Texas Monthly, Inc. v. Bullock

Justice Brennan, Justice Marshall, and Justice Stevens based their plurality opinion in the Establishment Clause: "Congress shall make no law respecting an establishment of religion." As had been decided in earlier cases, Congress cannot establish a religion or even pass a law with the purpose of advancing religion in respect to non-religion.

The lack of a sales tax on religious literature was in effect a subsidy to the religious writers. If the religious writers did not pay a tax, then a secular writer would have to. That would in essence force tax payers, religious or not, to pay for a subsidy to religions. They held that had the statute been broader, including charities, for example, it would have been constitutional. Justice Brennan recognized the argument of Texas that taxing the publications may inhibit their ability to function to some extent thereby going against the Free Exercise Clause which states continuing from the above clause "or prohibiting the free exercise thereof." However, Justice Brennan argued that if all American people were required to pay the tax it did not unduly burden religion to pay the tax nor "prohibit" them from exercising as they wished.

Justice White concurred in the judgment but argued that under the Court's prior precedent in Arkansas Writers' Project v. Ragland (1987),[3] the Texas Law violated the Press Clause by taxing Texas Monthly but exempting other publishers solely on the basis of the religious content of their publications.

Justice Blackmun concurred in the judgment and wrote an opinion, joined by Justice O'Connor, disagreeing with both the plurality and the dissenting opinions. He argued that the opinion does not recognize enough the Free Exercise Clause, and the dissent does not recognize the Establishment Clause. He argued that to understand the case, both clauses must be seen along with the Press Clause, which states "Congress shall make no law... abridging the freedom of speech."

When religious writings are given certain perks like a pass on sales tax, the freedom of speech of the other writers is inhibited because they have to pay sales tax. Free speech is not inhibited enough to be an issue and so one must decide where the line is between the Establishment Clause and the Free Exercise Clause. He argued that had the law been written to include other philosophical literature encouraging morality, it may have stood, but when it expressly focused on religion the Establishment Clause had been violated: "In this case, by confining the tax exemption exclusively to the sale of religious publications, Texas engaged in preferential support for the communication of religious messages."

Justice Scalia wrote a dissenting opinion, joined by Chief Justice Rehnquist and Justice Kennedy, refuting the arguments of Justices Brennan and Blackmun. He extensively cited Walz v. Tax Commission of the City of New York (1970),[4] where the Court found a New York law allowing religions and other non-profit organizations to not pay property tax. He argued that even though it included non-profit organizations, the Court had ruled specifically in favor of the exemptions for religions stating in Walz: "We find it unnecessary to justify the tax exemption of the social welfare services or 'good works' that some churches perform." He stated that though a tax exemption is similar economically to a subsidy, when discussing the Establishment Clause, they are different as found in Walz.

Also, a line must be drawn between the Establishment Clause and the Free Exercise Clause but sees more room between them. He argued that just because a law is not necessary for the Free Exercise Clause does not mean that it is unconstitutional on Establishment Clause grounds. He also notes that it passes all three prongs of the Lemon test by not overly entangling the church and state.