Texas Monthly, Inc. v. Bullock

489 U.S. 1, 109 S. Ct. 890, 103 L. Ed. 2d 1, 1989 U.S. LEXIS 662, 16 Media L. Rep. (BNA) 1177, 57 U.S.L.W. 4168
CourtSupreme Court of the United States
DecidedFebruary 21, 1989
Docket87-1245
StatusPublished
Cited by333 cases

This text of 489 U.S. 1 (Texas Monthly, Inc. v. Bullock) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S. Ct. 890, 103 L. Ed. 2d 1, 1989 U.S. LEXIS 662, 16 Media L. Rep. (BNA) 1177, 57 U.S.L.W. 4168 (1989).

Opinions

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 “[pjeriodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith.” Tex. Tax Code Ann. §151.312 (1982). The question presented is whether this exemption violates the Establishment Clause or the Free Press Clause of the First Amendment when the State denies a like exemption for other publications. We hold that, when confined exclusively to publications advancing the tenets of a religious faith, the exemption runs afoul of the Establishment Clause; accordingly, we need not reach the question whether it contravenes the Free Press Clause as well.

I

Prior to October 2, 1984, Texas exempted from its sales and use tax magazine subscriptions running half a year or longer and entered as second class mail. Tex. Tax Code Ann. §151.320 (1982). This exemption was repealed as of October 2, 1984, before being reinstated effective October 1, 1987. Tex. Tax Code Ann. §151.320 (Supp. 1988-1989). Throughout this 3-year period, Texas continued to exempt from its sales and use tax periodicals published or distributed by a religious faith consisting entirely of writings promulgating the teaching of the faith, along with books consisting [6]*6solely 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-l vote. 731 S. W. 2d 160 (1987). Applying the tripartite test enunciated in Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971), the court held, first, that the exemption served the secular purpose of preserving separation between church and state. Second, the court asserted that the exemption did not have the primary effect of advancing or inhibiting religion, because “the effect of religious tax exemptions such as § 151.312 is to permit religious organizations to be independent of government support or sanction.” 731 S. W. 2d, at 163. The court considered it irrele[7]*7vant 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.

now reverse. We noted probable jurisdiction, 485 U. S. 958 (1988), and now reverse.

As a preliminary matter, Texas argues that appellant lacks standing to challenge the constitutionality of the exemption. It claims that if this Court were to declare the exemption [8]*8invalid, 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 prerequisite 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

(PC)Valencia v. Medina
E.D. California, 2025
Ewalan v. Strange
W.D. Washington, 2025
American Legion v. American Humanist Assn.
588 U.S. 29 (Supreme Court, 2019)
Dumont v. Lyon
341 F. Supp. 3d 706 (E.D. Michigan, 2018)
Ivan Pena v. Stephen Lindley
898 F.3d 969 (Ninth Circuit, 2018)
Sims v. Amer. Postal Workers, et al.
2013 DNH 115 (D. New Hampshire, 2013)
Freedom from Religion Foundation, Inc. v. Geithner
715 F. Supp. 2d 1051 (E.D. California, 2010)
Urso v. Prudential Insurance
2008 DNH 004 (D. New Hampshire, 2008)
Budlong v. Graham
488 F. Supp. 2d 1252 (N.D. Georgia, 2007)
Davey v. Life Ins. Co. of N.A.
2006 DNH 068 (D. New Hampshire, 2006)
Kitzmiller v. Dover Area School District
400 F. Supp. 2d 707 (M.D. Pennsylvania, 2005)
Maureen Keough v. Liberty Life Assur.
2005 DNH 032 (D. New Hampshire, 2005)
Arsenault v. Metropolitan Life
2004 DNH 143 (D. New Hampshire, 2004)
Seidman v. Paradise Valley Unified School District No. 69
327 F. Supp. 2d 1098 (D. Arizona, 2004)
Williams v. Bitner
285 F. Supp. 2d 593 (M.D. Pennsylvania, 2003)
Jeffrey R. King and Sabrina M. King v. Commissioner
121 T.C. No. 12 (U.S. Tax Court, 2003)
Circle School v. Phillips
270 F. Supp. 2d 616 (E.D. Pennsylvania, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
489 U.S. 1, 109 S. Ct. 890, 103 L. Ed. 2d 1, 1989 U.S. LEXIS 662, 16 Media L. Rep. (BNA) 1177, 57 U.S.L.W. 4168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-monthly-inc-v-bullock-scotus-1989.