Bullock v. Texas Monthly, Inc.

CARROLL, Justice,

dissenting.

I respectfully dissent. I am particularly troubled by the impermissible intrusion of the State into religious affairs mandated by the express terms of § 151.312. Before allowing an exemption under § 151.312, the Comptroller must not only determine whether a bona fide “religious faith” is distributing the periodical, he must also assess whether the publication consists “wholly” of writings promulgating the teachings of the “religious faith.”

The First Amendment of the United States Constitution provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...

This language does not contemplate that the government may nonetheless pass laws respecting an establishment of religion so long as government officials fairly administer the law. It is important for the continued ability of all people to worship as they choose that no state official be allowed to determine what is and what is not a religion.

I find § 151.312 unconstitutional under the establishment clause of the First Amendment for two basic reasons. 1 First, *167 and foremost, the exemption engenders impermissible state entanglement with religion. Second, as written, § 151.312 has a constitutionally prohibited primary effect of advancing religion.

ENTANGLEMENT

The majority correctly indicates that in determining whether the entanglement engendered by state legislation is constitutionally impermissible, i.e., continuing and excessive, one must look at the character and purpose of the benefited institutions, the nature of the aid, and the resulting relationship between the state and the religious entity. Here, the benefited institutions are only religious organizations. Furthermore, the state aid given is tax favoritism, which has been described as a subsidy. See Regan v. Taxation With Representation, 461 U.S. 540, 544 , 103 S.Ct. 1997, 2000 , 76 L.Ed.2d 129 (1983). The resulting relationship is by no means passive since the statute requires the Comptroller to continually examine religious periodicals and the “religious faiths” promulgating them to determine whether they meet the statutory prerequisites of consisting “wholly” of the teachings of the “religious faith.” By requiring the Comptroller to inquire into the dogma and belief of a religious faith, § 151.312 results in extensive and impermissible state involvement with religion.

*168 It is irrelevant what a given employee of the Comptroller’s Office testifies to how an exemption will be administered. Over the course of time many such individuals will administer and interpret the exemption. We cannot under the First Amendment allow shadowy government officials to determine what is a religious faith and what writings are true to the faith’s doctrine. See Presbyterian Church v. Hull Church, 393 U.S. 440 , 89 S.Ct. 601 , 21 L.Ed.2d 658 (1969). Hence, unlike in Hunt v. McNair, 413 U.S. 734 , 93 S.Ct. 2868 , 37 L.Ed.2d 923 (1973), the institutions regulated here are more than just permeated with a substantial religious character — they are religious organizations.

The language in the Bill of Rights was not drafted on the assumption that government will exercise power properly, but against the possible reality that the power to rule may be abused. The First Amendment does not simply prohibit the establishment of a state church or a state religion, instead it commands that there should be “no law respecting an establishment of religion.” A given law might not establish a state religion but it may nevertheless be one “respecting” that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment. Lemon v. Kurtzman, 403 U.S. 602, 612 , 91 S.Ct. 2105, 2111 , 29 L.Ed.2d 745 (1971). The “perception” that government is aiding religion is enough to strike a law as violating the establishment clause. Cf. Grand Rapids School Dist. v. Ball, 473 U.S. 373 , 105 S.Ct. 3216, 3226 , 87 L.Ed.2d 267 (1985). No ongoing partnership needs to be shown.

PRIMARY EFFECT

Inherent in the First Amendment is an antagonism between the command not to establish a religion and the command not to inhibit its practice. Either religion clause if expanded to its logical extreme would tend to clash with the other. As a result of this tension, state actions must maintain an attitude of “neutrality,” neither advancing nor inhibiting religion. See Committee for Public Education v. NyQuist, 413 U.S. 756, 788 , 93 S.Ct. 2955, 2973 , 37 L.Ed.2d 948 (1973). So long as a law avoids “classifications” couched in terms of religion, either to confer a benefit or to impose a burden, the legislation will be in conformity with both religion clauses. I regard Walz v. Tax Commission, 397 U.S. 664 , 90 S.Ct. 1409 , 25 L.Ed.2d 697 (1970) as standing for the proposition that in order to fulfill the intention of avoiding inhibiting the free exercise of religion by exempting religious organizations from taxes, the statute must be drafted broadly enough so as to not offend the prohibition against establishing a religion.

In Walz , the Supreme Court upheld the granting of property tax exemptions to churches as part of a general exception for a wide variety of nonprofit institutions. The challenged New York statute exempted not only all religious organizations, but also hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups. The breadth of the exemption indicated it had a secular purpose and provided only “incidental” aid to religion. Walz v. Tax Commission, supra at 673, 90 S.Ct. at 1413 . As a consequence, Walz does not approve granting exemptions for church property where no similar exemptions exists for other social services or nonprofit activities. Such a preferential exemption would almost certainly constitute a prohibited aid to certain religious entities.

Subsequent U.S. Supreme Court decisions support this view. In Gillette v. United States, 401 U.S. 437, 454 , 91 S.Ct. 828, 838 , 28 L.Ed.2d 168 (1971), the court indicated while citing Walz that “under the establishment of religion clause of the First Amendment, government ‘neutrality’ in matters of religion is not inconsistent with ‘benevolence’ by way of exemptions from onerous duties, so long as an exemption is tailored broadly enough that it reflects valid secular purposes.” (emphasis added). Likewise, in Committee for Public Education v. NyQuist, supra at 794, 93 S.Ct. at 2976, the court recalled that the exemption challenged in Walz was not restricted to a class composed exclusively or even predominately of religious institu *169 tions. Hence, “the narrowness of the benefited class would be an important factor” in any future challenges of statutory provisions under the established clause. See also Forest Hills Early Learning Center, Inc. v. Lukhard, 728 F.2d 230, 242 (4th Cir.1984); Nowak, Rotunda & Young, Constitutional Law, ch. 19, § II at 1033 n. 14 (2nd ed. 1983).

By interpreting Walz as approving only church property tax exemptions incidental to a broader tax exception, Walz may thereby be reconciled with other establishment clause cases. For instance, in Board of Education v. Allen, 392 U.S. 236 , 88 S.Ct. 1923 , 20 L.Ed.2d 1060 (1968) and Everson v. Board of Education, 330 U.S. 1 , 67 S.Ct. 504 , 91 L.Ed. 711 (1947) the class of beneficiaries included all school children, those in public as well as those in private schools. In Tilton v. Richardson, 403 U.S. 672 , 91 S.Ct. 2091 , 29 L.Ed.2d 290 (1971), federal aid was made available to all institutions of higher learning. To achieve the requisite neutrality required to avoid neither “advancing” nor “inhibiting” religion, the Supreme Court has in each of the above examples upheld classifications not couched in terms of religion.

The bottom line is that any tax exemption which is drafted narrowly in terms of religion — more narrow than the New York exemption upheld in Walz — offends the establishment clause. Special tax benefits given only to religions cannot be squared with the principle of neutrality, and such laws have the inevitable effect and purpose of aiding and advancing only those benefited religious institutions. See Committee for Public Education v. NyQuist, supra at 793, 93 S.Ct. at 2975.

In summary, I find that § 151.312 is an unconstitutional infringement of the establishment clause of the First Amendment of the United States Constitution, applicable to the States under the Fourteenth Amendment. Since the protections under the establishment clause have been held to be fundamental, see Everson v. Board of Education, supra, laws which classify in contravention of those protections must meet strict tests of constitutionality without need to resort to the equal protection clause. Consequently, having found no compelling reasons underpinning § 151.-312, I conclude the provision is unconstitutional without resorting to an equal protection analysis.

REMEDY

The Comptroller’s Office takes the position that should § 151.312 be declared unconstitutional, the appropriate remedy is to sever § 151.312 from the main taxing provisions. The consequences of this proposed action would be to impose a tax on all religious periodicals.

Support for the Comptroller’s argument can be found in Tex. Tax Code Ann. § 101.002 (1982 & Supp.1986) which incorporates by reference the Code Construction Act. Section 311.032(c) of the Code Construction Act provides:

In a statute that does not contain a provision for severability or nonseverability, if any provision of the statute or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the statute that can be given effect without the invalid provision or application, and to this end the provisions of the statute are severable, (emphasis added).

Tex.Gov.'t Code Ann. § 311.032(c) (1985). Hence, based upon § 311.032(c), this Court could sever only § 151.312 without violating the doctrine of separation of powers by imposing a tax.

Despite the technical feasibility of the Comptroller’s argument, I find that the remaining taxing scheme absent § 151.312 cannot be given effect consistent with the religion clauses of the First Amendment. The equal taxation treatment suggested by the Comptroller creates a dilemma in applying the Lemon v. Kurtzman, supra, three-prong test. Although religious periodicals would be taxed on the same basis as other periodicals, the elimination of the exemption would under the reasoning in Walz result in greater entanglement in church affairs. Hence, the purpose and primary effect of the legislation absent § 151.312 would be secular, but the entanglement *170 created in the evaluation of church property, tax foreclosures, and those confrontations which follow the taxing process would contravene the principles in Walz .

Had § 151.312 been drafted more broadly, my decision might be different; however, to be consistent with Walz and the antagonism inherent in the religion clauses, I find the taxing provision must be struck as applied to all periodicals. I would therefore overrule both points of error brought by the Comptroller and affirm the district court’s judgment.

. Although not mentioned or preserved for our review are the Texas constitutional provisions *167 which would support Texas Monthly’s position. The pertinent provisions would be:

Article I, § 6 Freedom of Worship All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its mode of public worship.

Article I, § 7 Appropriations for Sectarian Purposes

No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purposes.

These sections, when combined, preclude the state from establishing a religion, from aiding a particular religion, from aiding all religions, or from preferring one religion over another. A definite wall of separation between church and state is created. In addition, in comparison with the First Amendment of the United States Constitution, Article I, § 6 is more expansive in terms of guaranteeing protection equally of all religions, as well as the right to worship or not to worship, and Article I, § 7 contains a more specific prohibition on establishment.

A basic difference surrounds the Texas Constitution in contrast to the Federal Constitution which favors future reliance on the former. The Texas Bill of Rights is written as an affirmative grant of protections, whereas the federal constitutional language is negatively drafted as a restriction on the powers of government. Where the language of the Texas Constitution differs it is important to reevaluate the issue "to ascertain and give effect to the plain intent and language of the framers and of the people who adopted it.” Gregg v. Cayuga Independent School District, 539 S.W.2d 861, 865-66 (Tex.), appeal dismissed, 429 U.S. 973 , 97 S.Ct. 478 , 50 L.Ed.2d 581 (1976).

There is a presumption that the language used was carefully selected, made to express the will of the people, and that in adopting it the drafters intended to give effect to every one of its provisions. Mellinger v. City of Houston, 68 Tex. 37 , 3 S.W. 249, 252 (1887). Therefore, structural, historical, and comparative analyses are all important. Harrington, The Texas Bill of Rights and Civil Liberties, 18 Tex.Tech.L.Rev. 1487, 1505 (1986).

The Texas constitutional provisions concerning religion, although' in part declaratory of the earlier experiences of America, also reflect an immediate experience in religious intolerance suffered by Texas settlers before their independence from Mexico. At the time of the separation, the laws of Mexico made Catholicism the established religion. The Catholic church was therefore supported by governmental taxation of the citizenry as a whole. The Texas Declaration of Independence in 1836, charged that the Republic of Mexico had denied the colonists the right to worship according to the dictates of their consciences through required support of a national religion. The basic tenet of freedom of religion, which among others prompted the Texas colonists to declare their independence, was carried forward in the language of the first Constitution of the Republic and later state constitutions in order to guard against any future encroachments. See Church v. Bullock, 104 Tex. 1 , 109 S.W. 115 , 117 (1908).

The rich Texas historical background consequently suggests specific constitutional protections not afforded by the United States Constitution. The language and early Texas experience clearly denote a stronger belief in the separation of church and state.