606
Scalia, J., dissenting
heritance tax exemption to in-state charities but denying a similar exemption to out-of-state charities. We recognized that such exemptions are nothing but compensation to private organizations for their assistance in alleviating the State's burden of caring for its less fortunate residents, see id., at 561. "[I]t cannot be said," we wrote, "that if a State exempts property bequeathed for charitable or educational purposes from taxation it is unreasonable or arbitrary to require the charity to be exercised or the education to be bestowed within her borders and for her people," id., at 563.5
It is true that the opinion in Board of Ed. of Ky. addressed only the Equal Protection and Privileges and Immunities Clauses of the Fourteenth Amendment, and not the Commerce Clause. A Commerce Clause argument was unquestionably raised by the plaintiff in error, however, in both brief, see Brief for Plaintiff in Error, D. T. 1906, No. 103, pp. 30-38, and oral argument, see 203 U. S., at 555 (argument of counsel), and the Court could not have reached the disposition it did without rejecting it. "[T]he Court implicitly rejected [the] argumen[t] . . . by refusing to address [it]." Clemons v. Mississippi, 494 U. S. 738, 747-748, n. 3 (1990). The Commerce Clause objection went undiscussed, I think, because it was (as it is here) utterly contrived: The State's
5 The Court attempts to distinguish Board of Ed. of Ky. on the ground that the statute upheld in that case treated charities differently based on whether they were incorporated within the State, rather than on whether they dispensed charity within the State, see ante, at 591-592, n. 27. That is quite impossible, inasmuch as we have held that out-of-state incorporation is not a constitutional basis for discriminating between charities. And in the case that announced that holding (invalidating the denial of a property tax exemption to a nonprofit corporation incorporated in another State), we distinguished Board of Ed. of Ky. on the ground that the statute at issue there withheld the exemption "by reason of the foreign corporation's failure or inability to benefit the State in the same measure as do domestic nonprofit corporations." WHYY, Inc. v. Glassboro, 393 U. S. 117, 120 (1968) (per curiam). The Court's analysis contradicts both the holding of this case and its reading of Board of Ed. of Ky.—which is obviously the correct one.
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