TEXAS MONTHLY, INC. V. BULLOCK, 489 U. S. 1 (1989)

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U.S. Supreme Court

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)

Texas Monthly, Inc. v. Bullock

No. 87-1245

Argued November 1, 1988

Decided February 21, 1989

489 U.S. 1


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, 403 U. S. 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.

Page 489 U. S. 2

Held: The judgment is reversed, and the case is remanded.

731 S.W.2d 160, reversed and remanded.


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 under-inclusive 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. 489 U. S. 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. 489 U. S. 8-18.

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. 489 U. S. 17-25.

Page 489 U. S. 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. 489 U. S. 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. 489 U. S. 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

Page 489 U. S. 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. 489 U. S. 21-25.

JUSTICE WHITE concluded that Arkansas Writers' Project 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. 489 U. S. 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. 489 U. S. 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. 489 U. S. 25. BLACKMUN, J., filed an opinion concurring in the judgment, in which O'CONNOR, J., joined, post, p. 489 U. S. 26. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J.,and KENNEDY, J., joined U.S. 489 U. S. 29.

Page 489 U. S. 5

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