AFFIRM; and Opinion Filed April 22, 2014.




                                                       S
                                        Court of Appeals
                                                             In The


                                 Fifth District of Texas at Dallas
                                                   No. 05-13-00465-CV

                            DOUGLAS SPICER, Appellant
                                      V.
               TEXAS WORKFORCE COMMISSION AND PLEASANT VALLEY
                       UNITED METHODIST CHURCH, Appellees

                              On Appeal from the 101st Judicial District Court
                                           Dallas County, Texas
                                   Trial Court Cause No. DC-12-09281

                                                        OPINION
                                  Before Justices FitzGerald, Lang, and Fillmore
                                           Opinion by Justice Fillmore

          This is an appeal from the trial court’s summary judgment affirming the Texas

Workforce Commission’s (TWC) decision to deny Douglas Spicer unemployment benefits. In

his first issue, Spicer contends “it might well be” a violation of federal law for the TWC and the

trial court to fail to acknowledge his claim that section 201.066 of the Texas Unemployment

Compensation Act (the TUCA) 1 is unconstitutional. In his second and third issues, Spicer asserts

that section 201.066 of the TUCA, which, as relevant to this appeal, exempts service in the

employ of a church from the statutory definition of employment, violates the First and

Fourteenth Amendments of the United States Constitution. We affirm the trial court’s judgment.



   1
       See TEX. LAB. CODE ANN. §§ 201.001–215.044 (West 2006 & Supp. 2013).
                                                              Background

           Douglas Spicer was a pianist and organist for the Pleasant Valley United Methodist

Church (Pleasant Valley). After Spicer’s employment was terminated, he filed a claim for

unemployment benefits. Spicer’s claim was denied because he did not have sufficient benefit

wage credits under section 207.021(a)(5) of the TUCA. 2 Spicer appealed the finding to the TWC

Appeal Tribunal.

           The Appeal Tribunal framed the issue as whether Spicer earned sufficient base period

wages to establish a claim for unemployment benefits. The Appeal Tribunal found that Spicer’s

base period began on October 1, 2010 and extended through September 30, 2011 and that, during

his base period, Spicer earned wages only from Pleasant Valley. The Appeal Tribunal concluded

that, pursuant to section 207.021(a)(5), Spicer was entitled to unemployment benefits only if he

had sufficient credits. Because section 201.066 of the TUCA provides that employment does not

include service in the employ of a church, the wages Spicer earned from Pleasant Valley were

exempt, and he was not considered to be in employment as defined by the TUCA.

           The Appeal Tribunal affirmed the denial of Spicer’s claim. Spicer appealed to the TWC.

The TWC determined the case was properly decided by the Appeal Tribunal and adopted the

Appeal Tribunal’s findings of fact and conclusions of law.

           Spicer filed a petition in the trial court seeking review of the TWC’s decision. The TWC

filed a motion for summary judgment on the ground there was more than a scintilla of evidence

to support the TWC’s determination that Spicer was not entitled to receive benefits. The TWC’s

summary judgment evidence consisted of its decision, the decision of the Appeals Tribunal, and



     2
        Effective May 18, 2013, the Legislature enacted a new section 207.021(a)(5) and redesignated the former section 207.021(a)(5) as section
207.021(a)(6). See Act of May 2, 2013, 83d Leg., R.S., ch. 107, § 1(a), 2013 Tex. Gen. Laws 222, 223. Because there was no substantive change
to the provision and to maintain consistency with the proceedings before the TWC and the trial court, we will refer to the relevant provision as
section 207.021(a)(5).



                                                                     –2–
Spicer’s admissions that the only wages he received between October 1, 2010 and September 30,

2011 were from Pleasant Valley and that Pleasant Valley was a church.

          Spicer did not rely on any evidence to contest the TWC’s right to summary judgment and

did not dispute the applicable facts. Rather, he asserted that section 201.066 of the TUCA was

unconstitutional. The trial court granted the TWC’s motion for summary judgment. 3

                                                     Standard of Review

          We review the grant of summary judgment de novo. Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 862 (Tex. 2010). Summary judgment is proper when there are no genuine issues of

material fact and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). When reviewing a

summary judgment, we consider the evidence in the light most favorable to the nonmovant.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We

credit evidence favorable to the nonmovant if reasonable jurors could, and we disregard evidence

contrary to the nonmovant unless reasonable jurors could not. Id.

           Judicial review of a TWC decision regarding benefit payments is by trial de novo in

which the trial court determines whether substantial evidence supports the TWC’s ruling. See

TEX. LAB. CODE ANN. § 212.202(a) (West 2006); Collingsworth Gen. Hosp. v. Hunnicutt, 988

S.W.2d 706, 708 (Tex. 1998) (citing Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986)). The

TWC’s action is presumed valid, and the party seeking to set aside the decision has the burden of

showing that it was not supported by substantial evidence. Collingsworth Gen. Hosp., 988

S.W.2d at 708; Murray v. Tex. Workforce Comm’n, 337 S.W.3d 522, 524 (Tex. App.—Dallas


     3
       Pleasant Valley did not appear in the case and did not move for summary judgment. However, Spicer’s only allegation was that the
TWC’s decision was erroneous. Therefore, the trial court’s summary judgment affirming the TWC’s decision disposed of the sole claim that
Spicer was asserting against either the TWC or Pleasant Valley. See Chawla v. Tex. Workforce Comm’n, No. 03-10-00327-CV, 2012 WL
3629460, at *1 (Tex. App.—Austin Aug. 22, 2012, pet. denied) (mem. op.). We conclude the summary judgment, which stated it was “a final
judgment disposing of all claims,” was a final, appealable order. See id.



                                                                 –3–
2011, no pet.). Because substantial evidence is more than a mere scintilla but less than a

preponderance of the evidence, the evidence in the record may preponderate against the TWC’s

decision but still amount to substantial evidence. State v. Pub. Util. Comm’n, 883 S.W.2d 190,

204 (Tex. 1994); Blanchard v. Brazos Forest Prod., L.P., 353 S.W.3d 569, 572 (Tex. App.—Fort

Worth 2011, pet. denied).

       Under the substantial evidence standard of review, the issue is whether the evidence

introduced before the trial court shows facts in existence at the time of the TWC’s decision that

reasonably support the decision. Collingsworth Gen. Hosp., 988 S.W.2d at 708. The reviewing

court may not set aside the TWC’s decision merely because it would reach a different

conclusion. Id. Rather, the TWC’s decision may be set aside only if the trial court finds it was

made without regard to the law or the facts and therefore was unreasonable, arbitrary, or

capricious. Id.

       A trial court may grant summary judgment in cases tried under the substantial evidence

rule because the only issue before the court is a question of law. Blanchard, 353 S.W.3d at 573;

see also Tex. Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam)

(whether there is substantial evidence to support administrative decision is question of law). We

review the trial court’s judgment by comparing the TWC decision with the evidence presented to

the trial court and the governing law. Potts v. Tex. Emp’t Comm’n, 884 S.W.2d 879, 882 (Tex.

App.—Dallas 1994, no writ); Blanchard, 353 S.W.3d at 573.           We determine whether the

summary judgment evidence established as a matter of law that substantial evidence existed to

support the TWC decision. Potts, 884 S.W.2d at 883; Blanchard, 353 S.W.3d at 573.

                                            Analysis

       Spicer argues that section 201.066 of the TUCA violates (1) the Establishment Clause of

the First Amendment and (2) the Equal Protection Clause of the Fourteenth Amendment by

                                              –4–
preventing him from freely exercising his religious beliefs. 4                             We must construe the statute, if

such a construction is fairly possible, to avoid raising doubts of its constitutionality. St. Martin

Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780 (1981); Walker v. Gutierrez,

111 S.W.3d 56, 66 (Tex. 2003). As the party challenging the statute, Spicer had the burden of

demonstrating its unconstitutionality. Walker, 111 S.W.3d at 66; Robinson v. Hill, 507 S.W.2d

521, 524 (Tex. 1974). This burden did not change even though Spicer was the nonmovant to the

motion for summary judgment. See Trinity River Auth. v. URS Consultants, Inc.-Tex., 869

S.W.2d 367, 369–70 (Tex. App.—Dallas 1993) (party opposing motion for summary judgment

on ground statute violated provisions of Texas constitution had burden to demonstrate statute

was unconstitutional), aff’d, 889 S.W.2d 259 (Tex. 1994).

          In challenging the constitutionality of a statute, a party must show the statute is

unconstitutional on its face or as applied. Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d

504, 518 n.16 (Tex. 1995). Spicer contends the exemption of service in the employ of a church

from the definition of employment in the TUCA violates the First and Fourteenth Amendments.

He, therefore, asserts the statute is unconstitutional on its face. See In re Commitment of Fisher,

164 S.W.3d 637, 655 (Tex. 2005) (to prevail on claim statute is unconstitutional on its face, party

“bears the heavy burden” of showing statute is “unconstitutional in all of its applications”); 8100

N. Freeway, Ltd. v. City of Houston, 363 S.W.3d 849, 855 (Tex. App.—Houston [14th Dist.]

2012, no pet.). Because Spicer asserts facial challenges to the statute, he must show section

201.066 is unconstitutional under all circumstances.                              See Appraisal Review Bd. v. Tex-Air

Helicopters, Inc., 970 S.W.2d 530, 534 (Tex. 1998); see also United States v. Stevens, 559 U.S.

460, 472 (2010).


     4
      In relevant part, section 201.066 provides that the term “employment” in the TUCA does not include service in the employ of a church.
TEX. LAB. CODE ANN. § 201.066(1)(A) (West 2006).



                                                                  –5–
                                                           Statutory Scheme

           In 1935, in response to widespread unemployment associated with the Great Depression,

Congress established a cooperative Federal-State program to provide benefits to unemployed

workers. See St. Martin Evangelical Lutheran Church, 451 U.S. at 775. The program, now set

out in the Federal Unemployment Tax Act, 26 U.S.C.A. §§ 3301–3311 (West 2011 & Supp.

2013) (the FUTA), imposes a federal excise tax on all employers, except those specifically

exempted by Congress. California v. Grace Brethren Church, 457 U.S. 393, 396–97 (1982).

Congress further provided that employers could avoid a significant portion of the Federal excise

tax by payment into federally-approved State unemployment programs where those were

available. Id. at 397. 5

           In 1936, the Texas Legislature established the Texas unemployment compensation

system. See Act of Oct. 26, 1936, 44th Leg., 3d C.S., ch. 482, 1936 Tex. Gen. Laws 1993, 1993.

The stated purpose of the legislation was “to provide an orderly system of contributions for the

care of the justifiably unemployed during times of economic difficulty, thereby preserving and

establishing self-respect, reliance, and good citizenship.” Id. at 1994. Underlying this objective

was the recognition that it was not economically sound for the State “to pay large sums of money

for direct relief and to support other emergency programs which might have been avoided by the

payment of small orderly contributions during periods of economic well-being, had a definite

program of Unemployment Compensation been in force.” Id. at 1993.

           The current State unemployment compensation system is set out in the TUCA. Under the

TUCA, “employers” make “contributions” to the “compensation fund.” TEX. LAB. CODE ANN.

     5
        The United States Secretary of Labor approves State laws that conform to the requirements of the FUTA, and certifies on a yearly basis
that such laws remain in conformance. 26 U.S.C.A. § 3304(c) (West Supp. 2013). To retain Federal approval, State programs must “‘cover’
certain broad categories of employment,” as provided in 26 U.S.C. §§ 3304 and 3309, Grace Brethren Church, 457 U.S. at 397 & n.5, although
States are “free to expand [their] coverage beyond the federal minimum without jeopardizing [their] federal certification.” St. Martin Evangelical
Lutheran Church, 451 U.S. at 775 n.3. The FUTA has been amended several times since 1935, and “[i]n response to each federal amendment,
the States correspondingly have amended their statutes to retain their federal certifications.” Id. at 775 n.4. All fifty States have enacted
unemployment compensation laws providing at least the minimum coverage mandated by the FUTA. Id. at 775 n.3.



                                                                      –6–
§ 201.011(9), (10); 201.021; 201.021; 204.002 (West 2006). These “contributions” are excise

taxes, and the TUCA is a “taxing statute.” Id. § 201.011(10); State v. Praetorians, 143 Tex. 565,

570, 186 S.W.2d 973, 976 (1945). Eligible individuals who are unemployed through no fault of

their own may receive unemployment benefits from the compensation fund. Collingsworth Gen.

Hosp., 988 S.W.2d at 709.

           As relevant to this case, an individual is eligible for unemployment benefits if he is

totally unemployed in a “benefit period.” TEX. LAB. CODE ANN. § 207.002(a) (West Supp.

2013). The individual must also meet a number of statutory criteria, including that he is able to

show “benefit wage credits” for his “base period.” Id. § 207.021(a)(6) (West Supp. 2013).

“Benefit wage credits” are “wages the individual received for employment from an employer

during the individual’s base period.” Id. § 207.004(a)(1) (West Supp. 2013). As relevant in this

case, the individual’s “base period” is “the four consecutive completed calendar quarters,

prescribed by the commission, in the five consecutive completed calendar quarters preceding the

first day of an individual’s benefit year.” Id. § 201.011(1)(A).

           “Employment” includes a service performed by the individual for wages. Id. § 201.041

(West 2006).             There are, however, a number of statutory exemptions from the term.                                                      Id.

§§ 201.061–.078 (West 2006 & Supp. 2013). 6 The exemption relevant to this appeal is that

employment “does not include service in the employ of a church.”                                                    Id. § 201.066(1)(A). 7




     6
        “Employment” for purposes of the TUCA does not include (1) service eligible under an Act of Congress (§ 201.061); (2) service under an
arrangement with an agency (§ 201.062); (3) certain government service (§ 201.063); (4) domestic service (§ 201.064); (5) service by a relative
(§ 201.065); (6) religious service (§ 201.066); (7) rehabilitative service (§ 201.067); (7) certain service in a hospital (§ 201.068); (8) service of a
student (§ 201.069); (9) service as a product demonstrator or salesman (§ 201.070); (10) service as an insurance agent if paid by commission
(§ 201.071); (11) certain service as a real estate broker (§ 201.072); (12) certain delivery service (§ 201.073); (13) service by an inmate
(§ 201.074); (14) certain service on a fishing vessel (§ 201.075); (15) certain services excluded in a pay period (§ 201.076); (16) service by a
landman (§ 201.077); and (17) service by a nonresident alien agricultural worker (§ 201.078).
     7
        The FUTA contains an identical exemption from the definition of “employment.” See 26 U.S.C.A. § 3309(b)(1)(A) (West 2011). Service
in the employ of a church or a religious organization has been exempted from the Texas unemployment compensation system since it was
established in 1936. See Act of Oct. 26, 1936, 44th Leg., 3d C.S., ch. 482, 1936 Tex. Gen. Laws 1993, 2018.



                                                                        –7–
Therefore, an individual employed only by a church does not earn “benefit wage credits” during

his “base period” and is ineligible to receive unemployment benefits.

                                                           Establishment Clause

            In his second issue, Spicer argues that exempting service in the employ of a church from

the unemployment compensation system violates the Establishment Clause. The Establishment

Clause provides that “Congress shall make no law respecting an establishment of religion.” U.S.

CONST. amend. I.                 The Establishment Clause applies to the states through the Fourteenth

Amendment. Wallace v. Jaffree, 472 U.S. 38, 42 n.10 (1985).

            The United States Supreme Court’s Establishment Clause jurisprudence points “in two

directions.” Van Orden v. Perry, 545 U.S. 677, 683 (2005). “One face looks toward the strong

role played by religion and religious traditions throughout our Nation’s history.” Id. 8 “The other

face looks toward the principle that governmental intervention in religious matters can itself

endanger religious freedom.” Id. Reconciling these two “faces” requires that we “neither

abdicate our responsibility to maintain a division between church and state nor evince a hostility

to religion by disabling the government from in some ways recognizing our religious heritage[.]”

Id. at 683–84. This reconciliation is manifested in the rule that the government may neither

promote religion nor harbor “an official purpose to disapprove of a particular religion or of

religion in general.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532

(1993); see also Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). The rule cannot be drawn with

an “absolutely straight line” because “rigidity could well defeat” its basic purpose, “which is to

     8
         In Van Orden, the Supreme Court, quoting School District of Abington Township v. Schempp, 374 U.S. 203 (1963), observed:
            It is true that religion has been closely identified with our history and government . . . . The fact that the Founding Fathers
            believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in
            their writings, from the Mayflower Compact to the Constitution itself . . . . It can be truly said, therefore, that today, as in
            the beginning, our national life reflects a religious people who, in the words of Madison, are “earnestly praying, as . . . in
            duty bound, that the Supreme Lawgiver of the Universe . . . guide them into every measure which may be worthy of his
            [blessing . . . .]”
Van Orden, 545 U.S. at 683 (quoting Schempp, 374 U.S. at 212–13).



                                                                         –8–
insure that no religion be sponsored or favored, none commanded, and none inhibited.” Walz v.

Tax Comm’n of the City of New York, 397 U.S. 664, 669 (1970).

           When, as in this case, a law “afford[s] a uniform benefit to all religions,” rather than

“drawing distinctions on religious grounds,” a court should evaluate whether the law violates the

Establishment Clause under the three-part test in Lemon v. Kurtzman, 403 U.S. 602 (1971).

Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483

U.S. 327, 339 (1987) (quoting Larson v. Valente, 456 U.S. 228, 260 (1982)). 9 Under this test, a

facially neutral law (1) must have a secular legislative purpose, (2) must have a principal or

primary effect that neither advances nor inhibits religion, and (3) must not foster “an excessive

government entanglement with religion.” Lemon, 403 U.S. at 612–13.

           Justice O’Connor’s concurring opinion in Lynch v. Donnelly, 465 U.S. 668, 687–94

(1984) (O’Connor, J., concurring), sought to clarify the purpose and effect prongs of the Lemon

test. Justice O’Connor’s “endorsement test” holds that the government impermissibly endorses

religion if its conduct has either (1) the purpose or (2) the effect of conveying a message that

religion or a particular religious belief is favored or preferred. Id. at 688–92; see also HEB

Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627, 647 (Tex. 2007)

(plurality op) (noting that “from our vantage point, the [Supreme] Court seems over time to have

become ‘particularly attuned to whether the challenged government practice purposefully or

effectively “endorses” religion, an inquiry courts generally consider a component of the Lemon

test’s first and second parts.’”). Accordingly, we will apply the Lemon test with a view toward

whether the statute purposefully or effectively endorses religion.



     9
        It is not clear how large a role the Lemon test currently plays in the larger scheme of Establishment Clause jurisprudence. See Van Orden,
545 U.S. at 685; see also Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 132 S. Ct. 12, 14–15 (2011) (Thomas, J., dissenting from denial of
certiorari). However, after acknowledging the criticism of the Lemon test, the Texas Supreme Court has noted it was “not at liberty to take
criticism for rejection.” HEB Ministries, Inc. v. Tex. Higher Educ. Coordinating Bd., 235 S.W.3d 627, 647 & n.77 (Tex. 2007) (plurality op.).



                                                                      –9–
       Spicer first argues the tax exemption for churches in section 201.066 does not meet the

first prong of the Lemon test because it does not have a secular purpose. “Lemon’s ‘purpose’

requirement aims at preventing the relevant governmental decisionmaker . . . from abandoning

neutrality and acting with the intent of promoting a particular point of view in religious matters.”

Amos, 483 U.S. at 335. It does not require a law’s purpose be unrelated to religion or “that the

government show a callous indifference to religious groups.” Id. (quoting Zorach v. Clauson,

343 U.S. 306, 314 (1952)). Courts are “normally deferential to a State’s articulation of a secular

purpose.” Edwards v. Aguillard, 482 U.S. 578, 586–87 (1987). Nevertheless, we review the

statute to ensure that the alleged secular purpose is the actual purpose. Wallace, 472 U.S. at 56.

In other words, the purpose must be genuine; a law will not pass constitutional muster if the

secular purpose articulated by the legislature is a “sham” or “merely secondary to a religious

objective.” McCreary Cnty. v. ACLU, 545 U.S. 844, 864 (2005).

       The statute need not have exclusively secular objectives to meet the “secular purpose”

standard; the touchstone is neutrality, and it is only “[w]hen the government acts with the

ostensible and predominant purpose of advancing religion [that] it violates” the first prong of the

Lemon test. Id. at 860. Importantly, “the eyes that look to purpose belong to an ‘objective

observer,’” taking into account the “traditional external signs” of purpose apparent from the

statute’s text, legislative history, and implementation. Id. at 862. In sum, the government’s

action is unconstitutional only if “openly available data support[s] a commonsense conclusion

that a religious objective permeated the government’s action.” Id. at 863.

       In this case, the Texas Legislature stated the purpose of establishing the unemployment

compensation system was to provide for the support of individuals who were unemployed

through no fault of their own. The purpose for the exemption of service in the employ of a

church from the definition of employment in the FUTA, which is identical to the exemption in

                                               –10–
the TUCA, was to address a concern that coverage of workers whose employment patterns are

irregular or whose wages are not easily accountable would adversely affect administration of the

program. See Rojas v. Fitch, 127 F.3d 184, 188 (1st Cir. 1997). These purposes are secular in

nature.

          The tax exemption in this case is analogous to that upheld by the Supreme Court in Walz.

In Walz, the New York City Tax Commission exempted from state taxes “real or personal

property used exclusively for religious, educational or charitable purposes as defined by law and

owned by any corporation or association organized or conducted exclusively for one or more of

such purposes and not operating for profit.” Walz, 397 U.S. at 666–67. A property owner sought

an injunction to prevent the Tax Commission “from granting property tax exemptions to

religious organizations for religious properties used solely for religious worship.” Id. at 666. The

Supreme Court found the tax exemption did not violate the Establishment Clause because

“[t]here is no genuine nexus between tax exemption and establishment of religion” and “[t]he

grant of a tax exemption [to religious organizations] is not sponsorship since the government

does not transfer part of its revenue to churches but simply abstains from demanding that the

church support the state.” Id. at 675. Further, the taxing authority had “not singled out one

particular church or religious group or even churches as such; rather it ha[d] granted exemption

to all houses of religious worship within a broad class of property owned by nonprofit, quasi-

public corporations.”      Id. at 672–73.    Because the “legislative purpose of a property tax

exemption is neither the advancement nor the inhibition of religion,” it constituted neither

sponsorship nor hostility. Id. at 672.

          Spicer argues that Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (plurality op.), rather

than Walz, should apply in this case. In Texas Monthly, the statute at issue exempted from the

state sales tax “[p]eriodicals that are published or distributed by a religious faith and that consist

                                                 –11–
wholly of writings promulgating the teaching of the faith and books that consist wholly of

writings sacred to a religious faith.” Id. at 5. The justices in the plurality opinion and those

concurring in the judgment agreed that the statute violated the Establishment Clause.         In

distinguishing the sales tax exemption from the property tax exemption in Walz, the plurality

noted the exemption in Walz was determined to be constitutional because it “applied to religious

properties no less than to real estate owned by a wide array of nonprofit organizations, despite

the sizeable tax savings it accorded religious groups.” Id. at 11. The tax exemption at issue in

Texas Monthly, however, provided a benefit to religious publications only, without a

corresponding showing that the exemption was necessary to alleviate a significant burden on the

free exercise of religion:

       Every tax exemption constitutes a subsidy that affects nonqualifying taxpayers,
       forcing them to become “indirect and vicarious ‘donors.’” Insofar as that subsidy
       is conferred upon a wide array of nonsectarian groups as well as religious
       organizations in pursuit of some legitimate secular end, the fact that religious
       groups benefit incidentally does not deprive the subsidy of the secular purpose
       and primary effect mandated by the Establishment Clause. However, when
       government directs a subsidy exclusively to religious organizations that is not
       required by the Free Exercise Clause and that either burdens nonbeneficiaries
       markedly or cannot reasonably be seen as removing a significant state-imposed
       deterrent to the free exercise of religion, as Texas has done, it “provides
       unjustifiable awards of assistance to religious organizations” and cannot but
       “convey a message of endorsement” to slighted members of the community.

Id. at 14–15 (citations omitted).

       Unlike the exemption in Texas Monthly, the exemption at issue in this case does not

apply solely to an action that allows a church to promulgate its faith. Rather, a number of types

of work are excluded from employment under the TUCA, reflecting the Legislature’s decision

that the entities for whom that work is performed should not be subject to the burden of paying

the tax required by the unemployment compensation system.           See TEX. LAB. CODE ANN.

§§ 201.061–.078. The breadth of the exemptions demonstrates the exemption in section 201.066

for service in the employ of a church was not “aimed at establishing, sponsoring, or supporting
                                              –12–
religion.” See Walz, 397 U.S. at 674; see also Christian Jew Found. v. State, 653 S.W.2d 607,

614 (Tex. App.—Austin 1983, no writ) (assuming, in appeal from determination that appellant

was not “church” under predecessor statute of TUCA, that statute had “general secular purpose”

and “neutral effect” because “in addition to ‘churches’ and other religious organizations, statute

excludes from mandatory contributions other specific categories of employers of a special

character, negating any implication that the Legislature has attempted to single out religious

organizations for special favor”). Viewed through the eyes of an objective viewer, neither the

TUCA as a whole nor the exemption in section 201.066 demonstrates sponsorship of or hostility

toward religion. See McCreary Cnty., 545 U.S. at 864; Walz, 397 U.S. at 674. We conclude the

Legislature’s decision to exempt services performed in the employ of a church from the

definition of employment in the TUCA does not violate the first prong of the Lemon test. See St.

Martin Evangelical Lutheran Church, 451 U.S. at 783–84 (concluding church-related school was

a “church” pursuant to definition in South Dakota’s unemployment compensation statute and

therefore exempt from payment of unemployment tax, and declining to reach school’s claim that

failure to designate it as a church violated its rights under the First Amendment); see also

Christian Jew Found., 653 S.W.2d at 614.

       Under Lemon’s second prong, a statute will be held unconstitutional if its principal or

primary effect advances or inhibits religion. “For a law to have forbidden ‘effects’ under Lemon,

it must be fair to say that the government itself has advanced religion through its own activities

and influence,” not simply that the law puts religious organizations in a position where they are

now better able to advance their own purposes.        Amos, 483 U.S. at 336–37 (finding that,

although religious employers were better able to promote their religion if they could discriminate

based on religion with respect to their employees, the religious exemption to Title VII’s

prohibition against religious discrimination in employment neither advanced nor inhibited

                                              –13–
religion as a result of the activities or influence of the government itself). Additionally, “a

statute primarily having a secular effect does not violate the Establishment Clause merely

because it ‘happens to coincide or harmonize with the tenets of some or all religions.’”

Hernandez v. C.I.R., 490 U.S. 680, 696 (1989) (quoting McGowan v. Maryland, 366 U.S. 420,

442 (1961)).

       Spicer contends the exemption in section 201.066 advances all religions and, therefore,

violates the Establishment Clause. The primary purpose of the TUCA is to provide benefits to

eligible individuals who are unemployed through no fault of their own. Although exempting a

church from the payment of a tax may allow it to keep more of its resources to advance its own

purposes, the exemption does not have the primary effect of advancing religion through the

government’s activities and influence. We conclude the exemption in section 201.066 of the

TUCA does not violate the second prong of the Lemon test. See Hernandaz, 490 U.S. at 696;

Amos, 483 U.S. at 336–37.

       With respect to the third prong of the Lemon test, the “[e]ntanglement must be

‘excessive’ before it runs afoul of the Establishment Clause.” Agostini v. Felton, 521 U.S. 203,

233 (1997).    Some level of involvement between church and state is permissible. Id. This

prong focuses on the character and purpose of the institutions that are benefitted, the nature of

the aid that the State provides, and the resulting relationship between the government and

religious authority. Id. at 232.

       Spicer asserts the imposition on a church of a generally applicable tax does not lead to

excessive entanglement between a church and the government. However, the focus of our

analysis is not whether the Legislature could have permissibly decided to require a church to

participate in the unemployment compensation system. Rather, we must determine whether the

Legislature’s decision to exempt a church from the system leads to impermissible entanglement

                                              –14–
between the government and a church. The exemption in section 201.066 removes any ongoing

interaction between the government and a church regarding the unemployment compensation

system. Because there is no continuing or invasive relationship between the government and a

church, the exemption does not violate the third prong of the Lemon test. See Agostini, 521 U.S.

at 233.

           We conclude the exemption of service in the employ of a church from the definition of

employment in the TUCA does not violate the Establishment Clause. 10 We resolve Spicer’s

second issue against him.

                                                      Equal Protection Clause

           In his third issue, Spicer asserts the exemption in section 201.066 contravenes the Equal

Protection Clause of the Fourteenth Amendment by creating a classification that impermissibly

interferes with a fundamental right. Spicer specifically argues the Legislature’s choice to exempt

service in the employ of a church from the definition of employment in the TUCA is subject to

strict scrutiny because it violates his right to freely exercise his religion, specifically his right to

play music during worship services.

           In analyzing Spicer’s equal protection claim, we must first consider whether exempting

service in the employ of a church from the definition of employment in the TUCA violates his

right to freely exercise his religious beliefs under the First Amendment of the United States

Constitution, thereby triggering strict scrutiny. Spicer argues a statute that impacts his rights

under the Free Exercise Clause must be strictly scrutinized and “upheld only if it is precisely

     10
         See also St. Martin Evangelical Lutheran Church, 451 U.S. at 788 (declining to reach constitutional challenges because school fell within
definition of church in the FUTA and the South Dakota unemployment compensation statute); Christian Jew Found., 653 S.W.2d at 614; Rojas,
127 F.3d at 187–89 (exemption for religious institutions contained in FUTA and in Rhode Island unemployment tax statute did not violate
Establishment Clause); Von Stauffenberg v. Dist. Unemployment Compensation Bd., 459 F.2d 1128, 1130–33 (D.C. 1972) (per curiam)
(exemption of religious organization from District of Columbia unemployment compensation statute did not violate Establishment Clause);
Saucier v. Emp’t Sec. Dept., 954 P.2d 285, 288–89 (Wash. Ct. App. 1998) (exemption of church from Washington’s unemployment
compensation statute did not violate Establishment Clause); In re Klein, 585 N.E.2d 809, 811–14 (N.Y. 1991) (exemption of persons performing
duties of religious nature at place of worship from New York unemployment compensation statute did not violate Establishment Clause);
Konecny v. D.C. Dep’t of Emp’t Servs., 447 A.2d 31, 33–37 (D.C. 1982) (exemption of churches from District of Columbia unemployment
compensation statute did not violate Establishment Clause).



                                                                     –15–
tailored to further a compelling government interest.” We conclude that, assuming the

compelling-interest standard applies to Spicer’s First Amendment claim, he has failed to

establish the exemption in section 201.066 of the TUCA violates his right to freely exercise his

religion. 11

           The Free Exercise Clause, which has been made applicable to the States by the

Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides that

“Congress shall make no law . . . prohibiting the free exercise [of religion].” U.S. CONST. amend

I. With respect to this clause, “[t]he crucial word in the constitutional text is ‘prohibit.’ For the

Free Exercise Clause is written in terms of what the government cannot do to the individual, not

in terms of what the individual can exact from the government.” Lyng v. Nw. Indian Cemetery

Protective Ass’n, 485 U.S. 439, 451 (1988) (quoting Sherbert v. Verner, 374 U.S. 398, 412

(1963) (Douglas, J., concurring)).

           The basic purpose of the Free Exercise Clause is to prevent the government from passing

laws that discriminate against some or all religious beliefs or regulate or prohibit conduct


     11
         In 1990, the Supreme Court stated that the “Free Exercise Clause of the First Amendment does not prohibit governments from burdening
religious practices through generally applicable laws.” Gonzales v. O Centro Espírita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006)
(describing its holding in Employment Div., Dep’t of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990)). Further, in Smith, the Supreme
Court held that the “compelling interest” test was not applicable to a challenge to a generally applicable prohibition of socially harmful conduct.
Smith, 494 U.S. at 884–85. In response, Congress enacted the Religious Freedom Restoration Act of 1993 (the RFRA), 42 U.S.C.A. §§ 2000bb–
2000bb-4 (West 2012), with which it intended to “restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and
Wisconsin v. Yoder, 406 U.S. 205 (1972) . . . in all cases where free exercise of religion is substantially burdened.” § 2000bb(b)(1); see also
Sossamon v. Texas, 131 S. Ct. 1651, 1655–56 (2011). In other words, “the Federal Government may not, as a statutory matter, substantially
burden a person’s exercise of religion, ‘even if the burden results from a rule of general applicability’ unless the government can satisfy the
compelling-interest test.” Gonzales, 546 U.S. at 424.

      The Supreme Court subsequently found the RFRA was unconstitutional as applied to state and local governments because it exceeded
Congress’s power under section five of the Fourteenth Amendment. See City of Boerne v. Flores, 521 U.S. 507, 536 (1997). Congress responded
by enacting the Religious Land Use and Institutionalized Persons Act, 42 U.S.C.A. §§ 2000cc–2000cc-5 (West 2012) (the RLUIPA) pursuant to
its Spending Clause and Commerce Clause authority. The RLUIPA borrows important elements from the RFRA—which continues to apply to
the Federal Government—but the RLUIPA is less sweeping in scope. See Cutter v. Wilkinson, 544 U.S. 709, 715 (2005). It targets two areas of
state and local action: land-use regulation, 42 U.S.C.A. § 2000cc (RLUIPA § 2), and restrictions on the religious exercise of institutionalized
persons, § 2000cc–1 (RLUIPA § 3). See Cutter, 544 U.S. at 715.

      In 1999, the Texas Legislature enacted the Texas Religious Freedom Restoration Act. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 110.001–.012 (West 2011) (the TRFRA). Like the RFRA, the TRFRA provides, in part, that government “may not substantially burden a
person’s free exercise of religion [unless it] demonstrates that the application of the burden to the person . . . is in furtherance of a compelling
governmental interest; and . . . is the least restrictive means of furthering that interest.” Id. at §110.003(a)–(b); see also Barr v. City of Sinton,
295 S.W.3d 287, 296 (Tex. 2009). Spicer has relied on neither the RLUIPA nor the TRFRA in support of his claim that the exemption of
services in the employ of a church from the definition of employment in the TUCA impermissibly burdened his right to freely exercise his
religion.



                                                                       –16–
because it is undertaken for religious reasons. Church of Lukumi Babalu Aye, Inc., 508 U.S. at

532. A Free Exercise claim will be sustained only if the “government has placed a substantial

burden on the observation of a central religious belief” without “a compelling governmental

interest justif[ying] the burden.” Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S.

378, 384–85 (1990) (quoting Hernandez, 490 U.S. at 699).

       The government imposes a substantial burden on the free exercise of religion by forcing

an individual to choose between “following the precepts of [his] religion and forfeiting benefits,”

Sherbert, 374 U.S. at 404, or by “put[ting] substantial pressure on an adherent to modify his

behavior and to violate his beliefs.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707,

718 (1981). However, an individual’s right to freely exercise his religion is not necessarily

violated simply because his religious practice is burdened by a governmental program. Id.

Further, the denial of an affirmative benefit from the government is of a “wholly different, less

intrusive nature than affirmative compulsion or prohibition, by threat of penal sanctions, for

conduct that has religious implications.” Bowen v. Roy, 476 U.S. 693, 704 (1986).

       Spicer’s brief focuses on the alleged lack of a compelling state interest and includes no

argument as to how the exemption in section 201.066 put substantial pressure on him either to

modify his behavior or to violate his religious beliefs. Further, we can discern nothing about the

exemption that affected Spicer’s ability to play music during church services, violated Spicer’s

religious beliefs, or required Spicer to work under conditions forbidden by his religion. See

Sherbert, 374 U.S. at 399–406. We conclude that exempting service performed in the employ of

a church from the definition of employment in the TUCA placed, at most, an inconsequential

burden on Spicer’s ability to play music during church services and does not violate Spicer’s

right to freely exercise his religion. See Johnson v. Robison, 415 U.S. 361, 385 (1974) (“The




                                              –17–
withholding of educational benefits involves only an incidental burden upon appellee’s free

exercise of religion–if, indeed, any burden exists at all.”).

       We next turn to Spicer’s contention that the exemption violates his right to equal

protection. The Equal Protection Clause provides that “[n]o State shall . . . deny to any person

within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. At its

core, the Fourteenth Amendment guarantees the equal treatment of persons that are similarly

situated. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v.

Doe, 457 U.S. 202, 216 (1982)). Spicer’s equal protection claim is premised on his Free

Exercise Clause claim: he contends exempting service in the employ of a church from the

definition of employment in TUCA is an improper classification that impinges on his right to

free exercise of religion. When, as here, the underlying free exercise claim has failed, the

Supreme Court requires only a “rational basis scrutiny” of an equal protection claim based on the

same facts. Locke v. Davey, 540 U.S. 712, 720 n.3 (2004).

       Under rational-basis review, a law will be upheld if it is rationally related to a legitimate

governmental purpose. Pennell v. City of San Jose, 485 U.S. 1, 14 (1988). A tax classification is

“constitutionally valid if ‘there is a plausible policy reason for the classification, the legislative

facts on which the classification is apparently based rationally may have been considered to be

true by the governmental decisionmaker, and the relationship of the classification to its goal is

not so attenuated as to render the distinction arbitrary or irrational.’”        Armour v. City of

Indianapolis, 132 S. Ct. 2073, 2080 (2012). A statute must be upheld against an equal protection

challenge if “there is any reasonably conceivable state of facts that could provide a rational basis

for the classification.” Id. (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)).

Further, “because the classification is presumed constitutional, the ‘burden is on the one




                                                 –18–
attacking the legislative arrangement to negative every conceivable basis which might support

it.’” Id. at 2080–81 (quoting Heller v. Doe, 509 U.S. 312, 319–20 (1993)).

       In construing similar unemployment compensation statutes, including the FUTA, courts

have determined that exempting religious organizations from paying the excise tax served the

legitimate governmental purpose of enhancing the efficient administration of the federal-state

unemployment insurance programs by excluding from coverage a variety of workers whose

employment patterns are irregular or whose wages are not easily accountable, Rojas, 127 F.3d at

188–89; Saucier, 954 P.2d at 288–89, and by eliminating “the need for the government to review

employment decisions made on the basis of religious rationales.” Rojas, 127 F.3d at 188; see

also Christian Jew Found., 653 S.W.2d at 615 (“[A] clearly discernible reason for the exclusion

[of religious employers from the unemployment compensation system] is to avoid the possibility

of a church-State ‘entanglement’ which might result but for the exclusion.”). The efficient

administration of the Texas unemployment compensation system could conceivably provide a

plausible policy reason for the exemption of service in the employ of the church from the

definition of employment in TUCA. See Heller, 509 U.S. at 320 (“[A] legislative choice is not

subject to courtroom factfinding and may be based on rational speculation unsupported by

evidence or empirical data.” (quoting Beach Commc’ns, 508 U.S. at 315)). Further, the facts

supporting this plausible reason could have been considered to be true by the Texas Legislature

when deciding to exempt churches from paying the excise tax. See Armour, 132 S. Ct. at 2080

(“[W]e are not to ‘pronounce’ this classification ‘unconstitutional unless in light of the facts

made known or generally assumed it is of such a character as to preclude the assumption that it

rests upon some rational basis within the knowledge and experience of the legislators.’” (quoting

United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938)). Finally, excluding religious

organizations from paying the excise tax is not so attenuated to this goal as to render the

                                              –19–
exemption arbitrary or irrational. See id. Based on rational-basis scrutiny, we conclude section

201.066 of the TUCA does not violate the Equal Protection Clause. We resolve Spicer’s third

issue against him.

                                          Section 1983

       In his first issue, Spicer asserts “it might well be a violation of 42 U.S.C. Section 1983

for the TWC Appeal Tribunal, the TWC, and the District Court all to fail even to acknowledge

the existence of the constitutional principle” on which he bases his claim. In general, section

1983 creates a private right of action for abridgement by a “person” acting under the color of

state law of any rights, privileges, or immunities secured by the United States Constitution and

laws. 42 U.S.C.A. § 1983 (West 2012); Richardson v. McKnight, 521 U.S. 399, 403 (1997).

Spicer did not assert this claim either before the TWC or in the trial court. Accordingly, he has

failed to preserve this argument for appellate review. See TEX. R. APP. P. 33.1(a)(1). In any

event, neither the State of Texas nor its agencies are a “person” within the purview of section

1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). We resolve Spicer’s first

issue against him.

                                          Conclusion

       We conclude the trial court did not err by determining there was substantial evidence

supporting the TWC’s denial of unemployment benefits to Spicer. We affirm the trial court’s

judgment.




                                                  /Robert M. Fillmore/
                                                  ROBERT M. FILLMORE
                                                  JUSTICE


130465F.P05
                                              –20–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

DOUGLAS SPICER, Appellant                            On Appeal from the 101st Judicial District
                                                     Court, Dallas County, Texas,
No. 05-13-00465-CV         V.                        Trial Court Cause No. DC-12-09281.
                                                     Opinion delivered by Justice Fillmore,
TEXAS WORKFORCE COMMISSION                           Justices FitzGerald and Lang participating.
AND PLEASANT VALLEY UNITED
METHODIST CHURCH, Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellees the Texas Workforce Commission and Pleasant Valley
United Methodist Church recover their costs of this appeal from appellant Douglas Spicer.


Judgment entered this 22nd day of April, 2014.




                                                   /Robert M. Fillmore/
                                                   ROBERT M. FILLMORE
                                                   JUSTICE




                                              –21–
