Dissenting Opinion ry
President Judge Crumlish, Jr.:I respectfully dissent.
The First Amendment, made applicable to the states by the Fourteenth Amendment, forbids a tax on the exercise of ones religion. Murdock v. Pennsylvania, 319 *212U.S. 105 (1943). The occupation tax imposed by the County in this case does precisely that.
Father Leo testified that his priestly duties include celebrating Mass, administering the sacraments of his faith, counseling, teaching and preaching to his parishioners. In addition, Father Leo testified that he administers church property and conducts the parish financial affairs. For these activities he receives a stipend of $5,700 per year. I believe the majority misconstrues1 the nature of Father Leo’s duties when it upholds the imposition of this tax, since all of these activities—both temporal and sacramental—are inextricably bound to the free exercise of his religion.
The majority, citing Murdock, rightly concludes that our Constitution forbids a statute which would have the effect of taxing individuals for delivering sermons. The Carbon County assessment taxes Father Leo’s privilege to have an occupation, which includes, inter alia, delivering sermons. No one would seriously argue that delivering sermons is the only activity in which a clergyman engages in pursuit of freely exercising his religion. Yet, the majority inexplicably concludes that Murdock is inapposite.
In Murdock, members of a religious organization (Jehovah’s Witnesses) were taxed for canvassing and soliciting orders for religious books and pamphlets. This flat license tax was held unconstitutional. Regardless of *213the nomenclature or the purpose of the tax on Father Leo, its effect and influence is to impede the free exercise of his religion.
In Follet v. McCormick, 321 U.S. 573 (1944), which followed Murdock, an ordained minister of the Jehovah’s Witnesses was convicted of violating a South Carolina town ordinance which imposed a “license on business, occupation and professions to be paid by the person or persons engaged in such business, occupation or professions . . .” within the town’s corporate limits. Id. at 574. The United States Supreme Court struck down this tax on the minister as an “agent selling books” and stated that “preachers . . . are not engaged in commercial undertakings because they are dependent on their calling for a living. Whether needy or affluent, they avail themselves of the Tree exercise’ of their religion when they enter the pulpit to proclaim their faith.” Id. at 577.
I fail to see the substantive difference between a tax on the religious activity of distributing spiritual literature, which tax was proscribed in Murdock and Follet, and a tax on the religious “occupation” of performing the various liturgies (as well as secular duties) of Father Leo’s faith.2 Indeed, the tax here appealed is even more insidious in that it taxes Father Leo “whether he delivers a sermon or not,” Majority Opinion, and thus taxes not his activities but his belief, which the First Amendment was designed to protect.
Further, I disagree with the majority’s conclusion that Father Leo must show that the tax had a coercive effect upon the practice of his religion. Taxes, by their *214very nature, are coercive. The power to tax the exercise of a privilege is the power to control or suppress its enjoyment. A. Magano Co. v. Hamilton, 292 U.S. 40 (1934). Those who can tax the exercise of religious practice can make its exercise so costly as to deprive it of the resources necessary for its maintenance. Murdock. The state cannot exact a price, no matter how slight, for that which is freely granted by our Constitution.
Finally, I would not argue that clergymen have an absolute constitutional immunity from all taxes. The state may properly tax the property or income of members of religious organizations. See, Walz v. Tax Commission, 397 U.S. 664 (1970). See also Schuster v. Commissioner of Internal Revenue Service, 800 F.2d 672 (1986). However, this tax assessment taxes Father Leo merely for being a priest; that is, it taxes him on his belief and the practice of that belief.
Father Leo testified that he was called by God to the priesthood. It was the free exercise of his religion which led him to become a clergyman. His duties as a clergyman include secular activities which he performs, not to engage in an occupation, but as a necessary adjunct to his religious calling. Under the Free Exercise Clause, the priest or preacher is as fully protected in his function as the parishioners are in their worship. Follet.
For these reasons, I conclude that the tax in question is unconstitutional as applied to Father Leo.
Judge Colins joins in this dissent.The majority notes that Father Leo accepts “gratuities” for saying certain Masses and performing wedding and funeral services and concludes that he is thus engaged in an occupation. However, it is inherently the function of a clergyman to perform these services as part of the exercise of his religion, regardless of whether gratuities are offered or accepted. It is doubtful that a clergyman of any faith would refuse to perform these services were members of his congregation not able (or willing, for that matter) to offer such a token of gratitude.
1 recognize the difference between the flat license fee imposed on the itinerant solicitors in Murdock and the occupational tax imposed on Father Leo. Nonetheless, I believe both operate to impede the exercise of religion—one by taxing particular activities (bookselling) connected to a religion, and one by generally taxing a person for performing the duties of his position as a church official.