‘Pole tax’ in Texas violates Constitution, judge rules

HOUSTON – Texas was forced by federal law to end its poll tax on voters four decades ago, and now another levy has put the Lone Star State in constitutionally murky waters: the “pole tax.”

In 2007, Texas lawmakers imposed a $5-per-patron fee on strip clubs to raise more than $40 million annually for anti-sexual-assault programs and health care for uninsured Texans.

The fee, which took effect Jan. 1, infuriated the owners of Texas’ 162 strip joints, who said politicians were cynically taxing a population they knew would not fight back. After all, men who make a habit of drinking and stuffing currency in the attire of scantily clad women are usually not eager to tell the world about it at legislative hearings.

On March 28, however, Texas strip club devotees found a powerful ally: An Austin judge declared the tax unconstitutional, saying it infringed on expression protected by the First Amendment.

Travis County District Judge Scott H. Jenkins said in his ruling that laws limiting such expression had to pass strict constitutional tests and that the tax didn’t because, among other things, indigent health care had no connection to strip joints.

“There is no evidence that combining alcohol with nude erotic dancing causes dancers to be uninsured,” he wrote.

A spokesman for Texas Attorney General Greg Abbott said Abbott would “vigorously appeal” the decision. And state Democratic Rep. Ellen Cohen, of Houston, the former head of a women’s shelter, said she was prepared to write a narrower measure.

“We need more funding for sexual-assault victims, to get the word out and to educate people,” Cohen said of her law, which had bipartisan support. “That’s what this is all about, and there is general agreement that it is a good thing.”

Stewart Whitehead, an attorney for the Texas Entertainment Association, which challenged the law, along with an Amarillo topless bar called Players, stressed that adult businesses supported rape crisis centers and other programs Cohen wanted to beef up. However, he said, strip clubs do not want to be singled out for taxation.

“We hope this sends a message nationally that these establishments are protected by the First Amendment and you can’t impose an unfair tax on them just because they are an easy political target,” Whitehead said.