More on the dissent: sales tax exemption

[Mark Rahdert]

        I wonder how closely the dissenting judge read Justice Blackmun's
opinion.  On the issue before the Pa. court it seems clear enough to me.
Blackmun wrote:

        "In this case, by confining the tax exemption exclusively to the
sale of religious publications, Texas engaged in preferential suppport for
the communication of religious messages.  Although some forms of
accommodating religion are constitutionally permissible, this one surely is
not.  A statutory preference for the dissemination of religious ideas
offends our most basic understanding of what the Establishment Clause is all
about and hence is constitutionally intolerable.  Accordingly ... the
Establishment clause prohibits a tax exemption limited to the sale of
religious literature."  One could substitute Pennsylvania for Texas and that
statement would dispose of the Pa. case.

        In addition, it seems to me to be a novel argument that a lower
court doesn't need to follow Supreme Court precedent because it concludes
that the Court didn't do an adequate job of explaining its position.  If
Blackmun's opinion were indeed undecipherable, the narrowest rationale
supporting the judgment by default would become Brennan's plurality reasoning.

Mark Rahdert
Temple Law School

    At 09:59 PM 4/29/98 EST, Jim Maule wrote:
>More on Marty Lederman's question:
>
>The case is Haller, 693 A2d 266 (1997)
>
>After laying out the Texas Monthly case, the dissent states:
>
>  Thus, the opinions written by the Supreme Court in Texas Monthly in
>favor of striking down the  sales tax exemption  are made up of three
>Justices (Justice Brennan's plurality opinion) who would find that the
>statute violates the Establishment Clause under the Lemon test; a
>single Justice (Justice White's concurring opinion) who believes the
>statute violates only the Press Clause; and two Justices (Justice
>Blackmun's concurring opinion) who, although believing the statute
>should be struck down under the Establishment Clause, provide no more
>than a cursory explanation for this conclusion. I am unable to
>ascertain much, if anything, concerning the rationale underlying
>Justice Blackmun's opinion beyond the fact that he does not agree
>with Justice Brennan's or Justice White's rationale on the subject.
>Thus, because Texas Monthly has not garnered a majority of Justices
>who agreed upon both the result, as well as the underlying rationale
>for that result, that decision is not binding precedent.
>
>   To determine the precedential value of a United States Supreme
>Court decision where a majority of the Court does not agree on a
>single rationale, "the holding of the Court may be viewed as that
>position taken by those members who concurred in the judgment[] on
>the narrowest grounds."  Marks v. United States, 430 U.S. 188, 193,
>51 L. Ed. 2d 260, 97 S. Ct. 990 (1977). When the reasoning of a
>plurality opinion does not represent the views of a majority of the
>Court, the opinion is not binding. See CTS Corporation v. Dynamics
>Corporation of America, 481 U.S. 69, 95 L. Ed. 2d 67, 107 S. Ct. 1637
>(1987). I conclude, therefore, that the opinions in Texas Monthly are
>so splintered that it is impossible to find sufficient common ground
>between them with which to determine the ratio decidendi of the
>Court.
>
>   In the present case, the majority acknowledges the contention that
>Texas Monthly should not be followed as binding precedent, but it
>then fails to discuss the argument. The majority never offers what it
>believes to be the Supreme Court's common underlying rationale for
>finding that the  sales tax exemption  violated the Establishment
>Clause.
>
>  Remaining unconvinced that Texas Monthly articulates a common
>rationale for striking down the  sales tax exemption  under the
>Establishment Clause, I find that Walz v. Tax Commission of New York
>City, 397 U.S. 664, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970), which was
>adopted by a clear majority of the Supreme Court, is binding upon
>this Court in resolving the case presently before us.
>
> I disagree with the majority that Walz is factually distinguishable
>from the instant matter. I find irrelevant the distinction between
>the two kinds of tax  exemptions  because, in deciding their
>constitutionality, the subject matter of the tax is, or should be,
>of absolutely no consequence.
>Jim Maule
>Professor of Law
>Villanova University School of Law
>Villanova, PA 19085
>maule at law.vill.edu
>http://www.cilp.org/~maule
>(610) 519 - 7135
>
>"government big enough to give you everything you want is also big
>enough to take away from you everything you have"
>    -- George Herbert Walker Bush
>