Almost 30 years ago, the Supreme Court ruled that local governments could exempt churches from taxation on their real property. The question is back again, in a slightly different form: May a state exempt the purchase of Bibles from its sales tax?
The case is Pennsylvania vs. Newman, now pending before the high court on a petition for review. The case is new, but the constitutional issue is as old as the Bill of Rights.The Pennsylvania statute in the case at hand is clumsily but clearly phrased. Speaking of the state's sales tax, it says: "The tax imposed by Section 202 shall not be imposed upon . . . the sale at retail or use of religious publications sold by religious groups and Bibles and religious articles."
Two precedents are especially in point. In the older of the two, Walz vs. New York, the Supreme Court sustained a state law authorizing tax exemption for "real or personal property used exclusively for religious, educational or charitable purposes." Frederick Walz argued that the exemption violated the establishment clause: It compelled him indirectly to support religious organizations.
Over the dissent of Justice William Douglas, the high court upheld the law. Chief Justice Warren Earl Burger distilled the essence of the constitutional provisions: "We will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts, there is room for play in the joints productive of a benevolent neutrality . . . ."
The Walz case of 1970 was controlling for almost 20 years. Then came the case of Texas Monthly vs. Bullock in 1989, and Walz took a hit. The Texas law, like the pending case from Pennsylvania, provided an exemption from the state sales tax specifically for religious publications, but it was narrowly aimed. It did not embrace the publications of charitable and educational institutions as well.
The Texas law struck a plurality of the high court as a violation of the establishment clause, but the case left a shaky precedent behind. Justice William Brennan announced the judgment of the court, but only Justice Marshall and Stevens bought his opinion in full.
The nub of the matter is to this effect: If laws providing tax exemptions are to be upheld, the laws must have "breadth." They must treat religious and nonreligious publications all the same, and they must have a secular purpose overall.
This strikes me as a reasonable path through the impenetrable forests of the establishment clause. The Commonwealth of Pennsylvania, I fear, has wandered astray in exempting Bibles but taxing cookbooks. Nothing in the First Amendment justifies laws that are actively hostile to religion. Chief Justice Burger's old doctrine of "benevolent neutrality" will serve them well.
Universal Press Syndicate