From the October 23, 2012, dissenting opinion of Judge Robert Smith in a case brought by the operators of Nite Moves, a strip club near Albany, against New York State’s tax agency. Under the state’s tax code, “dramatic or musical arts admission” charges are exempt from sales tax. In a 4–3 decision, the court upheld taxes on exotic dancing.

The ruling of the Tax Appeals Tribunal, which the majority upholds, makes a distinction between highbrow dance and lowbrow dance that is not to be found in the governing statute and raises significant constitutional problems. The Legislature used “choreographic” in…