TEXAS MONTHLY, INC. v. BULLOCK

Legal Principle at Issue

Does a Texas law that exempts religious publications from sales taxes, while imposing those taxes on nonreligious publications, violate the Establishment Clause of the First Amendment?

Action

Reversed and remanded. Petitioning party received a favorable disposition.

Facts/Syllabus

Prior to Oct. 2, 1984, Texas exempted from its sales and use tax magazine subscriptions running half a year or longer and entered as second class mail. This exemption was repealed as of Oct. 2, 1984, before being reinstated effective Oct. 1, 1987.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

In 1985, appellant Texas Monthly, 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 District Court of Travis County, Texas, struck down the tax as applied to nonreligious periodicals and ordered the state to refund the tax paid by appellant, plus interest. The Texas Court of Appeals reversed, holding that the exemption satisfied the tripartite test of Lemon v. Kurtzman (1971), 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.