# Motion to Dismiss or Affirm — Larson v. Valente

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion to Dismiss or Affirm
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 228

## Text

Office Supreme Court, U.S.
FILED

MAY 11 1961

Supreme Court of the United Sfatts:..°">

October Term 1980

JOHN R. LARSON, etc., ef al.,

vs.
PAMELA VALENTE, ef al.,

MOTION TO AFFIRM.

BARRY A. FISHER,
Counsel of Record,

LARRY J. ROBERTS,

Davip Grosz,

ROBERT C. MOEST,

FISHER & MOEST,
2049 Century Park East,
Suite 3160,
Los Angeles, Calif. 90067,
(213) 557-1077,

JOSEPH T. Dixon, Jr.,

HENSON & EFRON,
1200 Title Insurance Building,
Minneapolis, Minn. 55401,
(612) 920-5736,

Attorneys for Appellees.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

Questions Presented.

1. Whether appellees, plaintiffs in the district court,
have standing to challenge on establishment clause grounds
a Minnesota statute which has been applied to them and
which therefore injures them in fact.

2. Whether the church exemption provision of the Min-
nesota Charitable Solicitations Act, which on its face sub-
jects some churches but not others to a series of onerous
burdens required by the substantive provisions of the Act,
thus favoring some churches over others, violates the
establishment clause of the first amendment.

TABLE OF CONTENTS

Page
NY CIID «cap bcbnssosscdcsedetessonsesntseneencene i
NE EE I IEEE cacccssocnscnseccuscnendscesrasneeavass |
1. The Proceedings Below ........ (ives aventisenscess |
Ba: Se EY GNI nec cvcccvccnccserseseceoaoscns 4
The Questions Are Unsubstantial .................0000000 7
PII osccccvcccscnscssaptssponscesscescscsccsescsccsesecess 9

lL.

Appellees Have Standing to Raise Establishment

IEEE a cccdeaias hdansiecasuseudiunesensdvesséses 9

Il.

The Effect of the Statute Is to Advance Some
Churches and Inhibit Others in Violation of the

i a eh Te sceeecvedeasbectessaess 11
Il.
The Decision of the Court of Appeals Is Entirely
Consistent With Gillette v. United States .......... 17

eR Ste a dca dpheeenindoanaens 21

TABLE OF AUTHORITIES
Cases Page
Broadrick v. Oklahoma, 413 U.S. 601 (1973) ......... 11

Citizens Concerned for Separation of Church and State
v. City and County of Denver, 628 F.2d 1289 (10th

Cle. BOGDD ceccsiscscsecnesevenscnatec eee 7 om. 03
City of New Orleans v. Dukes, 427 U.S. 297 (1976)
oscedensvededesiuesnanenebhubannsehepenediineian lineman 15
Craig v. Boren, 429 U.S. 190 (1979) ...........s.ecece0 20
Engel v. Vitale, 370 U.S. 421 (1962) .....cccccccvccsee iv
Epperson v. Arkansas, 393 U.S. 97 (1968) ............. 19
Everson v. Board of Education, 330 U.S. |
(DST) vvcddcekscdhacdetesssehivandeseateeee 9H, 13
Flast v. Cohen, 392 U.S. 83 (1968) ..........cscccsceeees 9
Follett v. Town of McCormick, 321 U.S. 573 (1944)
seebscsnssecevéecenapasasaaheneinsnarsaiesaynunlnanae 17

Gillette v. United States, 401 U.S. 437 (1971) ........
ie ibbacasdadsrcnwctleae 8, 17, 18, 19, 20, 21

Harris v. McRae, 100 S.Ct. 2671 (1980) (No. 79-
SDBB) vk cvcdniecddoccccccuvtvstsscaistnashapee eee 19

Heritage Village Church & Missionary Fellowship, Inc.
v. State, 299 N.C, 399, 263 S.E.2d 726 (1980)
sepcekescnoudassnnaniniteennerannaet &, 13, 14, 15, 16, 17

Lemon v. Kurtzman, 403 U.S. 602 (1971) .............
dd gvcdasvscoowmeubeccaies caiadal tee 45 Bas. tae Dae

McDaniel v. Paty, 435 U.S. 618 (1978) .............05. 20
McGowen v. Maryland, 366 U.S. 420 (1961) ..... ee

Minnesota v. Clover Leaf Creamery Co., 101 S.Ct. 715
(1963) CO. FRENTE): ascseseccacccntesceesevetastsctien 15

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ....... 16
NAACP v. Button, 371 U.S. 415 (1963) ............... 15

iV

Page
NLRB v. Catholic Bishop, 440 U.S. 490 (1979) ...... 15
Personnel Administrator v. Feeney, 442 U.S. 256
CEP FSD « crscivebicnticisdccessiersprengssenls meee 20
School District v. Schempp, 374 U.S. 203 (1963) ....
ene ceshacdeapadaininsdebsauesbiasasaaaeebaene 7, 10, 13, 19
Sierra Club v. Morton, 405 U.S. 727 (1972) ........... 9
Stone v. Graham, 101 S.Ct. 192 (1980) (No. 80-321)
svbccdpecsnouestdthonsnedsucehpe0gseaasubeniaessae nee 12
Thomas v. Review Board, 49 U.S.L.W. 4341 (U.S.
Age. 6, 1961) GOS. THEA) osiscccccsncccsacsss 9, 18, 19
Troyer v. Town of Babylon, 438 F.Supp. 1135
(E.D.N.Y.) aff'd mem. sub nom. ..................... 16

Troyer v. Town of Southampton, 628 F.2d 1346 (2d
Cir.), aff'd mem., 101 S.Ct. 522 (1980) (No. 80-

SOG) :sincvecavnsnsnsetbescsuahsxedacesexehakaneeeennee 16
United States v. Ballard, 322 U.S. 78 (1944) .......... 9
United States v. Seeger, 380 U.S. 163 (1965) ......... 19
Village of Schaumburg v. Citizens for a Better Envi-

ronment, 444 U.S. 620 (1980) ................eeeeeeeee 11
Walz v. Tax Commission, 397 U.S. 664 (1972)

pipenhabeaviveceverenabinencascenantrasecennenaenee it, 33, oF
Welsh v. United States, 398 U.S. 333 (1970) .......... 19
Washington Ethical Society v. District of Columbia,
O09 Fae 827 DA CR. TRE) sci inssccnees 4
Williamson v. Lee Optical, Inc., 348 U.S. 483
| GRRE Weshdliveoddetsvecieietessasscrasapen seciauaie 15
Wisconsin v. Yoder, 406 U.S. 205 (1972) .... 15, 18, 19
Constitution

United States Constitution, First Amendment ...........
ita vayhuvaldunenccleaenats lrteeoee Se Pe Se es es

Page
United States Constitution, Fourteenth Amendment
BRIO IE LPI IER OD OTL LONE ERROR REDE E AOOTE 1, Il
Rules
Rules of the Supreme Court of the United States, Rule
DEE -<ccchatuguaucatisehastanaksusxchossenerastinkixieentes l
Statutes
Minnesota Statutes of 1980, Secs. 309.50-.61 .. 1,4, 9
Minnesota Statutes of 1980, Sec. 309.50(3) ............ 6
Minnesota Statutes of 1980, Sec. 309.50(4) ............ 6
Minnesota Statutes of 1980, Sec. 309.52 ................ 6
Minnesota Statutes of 1980, Sec. 309.53 ................ 6
Minnesota Statutes of 1980, Sec. 309.414(1)(a) ....... 6
Minnesota Statutes of 1980, Sec. 309.515 .......... 6, 14
Minnesota Statutes of 1980, Sec. 309.515(1)(a) .......
ela aieea nh erate deb taanuancsdponaoasveusesesnenes 6, 12, 14

Minnesota Statutes of 1980, Sec. 309.515(1)(b) .......
STP ER RP Ente ATTA AEN OPI ES 6, 7, 11, 14, 17

United States Code, Title 42, Sec. 1983 (1976) ....... l

United States Code, App., Title 50, Sec. 456(j)
SED Widicstasdduanbwuvenaduernestsektsonksaveranesubasaccete 18

No. 80-1666
IN THE

Supreme Court of the United States

October Term 1980

JOHN R. LARSON, etc., ef al.,
Appellants,
vs.
PAMELA VALENTE, ef al.,
Appellees.

MOTION TO AFFIRM.

Appellees, pursuant to rule 16.1(c) of the Rules of the
Supreme Court of the United States, move that the judgment
of the United States Court of Appeals for the Eighth Circuit
be affirmed on the ground that it is manifest that the ques-
tions on which the decision of the cause depends are so
unsubstantial as not to need further argument.

Statement of the Case.
1. The Proceedings Below.

The present action, brought pursuant to 42 U.S.C. $1983
(1976), sought a declaration that the Minnesota Charitable
Solicitations Act, Minn.Stat. §§309.50-.61 (1980) [here-
inafter sometimes cited as the Act] is unconstitutional as
violative of the first and fourteenth amendments and an

ct, oem

injunction against its enforcement.' Plaintiffs in the action
as originally filed were four individual members of the Holy
Spirit Association for the Unification of World Christianity
{the Unification Church or the Church}. Named as defen-
dants were the two Minnesota officials charged with the
enforcement of the Act, John R. Larson, the Commissioner
of Securities, and Warren Spannaus, the Attorney General
[hereinafter collectively referred to as the state].

The complaint was filed on October 11, 1978. At the
same time, plaintiffs filed a motion for preliminary injunc-
tion against enforcement of the Act. Defendants-appellants
[hereinafter referred to as appellants] opposed the motion
on the merits and also filed a motion to dismiss, or, in the
alternative, to join the Unification Church as a party. After
the federal complaint had been filed, but before the prelim-
inary injunction had been heard, the State of Minnesota filed
an action in state court against the Church, alleging that the
latter was in violation of certain provisions of the Act. Prior
to the hearing, the parties entered into a stipulation whereby
the Unification Church was joined as a plaintiff to the federal
action and the state action was stayed.

The preliminary injunction motion was heard on January
25, 1979 by Magistrate (now Judge) Renner. On March 5,
1979 the magistrate filed his Report and Recommendation
which concluded that the motion should be granted. Jur. St.
A-36. Appellants immediately filed objections to the Report

‘Apart from the establishment clause issue determined by the court
of appeals, appellees raised in the district court numerous other con-
stitutional challenges to the Act. They argued, for example, that the
Act vested impermissible discretion in state officials to grant, deny,
revoke or suspend permission to engage in the exercise of first amend-
ment rights; failed to conform to required first amendment due process
safeguards; violated the equal protection clause; violated the free ex-
ercise clause by overbroad intrusion into the financial affairs of churches;
and contained a variety of other constitutionally impermissible restric-
tions on the exercise of first amendment rights. Under the terms of the
Eighth Circuit decision, litigation of these issues on remand to the
district court is open.

=

and Recommendation and moved that it be rejected by the
court. An additional hearing was thereafter held before
Judge Lord, and on July 5, 1979 the court filed an order
upholding the magistrate’s conclusions. /d. A-35.

A motion for summary judgment was then made by plain-
tiffs-appellees [hereinafter referred to as appellees] in which
it was contended that the Act was unconstitutional. Appel-
lants responded by themselves moving for partial summary
judgment.

The new set of motions was heard by Magistrate Renner
on August 31, 1979. The Report and Recommendation,
issued on November 15, 1979 recommended that both mo-
tions be granted in part and denied in part. /d. A-20. The
major conclusion of the Report was that, because the ex-
emption provision works an establishment of religion, the
Act is ‘‘unconstitutional as applied to religious organizations
and members thereof’ and that its enforcement should be
permanently enjoined as to such organizations. /d. A-34.
Other rulings in the Report concerned the application of the
Act to non-religious organizations and the constitutionality
and justiciability of various enforcement provisions of the
Act. Id.

Defendants again objected to the magistrate’s conclu-
sions. For their part, plaintiffs challenged the Report and
Recommendation only insofar as it subsidiarily had con-
cluded that a sharp distinction should be drawn for consti-
tutional purposes between solicitation by religious organi-
zations and by non-religious charitable organizations.’ By
order dated January 9, 1980 and filed January 21, 1980 the
district court granted judgment as recommended by Mag-
istrate Renner. /d. A-18.

In an opinion dated January 7, 1981, id. A-1, the Eighth
Circuit generally upheld the judgment of the trial court.

*By order the appellees were precluded from raising this issue in the
court of appeals.

a ‘an

Specifically, the court of appeals held, first, *‘that plaintiffs
have standing to challenge the classification made in the
exemption section of the Act’ pertaining to religious or-
ganizations. Jd. A-4, 637 F.2d 562, 571 (8th Cir. 1981).
Second, the exemption provision was held to be unconsti-
tutional as an establishment of religion because it lacked
both a secular purpose and a neutral effect. Jd. A-5 to
A-14, 637 F.2d at 567-69. Third, the proper relief was held
to be an extending the exemption provision to all churches
rather than excising it entirely from the Act. /d. A-15, 637
F.2d at 570.

Only the conclusions that no part of the Act could be
applied to a church and that any organization claiming to
be a church should be exempt were vacated and remanded
for ‘‘further development’. /d. A-17, 637 F.2d at 571.
Under the latter holding the state is apparently free to attempt
to prove that the Unification Church is not a ‘‘religious
organization’’, id. A-16, 637 F.2d at 570, within the pe-
rimeters of this Court’s decisions and those of Washington
Ethical Society v. District of Columbia, 249 F.2d 127 (D.C.
Cir. 1957), which the Eighth Circuit carefully noted, id.
A-17, 637 F.2d at 570-71.

The lower courts were thus unanimous in their agreement
on what is for present purposes the central issue of the case,
that the exemption provision works an establishment of re-
ligion. Appellees prevailed in their critical claim that the
onerous provisions of the Act cannot be applied to them,
as they have no doubt whatsoever that they will prevail
should the state undertake to prove that the Unification
Church is not a religious organization, and they do not cross-
appeal or seek to disturb the judgment of the court of

appeals.
2. The Statutory Scheme.
Prior to 1978 the Minnesota Charitable Solicitations Act,

now Minn. Stat. §§309.50-.61 (1980), in effect exempted
all religious solicitations from its requirements, as was and

a,

~

is the general practice of states which regulate these mat-
ters.’ This condition of benign neglect was drastically altered
by the amendments enacted by 1978 Minn. Laws. ch. 601,
which among other things applied the substantive provisions
of the Act to churches, a change which, however, was not
across-the-board. With minor exceptions the only churches
not exempted from the amended Act are those which derive
their financial support primarily from appeals to the public
rather than from their own members. Those churches in-
cluded within the Act’s requirements are subject to a process
of registration and detailed financial accounting to the state.
The Act, in addition, permits exhaustive official investi-
gation of the inner workings of churches which solicit funds
within Minnesota.

Thus, the radical effect of the 1978 amendments was to
require the state to exercise close scrutiny and careful su-
pervision over some, but not all, churches which seek to
raise money for purely religious purposes. A long-existing
church or religious society with a large, permanent mem-
bership is, in effect, exempt from the onerous burdens of
the Act even if it solicits a substantial amount of money
from the public. Similarly, a new branch of a church which
can turn to sister organizations of the same denomination
in its early years will also escape these burdens. In contrast,
a newly-established church which has little or no source of
financial support other than the public at large is subjected
to the full weight of the Act’s comprehensive regulatory
scheme.

Although appellees attacked the Act as a whole and on
numerous grounds in the trial court, only those portions of
it that relate to the exemption of churches were considered

‘Besides Minnesota only North Carolina seems to have adopted the
selective regulation at issue in this case. Both laws have now been held
to be unconstitutional by an impressive number of judges. See Jur. St.
A-14 0.8, 637 F.2¢ at 569 n.8. That any other states would choose to
follow this model in tight of its thorough condemnation is unlikely.

— eS

by the court of appeals and are drawn in question by ap-
pellants here. The requirements of the Act apply to all
‘‘charitable organizations’’ except those exempted by sec-
tion 309.515. The burdens imposed upon non-exempt or-
ganizations include the filing of a detailed registration state-
ment under section 309.52 before any solicitation may take
place. Each organization subjected to the Act must file an
annual report pursuant to section 309.53, which must dis-
close extensive financial information and, most likely, be
audited.

A “‘charitable organization"’ is defined by section 309. 50(4)
as any person or organization ‘‘who engages in or purports
to engage in solicitation for a charitable purpose’. The term
*‘charitable purpose"’ is in turn defined by section 309, 50(3)
specifically to include ‘‘any ... religious . . . purpose,
either actual or purported."’ Thus, a ‘‘charitable organiza-
tion’’ within the meaning of section 309.414(1)(a) includes
any organization which engaged in solicitation for a reli-
gious purpose, i.e., virtually any religious organization or
church.

From the class of all churches, section 309.515(1)(a)
exempts those that receive total contributions worldwide of
less than $10,000 and whose administration and clergy re-
ceive no money from the fund raising efforts. But also
exempt is

[a] religious society or organization which received
more than half of the contributions it received in the
accounting year last ended (1) from persons who are
members of the organization; or (2) from a parent or-
ganization or affiliated organizations; or (3) from a
combination of the sources listed in clauses (1) and
(2). A religious society or organization which solicits
from its religious affiliates who are qualified under this
subdivision and who are represented in a body or con-
vention is exempt from the requirements of sections
309.52 and 309.53. The term ‘‘member’’ shall not
include those persons who are granted a membership

a, ee

upon making a contribution as a result of the solici-
tation.

Section 309.515(1)(b).

This provision was the subject of the ruling of the court
of appeals. The court concluded that the selective regulation
of religious organizations that appears on the face of the
exemption contravenes the establishment clause.

The Questions Are Unsubstantial.

1. Appellees’ standing to challenge the Minnesota
Charitable Solicitations Act as violative of the establishment
clause is manifest. Appellees are injured in fact by the statute
since the state has sought to apply the law to them and such
application would directly prohibit and inhibit the solici-
tation activities which appellees propose to conduct within
Minnesota. McGowan v. Maryland, 366 U.S. 420 (1961),
among other cases, leaves no doubt as to appellees’ stand-
ing. In the allegedly conflicting case, Citizens Concerned
for Separation of Church and State v. City and County of
Denver, 628 F.2d 1289 (10th Cir. 1980), no injury in fact
to the plaintiffs was present.

2. The Minnesota statute clearly works an establishment
of religion under the “primary purpose and effect’’ standard
of Lemon v. Kurtzman, 403 U.S. 602 (1971), since on its
face it favors some religions over others by burdening the
non-preferred churches with numerous requirements of reg-
istration and disclosure while exempting other churches
from these provisions. The disfavored churches are those
that obtain their funding primarily through solicitations from
the public rather than from donations from their members.
Such state-conferred advantages based upon mode of reli-
gious practice and organization violate the neutrality man-
dated by the establishment clause as explicated in a long
line of cases, for example, School District v. Schempp, 374
U.S. 203 (1963). In addition, the differential effect of the
exemption is rendered even more obviously non-neutral by
the fact that its fit with respect to its supposed purposes is

iis

extremely tenuous and the fact that it would most heavily
burden unconventional religions. The decision of the Eighth
Circuit is fully im accordance with that of the North Carolina
Supreme Court in the only other case to have considered
the constitutionality of a statute of this kind, Heritage Vil-
lage Church & Missionary Fellowship, Inc. v. State, 299
N.C, 399, 263 S.E.2d 726 (1980).

The decision below does not conflict with Gillette v.
United States, 401 U.S. 437 (1971), which involved only
a de facto, not as here a de jure, preference of religions.
Also, unlike the present case, the conscientious objection
statute in Gillette represented a considered legislative ac-
commodation of the free exercise and establishment clauses.

=

ARGUMENT.

Appellees Have Standing to Raise Establishment Clause
Claims.

Appellees are injured in fact by the Minnesota Charitable
Solicitations Act, Minn. Stat. §309.50-.61 (1980), and they
therefore have standing to challenge its validity. See, e.g.,
Sierra Club v. Morton, 405 U.S. 727, 737-39 (1972). This
elementary proposition is ignored by the state, which com-
plains that the court of appeals applied the ‘‘overbreadth
doctrine’’ and did not require that the Unification Church
first prove that it is a religious organization before raising
establishment clause claims.

Virtually every establishment clause case decided by this
Court refutes the state's position. In no case has inquiry
into the religious beliefs or practices of a litigant raising an
establishment claim been required.’ On the contrary, this
Court has only inquired as to whether the plaintiffs ‘‘have
suffered direct economic injury’’, allegedly due to the op-
eration of the law in question. McGowan v. Maryland, 366
U.S. 420, 430 (1961). If so, the litigants ‘have standing
to complain that the statutes are laws respecting the estab-
lishment of religion’’. /d. at 431,

Therefore anyone directly affected by a law asserted to
constitute an establishment may challenge it, be he a busi-
nessman affected by a Sunday closing law, McGowan vy.
Maryland, supra, or be he a taxpayer affected by a gov-
ernmental expenditure, Flast v. Cohen, 392 U.S. 83 (1968),
Everson v. Board of Education, 330 U.S. 1 (1947), or be
he a parent or child affected by a state mandated prayer,

“That a court could do so at all consistently with the Constitution is
dubious. See United States v. Ballard, 322 U.S. 78, 87 (1944) (Man's
relation to his God was made no concern of the state’'). See Thomas
v. Review Bd., 49 U.S.L.W. 4341, 4343-44 (U.S, Apr. 6, 1981) (No.
79-952).

— ||

Engel v. Vitale, 370 U.S. 421, 430-31 (1962), or Bible
reading, School Districi v. Schempp, 374 U.S. 203, 224
n.9 (1963). Whether or not the challenging party is engaged
in religious practice, an overtly non-religious or anti-reli-
givus practice, or no religious practice at all matters not.
All that matters is that the litigant be injured in fact by the
operation of the law, as the appellees surely have been.

Compared to the attenuated effect of the laws which this
Court has found to be justiciable under the establishment
clause, the direct effect of the registration and disclosure
requirements are more than sufficient to create standing.
The effects on the appellees here are prohibition or inhibition
of their activities’ rather than mere passive participation in
a practice offensive to them. Moré»ver, the indirect pressure
to conform to more conventional religious views caused by
the operation of the Act reinforces the conclusion that stand-
ing is present.

The demonstration of the infliction by the iaw of direct
injury in fact on the appellees distinguishes this case toto
coelo from Citizens Concerned for Separation of Church
and State v. City and County of Denver, 628 F.2d 1289
(10th Cir. 1980), in which there was no showing of a direct
or even a casual connection between the challenged act and
any injury in fact to the named plaintiff. /d. at 1295. This

‘The individual appellees could ve forbidden to solicit funds until the
church has registered, a requirement from which the favored churches
are exempt, and the state has threatened to seek precisely this relief.
Also, the names of individual church members may become known
through financial disclosure provisions from which the favored churches
are exempt. The church itself would be subject to the onerous registra-
tion provisions which are at the heart of the statute if the selective
exemption is allowed to stand. And since the Unification Church claims
to be a religious organization, it will be handicapped in its competition
with conventional churches for donations from the public whether or
not it actually is one. Hence the appellees are, contrary to the assertion
of the state, Jur. St. 9, raising their own rights when they complain of
the establishment worked by the exemption provisions.

case® and Citizens Concerned are therefore entirely con-
sistent, and the division in the circuits that the state asserts
to exist is simply a figment of its imagination.

In sum, appellees have standing to challenge the statute
under the establishment clause pursuant to the decisions of
this Court over the last two decades. The decision of the
Eighth Circuit was therefore quite right and should not be
distu:oed.

The Effect of the Statute Is to Advance Some Churches
and Inhibit Others in Violation of the Establishment
Clause.

The Eighth Circuit, in agreement with the district court,
correctly held that the church exemption provision of the
Minnesota Charitable Solicitations Act, Minn. Stat.
§309.515(1)(b) (1980), which ‘‘single[s] out. . . particular
church[es] or religious group|s]),’" Walz v. Tax Commis-
sion, 397 U.S. 664, 673 (1972), for favored treatment by
the state, violates the establishment clause of the first
amendment.’ Jur. St. A-5 to A-14, 637 F.2d 562, 565-69
(8th Cir. 1981). The court of appeals so held in reliance
upon the familiar tripartite formulation of Lemon v. Kurtz-

*The decision of the Eighth Circuit relied more upon Village of
Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634
(1980). Most likely this approach was triggered by the incessant em-
phasis of the state in that court on another free speech case, Broadrick
v. Oklahoma, 413 U.S. 601 (1973), to which Schaumburg is an ap-
propriate rejoinder. But in any event, the court below was clearly cor-
rect, for the reasons stated herein, in concluding that the character of
the plaintiff church as a religious organization or not is irrelevant to
whether it and its members have standing in this case.

’The first amendment’s establishment clause, like its other provisions,
is applicable to the states through the fourteenth amendment. Everson
v. Board of Educ., 330 U.S. 1, 15 (1947).

a ee

—

man, 403 U.S. 602 (1971), which the Court just this Term
has had occasion to iterate. Stone v. Graham, 101 S.Ct.
192, 193 (1980) (No. 80-321) (per curiam).

The district court and the court of appeals collectively
found that the provision principally at issue was at odds
with all three portions of Lemon.’ However, since a violation
of any one of the Lemon principles is sufficient to entail a
violation of the clause, Stone v. Graham, supra, 101 S.Ct.
at 193, and although appellees believe that the judgment
may be affirmed under all three standards, it is necessary
for present purposes to look no further than the ground
common to both courts below," the ‘‘principal or primary
effect’’ branch of the Lemon test.

The statute at issue is an explicit legislative classification
of churches. It subjects some, those which, with minor
exceptions,'' receive more than half of their total contri-
butions from the public, no matter how small their total
volume of contributions, to onerous requirements of finan-
cial disclosure and reporting to the state but exempts from
these requirements the remainder, no matter how large the
dollar amount they may receive from the public.

‘First, the statute must have a secular legislative purpose; sec-
principal or primary effect must be one that neither advances nor inhibits
religion . . .; finally the statute must not foster ‘‘an excessive govern-
ment entanglement with religion.’

Id. at 612-13 (citations omitted).

*The district court relied upon the second and third parts of the Lemon
test but did not reach the first. Jur. St. A-18 to A-19 (order granting
summary judgment), incorporating by reference id. A-24 (magistrate’s
report and recommendation on summary judgment), incorporating by
reference id. A-62 to A-65 (magistrate’s report and recommendation
on preliminary injunction). The court of appeals found violations of the
first and second parts but declined to reach the third. Jur. St. A-14,
637 F.2d at 569.

"See note 9, infra.

‘All churches with total contributions of under $10,000 are exempt,
provided however that they meet three additional conjunctive criteria.
Minn. Stat. $309.515(1)(a) (1980).

|,

Entirely in accord with the North Carolina Supreme
Court, the only other court to have considered the question,
Heritage Village Church & Missionary Fellowship, Inc. v.
State, 299 N.C. 399, 263 S.E.2d 726 (1980), the Eighth
Circuit, noting that a ‘‘significant effect of the classifica-
tion’’ was ‘‘to assist (by deregulation) certain religious
groups, while burdening others,’’ Jur. St. A-11, 637 F.2d
at 568, ‘‘conclude|d] that the Minnesota Statute prefers
some religions over others.’ Jd. A-14, 637 F.2d at 569."
The court, therefore, was on exceedingly sound ground
when it invalidated the provision since, as has been rec-
ognized from the Court’s earliest case dealing with an es-
tablishment clause challenge to a state statute, see Everson
v. Board of Education, 330 U.S. 1, 15 (1947), perhaps the
first principle of the clause is that it ‘‘forbids . . . govern-
mental preference of one religion over another.’’ School
District v. Schempp, 374 U.S. 203, 216 (1963). But pref-
erence is precisely the result of Minnesota’s starkly differ-
ential scheme of state regulation, which is expressly aimed
at churches alone.

In these circumstances, the result of the selective ex-
emption is to
favor| | only those religious organizations which solicit
primarily from their own members. The inescapable
impact is to accord benign neglect to the more ortho-
dox, denominational, and congregational religions

Appellants’ clairn that — **proffered no evidence that the
duties of the non-exempt religious organizations amount to any sub-
stantive burden,’” Jur. St. 16, borders on the frivolous. The court of
appeals noted that ‘‘the burden of compliance with the Act is certainly
not de minimus.”’ Id. A-11, 637 F.2d at 568. That this conclusion is
an understatement is demonstrated by the court's careful analysis of the
Act’s requirements for non-exempt organizations. /d. A-11 to A-14,
637 F.2d at 568-69. The North Carolina Supreme Court easily reached
precisely the same result. Heritage Village Church, supra, 299 N.C.
at 411, 263 S.E.2d at 733. Indeed, the mere fact that non-exempt
churches are the only ones routinely required publicly to disclose the
innermost workings of their financial affairs alone places them at a
substantial comparative disadvantage.

a oe

while subjecting to regulation those religions which
spread their beliefs in more evangelical, less traditional
ways. This the state may not do.
Heritage Village Church, supra, 299 N.C. at 411, 263
S.E.2d at 737.

Otherwise put, the inter-church neutrality mandated by
the establishment clause cannot tolerate the selective reg-
ulation of churches according to their religious practice and
tenets. The decision of the courts below that the exemption
provision is therefore not neutral in its effect is clearly
correct.

Moreover, two additional factors exist which, while per-
haps strictly unnecessary to the holding, render tlie illegi-
timacy of the statutory classification even more readiiy ap-
parent. The impermissible effect of section 309.515(1)(b)
is first illustrated by the fact that the means-end fit of the
statute is drastically askew. As the court of appeals noted,
of the six exemption provisions of Minn.Stat. §309.515
(1980), that relating specifically to religious organizations,
id. §309.515(1)(b), is unique. Jur. St. A-9, 637 F.2d at
565. The other five either constitute complete exclusions
or limit their scope to organizations with a minimal absolute
level of public financial participation. These exemptions
thus ‘‘appear[] generally to serve the valid purpose of freeing
from regulation certain organizations for which public dis-
closure of funding would not significantly enhance the
availability of information to contributors.”’ Jd. A-9, 637
F.2d at 567.

In contrast, the provision aimed directly at churches rests
on an entirely different basis. Eschewing specifically for
the religious category of charitable organizations reliance
simply upon an across-the-board criterion of significant pub-
lic contribution, see Minn.Stat. §309.515(1)(a) (1980), the
statutory scheme there imposes as well a relative measure
of such contributions to determine whether or not a particular
church is exempt.

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The special exemption provision for churches makes little
apparent sense. Jur. St. A-6, 637 F.2d at 565-66. The state
had asserted that the Act, including its exemption provi-
sions, was enacted to prevent fraud in charitable solicitations
and to ‘‘assist[] informed decisionmaking by Minnesota’s
charitable contributors . . . .”’ Brief of Appellants-Cross-
Appellees at 17 (8th Cir.). Manifestly, however, the danger
of fraud and the need for public awareness is surely no
greater with respect to an exempt church which, for ex-
ample, receives from non-members $1 million of a total of
$2 million in contributions than it is with respect to an non-
exempt church which similarly receives $10,001 of a total
of $20,000. Indeed, the vastly greater total volume of public
contributions in the former case would lead one logically
to expect that the asserted state purposes would be far more
at risk in that situation."

"Reminded 7 the Eighth Circuit of **the absence of any explanation
for the sizable loophole created [by the church exemption provision]
for some religious organizations,’’ Jur. St. A-7, 637 F.2d at 566, ap-
pellants now seek to construct one. They assert that ‘‘when an orga-
nization raises more than half of its monies from non-members, it
becomes by definition more the financial creature of the public than of
its internal membership. At this point, there is a greater public need in
viding some sort of external check in its fund-raising activities."* /d.
8. The very same contention was, for good reason, resoundingly re-
jected by the North Carolina Supreme Court. Heritage Village Church,
supra, 299 N.C. at 411-12, 263 S.E.2d at 733-34.

Quite clearly there is nothing talismanic in this context about a 50%
cut-off point. If state ‘‘concerns of accountability,’’ Jur. St. 19 n.8,
exist with respect to organizations with small absolute amounts of public
contributions but which exceed the 50% criterion, the same concerns
are necessarily present with respect to large churches exempt under the
provision. In both situations public dollars are being contributed for
which, in appellants’ view, the public deserves an accounting.

A large-membership group is equally likely, for example, to engage
in misrepresentation in public solicitation if it believes that to be an
expedient method of garnering the greatest amount of money for its
cause. Any ‘‘ongoing and consistent contact with its membership”
would thus be irrelevant as **a check on its financial practices."’ See
id. 18.

Moreover, appellants’ very concept of a church which is “‘more the
financial creature of the public than of its internal membership,”* id.,

(footnote continued on following page)

a

Second, by reason of the nature of the classificatory cri-
terion of the statute, its burdens predictably will fall with
greatest impact upon those churches which, through either
religious belief or perceived necessity, look to the public
at large rather than to a discrete and stable membership body
for their support, resulting in ‘‘an inhibition by the state of
a specific mode of religious practice . . . ."’ Heritage Vil-
lage Church, supra, 299 N.C. at 411, 263 S.E.2d at 733.

Among the former are religious societies which, by scrip-
tural command, spread their beliefs through ‘‘missionary
evangelism’’, that is, which ‘‘seek through personal visi-
tations to win adherents to their faith.’"* Murdock v. Penn-
sylvania, 319 U.S. 105, 108-09 (1943) (footnote omitted).
That ‘‘[t}his form of religious activity occupies the same
high estate under the First Amendment as do worship in the
churches and preaching from the pulpits’’ and ‘‘has the
same claim to protection as the more orthodox and con-
ventional exercises of religion’’ has long been recognized.
Id. at 109.

Within the latter category one may expect to find ‘‘newly
organized or minor cults and creeds,’’ Troyer v. Town of
Babylon, 438 F.Supp. 1135, 1139 (E.D.N.Y.), aff'd mem.
sub nom. Troyer v. Town of Southampton, 628 F.2d 1346
(2d Cir.), aff d mem., 101 S.Ct. 522 (1980) (No. 80-333),
which, lacking a sufficient existing base of support, need

would seem to raise more religion clause problems than it answers.
This assertion smacks of an unacceptably broad *‘parens patriae claim,”’
Wisconsin v. Yoder, 406 U.S. 205, 234 (1972), potentially highly de-
structive of the first amendment’s purpose ‘‘to chart a course that pre-
serve|s] the autonomy and freedom of religious bodies. . . .’" Walz v.
Tax Comm'n, 397 U.S. 664, 672 (1972). See also NLRB v. Catholic
Bishop, 440 U.S. 490 (1979).

Finally, the solace the state seeks for broad legislatvie discretion to
draw whatever lines it chooses is not to be found in the cases that it
cites, Minnesota v. Clover Leaf Creamery Co., 101 S.Ct. 715 (1981)
(No. 79-1171); City of New Orleans v. Dukes, 427 U.S. 297 (1976);
and Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955), all economic
regulation cases. Jur. St. 19. More to the point is the admonition of
NAACP v. Button, 371 U.S. 415 (1963), that, in the first amendment
context, ‘‘[p]recision of regulation must be the touchstone.*’ /d. at 438.

= =

to solicit funds from prospective or newly-won sympathiz-
ers. The first amendment requires that these groups, too,
receive equal solicitude at the hands of the state since
**[f]reedom of religion is not merely reserved for those with
a long purse.’’ Follett v. Town of McCormick, 321 U.S.
573, 576 (1944).""

For all of these reasons, the exemption provision mani-
festly violates the establishment clause. The judgment of
the Eighth Circuit should therefore be affirmed.

The Decision of the Court of Appeals Is Entirely Con-
sistent With Gillette v. United States.

While the state, as it has throughout this litigation, harps
on Gillette v. United States, 401 U.S. 437 (1971), denom-
inating it as ‘‘controlling’’, Jur. St. 19, Gillette simply has
no bearing upon this case. Gillette involved only a de facto
distinction among religious adherents created by a consid-
ered Congressional accommodation of religious exercise,
whereas the line drawn by the Minnesota Charitable Solic-
itations Act, Minn.Stat. §309.515(1)(b) (1980), on its face

Appellants complain of what they see as a ‘lack of factual bases
underlying the Circuit Court's conclusions .. . ."’ Jur. St. 14. See id.
at 14-16, This complaint, however, is littke more than a tempest in a
teapot, for the ‘very nature’’ of the statutory scheme, cf. Walz v. Tax
Comm'n, 397 U.S. 664, 695 (1972) (Harlan, J., concurring) (entan-
glement), is to burden only some churches with a high degree of state
regulation. The law necessarily ** ‘favor[s]’ **, Jur. St. 15, some re-
ligious organizations over others. Whether or not the set of favored
groups is precisely congruent to that of ** ‘well-established’ '* churches,
id. pager | id. A-7, 637 F.2d at 566), is simply unnecessary for a
finding of forbidden effect under Lemon, and the court of appeals did
not rely on any such “‘finding’’ for its conclusion on this point. See id.
A-14, 637 F.2d at 569. This fact, however, does not detract from the
force of the conclusion, evident to both courts below as well as to the
North Carolina Supreme Court in Heritage Village Church, supra, that,
as a general matter, the statutory scheme can be expected to operate
roe £m appaene to visit its burdens on ‘churches which are new and
lacking in a constituency... ."’ Jur. St. A-7, 637 F.2d at 566.

a

selects some churches for favored treatment over some oth-
ers whose religious exercise the statute burdens.

Gillette concerned the constitutionality of the conscien-
tious objection provision of the Military Selective Service
Act of 1967, 50 U.S.C. App. §456(j) (1976), that relieved
from conscription those with conscientious scruples against
participation in all wars but not those with similar scruples
relating to particular conflicts. As this Court noted, the
*‘critical weakness’’ of the claim that this provision worked
an establishment of religion arose from the fact that the
Statute did not ‘‘on its face . . . discriminate on the basis
of religious affiliation or religious belief, apart of course
from beliefs concerning wars.’’ Gillette v. United States,
supra, 401 U.S. at 450. ‘‘Properly phrased,’’ therefore, the
establishment clause contention was that the failure to ex-
empt selective conscientious objectors worked ‘‘a de facto
discrimination among religions.’’ /d. at 451-52.

The Court’s conclusion, that a line drawn on the basis
of beliefs concerning war does not constitute a facial reli-
gious discrimination, follows from the fact that a claim of
autonomy based upon conscience with regard to military
service is essentially identical to a claim of autonomy with
regard to other types of secular behavior such as the use of
drugs or the practice of polygamy. In either case the belief
in the claim for autonomy may be dictated by religious
belief or personal ethics, it may be held with various degrees
of intensity and sincerity by the individual, and it may be
of more or less significance in his life.

Consequently, while in every case in which the belief
that certain behavior is compelled is religiously motivated
‘a balancing process,’’ Wisconsin v. Yoder, 406 U.S. 205,
214 (1972), is necessary in order to ensure that the general
regulation of behavior does not unduly burden the free ex-
ercise of religion, Thomas v. Review Board, 49 U.S.L.W.
4341, 4344 (U.S. Apr. 6, 1981) (No. 79-952); Wisconsin
v. Yoder, supra, 406 U.S. at 220, the regulation of behavior

a

is not an establishment of religion merely because some
religious creeds may mandate the behavior while others do
not. See Harris v. McRae, 100 S.Ct. 2671, 2689 (1980)
(No. 79-1268). While the government can, and, as Yoder
and Thomas illustrate, often must, accommodate on an in-
dividual basis a claim for autonomy for religiously-man-
dated behavior, to fail to do so neither favors or disfavors
religion more than it favors or disfavors claims for autonomy
that are ethically or otherwise based.'*

On the other hand, this Court has long recognized that
governmental distinctions based upon ‘‘religious organi-
zation or religious creed,’’ Gillette v. United States, 401
U.S. at 451,'° contravene the establishment clause. Prohi-
bition of governmental preference of one religion over an-
other is at the very core of the clause. School District v.
Schempp, 347 U.S. 203, 216 (1963). *‘Government in our
democracy, state and national, must be neutral in matters
of religious theory, doctrine, and practice.’’ Epperson v.
Arkansas, 393 U.S. 97, 103-04 (1968).

Neutrality in religious practice is precisely what the state
has abandoned by its decision to regulate the solicitations
of some churches but not others. The exemption provision
of the Minnesota Act on its face exempts from regulation
those religions that receive ‘‘less than half of their funds
from the public.’’ Jur. St. A-7, 637 F.2d at 566. In practical
terms, this distinction overtly disfavors those ‘churches
which are new and lacking in a constituency, or which, as

'*Favoring theistic over non-theistic belief may well constitute an
establishment of religion, Welsh v. United States, 398 U.S. 333, 356-
61 (1970) (Harlan, J., concurring); see id. at 343-44 (majority opinion);
United States v. Seeger, 380 U.S. 163, 184 (1965), but that question
is fortunately not presented by this case.

"The state conveniently overlooks this portion of the Gillette opinion
in its brief, and leaves the impression that de jure discrimination can
only arise from distinctions among religious affiliations and beliefs, see
Jur. St. 20, although the opinion as a whole leaves no doubt that
distinctions among religious organizations are as invidious as those
among beliefs.

el,

a matter of policy, may favor public solicitation over general
reliance on financial support from members."’ /d."’

Thus, Gillette involved no more than a claim for auton-
omy for religiously mandated behavior of individuals, which
this Court nonetheless carefully reviewed in order to deter-
mine whether it was a de facto ‘‘religious gerrymander.”’
Gillette v. United States, supra, 401 U.S. at 452. Here, to
the contrary, the state has in terms distinguished among
churches on the face of the statute."

Even were Gillette a comparable situation of discrimi-
nation and not an entirely distinct analytical problem, com-
pare, e.g., Personnel Administrator v. Feeney, 442 U.S.
256 (1979) (de facto discrimination of great practical im-
portance held to be constitutional) with, e.g., Craig v.
Boren, 429 U.S. 190 (1979) (de jure discrimination of mar-
ginal significance held to be unconstitutional), it would still
be a wholly different case. The Gillette statute came to this
Court with a momentum of respect arising from the attempt
by Congress to itself accommodate the free exercise claims
of those opposed to all wars and the entanglement with
religion which it feared would be engendered by *‘expansion
of the exemption to cover objectors to particular wars.”’
Gillette v. United States, supra, 401 U.S. at 450; cf.
McDaniel v. Paty, 435 U.S. 618, 637-38 (1978) (Brennan,
J., concurring) (accommodation between free exercise and
establishment clauses). Because these Congressional con-
cerns were eminently ‘‘supportable’’, the statute was con-

"This observation of the Eighth Circuit simply translates the defi-
nition of the line drawn by the Act from abstract legal terminology into
concrete, realistic description. Even were the discrimination worked by
the Act not inherently invidious, however, Gillette would still be ir-
relevant because it distinguishes on its face among churches. Since the
distinction is de jure and not de facto, it must therefore be measured
by the familiar at ger establishment test of Lemon v. Kurtzman,
403 U.S. 602, 612-13 (1971), and its progeny.

"Contrary to the state's assertion, Jur. St. 20, neither did the court
ey find nor have appellees ever contended that the Act's distinction
is de facto.

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stitutional. Gillette v. United States, supra, 40) U.S. at
460.

No equivalent balancing of first amendment interests is
presented in the instant case. On the contrary, only by strik-
ing down the Act’s selective exemption did the lower courts
both promote the free exercise of religion, unencumbered
by the onerous requirements differentially imposed by the
Act, and obviate the establishment clause violations which
would result from the Act’s unequaliy applied burdens.

The court of appeals carefully considered Gillette but
found it to be irrelevant. Jur. St. A-10 to A-11, 637 F.2d
at 567-68. This conclusion is clearly correct.

Conclusion.

Appellants present no substantial question for decision
by this Court. The judgment of the United States Court of
Appeals for the Eighth Circuit should therefore be affirmed.

Dated: May 7, 1981.
Respectfully submitted,

Barry A. FISHER,
Counsel of Record,

LARRY J. ROBERTS,

DAVID Grosz,

ROBERT C. MOESsT,

FISHER & MOEST,
2049 Century Park East,
Suite 3160,
Los Angeles, Calif. 90067,
(213) 557-1077,

JosePH T. Dixon, JrR.,

HENSON & EFRON,
1200 Title Insurance Building,
Minneapolis, Minn. 55401,
(612) 920-5736,

Attorneys for Appellees.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2000%3A03. Public record. Not legal advice.