State and Local Regulation of Religious Solicitation of Funds: A Constitutional Perspective

Date01 September 1979
Published date01 September 1979
AuthorSanford Jay Rosen,Robin B. Johansen
Subject MatterArticles
State and Local Regulation of Religious Solicitation of
Funds: A Constitutional Perspective
ABSTRACT: In recent years, state and local governments
have increasingly sought to regulate solicitation on behalf
of religious groups. Predictably, these governments are using
existing laws and also enacting new laws for this purpose. Such
tactics can be seen as part of a growing effort by government to
regulate and monitor the actions of all religious groups. Implicit
in this growing trend toward regulation of religious activities is
the arrogation by state and local officials and lawmakers of the
authority to decide what is "religion" and therefore exempt
from regulation. Particularly significant is the impact of statu-
tory regulation on the fundraising and other activities of both
traditional and nontraditional churches. The increased regula-
tion of religious solicitation touches a longstanding tension
in American life involving the separation of church and state,
and invokes three central themes: our money, our privacy, and
our faith. Not surprisingly, the courts are now being asked to
review the constitutionality of statutes that regulate religious
solicitation and are being asked to balance the interests
involved. Most laws and regulations currently used to regulate
religious solicitation are constitutionally infirm. They are
either too vague to protect against arbitrary or capricious
enforcement by public officials, or they place officials in the
position of deciding what is religious and what is secular
activity. The use of traditional time, place, and manner
regulations—and sparing use of the existing criminal fraud
law—are better means of curbing abuse in religious
solicitation, and will prevent dangerous blurring of the
boundary between church and state.
Robin B. Johansen is an associate in the San Francisco law firm of Rosen, Remcho
& Henderson. Sanford Jay Rosen is a partner in the San Francisco law firm of Rosen,
Remcho &
Henderson, which is Special Counsel to the Division of Church and
Society of the National Council of Churches.

THE CITY of Los Angeles ordered solicitation, is a disturbing assertion
Due Process of Law Fund
by state and local officials and law-
of the National Council of Churches
makers of the power to determine
of Christ in the U.S.A. to cease and
which groups and activities are truly
desist a direct-mail campaign solicit-
religious for purposes of exempting
ing contributions within the City of
them from regulation. This assertion
Los Angeles in December 1977.1
of authority is quiet. It seldom
Earlier that year the Commonwealth
receives much public attention. It
of Massachusetts had notified the
is often done in the guise of imple-
National Council of Churches’ Due
menting statutes that apparently
Process of Law Fund that it was sub-
deal with matters of an entirely
ject to Massachusetts laws governing
secular nature. But it is having a
charitable solicitation. Following an
significant effect on the fundraising
exchange of letters, the Common-
and other activities of traditional and
wealth determined that the purpose
nontraditional churches alike. And it
of the Fund’s direct-mail campaign
is increasingly reaching the courts
was not &dquo;religious&dquo; and therefore
for review.
the Fund must register with the
The increased interest in regulating
Commonwealth and file an annual
religious groups has its origins in
financial report.2 The Fund en-
two relatively recent phenomena.
countered similar difficulties in
State and local officials have always
had an interest in protecting their
These attempts to regulate chari-
citizens from defrauding (and often
table solicitation by one of the nation’s
defrocked) &dquo;evangelists.&dquo; This inter-
largest and most respected religious
est has intensified, however, with the
organizations are not unique. Rather,
growth of less traditional churches,
they are part of a growing effort on
some of them bizarre cults or sects
the part of state and local govern-
and some of them simply small
ments to regulate solicitation on
groups of worshippers with their
behalf of religious groups. Indeed,
systems of belief. As both types
they are part of a more general effort
of groups proliferate, they often
by government to regulate and
become highly visible, taking their
monitor the actions of religions and
witness into the streets and knocking
religious groups, which includes
on the public’s doors. These groups
increasing use of grand jury investiga-
lack the comfortable familiarity of
tions, Internal Revenue Code audits,
recognized religions and, to many
and imposition of receiverships.
local and state officials, it must seem
At the heart of this increased
impossible to predict which of them
regulation, as it involves religious
are benign and which are quite
literally instruments of the devil.
1. Letter from Fern Jellison, General
A second phenomenon springs
Manager, Los Angeles Social Services Dept.
from the conduct of churches them-
to Lucino Walker, Jr., Assoc. Gen. Secretary,
selves. Over the last two or three
National Council of Churches of Christ in the
decades, traditional
U.S.A., December 8, 1977.
religious groups,
2. Letter from Susan K.
such as the United Methodist
Sloane, Assistant
Attorney General and Director, Division of
and the National Council of Churches
Public Charities, Commonwealth of Massa-
have become increasingly active and
chusetts, to Dean M. Kelley, Division of
Church and
concerning social issues. Many
Society, National Council of
state and
Churches of Christ in
the U.S.A., December
officials, like those in
29, 1977.
Los Angeles and Massachusetts

mentioned above, view these activi-
require organizations wishing to
ties as secular and therefore subject
solicit contributions in a particular
to regulation. The social gospel has
locale to register with a governmental
not yet reached these officials and
agency and report the amount of
perhaps it never will. At any rate,
contributions received.4 Many state
they persist in the belief that they not
and local regulations impose addi-
only have the authority but bear the
tional and far greater burdens on
responsibility for differentiating be-
charitable solicitation, such as limita-
tween activities that are religious
tions on amounts expended on
and those that are secular.
solicitation, bonding and filing fees,
The problem Teveals a fundamental
and even requirements of fingerprint-
tension in the American sociopolitical
ing and photographing of volunteers.
system. Chastened by firsthand ex-
Many of the regulations fail to state
perience with theocracy, many of the
whether they cover religious organi-
colonies had attempted to separate
zations at all or they leave substantial
church and state. By the Revolt-
doubt as to whether they cover
tionary era, the feeling was so strong
certain types of fundraising activities
that the matter was the first issue
by religious groups. Quite apart from
addressed in the Bill of Rights.3 On
these- problems, the very quantity
the other hand, we remain a religious
and diversity of the regulations
nation. The central role of religion in
impose a cumulative and crushing
the national life makes confronta-
burden, especially on religious or-
tion-and sometimes collision-in-
ganizations that operate on a nation-
evitable between church and state.
wide basis.
This is particularly the case with
This article examines the con-
laws that regulate charitable solicita-
stitutional validity of charitable
tion. The very topic invokes three
solicitation ordinances as applied to
central themes in American life: our
religious organizations. It also pre-
money, our privacy, and our faith.
sents an alternative and constitu-
Characteristically, we leave it to the
tionally permissible means of regu-
courts to sort it all out in the end.
lating solicitation by religious bodies
Increasingly, the courts are being
through use of existing criminal
asked to review the constitutionality
fraud statutes and carefully drawn
of a variety of statutes regulating
limitations on the time, place, and
religious solicitation. They have
manner of solicitation.
their work cut out for them, for there
presently exists a bewildering net-
work of state and local statutes
governing charitable solicitation.
In general, the constitutionality of
many of these statutes almost
present state and local network
invariably collide with First Amend-
4. For a survey of state laws regulating
ment principles protecting freedom
charitable solicitation, see The Philanthropy
of speech and of religion.
Monthly, Survey of State Laws Regulating
Charitable Solicitation (Looseleaf, 1978 Rev.).
At a minimum, these statutes
5. For a summary of requirements imposed
by local ordinances in the Chicago area alone,
3. The First Amendment provides in
see Appendix B to the Coalition of National
pertinent part: &dquo;Congress shall make no law
Voluntary Organizations brief amicus curiae
respecting an establishment of religion, or
in Village of Schaumburg v. Citizens for a
prohibiting the free exercise thereof; or
Better Environment, No. 78-1335 (Supreme
abridging the freedom of speech, or of the
Court of the United States, October Term,

of charitable solicitation laws de-
organizations or for certain purposes.’
pends to a great degree on the

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