Sandra Day O'Connor

“ Most significantly, the imposition of the sales and use tax without an exemption for appellant does not require the State to inquire into the religious content of the items sold or the religious motivation for selling or purchasing the items, because the materials are subject to the tax regardless of content or motive. ”

“ Justice BLACKMUN, joined by Justice O'CONNOR, concurred in the plurality's holding that the tax exemption at issue in that case contravened the Establishment Clause, but reserved the question whether "the Free Exercise Clause requires a tax exemption for the sale of religious literature by a religious organization; in other words, defining the ultimate scope of Follett and Murdock may be left for another day." ”

“ There is no evidence in this case that collection and payment of the tax violates appellant's sincere religious beliefs. California's nondiscriminatory Sales and Use Tax Law requires only that appellant collect the tax from its California purchasers and remit the tax money to the State. The only burden on appellant is the claimed reduction in income resulting from the presumably lower demand for appellant's wares (caused by the marginally higher price) and from the costs associated with administering the tax. ”

“ Granting tax exemptions to churches necessarily operates to afford an indirect economic benefit and also gives rise to some, but yet a lesser, involvement than taxing them. In analyzing either alternative the questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement. ”

“ In this case, of course, California has not chosen to create a tax exemption for religious materials, and we therefore have no need to revisit the Establishment Clause question presented in Texas Monthly. ”

“ The Board's hearing officer specifically noted, in forwarding his decision to the Board, that appellant's " [c] ounsel does not argue nexus," id., at 22, and indeed the parties stipulated before the trial court that appellant's request for a refund was based on its First Amendment claim, id., at 59. Accordingly, both the trial court and the Court of Appeal declined to rule on the nexus issue on the ground that appellant had failed to raise it in its refund claim before the Board. ”

“ Compare Hernandez, 490 U.S., at 697-698, 109 S.Ct., at 2148 (where no comparable good or service is sold in the marketplace, Internal Revenue Service looks to cost of providing the good or service) , with id., at 706, 109 S.Ct., at 2152 (O'CONNOR, J., dissenting) ("It becomes impossible . . . to compute the 'contribution' portion of a payment to charity where what is received in return is not merely an intangible, but an intangible (or, for that matter a tangible) that is not bought and sold except in donative contexts") . ”