Amicus Curiae Brief — Texas Monthly, Inc. v. Bullock

No. 87-1245

N~- 2 seta

IN THE JUN

Supreme Court of the United States.

OCTOBER TERM, 1987

— j- —

TEXAS MONTHLY, INC.,

Appellant,

—_—V—

BoB BULLOCK, et ai.,

Appellees.

ON APPEAL FROM THE

COURT OF APPEALS OF TEXAS

BRIEF AMICUS CURTAE OF THE AMERICAN

CIVIL LIBERTIES UNION, THE TEXAS CIVIL

LIBERTIES UNION, THE AMERICAN JEWISH

CONGRESS AND THE ANTI-DEFAMATION

LEAGUE OF B’NAI B’RITH

IN SUPPORT OF APPELLANT

Kerry McGrath

James C. Harrington

Texas Civil Liberties Union Foundation

1611 East First Street

Austin, Texas 78702-4455

(512) 477-5849

Steven R. Shapiro

(Counsel of Record)

John A. Powell

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

TABLE OF AUTHORITIES ....+ + «© « «

INTEREST OF AMICI .. «+ «© «© «© © « «

STATEMENT OF THE CASE ...+ + « «

SUMMARY OF ARGUMENT ... ++ «© « «

Re

Il.

CONCLUSION

A STATUTORY SCHEME THAT

AWARDS TAX BENEFITS TO

CERTAIN MAGAZINES BUT

NOT TO OTHERS BASED ON

CONTENT VIOLATES THE

FIRST AMENDMENT .... -;

THE ESTABLISHMENT CLAUSE

IS VIOLATED BY A STATE

STATUTE THAT SINGLES OUT

RELIGION FOR FAVORABLE TAX

TREATMENT ..+ + © © © «

ii

11

19

31

Vv

oa

392 U.S.

Bo Vv

’

107 S.Ct. 1722 (1987)

u ion v.

236 (1968)

,

108 S.Ct. 1157 (1988)

Cantwe Vv e P

310 U.S. 296 (1940) ..

a wn,

447 U.S. 455 (1980) ..

om b

v. Nyquist,

413 U.S. 756 (1973) ..

Corporation of Presiding

Bis Vv

’

107 S.Ct. 2862 (1987)

Edward

Vv

,

107 S.Ct. 2573 (1987)

ve

330 U.S.

Fow Vv

345 U.S.

Vv

a

1 (1947)

67 (1953)

ii

12

28

12

21

23

24

27

29

Grand Rapids School

District Ball.

DTS =. gw og 6 6 5g 8 wl lw BG

Grosjean v. American Press,

er om ee CMEEER 8. 5 « 6 te el «C8, 13, 14

Vv del's Den,

459 U.S. 116 (1982) ...-+-.-+-.- 10, 30

Vv u an,

403 U.S. 602 (1971 a. ae ¢ Be 83—- BO

Minneapolis Star & Tribune Co.

v. Minnesota Comm'r of Revenue,

460 U.S. 575 (1983) ...... .- - passim

Mu er v .

463 U.S. 388 (1983) eee @« © © oc SG, 88S

Police Dep't of Chicago

v. Mosley,

Ga weme we Ctaere) «© © © © © © oe ew ee le 11

Regan v. Taxation with

e s ion,

461 U.S. 540 (1983) .... . 5, 8, 15, 16

Re Vv ’

468 U.S. 641 (1984) es 6 ¢ « «© « « SS

Sloan v. Lemon,

eee >

United States v. Ballard,

DCTP OEMPEE « . «4 6 6 « 0 0 0 co t 26

iii

United States v. Lee,

455 U.S. 252 (1982) a eve

Wallace v. Ja ee,

tS * wl eee

Wa Vv. ommission,

397 U.S. 664 (1970) al ae a

Widmar v. Vincent,

oe el

Wisconsin v. Yoder,

466 G.8. Bee tnever + +e

Witters v. Washington Dep't

of Services for the Blind,

676 U.8. @6e tanees «6 6

Statutes

Texas Tax Code Ann. §151.312 .

Other Authorities

Madison, "Memorial and

Remonstrance Against Religious

Assessments" (1785). .... .

iv

- 26,

20

28

22

21

19

26

INTEREST OF AMICI2/

The American Civil Liberties Union

(ACLU) is a nationwide, non-partisan

organization with over 250,000 members

dedicated to defending the principles of

individual liberty embodied in the Con-

stitution. The Texas Civil Liberties Union

is one of its state affiliates.

A central tenet of the ACLU since its

founding nearly 70 years ago is that the

government must remain neutral in matters

of individual conscience. Thus, the free

speech clause of the First Amendment pro-

hibits the government from favoring one

publication over another because of its

content. Likewise, the establishment

clause of the First Amendment prohibits the

l/ letters of consent to the filing of this brief

have been lodged with the Clerk of the Court

pursuant to Rule 36.2.

government from favoring religion over non-

religion except in very limited circum-

stances. By granting religious periodicals

a special exemption from the state sales

tax, Texas has violated both of these

principles.

The American Jewish Congress is a

membership organization of American Jews

founded in 1918 which seeks to protect the

religious, political and economic rights of

Jews and to promote civil rights and lib-

erties for all Americans. The American

Jewish Congress is particularly committed

to the great freedoms secured by the First

Amendment which ensure government neutral-

ity with respect to religion and which bar

government from subsidizing religious

speech because of its content.

The Anti-Defamation League of B'nai

B'rith was organized in 1913 to advance

good will and mutual understanding among

Americans of all creeds and races, and to

combat racial and religious prejudice in

the United States. The Anti-Defamation

League has always adhered to the principle

that the above goals and the general sta-

bility of our democracy are best served

through the separation of church and state

and the right to free exercise of religion.

Amici submit this brief in support of

appellant, and urge this Court to reverse

the decision below.

STATEMENT OF THE CASE

This case challenges the constitution-

ality of a Texas statute that confers a

unique and valuable benefit on religion by

relieving religious periodicals, and only

religious periodicals, of any obligation to

pay the state sales tax. Specifically,

§151.312 of the Texas Tax Code provides:

Periodicals that are published or

distributed by a religious faith

and that consist wholly of writ-

ings promulgating the teaching of

the faith and books that consist

wholly of writings sacred to a

religion or religious faith are

exempted from the taxes imposed

by this Chapter.

Appellant Texas Monthly is a general

interest magazine that is neither "pub-

lished [n]Jor distributed by a religious

faith." Without the benefit of the tax

exemption available to religious periodi-

cals, it paid (under protest) approximately

$150,000 in state sales tax for the eleven

month period between January and December

1985. Bullock v. Texas Monthly, Inc., 731

S.W.2d 160, 162 (Tx.Ct.App- 1987). It then

brought suit seeking restitution on two

separate but related constitutional

theories.

First, appellant contended that its

tax liability could not be determined by

the content of its magazine under well-

settled principles of First Amendment law.

That claim was rejected by the court below

on the purported authority of Regan v.

Taxation with Representation, 461 U.S. 540

(1983). On rehearing, the Texas Court of

Appeals also rejected the relevance of

Arkansas Writers' Project v. Ragland, 107

S.Ct. 1722 (1987). AS construed by the

court below, Ragland only applies when a

small group of magazines is singled out for

taxation based on content, and does not

apply when a small group of magazines is

Singled out for a tax exemption based on

content. 731 S.W.2d at 165.

Second, appellant argued that the

state's decision to grant preferential tax

status to religious periodicals violated

the establishment clause. This Claim, as

well, was rejected below in a discussion

that rested almost entirely on this Court's

decision in Walz v. Tax Commission, 397

U.S. 664 (1970).

SUMMARY OF ARGUMENT

The central teaching of the First

Amendment is that the government must

remain neutral in matters of individual

conscience. E.g. Wallace v. Jaffree, 472

U.S. 38, 50 (1985). That principle is

expressed in a variety of specific First

Amendment doctrines, two of which are

particularly relevant here. In matters of

speech, the government is generally barred

from drawing distinctions based on content.

In matters of faith, the government is

generally barred from favoring religion

over those who pursue a more secular vision

of society.

Both these doctrines are the product

of long and bitter experience; both are

deeply embedded in our national heritage;

and both were violated by the decision

below. Moreover, the decision below seri-

ously misinterpreted several recent deci-

sions by this Court reaffirming the consti-

tutional principle of government neutrality

under the First Amendment.

This Court has been especially vigi-

lant in ensuring that the government's

power to tax does not become a weapon for

censorship. Thus, this Court has repeated-

ly and consistently struck down taxing

schemes that either penalize or reward

taxpayers because of the content of their

speech. See Arkansas Writers' Project v.

Ragland, supra; Minneapolis Star & Tribune

Vv i : Vv , 460

U.S. 575 (1983); Grosjean v. American

Press, 297 U.S. 233 (1936).

Contrary to the view of the court

below, Vv a i wi -

tion ("TWR") is entirely consistent with

this line of cases. In TWR, the Court

carefully emphasized that the special tax

benefit granted to veterans' groups was

tied to their status and not to the content

of their lobbying program. Here, by con-

trast, the challenged tax exemption turns

solely on questions of content.

Furthermore, the content-based judg-

ments compelled by §151.312 have only one

purpose: to grant a preference to reli-

gious periodicals. That purpose is incon-

sistent with the most basic premises of the

establishment clause. Edwards v.

Aguillard, 107 S.Ct. 2753 (1987). In

addition, the statute has the effect of

promoting religion, and encouraging an

excessive entanglement between church and

state. Lemon v. Kurtzman, 403 U.S. 602

(1971). Nor can the specter of entangle-

ment be avoided by delegating to religion

the right to decide whether the criteria

for tax exemption have in fact been met.

See Larkin v. Grendel's Den, 459 U.S. 116

(1982).

Finally, Walz v. Tax Commission

cannot be read as a blanket endorsement of

any tax scheme benefiting religion. In

Walz, the Court upheld a property tax

exemption that religious organizations

shared with other charitable groups. The

Court has never upheld a tax exemption

targeted at religion alone. Even if such a

targeted benefit is not per se unconstitu-

tional, it cannot be sustained unless

necessary to accommodate a substantial free

exercise claim. In this case, there is

none. Cf. Corporation of Presiding Bishop

v. Amos, 107 S.Ct. 2862 (1987).

10

Under Texas law, a magazine that

consists "wholly of writings promulgating”

the religious faith of its publisher is

exempt from the sales tax that other peri-

odicals must pay. On its face, this statu-

tory scheme violates the obligation of

content-neutrality imposed by the First

Amendment.

As this Court has frequently noted:

[A]bove all else, the First

Amendment means that government

has no power to restrict expres-

sion because of its message, its

ideas, its subject matter, or its

content.

Police Dep't of Chicago v. Mosley, 408 U.S.

92, 95 (1972). Thus, "(rJegulations which

permit the Government to discriminate on

the basis of the content of the message

cannot be tolerated under the First Amend-

11

ment." Regan v. Time, Inc., 468 U.S. 641,

648-49 (1984). See also Boos v. Barry, 108

S.Ct. 1157 (1988); Carey v. Brown, 447 U.S.

455 (1980).

This Court has been especially sensi-

tive to charges of selective taxation based

on content. The explanation for that

concern is obvious. “A power to tax dif-

ferentially, as opposed to a power to tax

generally, gives a government a powerful

weapon against the taxpayer selected."

Minneapolis Star, 460 U.S. at 585.

Reflecting that concern, this Court

has never upheld a differential tax scheme

based on the content of a publication. The

issue has come to the Court three times

over a period of nearly fifty years, and on

each occasion the Court has ruled in favor

of the taxpayer on First Amendment grounds.

See Arkansas Writers' Project v. Ragland,

12

supra; Minneapolis Star, supra; Grosjean v.

Ameri Ss, supra.

The Court's most recent holding, in

Ragland, succinctly summarizes the well-

settled law in this area:

(T]he basis on which Arkansas

differentiates between magazines

is particularly repugnant to

First Amendment principles: a

magazine's tax status depends

entirely on its content.

107 §.Ct. at 1727 (emphasis in original).

The decision by the Texas Court of

Appeals attempts to distinguish Ragland on

the ground that the state in that case had

chosen to tax a "small group" of publishers

whereas here the "great mass of publishers

remain subject to the sales tax." 731

S.W.2d at 165. It is not exactly clear why

the court below found this distinction

meaningful. In any event, it is flawed

both descriptively and theoretically.

13

Like most affirmative/negative dis-

tinctions, the line drawn by the court

below is mostly a matter of perspective.

Instead of focusing on the "great mass of

publishers who remain subject to the sales

tax" in Texas, the court could just as

easily have focused on the "small group" of

publishers who are exempt from the tax.

Presumably, the court meant to suggest

that the likelihood of a punitive tax

decreases as the size of the taxed group

increases. However, that assumption is

irrelevant even assuming it is valid.2/ As

this Court stated in Minneapolis Star, 460

U.S. at 592, and repeated in Ragland, 107

S.Ct. at 1727, "[ijJllicit legislative

intent is not the Sine qua non of a viola-

2/ In both Grosjean and Minneapolis Star, the

state's largest newspapers were in the "small

group" of publications subject to a discriminatory

tax

14

tion of the First Amendment." For similar

reason, this Court has not required evi-

dence of viewpoint discrimination in this

context. Ragland, 107 S.Ct. at 1728.

The effort by the court below to draw

an analogy between this case and Regan v.

Taxation with Representation is equally

flawed. In TWR, the Court upheld a provi-

sion of the federal tax code that permits

veterans' organizations to lobby with tax

exempt dollars although other charitable

groups are denied a similar benefit.

Unlike the statute in this case, however,

the statute in TWR was content-neutral.

Moreover, the Court emphasized pre-

cisely that point, noting that "the veter-

ans' organizations that qualify under [the

statute] are entitled to receive tax-

deductible contributions regardless of the

content of any speech they may use,

15

including lobbying." 461 U.S. at 548. In

short, their favorable tax treatment was a

function ef who they were, not what they

said. Id. at 550-51.3/

The Texas statute, by contrast, is

undeniably content-based. Religious pub-

lications are not automatically entitled to

a tax exemption regardless of what they

print. The exemption is only available if

the publication consists "wholly" of reli-

gious writings. That determination plainly

cannot be made without examining the con-

tents of each specific issue and article.

Under the circumstances, Texas "faces

a heavy burden in attempting to defend its

3/ The court below also cited TWR for the proposi-

tion that the First Amendment does not guarantee a

right to have one's speech subsidized by the

government. 731 S.W.2d at 165. That proposition,

however, is not in dispute here. Texas Monthly

Claims only the right to be free from discrimina-

tion because of the content of its message.

16

content-based approach to taxation of

magazines." Ragland, 107 S.Ct. at 1728.

Having employed the wrong legal analysis,

the court below also employed the wrong

legal standard. Rather than the strict

scrutiny demanded by this Court's decisions

in Ragland and Minneapolis Star, the deci-

sion cf the Texas Court of Appeals is so

deferential in its standard of review that

it does not even pause to identify -- let

alone examine -- the interests asserted by

the state in support of the challenged

statute.

In reviewing possible justifications

for the Texas statute, this Court is not

writing on a clean slate. The desire to

raise additional revenue for the state is

clearly insufficient to justify a scheme of

differential taxes based on the content of

protected speech. Ragland, 107 S.Ct. at

17

1728-29; Minneapolis Star, 460 U.S. at

586. And for reasons more fully described

in the following section, the desire to

favor religion through the distribution of

favorable tax benefits is clearly prohib-

ited by the establishment clause. Finally,

Texas' benevolent attitude toward religion

cannot be described as necessary to pre-

serve free exercise rights since there is

no free exercise right to a tax exemption.

Uni tes v. Lee, 455 U.S. 252 (1982).

In short, there is no compelling

justification adequate to support the

challenged statute. Under Ragland and

Minneapolis Star, it must be struck down.

18

II. THE ESTABLISHMENT CLAUSE IS

FAVORABLE TAX TREATMENT

Section 151.312 offends the neutrality

principle of the First Amendment in a

second fundamental sense. By requiring

state officials to make content-based

judgments in administering the tax laws, it

violates the free speech clause of the

First Amendment. By singling out religion

as the only subject matter entitled to

favorable tax treatment, it also violates

the establishment clause.

This point was aptly summarized by the

dissenting opinion of Justice Carroll in

the Texas Court of Appeals:

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 organizations.

731 S.W.2d at 169 (emphasis in original).

19

In response to appellant's establish-

ment law challenge, the majority below

relied almost entirely on Walz v. Tax

Commission, 397 U.S. 664 (1970). Walz,

however, is readily distinguishable. The

New York statute at issue in Walz did not

single out religion for favored treatment.

Rather, the question before the Court was

whether religious organizations should be

disabled from receiving a tax benefit

otherwise available to a broad range of

charitable groups. 397 U.S. at 672-73.

This distinction is a crucial one and

has been emphasized by the Court in numer-

ous decisions. For example, in Mueller v.

Allen, 463 U.S. 388 (1983), the Court

upheld a Minnesota statute permitting

parents to deduct certain educational

expenses even if those expenses were in-

curred for religious education. The deci-

20

sion turned, in large measure, on the

Court's observation that “the deduction is

available for educational expenses incurred

by all parents... ." Id. at 397

(emphasis in original). See also Witters

v. Washington Dep't of Services for the

Blind, 474 U.S. 481 (1986).

By contrast, in Committee for Public

Education v. Nyquist, 413 U.S. 756 (1973),

the Court struck down a system of tuition

grants that were only available to parents

of children in non-public schools.4/ See

also Sloan v. Lemon, 413 U.S. 825, 832

(1973).

4/ Nyquist specifically distinguished this

Court's earlier decisions in Everson v. Board of

Education, 330 U.S. 1 (1947), and Board of

Education v. Allen, 392 U.S. 236 (1968), on the

ground that "the class of beneficiaries [in both

those cases] included al] schoolchildren, those in

public as well as those in private schools." 413

U.S. at 782 n.38 (emphasis in original).

21

Amici do not contend that a statutory

exemption limited to religion is per se

invalid under the establishment clause.

See Corporation of Presiding Bishop v.

Amos, 107 S.Ct. 2862, 2869 (1987). At the

same time, "(t]he Court must not ignore the

danger that an exception from a general

obligation of citizenship on religious

grounds may run afoul of the Establishment

Clause... ." Wisconsin v. Yoder, 406

U.S. 205, 220-21 (1972). Accordingly, such

exceptions have been permitted only if

"vital .. . to the protection of values

promoted by the right of free exercise."

Id. at 221.

For example, the concern in Amos was

that a broad application of Title VII to

religious groups might burden their core

associational rights. 107 S.Ct. at 2869.

Here, there is no similar countervailing

22

interest. As previously noted, there is no

free exercise right to a tax exemption.

United States v. Lee, supra. Conversely,

the denial of a tax subsidy that no one

else is receiving has never been recognized

as an unconstitutional burden on First

Amendment freedoms. See Ragland, 107 S.Ct.

at 1731 (Scalia, J., dissenting).

Viewed as a special subsidy for reli-

gion, the Texas statute cannot survive the

familiar tripartite test of Lemon v,

Kurtzman, 403 U.S. 602 (1971). Indeed, it

fails each element of the test. There is

no conceivable secular purpose in a law

designed to encourage the promulgation of

a religious message. Unlike Amos, this is

not a case in which the state is acting

"to alleviate significant governmental

interference with the ability of religious

organizations to define and carry out their

23

religious missions." 107 S.Ct. at 2868.

Rather, this is a case in which the state

is actively assisting religion in spreading

its faith through subsidized publications.

In Edwards v. Aguillard, 107 S.Ct.

2573 (1987), this Court struck down the

Louisiana Creationism Act because its

requirement that evolution and creationism

be given equal time in the classroom lacked

a valid secular purpose. Here, Texas has

gone beyond a requirement of mandated

equality; it has given religion a preferen-

tial place in the marketplace of ideas

through its differential tax scheme. If

anything, the favored treatment of religion

under the Texas statute conveys even a

clearer message of endorsement than in

Aguillard, and thus is more clearly barred

by the establishment clause. See Grand

24

Rapids School District v. Ball, 473 U.S.

373, 389 (1985).

The Texas statute also has the undeni-

able effect of advancing re!.gion by re-

lieving religious magazines of the substan-

tial tax burden imposed on other periodi-

cals delivering a non-religious message. >/

At a very minimum, the establishment clause

surely prohibits the government from grant-

ing a competitive advantage to religion in

the marketplace of ideas.

Finally, the Texas law dangerously

entangles church and state.£/ By its very

3/ As previously noted, Texas Monthly paid nearly

$150,000 in state sales tax for the eleven month

period between January and December 1985. See

pp.3-4, infra.

§/ The state's contention that its differential

tax scheme is necessary to avoid entanglement

between church and state is difficult to conpre-

hend. Without the exemption, the state would

simply treat religious publishers like all other

publishers subject to the tax. Moreover, the tax

in this case is easily calculated; it does not

(continued...)

25

terms, the tax exemption only applies to

“(pjeriodicals that are published or dis-

tributed by a religicus faith and that

consist wholly of writings promulgating the

teaching of the faith... ." Even

assuming that the bona fides of a religion

can be determined without excessive

entanglement, see United States v. Ballard,

322 U.S. 78 (1944), the inquiry into

whether specific writings "promulgat[e] . .

- the faith" is laden with establishment

Clause problems.

Echoing Madison's famous Memorial and

Remonstrance Against Religious Assess-

& (...continued)

require intrusive apportionment. Preventing such

limited interaction between the state and religious

publishers hardly demonstrates the compelling state

interest necessary to sustain a content-based

Classification. See Widmar v. Vincent, 454 U.S.

263, 276 (1981).

26

ments,2/ this Court has frequently noted

the danger of permitting state officials to

scrutinize religious speech and determine

its religious content, albeit in contexts

in which the religious speech is typically

the subject of censorship rather than

favored treatment.

For example, in Cantwell v.

Connecticut, 310 U.S. 296 (1940), the Court

rejected the right of public officials to

determine what is or is not a “religious

7/ Madison objected to a proposed public tax in

support of religious education on a variety of

grounds, including his concern that

the bill implies either that the Civil

Magistrate is a competent Judge of Religious

truth; or that he may employ Religion as an

engine of Civil policy. The first is an

arrogant pretension falsified by the

contradictory opinions of Rulers in all ages,

and throughout the world: The second an

unhallowed perversion of the means of

salvation.

See Everson v. Board of Education, 330 U.S. at 67.

27

cause." As the Court correctly observed,

such judgments inevitably involve the

"appraisal of facts, the exercise of judg-

ment, and the formation of an opinion."

Id. at 305. For both practical and his-

torical reasons, the Court found such a

grant of discretionary authority incom-

patible with the notion of religious

liberty protected by the First Amendment.

Similarly, in Widmar v. Vincent, 454

U.S. 263, 269 n.6 (1981), this Court

rejected a proposed distinction between

religious worship and religious speech on

the ground that it would compel the state

"to inquire into the significance

of words and practices to dif-

ferent religious faiths, and in

varying circumstances to the

same religious faith. Such

inquiries would tend inevitably

to entangle the State with reli-

gion in a manner forbidden by

our cases."

28

Accord, Lemon v. Kurtzman, 403 U.S. at 620

("state inspection and evaluation of the

religious content of a religious organiza-

tion is fraught with the sort of entangle-

ment that the Constitution forbids") ;

Ow Vv , 345 U.S. 67, 70

(1953) ("it is no business of courts to say

that what is a religious practice or

activity for one group is not religion

under the protection of the First

Amendment") . 8/

In an effort to avoid these entangle-

ment problems, Texas officials testified at

trial that "we leave it to [the organi-

zation] to decide whether or not it's a

publication that teaches their faith." 731

8/ ‘the dissenting opinion below made a similar

point: "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." 731 S.W.2d at 166.

29

S.W.2d at 164. This hands-off approach,

however, only creates different establish-

ment clause problems.

Needless to say, Texas does not ordi-

narily allow taxpayers to determine their

own eligibility for a tax exemption. By

ceding that authority to religion in this

instance, Texas has created a statutory

framework that “enmeshes churches in the

processes of government." Larkin v.

Gre 's , 459 U.S. 116, 127

(1982). The benefit obtained by religion

is therefore real and "symbolic." Id. at

125. Both on its face and as applied, the

Texas statute cannot be reconciled with the

establishment clause.

30

CONCLUSTON

The First Amendment mandates govern-

ment neutrality toward thought and belief.

Texas has violated that mandate by enacting

a special tax exemption for religious

periodicals. For the reasons stated

herein, the judgment below should be

reversed.

Respectfully submitted,

Kerry McGrath

James C. Harrington

Texas Civil Liberties

Union Foundation

1611 East First Street

Austin, TX 78702-4455

(512) 477-5849

Steven R. Shapiro

(Counsel of Record)

John A. Powell

American Civil Liberties

Union Foundation

132 West 43 Street

New York, NY 10036

(212) 944-9800

Dated: June 2, 1988

31