Constitutional Law Cases: Rehnquist Court
1986 - 1989
US Supreme Court
TEXAS MONTHLY, INC. v. BULLOCK, 489 U.S. 1 (1989)
489 U.S. 1
TEXAS MONTHLY, INC. v. BULLOCK, COMPTROLLER OF PUBLIC ACCOUNTS OF STATE OF TEXAS,
ET AL.
APPEAL FROM THE COURT OF APPEALS OF TEXAS, THIRD DISTRICT
No. 87-1245.
Argued November 1, 1988
Decided February 21, 1989
Between October 1984 and October 1987, a Texas statute exempted from sales and use
taxes "[p]eriodicals . . . published or distributed by a religious faith . . . consist[ing]
wholly of writings promulgating the teachings of the faith and books . . . consist[ing]
wholly of writings sacred to a religious faith." In 1985, appellant, the publisher
of a general interest magazine that was not entitled to the exemption, paid under
protest sales taxes on the price of its qualifying subscription sales and sued to
recover those payments in state court. Ruling that the exclusive exemption for religious
periodicals promoted religion in violation of the Establishment Clause of the First
Amendment, as made applicable to the States by the Fourteenth Amendment, and declaring
itself "without power to rewrite the statute to make religious periodicals subject
to tax," the court struck down the tax as applied to nonreligious periodicals and
ordered the State to refund the tax paid by appellant, plus interest. The State Court
of Appeals reversed, holding that the exemption satisfied the tripartite test of Lemon
v. Kurtzman, 403 U.S. 602, 612 -613, in that it (1) served the secular purpose of
preserving separation between church and state; (2) did not have the primary effect
of advancing or inhibiting religion; and (3) did not produce impermissible government
entanglement with religion. [489 U.S. 1, 2]
Held:
The judgment is reversed, and the case is remanded.
731 S. W. 2d 160, reversed and remanded.
JUSTICE BRENNAN, joined by JUSTICE MARSHALL and JUSTICE STEVENS, concluded:
1. Appellant has standing to challenge the exemption. The State's contention that
appellant cannot show that it has suffered, or is threatened with, redressable injury
is misguided, since it would effectively and impermissibly insulate an underinclusive
statute from constitutional challenge. There is no merit to the State's argument that
appellant could not obtain a tax refund if this Court were to declare the exemption
invalid, since the proper course under state law would be to remove the exemption
rather than to extend it to nonreligious periodicals or strike down the tax in its
entirety. It is not for this Court to decide upon the correct response as a matter
of state law to a finding of unconstitutionality. Moreover, the claim that appellant
cannot qualify for injunctive relief because its subscription sales are no longer
taxed under a 1987 amendment to the tax statute is irrelevant, since a live controversy
persists over appellant's right to a refund, plus interest, and the State cannot strip
appellant of standing by changing the law after taking its money. Pp. 7-8.
2. The exemption lacks sufficient breadth to pass scrutiny under the Establishment
Clause. The fact that a subsidy incidentally benefits religious groups does not deprive
it of the secular purpose and effect mandated by the Clause, so long as it is conferred
on a wide array of nonsectarian groups as well as religious organizations in pursuit
of some legitimate secular end. However, when, as here, government directs a subsidy
exclusively to religious organizations that is not required by the Free Exercise Clause
of the First Amendment and that either burdens nonbeneficiaries markedly or cannot
reasonably be seen as removing a significant state-imposed deterrent to the free exercise
of religion, it cannot be viewed as anything but impermissible state sponsorship of
religion, particularly where the subsidy is targeted at writings that promulgate the
teachings of religious faiths. Because it confines itself exclusively to such religious
publications, the Texas exemption lacks a secular objective that would justify its
preference along with similar benefits for nonreligious publications or groups. Nevertheless,
Texas is free to widen the exemption, so long as the class of exempt organizations
is sufficiently expansive to be consonant with some legitimate secular purpose. Pp.
8-17.
3. 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. Pp. 17-25. [489 U.S. 1, 3]
(a) The State cannot claim persuasively that its exemption is compelled by the Free
Exercise Clause in even a single instance, let alone in every case, since it has adduced
no evidence that the payment of a sales tax by subscribers to religious periodicals
or purchasers of religious books would offend their religious beliefs or inhibit religious
activity. Moreover, even if members of some religious group succeeded in demonstrating
that payment of a sales tax - or, less plausibly, of a sales tax which applied to
printed matter - would violate their religious tenets, it is by no means obvious that
the State would be required by the Clause to make individualized exceptions for them,
since a limitation on religious liberty may be justified by showing that it is essential
to accomplish an overriding governmental interest. There has been no suggestion that
members of any major religious denomination - the principal beneficiaries of the exemption
- could demonstrate an infringement of their free exercise rights sufficiently serious
to overcome the State's countervailing interest in collecting its sales tax. Pp. 17-20.
(b) The Establishment Clause does not mandate the exemption, since, by requiring
that public officials determine whether some message or activity is consistent with
"the teachings of the faith," the exemption appears, on its face, to produce greater
state entanglement with religion than would the denial of an exemption. Although compliance
with government regulations by religious organizations and the monitoring of that
compliance by government agencies would itself enmesh the operation of church and
state to some degree, such compliance would generally not impede the evangelical activities
of religious groups. Moreover, the routine and factual inquiries commonly associated
with the enforcement of tax laws bear no resemblance to the kind of government surveillance
this Court has previously held to pose an intolerable risk of entanglement. Pp. 20-21.
(c) Murdock v. Pennsylvania, 319 U.S. 105 , and Follett v. McCormick, 321 U.S. 573
, do not bar Texas' imposing a general sales tax on religious publications. To the
extent that Murdock and Follett held that a flat license or occupation tax designed
for commercial salesmen cannot constitutionally be imposed on religious missionaries
whose principal work is preaching and who only occasionally sell religious tracts
for small sums, where that activity is deemed central to the particular faith and
where the tax burden is far from negligible, those decisions are plainly consistent
with the present decision. Texas' sales tax is neither an occupation tax levied on
missionaries nor a flat tax that restrains in advance the free exercise of religion;
poses little danger of stamping out missionary work involving the sale of religious
publications because it is equal to a small fraction of the value of each sale and
is payable by the buyer; and can hardly be viewed as a covert attempt to curtail religious
activity in [489 U.S. 1, 4] view of its generality. However, to the extent that unnecessarily
broad language in Murdock and Follett might be read to suggest that the sale of religious
or other publications may never be taxed, those dicta must be rejected. This Court's
subsequent decisions make clear that even if the denial of tax benefits will inevitably
have a substantial impact on religious groups, the refusal to grant such benefits
does not offend the Free Exercise Clause when it does not prevent those groups from
observing their religious tenets. In the common circumstances exemplified by this
case, taxes or regulations would not subject religious organizations to undue burdens,
and the government has a far weightier interest in their uniform application. Pp.
21-25.
JUSTICE WHITE concluded that Arkansas Writers' Project, Inc. v. Ragland, 481 U.S.
221 , is directly applicable here and is the proper basis for reversing the judgment
below, since the Texas law at issue violates the Press Clause of the First Amendment
by taxing appellant while exempting other publishers solely on the basis of the religious
content of their publications. Pp. 25-26.
JUSTICE BLACKMUN, joined by JUSTICE O'CONNOR, concluded that the extent to which
the Free Exercise Clause requires a tax exemption for the sale of religious literature
by a religious organization need not be decided here, since the case should be resolved
on the narrow ground that an exemption such as the one at issue that is limited to
religious organizations' sales of their religious literature violates the Establishment
Clause. Regardless of whether Follett v. McCormick, 321 U.S. 573 , and Murdock v.
Pennsylvania, 319 U.S. 105 , prohibit taxing the sale of religious literature, the
Texas statute engages in a preferential support for the communication of religious
messages that offends the most basic understanding of what the Establishment Clause
is all about Pp. 28-29.
BRENNAN, J., announced the judgment of the Court and delivered an opinion, in which
MARSHALL and STEVENS, JJ., joined. WHITE, J., filed an opinion concurring in the judgment,
post, p. 25. BLACKMUN, J., filed an opinion concurring in the judgment, in which O'CONNOR,
J., joined post, p. 26. SCALIA, J., filed a dissenting opinion, in which REHNQUIST
C. J., and KENNEDY, J., joined, post, p. 29.
Roger James George, Jr., argued the cause for appellant. With him on the briefs were
John M. Harmon and Pamela Stanton Baron.
Harriet D. Burke, Assistant Attorney General of Texas argued the cause for appellees.
With her on the brief were [489 U.S. 1, 5] Jim Mattox, Attorney General, Mary F. Keller,
First Assistant Attorney General, and Lou McCreary, Executive Assistant Attorney General.
*
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the American
Booksellers Association, Inc., by Maxwell J. Lillienstein; for the American Civil
Liberties Union et al. by James C. Harrington, Steven R. Shapiro, and John A. Powell;
and for the Magazine Publishers of America, Inc., by Eli D. Minton and James R. Cregan.
JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion, in
which JUSTICE MARSHALL and JUSTICE STEVENS join.
Texas exempts from its sales tax "[p]eriodicals 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 [489 U.S. 1, 6] solely of writings
sacred to a religious faith. Tex. Tax Code Ann. 151.312 (1982).
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-1
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 irrelevant [489 U.S. 1, 7] that the
exemption did not extend to other nonprofit or secular publications, because "the
neutrality toward religion effected by the grant of an exemption for religious periodicals"
remained unaffected by the provision or denial of a similar exemption for nonreligious
publications. Id., at 164. Finally, the court concluded that the exemption did not
produce impermissible government entanglement with religion. Rather than scrutinize
each publication for which a publisher sought an exemption for conformity with the
statute's terms, the court found, the Comptroller's Office merely required that a
group applying for an exemption demonstrate that it was a religious organization.
Once a satisfactory showing had been made, the Comptroller's Office did not later
reassess the group's status as a religious organization. It further allowed the group
to determine, without review by the State, which of its publications promulgated the
teaching of its faith. Because the exemption was administered to minimize state entanglement
with religion, the court thought it consistent with Lemon's third prong.
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.
We noted probable jurisdiction, 485 U.S. 958 (1988), and now reverse.
II
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 [489 U.S. 1, 8] invalid, the proper course under state law would be
to remove the exemption for religious publications, rather than extend it to nonreligious
periodicals or strike down the sales and use tax in its entirety. If Texas is right,
appellant cannot obtain a refund of the tax it paid under protest. Nor can it qualify
for injunctive relief, because its subscription sales are no longer taxed. Hence,
Texas contends, appellant cannot show that it has suffered or is threatened with redressable
injury, which this Court declared to be a pre-requisite for standing in Valley Forge
Christian College v. Americans United for Separation of Church & State, Inc., 454
U.S. 464, 472 (1982).
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.
III
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 [489 U.S. 1, 9] to favor the adherents of any sect or religious organization."
Gillette v. United States, 401 U.S. 437, 450 (1971). See, e. g., School Dist. of Grand
Rapids v. Ball, 473 U.S. 373, 381 (1985); Wallace v. Jaffree, 472 U.S. 38, 52 -53,
and n. 37 (1985); Welsh v. United States, 398 U.S. 333, 356 -357 (1970) (Harlan, J.,
concurring in result); Epperson v. Arkansas, 393 U.S. 97, 103 -104 (1968); Abington
School Dist. v. Schempp, 374 U.S. 203, 216 -217 (1963); Torcaso v. Watkins, 367 U.S.
488, 495 (1961); Everson v. Board of Education of Ewing, 330 U.S. 1, 15 -16 (1947).
The core notion animating the requirement that a statute possess "a secular legislative
purpose" and that "its principal or primary effect . . . be one that neither advances
nor inhibits religion," Lemon v. Kurtzman, 403 U.S., at 612 , is not only that government
may not be overtly hostile to religion but also that it may not place its prestige,
coercive authority, or resources behind a single religious faith or behind religious
belief in general, compelling nonadherents to support the practices or proselytizing
of favored religious organizations and conveying the message that those who do not
contribute gladly are less than full members of the community. 1 [489 U.S. 1, 10]
It does not follow, of course, that government policies with secular objectives may
not incidentally benefit religion. The nonsectarian aims of government and the interests
of religious groups often overlap, and this Court has never required that public authorities
refrain from implementing reasonable measures to advance legitimate secular goals
merely because they would thereby relieve religious groups of costs they would otherwise
incur. See Mueller v. Allen, 463 U.S. 388, 393 (1983). Nor have we required that legislative
categories make no explicit reference to religion. See Wallace v. Jaffree, supra,
at 70 (O'CONNOR, J., concurring in judgment) ("The endorsement test does not preclude
government from acknowledging religion or from taking religion into account in making
law and policy"); Lynch v. Donnelly, 465 U.S. 668, 715 (1984) (BRENNAN, J., dissenting).
Government need not resign itself to ineffectual diffidence because of exaggerated
fears of contagion of or by religion, so long as neither intrudes unduly into the
affairs of the other.
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 [489 U.S. 1, 11] this subsidy deprived the law of an overriding secular
purpose or effect. And in the case most nearly on point, Walz v. Tax Comm'n of New
York City, 397 U.S. 664 (1970), we sustained a property tax exemption that applied
to religious properties no less than to real estate owned by a wide array of nonprofit
organizations, despite the sizable tax savings it accorded religious groups.
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 violative 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. [489 U.S. 1, 12]
Finally, we emphasized in Walz that in granting a property tax deduction, the State
"has not singled out one particular church or religious group or even churches as
such; rather, it has granted exemption to all houses of religious worship within a
broad class of property owned by nonprofit, quasi-public corporations which include
hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic
groups." 397 U.S., at 673 . The breadth of New York's property tax exemption was essential
to our holding that it was "not aimed at establishing, sponsoring, or supporting religion,"
id., at 674, but rather possessed the legitimate secular purpose and effect of contributing
to the community's moral and intellectual diversity and encouraging private groups
to undertake projects that advanced the community's well-being and that would otherwise
have to be funded by tax revenues or left undone. 2 Moreover, "[t]he scheme [was]
[489 U.S. 1, 13] not designed to inject any religious activity into a nonreligious
context, as was the case with school prayers. No particular activity of a religious
organization - for example, the propagation of its beliefs - [was] specially promoted
by the exemptions." Id., at 689 (BRENNAN, J., concurring). As Justice Harlan observed:
"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).
[489 U.S. 1, 14]
Texas' sales tax exemption for periodicals published or distributed by a religious
faith and consisting wholly of writings promulgating the teaching of the faith lacks
sufficient breadth to pass scrutiny under the Establishment Clause. Every tax exemption
constitutes a subsidy that affects non-qualifying taxpayers, forcing them to become
"indirect and vicarious `donors.'" Bob Jones University v. United States, 461 U.S.
574, 591 (1983). See also Regan v. Taxation with Representation of Wash., 461 U.S.
540, 544 (1983). Insofar as that subsidy is conferred upon a wide array of nonsectarian
groups as well as religious organizations in pursuit of some legitimate secular end,
4 the fact that religious groups [489 U.S. 1, 15] benefit incidentally does not deprive
the subsidy of the secular purpose and primary effect mandated by the Establishment
Clause. However, when government directs a subsidy exclusively to religious organizations
that is not required by the Free Exercise Clause and that either burdens nonbeneficiaries
markedly or cannot reasonably be seen as removing a significant state-imposed deterrent
to the free exercise of religion, as Texas has done, see infra, at 17-20, it "provide[s]
unjustifiable awards of assistance to religious organizations" and cannot but "conve[y]
a message of endorsement" to slighted members of the community. Corporation of Presiding
Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 348 (1987)
(O'CONNOR, J., concurring in judgment). This is particularly true where, as here,
the subsidy is targeted at writings that promulgate the teachings of religious faiths.
5 It is difficult to view Texas' narrow exemption as anything but state sponsorship
of religious belief, regardless of whether one adopts the perspective of beneficiaries
or of uncompensated contributors.
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 [489 U.S. 1, 16] Walz. 6 By contrast,
if Texas sought to promote reflection and discussion about questions of ultimate value
and the contours of a good or meaningful life, then a tax exemption would have to
be available to an extended range of associations whose publications were substantially
devoted to such matters; the exemption could not be reserved for publications dealing
solely with religious issues, let alone restricted to publications advocating rather
than criticizing religious belief or activity, without signaling an endorsement of
religion that is offensive to the principles informing the Establishment Clause. See
Estate of Thornton v. Caldor, Inc., 472 U.S., at 711 (O'CONNOR, J., concurring) (because
the statute bestows an advantage on Sabbath observers "without according similar accommodation
to ethical and religious beliefs and practices of other private employees," "[t]he
message conveyed is one of endorsement of a particular religious belief, to the detriment
of those who do not share it"; the statute therefore "has the effect of advancing
religion, and cannot withstand Establishment Clause scrutiny"); Welsh v. United States,
398 U.S., at 356 -361 (Harlan, J., concurring in result) (conscientious objector status
cannot be limited to those whose opposition to war has religious roots, but must extend
to those whose convictions have purely moral or philosophical sources).
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 [489 U.S. 1, 17] adopted by the
legislature does not have the purpose or effect of sponsoring certain religious tenets
or religious belief in general. As Justice Harlan remarked: "The Court must survey
meticulously the circumstances of governmental categories to eliminate, as it were,
religious gerrymanders. In any particular case the critical question is whether the
circumference of legislation encircles a class so broad that it can be fairly concluded
that religious institutions could be thought to fall within the natural perimeter."
Walz, 397 U.S., at 696 (separate opinion). Because Texas' sales tax exemption for
periodicals promulgating the teaching of any religious sect lacks a secular objective
that would justify this preference along with similar benefits for nonreligious publications
or groups, and because it effectively endorses religious belief, the exemption manifestly
fails this test. 7
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. [489 U.S. 1, 18]
We reject both parts of this argument. Although Texas may widen its exemption consonant
with some legitimate secular purpose, nothing in our decisions under the Free Exercise
Clause prevents the State from eliminating altogether its exemption for religious
publications. "It is virtually self-evident that the Free Exercise Clause does not
require an exemption from a governmental program unless, at a minimum, inclusion in
the program actually burdens the claimant's freedom to exercise religious rights."
Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 303 (1985) (citations
omitted). In this case, the State has adduced no evidence that the payment of a sales
tax by subscribers to religious periodicals or purchasers of religious books would
offend their religious beliefs or inhibit religious activity. The State therefore
cannot claim persuasively that its tax exemption is compelled by the Free Exercise
Clause in even a single instance, let alone in every case. No concrete need to accommodate
religious activity has been shown. 8 [489 U.S. 1, 19]
Moreover, even if members of some religious group succeeded in demonstrating that
payment of a sales tax - or, less plausibly, of a sales tax when applied to printed
matter - would violate their religious tenets, it is by no means obvious that the
State would be required by the Free Exercise Clause to make individualized exceptions
for them. In United States v. Lee, 455 U.S. 252 (1982), we ruled unanimously that
the Federal Government need not exempt an Amish employer from the payment of Social
Security taxes, notwithstanding our recognition that compliance would offend his religious
beliefs. We noted that "[n]ot all burdens on religion are unconstitutional," id.,
at 257, and held that "[t]he state may justify a limitation on religious liberty by
showing that it is essential to accomplish an overriding governmental interest." Id.,
at 257-258. Although the balancing test we set forth in Lee must be performed on a
case-by-case basis, a State's interest in the uniform collection of a [489 U.S. 1,
20] sales tax appears comparable to the Federal Government's interest in the uniform
collection of Social Security taxes, and mandatory exemptions under the Free Exercise
Clause are arguably as difficult to prove. No one has suggested that members of any
of the major religious denominations in the United States - the principal beneficiaries
of Texas' tax exemption - could demonstrate an infringement of their free exercise
rights sufficiently serious to overcome the State's countervailing interest in collecting
its sales tax.
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). 9 [489 U.S. 1, 21]
While Texas is correct in pointing out that compliance with government regulations
by religious organizations and the monitoring of their compliance by government agencies
would itself enmesh the operations of church and state to some degree, we have found
that such compliance would generally not impede the evangelical activities of religious
groups and that the "routine and factual inquiries" commonly associated with the enforcement
of tax laws "bear no resemblance to the kind of government surveillance the Court
has previously held to pose an intolerable risk of government entanglement with religion."
Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S., at 305 .
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. [489 U.S. 1, 22]
In Murdock, the Court ruled that a city could not impose a flat license tax payable
by "all persons canvassing for or soliciting . . . orders for goods, paintings, pictures,
wares, or merchandise of any kind" on Jehovah's Witnesses who "went about from door
to door . . . distributing literature and soliciting people to `purchase' certain
religious books and pamphlets." 319 U.S., at 106 . In Follett, the Court ruled similarly
that a Jehovah's Witness who "went from house to house distributing certain books"
was exempt under the Free Exercise Clause from payment of a flat business and occupation
tax on booksellers. 321 U.S., at 574 . In both cases, the majority stated that the
"sale" of religious pamphlets by itinerant evangelists was a form of preaching, Murdock,
supra, at 109; Follett, supra, at 577, and that imposing a license or occupation tax
on such a preacher was tantamount to exacting "a tax from him for the privilege of
delivering a sermon." Murdock, 319 U.S., at 112 . The Court acknowledged that imposing
an income or property tax on preachers would not be unconstitutional. Ibid. It emphasized,
however, that a flat license or occupation tax poses a greater threat to the free
exercise of religion than do those other taxes, because it is "levied and collected
as a condition to the pursuit of activities whose enjoyment is guaranteed by the First
Amendment" and thus "restrains in advance those constitutional liberties . . . and
inevitably tends to suppress their exercise." Id., at 114. See Follett, supra, at
575.
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., [489 U.S. 1, 23] at 576. Regarding Follett in this light, we must agree
that "we have quite a different case from that of a merchant who sells books at a
stand or on the road." Ibid. There is no doubt that the First Amendment prevents both
the States and the Federal Government from imposing a special occupation tax exclusively
on those who devote their days to spreading religious messages. Moreover, it is questionable
whether, consistent with the Free Exercise Clause, government may exact a facially
neutral license fee designed for commercial salesmen from religious missionaries whose
principal work is preaching and who only occasionally sell religious tracts for small
sums, so long as "the fee is not a nominal one, imposed as a regulatory measure and
calculated to defray the expense of protecting those on the streets and at home against
the abuses of solicitors." Murdock, supra, at 116. In such a case, equal treatment
of commercial and religious solicitation might result in an unconstitutional imposition
on religious activity warranting judicial relief, particularly where that activity
is deemed central to a given faith, as the Court found this form of proselytizing
to be in Murdock and Follett, and where the tax burden is far from negligible. 10
[489 U.S. 1, 24]
Insofar as the Court's holdings in Murdock and Follett are limited to these points,
they are plainly consistent with our decision today. The sales tax that Texas imposes
is not an occupation tax levied on religious missionaries. Nor is it a flat tax that
"restrains in advance," 319 U.S., at 114 , the free exercise of religion. On the contrary,
because the tax is equal to a small fraction of the value of each sale and payable
by the buyer, it poses little danger of stamping out missionary work involving the
sale of religious publications, and in view of its generality it can hardly be viewed
as a covert attempt to curtail religious activity. We therefore see no inconsistency
between our former decisions and our present holding.
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. 11 Our intervening decisions make clear
that even if the denial of tax benefits "will inevitably have a substantial impact"
on religious groups, the refusal to grant such benefits does not offend the Free Exercise
Clause when it does not prevent those groups "from observing their religious tenets."
Bob Jones University [489 U.S. 1, 25] v. United States, 461 U.S., at 603 -604. In
Murdock and Follett, the application of a flat license or occupation tax to Jehovah's
Witnesses arguably did prevent adherents of that sect from acting in accordance with
some of their central religious beliefs, in the absence of any overriding government
interest in denying them an exemption. 12 In the much more common circumstances exemplified
by this case, however, taxes or regulations would not subject religious organizations
to undue burdens and the government's interest in their uniform application is far
weightier. Hence, there is no bar to Texas' imposing a general sales tax on religious
publications.
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.
Footnotes
[ Footnote 1 ] 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 [489 U.S. 1, 10] who may reject all religion,
. . . that their views are not similarly worthy of public recognition nor entitled
to public support").
[ Footnote 2 ] 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 [489
U.S. 1, 13] religion that would likely result. Cf. id., at 697, n. 1 (opinion of Harlan,
J.); Bob Jones University v. United States, 461 U.S. 574, 591 -592, and n. 18 (1983).
[ Footnote 3 ] 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 when [489 U.S. 1, 14] their activities take
them outside the classification and new entities can come into being and qualify for
exemption." Id., at 673. Although the concurring opinions in Walz amplified this point,
the opinion for the Court relied on it as well in determining that the tax exemption
possessed a valid secular purpose.
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.
[ Footnote 4 ] 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 [489 U.S.
1, 15] breaks for nonreligious activities. It certainly appears that the exemption
was intended to benefit religion alone.
[ Footnote 5 ] 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.
[ Footnote 6 ] 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.
[ Footnote 7 ] 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).
[ Footnote 8 ] 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 [489 U.S. 1, 19] they might obtain religious instruction elsewhere,
which we upheld in Zorach, was found not to coerce students who wished to remain behind
to alter their religious beliefs, nor did it impose monetary costs on their parents
or other taxpayers who opposed, or were indifferent to, the religious instruction
given to students who were released. The hypothetical Air Force uniform exemption
also would not place a monetary burden on those required to conform to the dress code
or subject them to any appreciable privation. And the application of Title VII's exemption
for religious organizations that we approved in Corporation of Presiding Bishop, though
it had some adverse effect on those holding or seeking employment with those organizations
(if not on taxpayers generally), prevented potentially serious encroachments on protected
religious freedoms.
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."
[ Footnote 9 ] At trial, Texas' Supervisor for Sales Tax Policy testified that the
Comptroller's Office did not in fact heed the statutory command to grant [489 U.S.
1, 21] exemptions only for publications that promulgated the teaching of a particular
faith; instead, the Office allowed religious publishers or distributors to determine
whether their publications qualified for the exemption. App. 60-61. Although this
approach undoubtedly reduced the degree of state entanglement in religious affairs
from that which would have resulted from strict application of the statute, we cannot
attach great significance to current administrative practice. That practice has not
been embodied in the regulation corresponding to the statutory exemption, which repeats
almost verbatim the words of the statute. 34 Tex. Admin. Code 3.299(d) (1986). It
is, moreover, at odds with the plain statutory language. It would appear open to future
administrators to subject the content of religious publications to more exacting scrutiny.
[ Footnote 10 ] 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.
[ Footnote 11 ] 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 Court intended
the passage to bear that meaning.
[ Footnote 12 ] 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.
JUSTICE WHITE, concurring in the judgment.
The Texas law at issue here discriminates on the basis of the content of publications:
it provides that "[p]eriodicals . . . 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. 151.312 (1982). Thus, [489 U.S. 1, 26] the content of
a publication determines whether its publisher is exempt or nonexempt. Appellant is
subject to the tax, but other publications are not because of the message they carry.
This is plainly forbidden by the Press Clause of the First Amendment. Arkansas Writers'
Project, Inc. v. Ragland, 481 U.S. 221 (1987), our most recent decision to this effect,
is directly applicable here, and is the proper basis for reversing the judgment below.
JUSTICE BLACKMUN, 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 generally [489 U.S. 1, 27] with what JUSTICE SCALIA says in Part
II of his dissenting opinion.
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 [489 U.S. 1, 28] and nonbeing, right and wrong.
Such a statute, moreover, should survive Press Clause scrutiny because its exemption
would be narrowly tailored to meet the compelling interests that underlie both the
Free Exercise and Establishment Clauses.
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
[489 U.S. 1, 29] v. Jaffree, 472 U.S., at 69 -70 (O'CONNOR, J., concurring in judgment);
Epperson v. Arkansas, 393 U.S., at 103 -104. Accordingly, whether or not Follett and
Murdock prohibit taxing the sale of religious literature, the Establishment Clause
prohibits a tax exemption limited to the sale of religious literature. Cf. Estate
of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) (the Establishment Clause prohibits
a statute that grants employees an unqualified right not to work on their Sabbath),
and Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 145 -146, and n.
11 (1987) (consistent with Caldor, the Free Exercise Clause prohibits denying unemployment
compensation to employees who refuse to work on their Sabbath).
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.
JUSTICE SCALIA, 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 [489 U.S. 1, 30] which sessions of our Court are opened and, come
to think of it, the discriminatory protection of freedom of religion in the Constitution)
that government may not "convey a message of endorsement of religion." With this frail
equipment, the Court topples an exemption for religious publications of a sort that
expressly appears in the laws of at least 15 of the 45 States that have sales and
use taxes 1 - States from Maine to Texas, from Idaho to New Jersey. 2 In practice,
a similar [489 U.S. 1, 31] exemption may well exist in even more States than that,
since until today our case law has suggested that it is not only permissible but perhaps
required. See Follett v. McCormick, 321 U.S. 573 (1944); Murdock v. Pennsylvania,
319 U.S. 105 (1943). I expect, for example, that even in States without express exemptions
many churches, and many tax assessors, have thought sales taxes inapplicable to the
religious literature typically offered for sale in church foyers.
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. 3 For [489
U.S. 1, 32] over half a century the federal Internal Revenue Code has allowed "minister[s]
of the gospel" (a term interpreted broadly enough to include cantors and rabbis) to
exclude from gross [489 U.S. 1, 33] income the rental value of their parsonages. 26
U.S.C. 107; see also 213(b)(11) of the Revenue Act of 1921, ch. 136, 42 Stat. 239.
In short, religious tax exemptions of the type the Court invalidates today permeate
the state and federal codes, and have done so for many years.
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 BLACKMUN 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 [489
U.S. 1, 34] New York City's grant of tax exemptions, pursuant to a state statute and
a provision of the State Constitution, to "religious organizations for religious properties
used solely for religious worship." Id., at 666-667, and n. 1. In upholding the exemption,
we conducted an analysis that contains the substance of the three-pronged "test" adopted
the following Term in Lemon v. Kurtzman, 403 U.S. 602 (1971). First, we concluded
that "[t]he legislative purpose of the property tax exemption is neither the advancement
nor the inhibition of religion." 397 U.S., at 672 . We reached that conclusion because
past cases and the historical record established that property tax exemption "constitutes
a reasonable and balanced attempt to guard against" the "latent dangers" of government
hostility to religion. Id., at 673. We drew a distinction between an unlawful intent
to favor religion and a lawful intent to "`accommodat[e] the public service to [the
people's] spiritual needs,'" id., at 672 (quoting Zorach v. Clauson, 343 U.S. 306,
314 (1952)), and found only the latter to be involved in "sparing the exercise of
religion from the burden of property taxation levied on private profit institutions,"
397 U.S., at 673 .
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.
JUSTICE BRENNAN also recognized this distinction in his concurring opinion: [489
U.S. 1, 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 acceptance
[489 U.S. 1, 36] given religious tax exemptions from our earliest days as a Nation").
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 intended [489 U.S. 1, 37]
to rely upon a "breadth of coverage" rationale, it would have had to identify some
characteristic that rationally placed religion within the same policy category as
the other institutions. JUSTICE BRENNAN'S concurring opinion in Walz conducted such
an analysis, finding the New York exemption permissible only because religions, like
the other types of nonprofit organizations exempted, "contribute to the well-being
of the community in a variety of nonreligious ways," 397 U.S., at 687 , and (incomprehensibly)
because they "uniquely contribute to the pluralism of American society by their religious
activities," id., at 689. (I say incomprehensibly because to favor religion for its
"unique contribution" is to favor religion as religion.) Justice Harlan's opinion
conducted a similar analysis, finding that the New York statute "defined a class of
nontaxable entities whose common denominator is their nonprofit pursuit of activities
devoted to cultural and moral improvement and the doing of `good works' by performing
certain social services in the community that might otherwise have to be assumed by
government." Id., at 696. The Court's opinion in Walz, however, not only failed to
conduct such an analysis, but - seemingly in reply to the concurrences - explicitly
and categorically disavowed reliance upon it, concluding its discussion of legislative
purpose with a paragraph that begins as follows: "We find it unnecessary to justify
the tax exemption on the social welfare services or `good works' that some churches
perform for parishioners and others," id., at 674. This should be compared with today's
rewriting of Walz: "[W]e 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." Ante, at 12, n. 2. This is a marvellously accurate description
of what Justices BRENNAN and Harlan believed, and what the Court specifically rejected.
[489 U.S. 1, 38] The Court did not approve an exemption for charities that happened
to benefit religion; it approved an exemption for religion as an exemption for religion.
Today's opinions go beyond misdescribing Walz, however. In repudiating what Walz
in fact approved, they achieve a revolution in our 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). [489 U.S. 1, 39]
We applied the accommodation principle, to permit special treatment of religion that
was not required by the Free Exercise Clause, in Zorach v. Clauson, 343 U.S. 306 (1952),
where we found no constitutional objection to a New York City program permitting public
school children to absent themselves one hour a week for "religious observance and
education outside the school grounds," id., at 308, n. 1. We applied the same principle
only two Terms ago in Corporation of Presiding Bishop, where, citing Zorach and Walz,
we upheld a section of the Civil Rights Act of 1964 exempting religious groups (and
only religious groups) from Title VII's antidiscrimination provisions. We found that
"it is a permissible legislative purpose to alleviate significant governmental interference
with the ability of religious organizations to define and carry out their religious
missions." 483 U.S., at 335 . We specifically rejected the District Court's conclusion
identical to that which a majority of the Court endorses today: that invalidity followed
from the fact that the exemption "singles out religious entities for a benefit, rather
than benefiting a broad grouping of which religious organizations are only a part."
Id., at 333. We stated that the Court "has never indicated that statutes that give
special consideration to religious groups are per se invalid." Id., at 338. As discussed
earlier, it was this same principle of permissible accommodation that we applied in
Walz.
The novelty of today's holding is obscured by JUSTICE BRENNAN'S citation and description
of many cases in which "breadth of coverage" was 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 [489 U.S. 1, 40] show, not preclusive
of it. Where accommodation of religion is the justification, by definition religion
is being singled out. The same confusion of rationales explains the facility with
which JUSTICE BRENNAN'S opinion can portray the present statute as violating the first
prong of the Lemon test, which is usually described as requiring a "secular legislative
purpose." Lemon, 403 U.S., at 612 . That is an entirely accurate description of the
governing rule when, as in Lemon and most other cases, government aid to religious
institutions is sought to be justified on the ground that it is not religion per se
that is the object of assistance, but rather the secular functions that the religious
institutions, along with other institutions, provide. But as I noted earlier, the
substance of the Lemon test (purpose, effect, entanglement) was first roughly set
forth in Walz - and in that context, the "accommodation of religion" context, the
purpose was said to be valid so long as it was "neither the advancement nor the inhibition
of religion; . . . neither sponsorship nor hostility." 397 U.S., at 672 . Of course
rather than reformulating the Lemon test in "accommodation" cases (the text of Lemon
is not, after all, a statutory enactment), one might instead simply describe the protection
of free exercise concerns, and the maintenance of the necessary neutrality, as "secular
purpose and effect," since they are a purpose and effect approved, and indeed to some
degree mandated, by the Constitution. However the reconciliation with the Lemon terminology
is achieved, our cases make plain that it is permissible for a State to act with the
purpose and effect of "limiting governmental interference with the exercise of religion."
Corporation of Presiding Bishop, 483 U.S., at 339 .
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 religious [489 U.S. 1, 41] faith." If there is any close question, it
is not whether the exemption is permitted, but whether it is constitutionally compelled
in order to avoid "interference with the dissemination of religious ideas." Gillette,
401 U.S., at 462 . In Murdock v. Pennsylvania, 319 U.S. 105 (1943), we held that it
was unconstitutional to apply a municipal license tax on door-to-door solicitation
to sellers of religious books and pamphlets. One Term later, in Follett v. McCormick,
321 U.S. 573 (1944), we held that it was unconstitutional to apply to such persons
a municipal license tax on "[a]gents selling books." Those cases are not as readily
distinguishable as JUSTICE BRENNAN suggests. I doubt whether it would have made any
difference (as he contends) if the municipalities had attempted to achieve the same
result of burdening the religious activity through a sales tax rather than a license
tax; surely such a distinction trivializes the holdings. And the other basis of distinction
he proposes - that the persons taxed in those cases were "religious missionaries whose
principal work is preaching" - is simply not available with respect to the first part
of the statute at issue here (which happens to be the portion upon which petitioner
placed its exclusive reliance). Unlike the Texas exemption for sacred books, which,
on its face at least, applies to all sales, the exemption for periodicals applies
to material that not only "consist[s] wholly of writings promulgating the teaching
of [a religious] faith," but also is "published or distributed by [that] faith." Surely
this is material distributed by missionaries. Unless, again, one wishes to trivialize
the earlier cases, whether they are full-time or part-time missionaries can hardly
make a difference, nor can the fact that they conduct their proselytizing through
the mail or from a church or store instead of door-to-door.
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 Exercise [489 U.S. 1, 42]
and Establishment Clauses," ante, at 17, and thus the exemption is invalid. This analysis
is yet another expression of JUSTICE BRENNAN'S repudiation of the accommodation principle
- which, as described earlier, consists of recognition that "[t]he limits of permissible
state accommodation to religion are by no means co-extensive with the noninterference
mandated by the Free Exercise Clause." Walz, 397 U.S., at 673 . By saying that what
is not required cannot be allowed, JUSTICE BRENNAN would completely block off the
already narrow "channel between the Scylla [of what the Free Exercise Clause demands]
and the Charybdis [of what the Establishment Clause forbids] through which any state
or federal action must pass in order to survive constitutional scrutiny." Thomas,
450 U.S., at 721 (REHNQUIST, J., dissenting). The proper lesson to be drawn from the
narrow distinguishing of Murdock and Follett is quite different: If the exemption
comes so close to being a constitutionally required accommodation, there is no doubt
that it is at least a permissible one.
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. Mueller [489 U.S. 1, 43] v. Allen,
463 U.S. 388, 393 (1983) (quoting Hunt v. McNair, 413 U.S. 734, 742 (1973)). To be
sure, we have set our face against the subsidizing of religion - and in other contexts
we have suggested that tax exemptions and subsidies are equivalent. E. g., Bob Jones
University v. United States, 461 U.S. 574, 591 (1983); Regan v. Taxation With Representation
of Wash., 461 U.S. 540, 544 (1983). We have not treated them as equivalent, however,
in the Establishment Clause context, and with good reason. "In the case of direct
subsidy, the state forcibly diverts the income of both believers and nonbelievers
to churches. In the case of an exemption, the state merely refrains from diverting
to its own uses income independently generated by the churches through voluntary contributions."
Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, 81 Harv.
L. Rev. 513, 553 (1968). In Walz we pointed out that the primary effect of a tax exemption
was not to sponsor religious activity but to "restric[t] the fiscal relationship between
church and state" and to "complement and reinforce the desired separation insulating
each from the other." 397 U.S., at 676 ; see also id., at 690-691 (BRENNAN, J., concurring).
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 [489 U.S. 1, 44] teaching of religious
tenets, doctrines or worship" did not constitute excessive entanglement. 463 U.S.,
at 403 . I see no material distinction between that inquiry and the one Texas officials
must make in this case. Moreover, here as in Walz, see 397 U.S., at 674 , it is all
but certain that elimination of the exemption will have the effect of increasing government's
involvement with religion. The Court's invalidation of 151.312 ensures that Texas
churches selling publications that promulgate their religion will now be subject to
numerous statutory and regulatory impositions, including audits, Tex. Tax Code Ann.
151.023 (1982 and Supp. 1988-1989), requirements for the filing of security, 151.251
et seq., reporting requirements, 151.401 et seq., writs of attachment without bond,
151.605, tax liens, 151.608, and the seizure and sale of property to satisfy tax delinquencies,
151.610.
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
content 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 [489 U.S. 1, 45] think that is the
law. Just as the Constitution sometimes requires accommodation of religious expression
despite not only the Establishment Clause but also the Speech and Press Clauses, so
also it sometimes permits accommodation despite all those Clauses. Such accommodation
is unavoidably content based - because the Freedom of Religion Clause is content based.
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.
[ Footnote 1 ] Only Alaska, Delaware, Montana, New Hampshire, and Oregon do not have
state sales taxes.
[ Footnote 2 ] 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 63-3622I (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 [489 U.S. 1, 31] "religious publications to or by churches"); Tex. Tax Code
Ann. 151.312 (1982) (exempting from sales tax religious periodicals and sacred books).
[ Footnote 3 ] 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 [489 U.S. 1, 32] tax spirits sold
or used for "sacramental purposes"); Haw. Rev. Stat. 246-32(b)(3) (1985) (exempting
from property tax parsonages); Idaho Code 63-3622J (Supp. 1988) (exempting from sales
tax sales of meals by churches); Ill. Rev. Stat., ch. 120, 500.2 (1987) (exempting
from property tax parsonages and bishops' residences); Ind. Code 6-1.1-10-36.3 (1988)
(exempting from property tax parsonages); Kan. Stat. Ann. 79-3602(j) (1984) (exempting
from sales tax sale by religious organization "of tangible personal property acquired
for . . . resale"); Ky. Const. 170 (exempting from property tax parsonages); La. Rev.
Stat. Ann. 47:47 (West 1970) (excluding from state income tax rental income of parsonage
of "minister of the gospel"); Md. Ann. Code, Art. 81, 326(c)(i) (1980) (exempting
from sales tax sales of food by religious organizations); Mass. Gen. Laws 59:5, Eleventh
(1986) (exempting from local property tax parsonages and official residences of other
religious officials); Mich. Comp. Laws 205.54a(b)(ii) (Supp. 1988-1989) (exempting
from sales tax sales of vehicles "used primarily for the transportation of persons
for religious purposes"); Mich. Comp. Laws 211.7s (1986) (exempting from property
tax parsonages); Miss. Code Ann. 27-11-43(b) (Supp. 1988) (exempting from amusement
tax programs "composed entirely of gospel singing and not generally mixed with hillbilly
or popular singing"); 27-33-19(d) (exempting from property tax homes of "minister[s]
of the gospel"); Mo. Rev. Stat. 144.450(5) (1986) (exempting from use tax motor vehicles
"owned and used by religious organizations" to transfer students to religious schools);
Mont. Code Ann. 15-6-201(b) (1987) (exempting from property tax "residences of the
clergy"); Neb. Rev. Stat. 77-2702(6)(d) (Supp. 1987) (exempting from sales tax occasional
sales "by an organization created exclusively for religious purposes"); 77-2704(1)(g)(ii)
(exempting from sales tax meals served by church at church function); Nev. Rev. Stat.
361.125(1) (1986) (exempting from property tax parsonages); N. H. Rev. Stat. Ann.
72:23 (III) (1970) (exempting from property tax "church parsonages"); N. H. Rev. Stat.
Ann. 72:23(VI) (Supp. 1988) (exempting religious organizations from reporting requirements
for other nonprofit institutions); N. J. Stat. Ann. 54:4-3.35 (West 1986) (exempting
from property tax residences of "district supervisors of religious organizations");
N. M. Stat. Ann. 7-9-41 (1988) (exempting from receipts tax "receipts of a minister
of a religious organization . . . from religious services"); N. Y. Real Prop. Tax
Law 436 (McKinney 1984) (exempting from property tax property held in trust by clergymen);
462 (exempting from property tax residences of "officiating [489 U.S. 1, 33] clergymen");
N. D. Cent. Code 57-02-08(7) (Supp. 1987) (exempting from property tax dwellings of
bishops priests, rectors, or ministers); Okla. Stat., Tit. 68, 1356(F) (Supp. 1989)
(exempting from sales tax sales of meals made "to or by churches"); R. I. Gen. Laws
44-3-3 (Supp. 1987) (exempting from property tax residences of clergymen); S. D. Codified
Laws 35-5-6(2) (Supp. 1988) (exempting from beverage tax sacramental wine); Tex. Tax
Code Ann. 11.20(a)(3) and (4) (Supp. 1988-1989) (exempting from property tax dwellings
of religious clergy); Vt. Stat. Ann., Tit. 32, 3802(4) (1981) (exempting from property
tax parsonages for ministers); Va. Code 58.1-3617 (Supp. 1988) (exempting from property
tax vehicles "owned by churches and used for church purposes"); 58.1-608(38) (exempting
from sales tax "property . . . purchased by churches" for use in religious services
by a congregation); Wash. Rev. Code 66.20.020(3) (1987) (exempting from licensing
requirements "wine [used] for sacramental purposes"); Wash. Rev. Code 84.36.020 (1987)
(exempting from property tax parsonages); W. Va. Code 11-3-9 (1987) (exempting from
property tax parsonages); Wis. Stat. 70.11(4) (1985-1986) (exempting from property
tax "housing for pastors"); Wyo. Stat. 39-1-201 (a)(vii) (Supp. 1988) (exempting from
property tax "church parsonages"). [489 U.S. 1, 46]