Attorneys for the state and two tax-exempt religious newspapers urged the justices to throw out the Wiccans’ challenge on procedural grounds without ruling on the constitutional issue. The high court will make a decision at a later date.
“This particular type of exemption is so blatantly unconstitutional and such an obvious abuse of the state’s power that the court must step in and correct it,” Heather Morcroft told the justices on behalf of the Wiccan Religious Cooperative of Florida.
She said the exemption violates the First Amendment’s establishment clause that prohibits state-sponsored religion.
Kevin Shaughnessy, representing The Florida Catholic and The Florida Baptist Witness, and Deputy Solicitor General James McKee said the Wiccans lack legal standing to challenge the exemption because they are not harmed by it.
Both also argued it does not violate the First Amendment because certain nonreligious publications, although not all, also get the same tax break.
“It encourages freedom of speech,” Shaughnessy said.
The state has avoided potentially unconstitutional religious entanglements by letting retailers decide which items qualify for the exemption, McKee said. Morcroft contended the state cannot avoid legal responsibility that way.
The law being challenged exempts religious publications, Bibles, hymn and prayer books, vestments and alter paraphernalia, chalices and other church service and ceremonial clothing and equipment.
Such items sold by the Wiccans, who follow an earth-based belief system or religion, once qualified for the exemption. The cooperative sued on Halloween 2000 after losing its exemption because it did not own a place of worship as required by Department of Revenue rules.
A trial judge agreed the Wiccans had standing to sue but upheld the law. The 1st District Court of Appeal, however, disposed of the case without ruling on the constitutional issue by finding the Wiccans lacked standing because they failed to show they were adversely affected.
Morcroft wants the high court to reverse the appellate court on standing and the trial judge on the constitutional issue.
She argued that the Wiccans should have the same right as any other taxpayer to challenge the exemption. McKee contended evidence never was presented to prove the cooperative is a taxpayer.
In response to questions from Chief Justice Barbara Pariente, both lawyers acknowledged the Wiccans could return to “square one” and assert a right to sue as a taxpayer. Morcroft, however, predicted the state would fight that claim and delay the case for years.
The U.S. Supreme Court in 1989 ruled a similar exemption in Texas was unconstitutional because it failed to offer the tax break to all organizations that offer similar benefits as religious groups.
McKee and Shaughnessy said Florida’s exemption meets that test but Morcroft disagreed, noting many other publications are taxed.
“You can’t exempt magazines about boats and not exempt magazines about golf,” Morcroft said later in an interview. “The other problem with it is it clearly has no secular purpose and without a secular purpose it can’t be saved.”
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