Texas Monthly, Inc. v. Bullock
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Texas Monthly v. Bullock was brought before the United States Supreme Court in November of 1988. It was to test the legality of a Texas Statute that exempted religious publications from paying state sales tax. The Court in an opinion written by Justice Brennan overturned the appellate courts decision. The state was ordered to refund the sales tax paid by the magazine, Texas Monthly Inc., with interest.
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[edit] Brennan's opinion
Justice Brennan along with Justice Thurgood Marshall and Justice Stevens based their opinion in the establishment clause of the U.S. Constitution which reads "Congress shall make no law respecting an establishment of religion." As had been decided in earlier cases (Wallace v. Jaffree and Welsh v United States) not only could congress not establish a religion, but they could not pass a law with the purpose of advancing religion in respect to non-religion. The lack of a sales tax on religious literature was in effect a subsidy to these religious writers. If they did not pay than someone else would have too. This would in essence force tax payers, whether religious or not to pay for a subsidy to religions. They held that had the statute been more broad, including charities for example, then it would have been constitutional. Brennan recognized the argument of the state that taxing the publications may inhibit their ability to function to some extent thereby going against the Free Exercise Clause which states continuing from the above clause "or prohibiting the free exercise thereof." However Brennan argued that if all people were required to pay the tax it did not unduly burden religion to pay the tax nor "prohibit" them from excersizing as they wished.
[edit] Concurring opinion
The concurring opinion written by Justice Blackmun and joined by Justice O'Connor disagrees with both the court's opinion and the dissenting opinion. Blackmun argues that the opinion does not recognize enough the Free Exercise Clause and the dissent does not recognize the Establishment Clause. He argues that in order to understand the case you must see those two clauses along with the Press Clause which states "Congress shall make no law... abridging the freedom of speech." When religious writings are given certain perks like a pass on sales tax the free speech of other writers is inhibited because they do have to pay the sales tax. The go on to say that free speech is not inhibited enough to be an issue and so one must decide where the line between the establishment clause and the free exercise clause lays. Blackmun argued that had the law been written to include other philosophical literature it that encouraged morality it may have stood, but when it expressly focused on religion the establishment clause had been violated. Blackmun wrote "In this cas, by confining the tax exemption exclusively to the sale of religious publications, Texas engaged in preferential support for the communication of religious messages."
[edit] Dissenting opinion
Justice Scalia wrote the dissenting opinion being joined by Chief Justice Rehnquist and Justice Kennedy refuting the arguments by Brennan and Blackmun. He extensively sites Walz v Tax Commission where the justices found a New York law allowing religions and other non-profit organizations to not pay property tax. Scalia argued that even though it included non-profit organizations they had ruled specifically in favor of the exemptions for religions stating in Walz "We find it unnecessary to justify the tax exemption of the social weldare services or 'good works' that some churches perform." He goes on to say that though a tax exemption is similar economically to a subsidy when discussing the establishment clause they are different as found in Walz. Scalia also recognizes that a line must be drawn between the establishment clause and the free exercise clause but sees more room between them. He argues that just because a law is not necessary for the free exercise clause does not mean that it is unconstitutional on establishment grounds. Thirdly he says that it passes all three prongs of the Lemon test by not overly entangling the church and state.
[edit] Notes
1. The Constitution and Religion edited by Robert S. Ally Copyright 1999 by Robert S. Ally Published by Prometheus Books
