The 'clearest command' of the Establishment Clause: denominational preferences, religious liberty, and public scholarships that classify religions.

• Author: Duncan, Richard F.
• Position: 2010 Symposium Issue

1. INTRODUCTION

   "The clearest command of the Establishment Clause," according to the United States Supreme Court, "is that one religious denomination cannot be officially preferred over another." (1) The source of the idea animating this core principle of nonestablishment is The Federalist Papers and Madison's insight that "security" for religious liberty results from a level playing field upon which a "multiplicity of sects" are free to compete with each other for adherents. (2) As the Court observed in Larson v. Valente, (3) "Madison's vision--freedom for all religion being guaranteed by free competition between religions--naturally assumed that every denomination would be equally at liberty to exercise and propagate its beliefs." (4) In other words, the clearest command of the Establishment Clause is to require legislators and voters "to accord to their own religions the very same treatment given to small, new, or unpopular denominations." (5)

   Although the command against denominational preferences is strong and clear, there is much about Larson and its important doctrine that needs clarification. For example, when do laws create denominational preferences? Are they created when government enacts facially neutral laws that have a disparate impact on different religions? Or are they created only when government enacts denominational classifications directed at some "small, new, or unpopular" religion? Or is it enough that a law explicitly treats some religious institutions better than others? For example, suppose a zoning law conditions a special use permit for a college or university to be located in a certain neighborhood upon a showing that the applicant is not a "pervasively sectarian" institution or does not offer a degree or major in devotional theology. Does this law create a denominational preference for religious colleges that are not pervasively sectarian or for those that teach theology from a non-devotional, as opposed to a devotional, perspective? (6) Suppose that instead of being contained in a zoning law, these kinds of restrictions were enacted in an otherwise generally available scholarship program for needy college students. (7)

   The purpose of this article is to analyze the Supreme Court's doctrine prohibiting denominational preferences with a view toward mapping out the boundaries of the doctrine in light of its animating principle of free religious competition. I will then attempt to apply the "clearest command of the Establishment Clause" to the facts of a recent free exercise decision of the Court, Locke v. Davey. (8) Although the Court in Davey rejected a free exercise challenge to a state scholarship program that denied funding to students pursuing college degrees in "devotional theology," (9) I will suggest that this exclusion creates a denominational preference that appears to violate the Establishment Clause and the teachings of Larson. Indeed, I will argue that Larson applies with particular force in cases in which religious lines are drawn by funding laws in which the benefit "if applied uniformly to all religions" would comply with the Establishment Clause. (10)

2. THE SUPREME COURT'S DOCTRINE CONCERNING DENOMINATIONAL PREFERENCES

   A. THE CATEGORICAL RULE OF LARSON

   In Larson v. Valente, Minnesota enacted a statute to regulate charitable solicitations in order to protect the public and the beneficiaries of charitable contributions from fraudulent practices. (11) Under this enactment, certain religious organizations were exempted from the law's registration and reporting requirements. In particular, the law exempted "only those religious organizations that received more than half of their total contributions from members or affiliated organizations...." (12)

   The Supreme Court held that the fifty percent rule created a denominational preference, because it imposed "the registration and reporting requirements of the Act on some religious organizations but not on others." (13) By selectively conferring a "substantial advantage" on some religious charities, (14) the law created a serious risk of politicizing religion by treating some religious organizations as political insiders and others as political outsiders. (15) Interestingly, the exemption in Larson was not based upon doctrinal differences between favored and disfavored religious organizations, but rather on purely secular factors concerning solicitation of funds from nonmembers. Arguably, the Establishment Clause violation would be even clearer if the line drawn between exempted and non-exempted religious organizations had been based upon certain religious teachings or practices or on the degree of religiosity of different denominations. (16)

   Under Larson, denominational preferences are subject to strict scrutiny (17) and will be struck down under the Establishment Clause unless the government can demonstrate that the "suspect" religious classification is a necessary means of advancing some compellingly important governmental end. (18) As Professors Rotunda and Nowak observe, "[i]t is difficult to imagine the circumstances under which the government would have a compelling need to prefer some religions over others." (19) In the words of the Court, equality of religious liberty under the First Amendment is inconsistent with "an atmosphere of official denominational preference." (20)

   Although some might argue that Larson is a free exercise decision "parading in an establishment clause disguise[,]" (21) the decision pivots not on the existence of a free exercise burden, but rather on the religious favoritism that results when governmental benefits (including funding benefits and benefits in the form of exemptions from governmental regulations) are selectively distributed to favored religions. (22) As Justice Brennan wisely observed in Larson, governmental favoritism for some religions over others strikes at the core of the Constitution's proscription of religious establishments. (23) Under this reading of the Establishment Clause, "[t]he requirement of denominational equality is designed to enhance the freedom and dignity of all religious believers" and to "encourage a societal norm of religious toleration." (24)

   Unlike the Lemon test (25) and the "endorsement test," (26) the Larson test is a categorical rule that does not require ad hoc determinations about whether a law respecting religion has the primary effect of advancing or inhibiting religion (27) or whether a reasonable observer would view the law as "endorsing religious beliefs." (28) Indeed, Larson is perhaps best understood as creating a brightline rule that classifies denominational preferences as laws that inherently have the primary effect of advancing the preferred religions and inhibiting the non-preferred religions. (29) In other words, Larson adopts a per se rule under the Establishment Clause forbidding--in the absence of a compelling justification--laws that "utilize classifications based on denominational or sectarian affiliation to extend benefits or to impose burdens." (30)

   B. WHAT CONSTITUTES A "DENOMINATIONAL PREFERENCE"

   A facially neutral law that does not classify on the basis of religion--such as a zoning law that forbids the slaughter of animals in residential districts--does not create a denominational preference under Larson even though it may have a disparate impact on religions that practice animal sacrifice. (31) In the words of Justice O'Connor, under Larson a denominational preference exists--and strict scrutiny is required--only when "a statute or practice ... plainly embodies an intentional discrimination among religions...." (32) The clearest examples of unlawful denominational preferences involve laws, like the one challenged in Larson itself, which facially classify on the basis of religion by drawing a line between religious organizations that receive a benefit or some other preference from government and those that do not. (33) A religious classification exists whenever government prefers a particular religion by name (34) or, as in Larson itself, distinguishes between religions based upon identifiable characteristics such as sources of funding or doctrinal distinctions. (35)

   Perhaps the most difficult case to analyze under the Larson test is Gillette v. United States. (36) Gillette, which was decided a little more than a decade prior to Larson and in the midst of our nation's bitter division over the Vietnam War, (37) concerned a federal law "providing exemptions from compulsory military service for some religious conscientious objectors, but not others." (38) Specifically, the federal selective service law in effect at the time exempted from combat training and service "any person ... who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." (39) Thus, the law classified on the basis of religious belief, exempting from combat those religiously opposed to all war, but not those religiously opposed only to particular "unjust" wars. (40) As Professor Tribe observes, although the law did not deny conscientious objector status to any particular denomination by name, the law's distinction between different religious beliefs about war effectively denied "conscientious objector status to Catholics, whose religion required them to take part in just wars and to refuse to participate in unjust wars." (41)

   In Gillette, the Court held that the draft law's distinction between religious opposition to all wars and religious opposition only to particular wars did not "reflect a religious preference" (42) because "there [we]re neutral, secular reasons to justify the line that Congress ha[d] drawn[.]" (43) Moreover, the Court concluded that the distinction between different kinds of conscientious objections did not "single out any religious organization or religious creed for special treatment." (44)

   Is Larson's strong prohibition of "denominational preferences" consistent with the...