Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990)

Many states impose a sales tax on retail sellers for the tangible personal property they sell, California among them. Between 1974 and 1981, Jimmy Swaggart Ministries, a religious evangelical organization, held numerous religious events across the country, twentythree of them in California. At these events the Ministries sold books and other merchandise, both religious and nonreligious.

In 1980, California’s Board of Equalization informed the Ministries that its sales were not exempt from California’s Sales and Use Tax. The Ministries objected, saying that the First Amendment exempted its products from the tax but eventually paid the money it owed. It then filed a petition for redetermination— essentially, a request that the Board review its objection—and petitioned for a refund of the paid amount. The Board denied, and the Ministries sued for a refund.

The lower California courts ruled that the Ministries was entitled to no tax refund, and the California Supreme Court denied a request to use its discretionary review. The United States Supreme Court agreed with the state courts.

For the First Amendment to be violated, the tax would have had to place a ‘‘substantial burden on the observation of a central religious belief or practice’’ that would require a ‘‘compelling governmental interest’’ to withstand the Ministries’ challenge. The Court had phrased it so in Hernandez v. Commissioner of Internal Revenue the previous year.

The Ministries relied primarily on Murdock v. Pennsylvania and Follett v. Town of McCormick to argue that a state could not require a religious organization to pay taxes on the religious materials it conveyed to people through evangelical distribution. In Murdock, the Court had held unconstitutional a city ordinance requiring licenses to canvass or solicit, because of the burden it placed on Jehovah’s Witnesses. The Court said that the practice of handing out religious materials was protected conduct. In Follett, the Court struck down an ordinance requiring all booksellers to pay a flat license fee to be permitted to sell books.

The Court distinguished these two cases, saying that although flat licensing fees are unconstitutional because they impose prior restraints on religious liberty, general taxation on activities that might be religious, however, is permissible. Because the tax imposed in this case was on items sold, not general exercise of religious liberty, the Court held the Ministries were not exempt. The Court further noted that the tax was not on the right to exercise religious freedom but rather on the privilege of earning money from selling tangible personal property. The court did not find that implementation of the tax would cripple the Ministries’ evangelical efforts or excessively entangle government in its affairs.

The ruling here went against the cases that have been called the Court’s ‘‘separationist’’ cases, because it permits increased state regulation of religious affairs, giving religious organizations less independence from generally applicable laws. This trend culminated in Employment Division, Dept. of Human Resources of Oregon v. Smith, where the Court held that generally applicable laws that incidentally burden religious exercise are constitutional.

ADAM GITLIN

References and Further Reading

• Green, Steven K., Shifting into Neutral? Emerging Perspectives on the Separation of Church and State, Boston College Law Review 43 (2002): 1111–1112.
• Scharffs, Brett G., The Autonomy of Church and State, Brigham Young University Law Review 2004 (2004): 1217–1282.
• Smolla, Rodney A., and Melville B. Nimmer. Smolla and Nimmer on Freedom of Speech: A Treatise on the First Amendment. Vol. 2, section 22:23, 3rd Rd. New York and Oakland, Calif.: Matthew Bender, 1996.

Cases and Statutes Cited

• Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)
• Follett v. Town of McCormick, 321 U.S. 573 (1944)
• Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680 (1989)
• Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983)
• Murdock v. Pennsylvania, 319 U.S. 105 (1943)

See also Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990); Establishment of Religion and Free Exercise Clauses; Follett v. Town of McCormick, S.C., 321 U.S. 573 (1944); Free Exercise ClauseDoctrine: SupremeCourt Jurisprudence; Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680 (1989)