry). It is not right — it is not constitutionally healthy — that this Court should feel authorized to refashion anew our civil society’s relationship with religion, adopting a theory of church and state that is contradicted by current practice, tradition, and even our own case law. I dissent.
Only Alaska, Delaware, Montana, New Hampshire, and Oregon do not have state sales taxes.
See Ala. Code §40-23-62(20) (Supp. 1988) (exempting from use tax “religious magazines and publications”); Fla. Stat. §212.06(9) (Supp. 1988) (exempting from sales and use tax “the sale or distribution of religious publications, bibles, hymn books, prayer books,” and other religious material); Ga. Code Ann. §48-8-3(15)(A) (Supp. 1988) (exempting from sales tax religious newspapers owned and operated by religious institutions); § 48-8-3(16) (exempting from sales tax sales of “Holy Bibles, testaments and similar books commonly recognized as being Holy Scripture”); Idaho Code § 63-36221 (Supp. 1988) (exempting from sales and use tax the sale of “religious literature, pamphlets, periodicals, tracts, and books” if published and sold by “a bona fide church or religious denomination”); Me. Rev. Stat. Ann., Tit. 36, §1760(13) (1978) (exempting from sales tax “[s]ales of the Bible and also other books and literature . . . used in and by established churches for religion and prayer”); Md. Ann. Code, Art. 81, § 326(u) (1980) (exempting from sales tax all sales by “bona fide church or religious organization”); Mass. Gen. Laws § 64H:6(m) (1986) (exempting from sales tax “books used for religious worship”); N. J. Stat. Ann. § 54:32B-8.25 (West 1986) (exempting from sales tax “receipts from sales of the Bible or similar sacred scripture”); N. C. Gen. Stat. §105-164.13(14) (1985) (exempting from sales tax “Holy Bibles”); N. D. Cent. Code §57-39.2-04(25) (1983) (exempting from sales tax “Bibles, hymnals, textbooks, and prayerbooks” sold to religious organizations); Pa. Stat. Ann., Tit. 72, § 7204(28) (Purdon Supp. 1988-1989) (exempting from sales tax “the sale at retail or use of religious publications . . . and Bibles”); R. I. Gen. Laws § 44-18-30(HH) (Supp. 1987) (exempting from sales tax “any canonized scriptures of any tax-exempt non-profit religious organizations including but not limited to the old testament and new testament versions”); S. C. Code § 12-35-550(7) (Supp. 1988) (exempting from sales and use tax sales “of . . . religious publications, including the Holy Bible”); Tenn. Code Ann. §67-6-323 (1983) (exempting from sales and use tax sales of “religious publications to
See, in addition to n. 2, supra, Ala. Code §40-9-1(6) (Supp. 1988) (exempting from property tax “libraries of ministers of the gospel” and “all religious books kept for sale by ministers of the gospel and colporteurs”); Alaska Stat. Ann. § 29.45.030(b)(1) (1986) (exempting from property tax residence of “bishop, pastor, priest, rabbi, [or] minister”); Ariz. Rev. Stat. Ann. § 42-1310.14(A) (Supp. 1988-1989) (exempting from transaction privilege tax “projects of bona fide religious . . . institutions”); Ark. Code Ann. § 26-52-401 (Supp. 1987) (extending property tax exemption for religious and charitable institutions to religious recreational centers, day-care centers, and parsonages); Cal. Rev. & Tax. Code Ann. §6363.5 (West 1987) (exempting from sales tax meals and food products furnished by or served by any religious institution); Colo. Rev. Stat. § 39-3-102 (1982) (establishing special property tax exemption for first $16,000 in valuation of each parsonage); Conn. Gen. Stat. § 12-81(12) (1983) (exempting from personal property tax personal property of “a Connecticut religious organization” used for “religious or charitable purposes”); § 12-81(15) (exempting from property tax homes of clergymen owned by religious organizations); D. C. Code §47-1002(15) (1987) (exempting from property tax pastoral residences); § 47-1002(16) (exempting from property tax bishops’ residences); Ga. Code Ann. §48-5-41(a)(3) (Supp. 1988) (exempting from property tax residences for pastors owned by religious organizations); Haw. Rev. Stat. § 244D-4(b)(4) (Supp. 1987) (exempting from liquor tax- spirits sold or
Reference
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