Texas Monthly, Inc. v. Bullock

Texas Monthly, Inc. v. Bullock
Texas Monthly, Inc. v. Bullock
	Supreme Court of the United States
Argued November 1, 1988; Decided February 21, 1989
Full case name	Texas Monthly, Inc. ; v.; Bullock, Comptroller of Public Accounts of State of Texas, et al.
Citations	489 U.S. 1 (more)
Holding
	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. Texas Court of Appeal reversed and remanded.
Court membership
	Chief Justice William Rehnquist Associate Justices William J. Brennan Jr. · Byron White; Thurgood Marshall · Harry Blackmun; John P. Stevens · Sandra Day O'Connor; Antonin Scalia · Anthony Kennedy
Case opinions
Majority	Brennan, joined by Marshall, Stevens
Concurrence	White
Concurrence	Blackmun, joined by O'Connor
Dissent	Scalia, joined by Rehnquist, Kennedy

Texas Monthly v. Bullock 489 U.S. 1 (1989) was a case brought before the United States Supreme Court in November 1988. The case (initiated by the publishers of Texas Monthly, a well-known general-interest magazine in Texas) was to test the legality of a Texas Statute that exempted religious publications from paying state sales tax.

The Court, in a 6-3 decision, overturned an appellate court's decision that the exemption was constitutional, and remanded the case.

History

Prior to October 2, 1984, the State of Texas exempted from sales tax "magazine subscriptions running half a year or longer and entered as second class mail". The exemption applied to any subscription regardless of its content.

Beginning on the above date, the State of Texas repealed the exemption (it would later reinstate it in its entirety effective October 1, 1987). However, during the 1984-1987 period it maintained an exemption for "periodicals published or distributed by a religious faith consisting entirely of writings promulgating the teaching of the faith, along with books consisting solely of writings sacred to a religious faith."

The publishers of Texas Monthly, a popular and well-known general-interest magazine that did not qualify for the exemption, challenged the exemption by paying over $400,000 in sales taxes for 1985 under protest, then filing suit in Travis County District Court to recover the taxes paid. The District Court agreed, striking down the statute as a violation of both the Establishment Clause and the Free Press Clause, and ordered the State of Texas to refund the taxes paid plus interest.

However, the Third Texas Court of Appeals reversed in a 2-1 decision. The Court of Appeals determined that the tax exemption met the tests required under Lemon v. Kurtzman and thus did not violate the Establishment Clause. In addition, the Court of Appeals determined that the tax exemption also did not violate the Free Press Clause, as only a handful of publications were qualified.

Supreme Court Decision

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, not only could Congress not establish a religion, but it 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 the religious writers did not pay a tax, then a secular writer would have to. 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 American people were required to pay the tax it did not unduly burden religion to pay the tax nor "prohibit" them from exercising as they wished.

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. They 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 case, by confining the tax exemption exclusively to the sale of religious publications, Texas engaged in preferential support for the communication of religious messages."

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 cited 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 welfare 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.

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