R.I. high court finds tax break for Bibles is unconstitutional

Friday, April 9, 1999

Rhode Island’s high court has invalidated a state tax law that would have provided tax breaks for certain publications, including Bibles.

It is the second time a Rhode Island court has ruled on the tax provision that exempts from sales taxes “any canonized scriptures of any tax exempt non-profit religious organization including but not limited to the Old Testament and the New Testament versions.”

In 1997, District Court Judge Walter Gorman ruled that the tax break for religious texts had no secular purpose and therefore amounted to an unconstitutional government endorsement of religion. The Rhode Island attorney general asked the high court to reverse Gorman, saying the law would help foster moral and intellectual diversity within the state.

The Rhode Island Supreme Court agreed with Gorman that the tax law was unconstitutional, but not as a violation of the establishment clause. Instead the high court ruled on April 7 in Ahlburn v. R. Gary Clark that the tax law violated the free-press clause of the First Amendment.

In determining that that state tax scheme ran afoul of the free-press clause, Judge Robert G. Flanders, writing for the majority, cited a 1987 U.S. Supreme Court ruling that invalidated a state tax break for religious publications and newspapers. In Arkansas Writers’ Project, Inc. v. Ragland, the Supreme Court ruled that “regulations which permit the Government to discriminate on the basis of content of the message cannot be tolerated under the First Amendment.” In other words, Flanders said that laws such as Rhode Island’s that operate “in such a way that a given publication’s tax status depends entirely upon its content is particularly repugnant to the First Amendment.”

The state court concluded that “manifestly, this statute unlawfully defines and rewards its beneficial recipients based upon the content and type of the publications in question.”

The court also said that the tax administrators in the state would be forced to determine which publications qualified as canonized scripture. “Such an effort strikes us as a paradigmatic example of the type of excessive, content-based entanglement between government and the subject matter of publication that the Free Press Clause was designed to prohibit.”

For the government to justify a law that differentiates by content among types of writing, it would have to show a compelling interest. The state tax law, which also included sales-tax exemptions for newspapers, textbooks, and promotional boat literature, was not justified by a compelling state interest, the court said.

The court said Rhode Island had failed to offer an important-enough interest “to sanction this type of overt discrimination in favor of established religious doctrine, promotional boat literature, and other favored types of publications.” Instead, the court said that “by confining these particular tax exemptions exclusively to the sale of canonized scriptures and other favored types of publications — but not others — the General Assembly obviously has engaged in a preferential effort to foster the communication of certain privileged publications in a manner that is anything but content neutral.”

The state affiliate of the American Civil Liberties Union had challenged the constitutionality of the tax law. Kevin Brill, a cooperating ACLU attorney, praised the high court for recognizing “the importance of the First Amendment principles involved.”