Appellees Brief — Larson v. Valente

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No. 80-1666 SEP 21 198t

ALEXANDER L. STEVAS,

Supreme Court of the United States——

October Terra 1980.

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

Appellants,

vs.

PAMELA VALENTE, et al.,

Appellees.

On Appeal from the United States Court

of Appeals for the Eighth Circuit.

BRIEF OF APPELLEES.

Barry A. FISHER

Counsel of record

DAVID GROSZ

ROBERT C. MOEST

LARRY J. ROBERTS

WILLIAM M. KRAMER

FISHER & MOEST

2049 Century Park East,

Los Angeles, Calif. 90067

(213) 557-1077

GEOFFREY R. STONE

1111 East 60th Street,

Chicago, Illinois 60637

(312) 753-2449

Of counsel

Attorneys for appellees.

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

QUESTIONS PRESENTED.

1. Whether the Minnesota Charitable Solicitation Act,

which expressly favors some religions over others by ex-

empting only some religious organizations from rigorous

requirements, and which lacks constitutionally sufficient

justification for the explicit differentiation, violates the first

amendment’s guarantee of neutrality and hence works an

unconstitutional establishment of religion.

2. Whether the religious classification on the face of

the exemption provision, which imposes material burdens

on certain religious organizations but not on others, has an

impermissible primary effect of advancing or inhibiting

religion; or, whether substantive provisions of the Act, as

applied to religious organizations, foster an excessive

government entanglement with religion.

3. Whether appellees, who have alleged injury in fact

as a result of the Act, and against whom the Act is being

enforced, have standing to raise establishment-clause claims.

TABLE OF CONTENTS

Page

eens cae sicenapededonkunencdaens i

Statement of the Case ............ ssapexbeenebantssedvasmnees |

Ra) I EID * c inacschevbsnesssnendvesehues |

2. The Proceedings Below ..........cccsccccsssesceees 6

Ne FRIED vépsbciesasvnccvccssvccsndbensestossse 10

NUE cbs cunccdcucaishsentdserccavadsescenscsidasdboiniacce 14

The Religious Organizations Exemption of the Min-

nesota Charitable Solicitations Act Violates the

SNE MEM och cascccvinsepesoveoneesnenecns 14

A. The Minnesota Religious Exemption Provi-

sion Expressly Favors Some Religious Or-

ganizations Over Others and Therefore Is in

Conflict With the Establishment Clause’s

Core Guarantee of Neutrality Between

MD AUN Cele sites vadbicuccdhpdesauccabecascasss 14

B. The Fifty Percent Member-Funded Criterion

of the Religious Exemption Provision Is Not

Substantially Related to a Significant Govern-

IE ei cnadaresapasaecendsresccestecensouss 23

C. Gillette v. United States Is Not Controlling

Here Because the Statute in Gillette Had Only

a De Facto Disparate Impact Upon Religions,

Did Not Make a De Jure Religious Differen-

tiation, and Was, in Any Event, Supported by

an Overriding Government Interest ........... 28

D. Although the Tests of Lemon v. Kurtzman

Need Not Be Applied to This Case of Explicit

State Preferential Treatment of Only Some

Religious Organizations, the Minnesota Stat-

Page

ute Violates Both the Principal or Primary

Effect and Excessive Government Entangle-

ment Branches of Lemon ....................05 30

1. Principal or Primary Effect ............... 32

2. Excessive Government Entanglement ... 33

II.

Appellees Have Alleged Injury in Fact as a Result of

Enforcement of the Minnesota Charitable Solici-

tations Act and Therefore Have Standing to Raise

Establishment Clause Claims ....................006 36

CORCRNONDI © nc caccaccccvdvoccssivesscsccsenec nee 39

TABLE OF AUTHORITIES CITED

Cases Page

Baker v. Carr, 369 U.S. 186 (1962) ...................4. 36

Brown v. Glines, 444 U.S. 348 (1980) .................. 30

Catholic Bishop v. NLRB, 559 F.2d 11\2 (7th Cir.

1977), aff'd on statutory grounds, 440 U.S. 490

CHITIF enka desicchidecetceseiesavesersianetaee nen 7

City of Mobile v. Bolden, 446 U.S. 55 (1980) ........ 18

Committee for Public Education & Religious Liberty v.

Nyquist, 413 U.S. 756 (1973) ..........cceceeeeeees 33, 34

Duke Power Co. v. Carolina Environmental Study

Craw, 6 US. DTG) oc crccivscosniverstnsecesrsss 36

Engel v. Vitale, 370 U.S. 421 (1962) ..............0000. 38

Epperson v. Arkansas, 393 U.S. 97 (1968) ....14, 15, 16

Everson v. Board of Education, 330 U.S. 1 (1947) ... 15

Freedman v. Maryland, 380 U.S. 51 (1965) ........ te

Gillette v. United States, 401 U.S. 437 (1971)

BRS Seats arene eee? Sele AG TS yeh wip 17, 18, 28, 29, 30

Greer v. Spock, 424 U.S. 828 (1976) ...........:.:00ee 30

Heffron v. International Soc’y for Krishna Conscious-

008: 08. B.Ci. FESP.CIGST) vccessecsceccassnensescansas 34

Heritage Village Church & Missionary Fellowship, Inc.

v. State, 299 N.C. 399, 263 S.E.2d 726

CRIED en dakavcdcurtsnccsaanesstnccian 1, 21, 22, aoe oes Oe

Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) ..... 7

Lemon v. Kurtzman, 403 U.S. 602 (1971) 637 F.2d

Pe 7, 12, 14, 20, 21, 30, 31, 32, 33, 34, 36

McGowan v. Maryland, 366 U.S. 420 (1961) ......... 38

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ....... 22

NLRB v. Catholic Bishop, 440 U.S. 490 (1979) ...... 34

Page

Ohralik v. Ohio State Bar Ass'n., 436 U.S. 447

REN Uk bceped baad bbb tuaNanuadaeeatatessnassndéuheadewsoness 8

Parker v. Levy, 417 U.S. 733 (1974) .........ccee eee 30

Personnel Administrator v. Feeney, 442 U.S. 256

CEE aubchi died acantseudeGbh os cachencosppaacondodeiabis 17, 18

Railway Express Agency v. New York, 336 U.S. 106

SUPE sb otsdddihaeesinl dahinsiegcbveesvainiiasGiiovisedvenass 20

Rostker v. Goldberg, 101 S.Ct. 2646 (1981) ........... 30

School District v. Schempp, 374 U.S. 203

SUP Sitdihbuatbunsieatkadbescanstscssexechinkbecs 15, 16, 38

Serbian Eastern Orthodox Diocese v. Milivojevich, 426

MIE St Ca scuiesesdcocsucedcoadiveanexncauniecs 35

Sierra Club v. Morton, 405 U.S. 738 (1972) ........... 37

Simon v. Eastern Kentucky Welfare Rights Organiza-

Sy ES PRETO enctdecssocencetobegeccenesseses 37

State v. Holy Spirit Association for the Unification of

World Christianity, File No. 431272 (Minn. Dist. Ct.

Be Reis PEs GL TDP cicnceccdccovececssencidscce 37

Thomas v. Review Bd., 101 S.Ct. 1425 (1981) ....... 39

Tilton v. Richardson, 403 U.S. 672 (1971) ............. 33

Troyer v. Town of Babylon, 483 F. Supp. 1135

(E.D.N.Y.) aff'd mem. sub nom. Troyer v. Town of

Southampton, 628 F.2d 1346 (2d Cir.), aff'd mem.,

Oe Bites PRE PUED accerdicnccsocccvessdssgandetbecsiacs 22

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) ........... 18

Village of Schaumburg v. Citizens for a Better Envi-

ronment, 444 U.S. 620 (1980) .............. 7, 8,9, 34

Valente v. Larson, 637 F.2d 562 (8th Cir.

SEE auiKdsctadntacadtbiiiunbarsesnadubevdacedicencese 9, 10, 24

Page

Walz v. Tax Commission, 397 U.S. 664

CRON cevaschaddskisvsscoubense 14, 15, 16, 17, 33, 34, 35

Washington v. Davis, 426 U.S. 229 (1976) ....... 17, 18

Washington Ethical Society v. District of Columbia,

BF ek BBE Me es Gls BOSE) cacksiverccccsscccescscs 10

Welsh v. United States, 398 U.S. 333 (1970) .......... 24

Wolman v. Walter, 433 U.S. 229 (1977) .......... 14, 15

Zorach v. Clauson, 343 U.S. 306 (1952) ............... 15

Constitutions

Delaware Constitution of 1776, Art. 29 ................. 16

Massachusetts Constitution of 1780, pt. I, Art. III .... 16

New Jersey Constitution of 1776, Art. XIX ............ 16

New York Constitution of 1777, Art. XXXV .......... 16

North Carolina Constitution of 1776, Art. XXXIV .... 16

United States Constitution, Art. I, Sec. 8 ............... 30

United States Constitution, First Amendment

istasnshehd wekudhsrsthksccdenss te secnnsouneiee i, 6, 11, 15

United States Constitution, Fourteenth Amendment ... 6

Miscellaneous

Hearings on Proposed Amendments to the Minnesota

Charitable Solicitations Act Before the Minn. Senate

Subcomm. on Judicial Administration of the Minn.

Senate Comm. on Judiciary (Mar. 7, 1978) (Audio

BOE Soci itnsWhndgaabseassbbdbibncusdsaconsincsacsseccevinges 23

Statutes

Military Selective Service Act of 1967, 50 U.S.C. app.

SN MUIR UIEIED e500 55 cia pidcccescncachcedaidabectedd 29

Minnesota Charitable Solicitations Act —

Minn. Stat. Ann., Secs. 309.50-.61 (19890) .......... 2

Minn.

Stat , Sec.

Siat., Sec.

Stat., Sec.

Stat.. Sec.

Vii

Page

SROs sastasisccvedniseVansoecnse 2

I chs sicosodcacdpsinsitsecstors 2

BE eek osieciivdvcretkecdessesaneves 2

PEE civvevcvessevasnenstusnvats 34

CRED kc scascsccxsucnastbateceeds 36

DUE ED“ sncecansceteheduncnsccuns 2

RIEMEED dcecctcsedenteketisversets 2

REI) Sak ipnccebvscsssevarinens 2

BIND « svicnsiecascstiacabiastadas 2

REID | vccaitsdvsscesadesnswvses 2

PE kc iciviccscscccavadvonesated 3

MEER ca cicnaiccpesccovtasiokndes 3

Ps ciisnsictitcacenstasxatys 3

POP SAPO) cccccccecsecccscsees 3

BOP SIE), POR. 2 occsccsesssssensei 3

NEED iiisncantderenscchincssssncin 3

IN is ssayigtsetonnnuteaseaes 3

IR bovis acevecckaisaneedasniot 3

PI Sn ss ckcnaegonddatacnbsasevavene 4

TN Ss ios dcnsinaavacebedavaambeehs 5

RITA iidcnsconicdncecsots ee

OMEINED cévsscceccsdassgtncsbies 27

MP IIEED cc deavssocaciesccstbarucie’ 4

EEO INON dcicsnecsnieavnaverncucs 35

BO TTEETDD csescccssncvccccasas 4, 36

SE dsikevesenccsncdonumerbie 4

Rika: sie eibnsndaccenvaneeniees 8

NTI sh sip che natbinveasonanes 9

DY cas asncsisetunedenes 4, 35

viii

Page

Minn. Stat., Sec. 309.581 .........cccecessscscsssesceess 9

Ps Cg WO, DET cAD cociccccsvaccrcvsccccsescccesecs 26

Minnesota Laws of 1961, ch. 309, Sec. 1(3), reprinted

in Minn. Stat. Ann., Sec. 309.50(3) (West 1969) .. 4

Minnesota Laws of 1973, ch. 762, Sec. 2 .............. 5

Minnesota Laws of 1973, ch. 762, Sec. 5 .............. 5

Minnesota Laws of 1978, ch. 601, Sec. 5 .............. 5

United States Code, Title 42, Sec. 1983 (1976) ....... 6

Treatise

Antieau, C., A. Downey & E. Roberts, Freedom from

Federal Establishment, p. 132 (1964) .............0668 16

No. 80-1666

IN THE

Supreme Court of the United States

October Term 1980.

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

Appellants,

VS.

PAMELA VALENTE, et al.,

Appellees.

BRIEF OF APPELLEES.

STATEMENT OF THE CASE,

1. The statutory scheme.

Prior to 1978, Minnesota, like virtually every other state

regulating the solicitation of charitable contributions, ex-

empted all religious organizations soliciting for religious

purposes from the coverage of its statute. In 1978, however,

the state amended its Charitable Solicitations Act expressly

to exempt some, but only some, religious organizations

from the Act's requirements, thereby selectively according

favored status to only a limited class of religious organi-

zations. Minn. Stat. § 309.515(1) (b) (1980).' The consti-

'To appellees’ knowledge, North Carolina is the only state other than

Minnesota which has adopted a similar explicitly selective regulation

of churches in the present context. The North Carolina law was held

unconstitutional on establishment grounds by that state's supreme court.

Heritage Village Church & Missionary Fellowship, Inc. v. State, 299

N.C. 399, 263 S.E.2d 726 (1980); see Jt. App. A-143 & id. n. 8, 637

F.2d 562, 569 & id. n. 8 (8th Cir. 1981).

tutionality of the 1978 amendment is the subject of this

appeal. The appeal thus directly presents the Court, for the

first time, with the question of whether a law expressly

classifying religious organizations for differential treatment

works an unconstitutional establishment of religion.

The Minnesota Charitable Solicitations Act, Minn. Stat.

Ann. §§ 309.50-.61 (1980) [hereinafter cited as the Act],’

sets up an intricate system of state registration, reporting,

investigation and enforcement. Under the Act, any non-

exempt charitable organization, including any non-exempt

religious organization,’ is prohibited from ‘‘solicit[ing] con-

tributions from persons in th[e] state by any means what-

soever unless, prior to any solicitation, there shall be on file

with the department of commerce . . . a registration state-

ment... ."’ Id. § 309.52. The Act demands, among other

things, that the registrant identify the ‘‘form of organiza-

tion’’ and the ‘‘general purposes for which [it is] orga-

nized;"’ identify the ‘‘general purposes for which contri-

butions to be solicited will be used’’ and the ‘‘methods by

which solicitation will be made;’’ and provide ‘‘such other

information as the department may by rule or order require."’

Id. § 309.52(1) (c), (j), (k), (D, (p).

The Act further requires all non-exempt organizations,

including non-exempt religious organizations, to prepare

and to keep records and to file reports not required of exempt

*The Act is reprinted at Jur. St. A-70 to -96.

*A charitable organization is defined as 7 person or organization

**who engages in Or purports to engage in solicitation for a charitable

purpose."’ Minn. Stat. § 309.50(4) (1980). Charitable purpose is, in

turn, defined as ‘‘any charitable, benevolent, philanthropic, patriotic,

religious, social service, welfare, educational, eleemosynary, cultural,

artistic, or public interest purpose, either actual or purported."* /d.

§ 309.50(3). Thus, a charitable organization within the meaning of the

Act includes any organization that engages in solicitation for a religious

purpose, /.¢., almost any religious organization or church.

organizations. A non-exempt organization must file an an-

nual report with the state. Jd. § 309.53(1). The report must

include a financial statement, id. § 309.53(2), which, if in

a given year more than $25,000 has been solicited from

within or without the state, must be audited by a certified

public accountant with respect to criteria specified by the

state. Jd. § 309.53(g), para. 2. The financial statement must

contain ‘‘a balance sheet, statement of income and expense,

and statement of functional expenses,"’ id. § 309.53(3), and

must disclose, inter alia, **[t}otal receipts and total income

from all sources;"’ costs of management, of fund raising,

and of public education; *‘[fJunds or properties transferred

out of state, with explanation as to recipient and purpose;”’

and ‘‘[tjotal net amount disbursed within the state, broken

down into total amounts disbursed for each major purpose.”

Id. § 309,53(3) (a)-(f).

The registration statement, annual reports, and all other

information required to be filed under the Act are deemed

‘*public records’’ available to the general public. /d.

§ 309.54(1). All of each non-exempt organization’s internal

books and records from which the data in the public filings

are derived must ‘be open to inspection at all reasonable

times by the department or by the attorney general.’’ /d.

§ 309.54(2). Moreover, any non-exempt organization must

**keep and maintain within Minnesota,’’ for at least ten

years, all of its ‘‘original books and records, or true copies

thereof, pertaining to all money or other property collected

from residents of this state and to the disbursement of such

money or property.’’ Jd. § 309.54(3).

The department of commerce ‘‘may by order deny any

application, . . . [or] suspend or revoke any license or reg-

istration,”’ if it finds, for example, that the organization has

**filed an application which is incomplete in any material

respect or contains any statement which .. . is false or

aor <a

misleading with respect to any material fact,”’ has *‘engaged

in a fraudulent, deceptive or dishonest practice,’’ has pre-

viously been enjoined from engaging in solicitation, or has

in any way ‘‘violated or failed to comply with any provision

of [the Act],”’ and ‘‘that the order is in the public interest.”’

Id. § 309.532(1). A registration may also be suspended or

revoked if an organization fails to comply to the state’s

satisfaction with certain requests for information. /d.

§ 309.58.

The Act forbids any non-exempt organization to spend

**an unreasonable amount for management and general costs

and fund raising,’’ and expenditure in excess of **30 percent

of total income and revenue is presumed to be an unrea-

sonable amount.’’ Jd. § 309.555(1a). A non-exempt orga-

nization that violates this prohibition ‘‘shall not be eligible

to maintain registration with the department.’’ Jd. More-

over, the Act invests the commissioner of securities with

broad, explicitly discretionary, powers to ‘‘make public or

private investigations within or outside the state as he deems

necessary to determine whether any person has violated or

is about to violate any provision of [the Act],’’ id.

§ 309.533(1)(a), including powers of compulsory process

for attendance of witnesses and for production of documents

and records. Id. § 309.533(2).

As earlier noted, prior to 1978, the Act exempted all

religious organizations from its registration and disclosure

requirements.‘ In 1978, however, the Act was amended to

exempt only some religious organizations, each

‘Prior to 1973, solicitations on behalf of religious organizations for

religious purposes were excluded from coverage in Minnesota in the

manner still generally prevalent elsewhere, simply by omitting *‘reli-

gious”’ from the statutory definition of charitable pu . 1961 Minn.

Laws ch. 309, § 1(3), reprinted in Minn. Stat. Ann. § 309.50(3) (West

1969). Thus, during that period, the Act by definition had no application

to religious solicitations. e

row aan

religious society or organization which received more

than half of the contributions it received in the ac-

counting year last ended (1) from persons who are

members of the organization; or (2) from a parent or-

ganization or affiliated organization; or (3) from a com-

bination 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 sub-

division and who are represented in a body or con-

vention is exempt from the [registration and annual

report requirements of the Act]. The term ‘‘member”’

shall not include those persons who are granted a mem-

bership upon making a contribution as a result of a

solicitation.

Id. § 309.515(1)(b). Thus, as amended, the Act expressly

accords favored status to those religious organizations that

derive more than half their financial support from their own

members’ or from parent or affiliate organizations.

The Act’s 1973 amendment, inter alia, expanded the definition in

this regard. 1973 Minn. Laws ch. 762, § 2. However, the same 1973

statute also enacted § 309.515, which, as then written, provided a broad

exemption for

{a]ny group or association serving a bona fide religious purpose

when the solicitation is connected with such a religious purpose.

{NJor shall [$$ 309.52-.53] apply when the solicitation for such

a purpose is conducted for the benefit of such a group or asso-

ciation by any other person with the consent of such group or

association.

1973 Minn. Laws ch. 762, § 5S.

It was the amendment in 1978 of § 309.515 that adopted the express

selective exemption of religious organizations, 1978 Minn. Laws ch.

601, § 5, and created the presently existing statutory scheme.

‘Despite the term’s critical place in the statutory scheme, particularly

with respect to the exemptions, the Act does not affirmatively define

**member,’” the meaning of which in the context of the broad range of

religious organizations is certainly not self-evident. Whether, for ex-

ample, it refers to card-carrying members, self-styled believers, or

something else is not stated. The only attempt at definition is the ex-

clusion contained in the final sentence of Minn. Stat. § 309.515(1)(b)

(1980), quoted in text, that itself may or may not be consistent with the

internal policies of a given religious organization.

a ee

2. The proceedings below.°

The action underlying the present appeal was filed in the

United States District Court for the District of Minnesota

on October 11, 1978, pursuant to 42 U.S.C. § 1983 (1976),

seeking a declaration that the Minnesota Charitable Solic-

itations Act is violative of the first and fourteenth amend-

ments and an injunction against its enforcement. The orig-

inal plaintiffs were four members of the Holy Spirit

Association for the Unification of World Christianity

{hereinafter the Unification Church or the Church]. The

defendants, appellants in this Court, were John R. Larson,

the Minnesota Commissioner of Securities, and Warren

Spannaus, the Minnesota Attorney General, the two state

officials charged with enforcement of the Act (hereinafter,

collectively, the state}. Jt. App. A-4.

Shortly after the filing of this action, the state initiated

a proceeding in state court against the Unification Church,

alleging that the Church was in violation of the Act. The

parties thereafter entered into a stipulation pursuant to which

the Unification Church was joined as a plaintiff in the federal

action and the state action was stayed. Jt. App. A-14 to

-17. The district court entered orders in conformance with

the stipulation. Jd. A-17 to -19.

In challenging the Charitable Solicitations Act, plaintiffs

[hereinafter appellees] asserted that the Act, by selectively

exempting only some religious organizations from its cov-

erage, and thus expressly imposing substantial burdens on

only non-exempt religious organizations, constitutes a for-

bidden establishment of religion. Appellees further main-

tained that the selective exemption violates the equal pro-

tection clause; that the imposition of the Act’s registration

“The Jurisdictional Statement and the Joint Appendix are cited in this

brief in the form Jur. St. [page] and Jt. App. [page], respectively.

pa" Some

and disclosure requirements on religious organizations vi-

olates both the establishment and free exercise clauses be-

cause of the Act’s provision for extensive state intrusion

into, and systematic control and surveillance of, religious

aff ts, see Lemon v. Kurtzman, 403 U.S. 602 (1971); Cath-

olic Bishop v. NLRB, 559 F.2d 1112 (7th Cir. 1977), aff'd

on statutory grounds, 440 U.S. 490 (1979); that the Act is

facially unconstitutional in its application to non-exempt

religious and non-religious solicitation centrally protected

by the freedom of speech or free exercise clauses because

‘he Act vests impermissibly broad discretion in state officials

to “‘suspend or revoke’’ the right of such non-exempt or-

ganizations to exercise their first amendment right of solic-

itation, see Hynes v. Mayor of Oradell, 425 U.S. 610

(1976); that the Act fails to provide the procedural safe-

guards necessary in the first amendment licensing context

under the doctrine of Freedman v. Maryland, 380 U.S. 51

(1965); and that a variety of restrictions in the Act unduly

burden the rights of freedom of speech and of the free

exercise of religion as guaranteed by the first and fourteenth

amendments, see Village of Schaumburg v. Citizens for a

Better Environment, 444 U.S. 620 (1980). See Jt. App.

A-3, -5 to -6.

For these reasons, appellees moved in conjunction with

the filing of the complaint for a preliminary injunction

against enforcement of the Act. On May 3, 1979, Magistrate

(now Judge) Renner filed his Report and Recommendation

concluding that the preliminary injunction should be granted,

and that the state’s motion to dismiss should be denied. Jur.

St. A-36 to -67.’ On July 5, 1979, the district court, over

objection by the state, upheld the magistrate’s conclusions

and issued the preliminary injunction. Jd. A-35.

Thereafter, <;pellees moved for summary judgment, and

the state responded with a cross-motion for partial summary

judgment. Un November 15, 1979, Magistrate Renner rec-

ommended that both motions be granted in part and denied

in part. Id. A-20 to -34. His primary conclusion was that

the Act constituted an establishment of religion because of

its ‘*failure to treat all religious organizations equally,’’ thus

rendering the Act ‘‘unconstitutional as it applies to religious

organizations.’’ *d. A-24.°

”In recommending that the preliminary injunction be issued, the mag-

istrate enumerated several grounds upon which he believed that a Ment 4

ability of success on the merits had been shown. One of these was the

Act’s violation of the establishment clause’s inter-sectarian neutrality

—" by virtue of the statute's ‘‘arbitrar[y]'’ 50% criterion. Jur. St.

The magistrate also found, however, that the Act probably violated

the first amendment prohibition against excessive government entan-

glement, id. A-63 to -65; that the Act *‘failfed] to provide notice of

what is required for a successful registration,’ id. A-55, that ‘*the

standards, or lack of them, for os or revocation of a registra-

tion’’ were i issible, id. A-55 to -57; that the cease-and-desist

provision (§ 34), constituted an invalid prior restrant, id. A-S7

to -58; that the p coche lie $ investigatory powers appeared overbroad,

id. A-58; that the Act was in ** nt violation of the Freedman |v.

Maryland, supra) standards,"’ id A -58 to -61; and, finally, that there

were ‘serious questions as to lunes the Act violates plaintiffs’ rights

of free exercise of religion, privacy and freedom of association.’* /d.

A-65 to -66.

"In light of that conclusion, the magistrate found it ‘‘unnecessary to

urther consider the substantive provisions of the Act as they apply to

religious organizations.’’ Jur. St. A-24. Moreover, ruling prior to this

Court’s decision in Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620 (1980), the magistrate stated that the *‘so-

licitation rights’’ of *‘non-religious organizations . . . do not give rise

to the high degree of First Amendment protection afforded solicitations

by those of a religious nature,"’ and held that, in consequence, **[a]s

to [non-religious solicitors], the Act is a legitimate exercise of the state's

police power to regulate speech of a commercial nature.’’ /d. A-25

(citing Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)).

By order filed January 21, 1980, the district court granted

summary judgment as recommended by Magistrate Renner.

Id. A-18 to -19. The net effect of the judgment was to return

the Act’s coverage to the status quo existing prior to the

1978 amendment.

On January 7, 1981, the United States Court of Appeals

for the Eighth Circuit affirmed most of the district court’s

conclusions. Jt. App. A-130 to -146, Valente v. Larson,

637 F.2d 562 (8th Cir. 1981). The court of appeals upheld

appellees’ standing to raise their establishment clause chal-

lenges to the Act’s exemption of some religious organiza-

tions. Id. A-133, 637 F.2d at 564-65. Moreover, without

reaching appellees’ other challenges to the Act’s constitu-

tionality, the court held that the ‘inexplicable religious clas-

sification’’ embodied in the Act’s religious exemption pro-

vision constituted an unconstitutional establishment of

religion. Id. A-134 to -143, 637 F.2d at 565-69. With the

selective exemption provision thus invalidated, the court

held that the proper relief was to extend the exemption to

all religious organizations, as was the case prior to the 1978

amendment, rather than to excise the exemption entirely,

which would have had the effect of rendering the Act ap-

plicable to all religious organizations, a state of affairs the

Minnesota legislature had never enacted into law. Id. A-

143 to -144, 637 F.2d at 569-70.

Magistrate Renner recommended several additional rulings not at

issue in the present appeal. He held that the challenge to § 309.534/ 1a)

(cease-and-desist orders) was justiciable, Jur. St. A-24, and was un-

constitutional, id. A-30 to -32; that, in light of the invalidation of the

religious exemption, the claim with respect to the suspension and re-

vocation provision was non-justiciable, id. A-26; and that § 309.581

(criminal penalties) was void. Jur. St. A-32. The state did not contest

on appeal! the district court's determination that § 309.534(1a) was un-

constitutional.

a va

In addition, the court of appeals vacated and remanded

for ‘further development’”’ the district court’s conclusions

that several provisions of the Act, not at issue in this appeal,

could not constitutionally be applied to religious organi-

zations, and that any organization claiming to be a religious

organization should qualify for exemption. The state is thus

free on remand to attempt to prove that the Unification

Church is not a ‘‘religious organization’’ within the meaning

of the Act, of the perimeters of this Court’s decisions, and

of the guidelines set forth in such cases as Washington

Ethical Society v. District of Columbia, 249 F.2d 127 (D.C.

Cir. 1957). Jt. App. A-145 to -146, 637 F.2d at 570-71.

The state filed its notice of appeal from the Eighth Cir-

cuit’s judgment on March 23, 1981 and docketed the appeal

in this Court on April 3, 1981. This Court noted probable

jurisdiction on June 1, 1981.

SUMMARY OF ARGUMENT.

A. The establishment clause’s command of inter-sec-

tarian neutrality derives both from vital symbolism and from

quite practical lessons of history. An essential symbolic

function of the religion clauses is to assure that government

stand clear of favoritism and even the appearance of fa-

voritism in its dealings with different groups of believers.

For the government to do otherwise threatens constitutional

ideals of a rich diversity of faiths co-existing in a unified

society. Moreover, expressly unequal laws, in their debate

and in their operation after enactment, pose the serious

practical risk of political division along religious lines.

A law that expressly classified religions by name for

purposes of differential state regulation would surely call

forth the absolute disapprobation of the first amendment.

A law, such as that at issue here, that expressly classifies

religious organizations with reference to other characteris-

tics for sharply unequal treatment by government, while

perhaps not absolutely prohibited, is for similar reasons

subject to stringent constitutional scrutiny.

Statutes of the kind framed here by Minnesota differ toto

caelo from laws of general applicability that, in operation,

merely prove to have disparate impacts on religious groups.

Statutes with only such de facto effects not only present no

direct affront to first amendment values, but are simply

unavoidable in the practice of government. Laws that ex-

plicitly separate groups of religious organizations for une-

qual treatment, on the other hand, are rarely, if ever, nec-

essary. Similarly, there is in the disparate impact case

normally no cause to distrust the motives of legislators on

account of incidental effect on religion, but in the case of

express categorization, the risk of impermissible motivation

is inherent, and should almost always be regarded as in-

tolerable.

For these reasons, a law that utilizes an express religion

criterion should be presumptively suspect. At minimum,

such an enactment should be judicially salvable only upon

a convincing showing that it is substantially related to a

significant governmental interest.

B. The statute at issue here does not approach meeting

that standard. Lacking a justification in the court of appeals,

the state urges in this Court that religious organizations more

than half internally funded are less likely to engage in fraud-

ulent practices, and therefore are less needful, in the state's

view, of close government supervision when they do solicit

from the public than are those who receive more than half

of their support from the public. Little apparent sense can

be made of this asserted rationale. For example, under the

statutory criterion, a religious organization may collect tens

of millions of dollars from the Minnesota public and be

exempt while another collecting just over ten thousand dol-

lars unmatched by member contributions would be fully

subject to regulation.

If a rational basis underlies this scheme, and one is dif-

ficult indeed to discern, there is certainly no more than a

rational basis. Because the statute, while containing ex-

emptions other than religious, treats religious organizations

alone in this particular insensible fashion, any basis for it

becomes even more problematic. Thus, any conceivably

appropriate constitutional standard for evaluating a law of

this kind strongly counsels that Minnesota’s selective reli-

gious exemption be invalidated.

C. This case invokes the fundamental strand of estab-

lishment clause doctrine of government neutrality as among

groups of religious organizations. The three-fold test of

Lemon v. Kurtzman, 403 U.S. 602 (1971), which is of

greatest utility in sorting out the subtle constitutional prob-

lems involved in the provision of government aid to all

religions, is therefore unnecessary to apply here.

If Lemon is applied, however, the statute fails, first, the

requirement that its principal or primary effect must neither

advance nor inhibit religion because of the material fashion

in which it treats religious organizations unequally. The Act

also contravenes the principle of no excessive government

entanglement. The religious organizations to which it ap-

plies are subjected to a comprehensive scheme of state in-

vestigation and constant surveillance. Moreover, the data

with which the state is required to be supplied is coupled

with a program that may be utilized to coerce the religious

organizations involved to conform, for example, to a

vaguely stated but plainly secular standard, the ‘‘public

interest,’ potentially highly disruptive of the salutary au-

tonomy counseled by the religion clauses and far too deeply

imbued with the possibility of government direction.

ae,

D. Finally, appellees clearly have standing to maintain

their claims of establishment-clause violation since they

have alleged that the organization with which they are af-

filiated is a religious organization, and therefore that they

are injured in fact by the selective exemption provision. In

any event, appellees have been subjected to state enforce-

ment of the statute at issue.

vay

ARGUMENT.

THE RELIGIOUS ORGANIZATIONS EXEMPTION OF THE

MINNESOTA CHARITABLE SOLICITATIONS ACT VI-

OLATES THE ESTABLISHMENT CLAUSE.

A. The Minnesota religious exemption provision ex-

pressly favors some religious organizations over

others and therefore is in conflict with the estat -

lishment clause’s core guarantee of neutrality be-

tween sects.

Appellees have maintained that the Minnesota Charitable

Solicitations Act is unconstitutional on several distinct

grounds. See pp. 7-8, supra. Because Magistrate Renner

and the district court on summary judgment, and the court

of appeals as well, all found it necessary to address only

the establishment clause issue, however, that is the only

issue directly before the Court on this appeal. Every judge

to consider that issue in this litigation has held the Act’s

selective exemption of only some religious organizations

to constitute an unconstitutional establishment of religion.

At the outset, it is essential precisely to characterize the

establishment clause issue presented in this case. Unlike the

typical establishment clause controversy, which questions

the constitutionality of government programs providing ben-

efits to all religious organizations, see, e.g., Wolman v.

Walter, 433 U.S. 229 (1977); Lemon v. Kurtzman, 403

U.S. 602 (1971); Walz v. Tax Commission, 397 U.S. 664

(1970), this case involves an attempt by government ex-

pressly to grant a special benefit to some religious organi-

zations, but to withhold it from others. The case thus poses

a quintessential establishment clause violation for, as the

Court has long recognized, **{t}he First Amendment man-

dates neutrality between religion and religion . . . .‘’ Ep-

person v. Arkansas, 393 U.S. 97, 104 (1968). See also

=e)

Walz v. Tax Commission, supra, 397 U.S. at 673. By ex-

pressly and purposefully providing special benefits to only

some religious organizations, the Minnesota Charitable So-

licitations Act violates the constitutional *‘require[ment that]

the state . . . be a neutral in its relations with groups of

religious believers . . . ."’ Everson v. Board of Education,

330 U.S. 1, 18 (1947); accord, e.g., Zorach v. Clauson,

343 U.S. 306, 314 (1952) (**The government must be neu-

tral when it comes to competition between sects.’’).

Although the Court’s analysis of establishment clause

issues in cases involving the provision of benefits to all

religious organizations requires careful consideration of a

range of factors, see Wolman v. Walter, supra, 433 U.S.

at 235-36, and cases cited, the Court has consistently and

unambiguously declared that government may not ‘‘adopt

programs or practices . . . which ‘aid or oppose’ any reli-

gion. This prohibition is absolute.’’ Epperson v. Arkansas,

supra, 393 U.S. at 106 (quoting School District v. Schempp,

374 U.S. 203, 225 (1963)). Since the establishment clause

**requires that government . . . effect no favoritism among

sects,’’ when government violates the clause’s “‘core’’ con-

cept of neutrality, the absolutist component of the Clause

compels an immediate result. Walz v. Tax Commission,

supra, 397 U.S. at 695 (opinion of Harlan, J.). In such

cases, ‘‘the inquiry . . . can end at this point. Neutrality

. . Stand[s] as [a] barrier[] against the most egregious and

hence divisive kinds of state involvement in religious mat-

ters.’” Id.

Indeed, the guarantee of neutrality is so fundamental to

our democratic system that, in the almost two hundred years

since adoption of the first amendment, the Court has not

until now been presented with a law that expressly divides

religious organizations into separate categories for differ-

ential governmental treatment. The infrequency of such leg-

islative acts is reflective of the clear constitutional consensus

that government may not ‘“‘single{] out .. . particular

church{es] or religious group[s]’’ for special treatment. See

Walz v. Tax Commission, supra, 397 U.S. at 673.°

It is true, of course, that the Charitable Solicitations Act

does not expressly grant favored status to specific religions

or religious organizations by name; that would be the

paradigm violation of inter-sectarian neutrality. But that

paradigm does not exhaust the establishment clause’s guar-

antee that government ‘‘not aid, foster or promote one re-

ligion or religious theory against another.’’ Epperson v.

Arkansas, supra, 393 U.S. at 104. Indeed, statutory dis-

tinctions expressly according some religious organizations

benefits while at the same time denying those benefits to

others pose much the same threat to the constitutional guar-

antee of neutrality as laws distinguishing religious organi-

zations by name, although perhaps in not quite so dramatic

a manner.

*The Court has recognized that governmental neutrality as defined

in inter-sectarian terms is perhaps the most essential of the values that

the establishment clause was intended to protect. See School Dist. v.

Schempp, 374 U.S. 203, 216 (1963) (**[T]his Court has rejected une-

quivocally the contention that the Establishment Clause forbids only

governmental preference of one religion over another."’) (emphasis

added).

The Court's treatment of the question is fully consistent with the

setting in which the establishment clause was developed. Thus, one

study has concluded that, while the history is of course not without

some uncertainty, ‘‘the p s which must have been foremost in

the minds of the le iegislao in the First Congress indicated the popular

demand for an e rf aye ae rapa treatment to religions and its con-

comitant restriction of the right to liberty of religion.’’ C. Antieau, A.

Downey & E. Roberts, Freedom from Federal Establishment 132

(1964). Moreover, for example, ‘‘in every state constitution in force

between 1776 and 1789 where ‘establishment’ was mentioned, it was

Tones or used in conjunction with ‘preference.’ *’ /d.; see id. at 132-

(quoting N.J. Const. of 1776, art. XIX; N.C. Const. of 1776, art.

XXXIV; Del. Const. of 1776, art. 29; N.Y. Const. of 1777, art. XXXV;

Mass. Const. of 1780, pt. I, art. III).

This is not a case, as the state persistently maintains, in

which the legislation has a mere de facto, *‘disparate im-

pact’’ upon different religious organizations. Brief for Ap-

pellants at 20, 21. The state’s is, indeed, a fundamental

mischaracterization of the Act. A law has a de facto, dis-

parate impact when it is wholly neutral on its face with

respect to the criterion at issue, but in operation falls more

heavily upon some groups than others. The Charitable So-

licitations Act prior to the 1978 amendment, for example,

was neutral on its face with respect to different religious

organizations, but might have had differential effects upon

such organizations in operation.

Similarly, as the state correctly points out, ‘*[a] religious

organization which operates a college, builds a church, op-

erates a radio station, sells securities, or owns real estate

for charitable purposes will undoubtedly be more affected

by legislation in these areas than those that do not.’’ Brief

for Appellants at 25 (footnotes omitted). The Minnesota

Charitable Solicitations Act, however, is radically different.

As presently in force, the Act expressly grants an exemption

to some religious organizations but not to others. The *‘dis-

parate impact’’ is thus de jure rather than de facto. It is

mandated on the face of the legislation, and is not a mere

incidental effect of the legislation in operation.

This distinction, so familiar in the equal protection field,

is central to the analysis of the establishment clause as well.

Compare Personnel Administrator v. Feeney, 442 U.S. 256

(1979) (disparate impact of facially neutral law in equal

protection context) and Washington v. Davis, 426 U.S. 229

(1976) (same) with Gillette v. United States, 401 U.S. 437

(1971) (same in establishment clause context). Cf. Walz v.

Tax Commission, supra, 397 U.S. at 696 (opinion of Harlan,

J.) (‘Neutrality in its application requires an equal protec-

tion mode of analysis.”’). Almost all laws will, in operation,

have some diff-rential effects upon some racial, gender, or

religious groups. To treat the existence of such differential

effects as presuinptively invalid would thus call into ques-

tion the constitutionality of much, perhaps most, of our

legislation. Thus, under equal protection analysis, it is set-

tled that when a law, neutral on its face, ‘‘has a disparate

impact upon a group that has historically been the victim

of discrimination,’’ the law must nonetheless be upheld so

long as the impact can ‘‘be plausibly explained on a neutral

ground”’ and the party challenging the law cannot demon-

strate that it is the product of *‘purposeful discrimination.”’

Personnel Administrator v. Feeney, supra, 442 U.S. at 275,

274; see City of Mobile v. Bolden, 446 U.S. 55 (1980);

Village of Arlington Heights v. Metropolitan Housing De-

velopment Corp., 429 U.S. 252 (1977); Washington v.

Davis, supra.

The establishment clause may also be violated by a law

that ‘‘on its face makes no discrimination between religions,

for the Establishment Clause forbids subtle departures from

neutrality, ‘religious gerrymanders,’ as well as obvious

abuses.’’ Gillette v. United States, supra, 401 U.S. at 452.

But an individual who claims that a law that does not on

its face ‘discriminate on the basis of religious affiliation

or religious belief’ is nonetheless violative of the estab-

lishment clause because it *‘works a de facto discrimination

among religions’’ must ‘‘show the absence of a neutral,

secular basis for the lines government has drawn."* /d. at

450, 451, 452. For as the state observes, **[g]iven the lim-

itless variety of activities of religious organizations, the fact

that secular legislation will necessarily affect some religious

organizations more than others cannot be denied, nor can

an unrealistic demand for identical effects be imposed."’

Brief for Appellants at 24-25.

pa Y a

The situation here is quite different. Although the chal-

lenged Act does not accord disparate treatment to different

religious organizations by name, it expressly grants favored

status to some religious organizations while denying such

status to others. There are several critical differences be-

tween laws having only a de facto disparate impact on re-

ligious organizations and those, like the Act, that expressly

distinguish between such organizations. The use of a reli-

gion criterion on the face of legislation is, in a fundamental

sense, symbolically inappropriate under the establishment

clause. Favoritism is built directly into the legislation, a fact

which is in itself of central importance.

Moreover, unlike de facto disparate effects, the express

use of a religion criterion on the face of legislation is usually

readily avoidable, as demonstrated by the fact that, until

now, legislators have managed almost without exception to

avoid the use of express statutory distinctions between re-

ligious organizations. Thus, unlike the mere disparate im-

pact situation, where invalidation because of disparate im-

pact would usually prevent the government from achieving

whatever legitimate interest is served by the law, invali-

dation because of the express use of a religion criterion

would usually still leave government free to achieve most

if not all of its interests by simply rewriting the law to

eliminate the unconstitutional use of the religion criterion.

In this very case, for example, the state could re-write the

Act to grant the exemption to all religious organizations;

it could grant the exemption to no religious organizations;

or it could eliminate the religion criterion entirely by treating

religious organizations no differently from all other chari-

table organizations. At a bare minimum, the burden should

be on government convincingly to demonstrate why it is

necessary expressly to accord favored status to some reli-

gious organizations and not to others.

There is, moreover, another more subtle, but no less

important, difference between the mere de facto situation

and the sort of problem posed by the Charitable Solicitations

Act. Stated simply, there is a much greater danger of im-

proper legislative motivation, in the form of either favor-

itism or hostility, where a law speaks expressly in terms of

religion than where it is neutral on its face but has only a

disparate religious impact. The more a law focuses expressly

upon so constitutionally sensitive a consideration, the more

likely it is that legislators, consciously or unconsciously,

will be affected in their deliberations by their expectations

as to the likely impact of the legislation. A law that expressly

grants a benefit to some religious organizations and not

others is, in general, niore likely to be tainted by subtle,

but constitutionally impermissible, considerations than a law

that treats all religions equally. As Justice Jackson has in

another setting noted, ‘‘there is no more effective practic:

guaranty against arbitrary and unreasonable government

than to require that the principles of law which officials

would impose upon a minority must be imposed generally."’

Railway Express Agency v. New York, 336 U.S. 106, 112

(1949) (Jackson J., concurring); see Walz v. Tax Commis-

sion, supra, 397 U.S. at 689 (Brennan, J. concurring)

(*‘The very breadth of [a] scheme’’ exempting churches

along with numerous other charitable institutions from real

property taxes ‘‘negates any suggestion that the State intends

to single out religious organizations for special prefer-

ence.’’).

Moreover, ‘‘political division along religious lines was

one of the principal evils against which the First Amendment

was intended to protect.’’ Lemon v. Kurtzman, supra, 403

U.S. at 622. In this context, it is clear, that when a law

which expressly grants state favoritism to some religious

ee) a

organizations but not to others is introduced and debated

in a legislative body, the potential for those very dangers

to materialize is greatly exacerbated. The potential may be

expected to heighten if such a law is actually enacted and

thereafter enforced. Thus, while it cannot be gainsaid that

**religious values pervade the fabric of our national life,’’

id. at 623, the direct injection into the political arena of

explicit lines of religious discussion will upset the consti-

tutional equilibrium sought to be maintained by the estab-

lishment clause. Stringent judicial scrutiny of laws of this

kind is, therefore, essential.

These concerns are illustrated by this case. Under the

Charitable Solicitations Act, with minor exceptions, the

only religious organizations granted an exemption from the

registration and disclosure requirements are those that derive

more than half their financial support from their own mem-

bers or from parent or affiliate bodies. As a consequence,

large, traditional congregations tend to qualify for the ex-

emption. Indeed, in the list of registered organizations sub-

mitted to the district court, Jt. App. A-19 to -124, one

searches in vain for the name of any Catholic or *‘main-

stream’’ Protestant church or Jewish synagogue. Although

the separately organized charitable affiliates of some major

churches, such as Catholic Welfare Services of Minneapolis

and Lutheran Social Service of Minnesota, are not exempt,

the record supplies a ready inference that the churches them-

selves are. No matter how much money one of these tra-

ditional churches raises from the public, and no matter how

it is organized to provide information to its membership

about its financial practices, it is exempt.

On the other hand, *‘religions which spread their beliefs

in more evangelical, less traditional ways,”’ are less likely

to be exempt. Heritage Village Church & Missionary Fel-

lowship, Inc. v. State, 299 N.C. 399, 411, 263 S.E.2d 726,

737 (1980). The burdens of the Act will predictably fall

with greatest impact upon those religious organizations

which, through either religious belief or perceived practical

necessity, look to the public at large rather than to a discrete

and stable membership for their support. As a class, then,

religious societies which, by scriptural command, spread

their beliefs through ‘‘missionary evangelism,’ seeking

‘through personal visitations to win adherents to their

faith,’” Murdock v. Pennsylvania, 319 U.S. 105, 108-09

(1943), are more likely to be disadvantaged by the Act. The

Act will similarly tend to disfavor *‘newly organized or

minor cults and creeds,”’ which, lacking a solid base of

existing support, must solicit funds from prospective sym-

pathizers. Troyer v. Town of Babylon, 483 F. Supp. 1135,

1139 (E.D.N.Y.) (Unification Church), affd mem. sub

nom. Troyer v. Town of Southampton, 628 F.2d 1346 (2d

Cir.), aff d mem., 449 U.S. 988 (1980).

The point, of course, is not that the Charitable Solicita-

tions Act is invalid because of these disparate effects. Nor

is it that the existence of diparate effects necessarily proves

actual improper legislative motivation. The point, rather,

is that in enacting a law that distinguishes expressly between

religious organizations, as opposed to one that is neutral on

its face but has de facto differential effects, legislators are

more likely to be aware of, and perhaps be influenced by,

the possibility of such unequal effects." Whether or not

"This risk is concretely illustrated in the legislative deliberations over

the 1978 amendment at issue here. During a senate committee hearing

on the 1978 amendment, one senator stated his understanding that the

proposed selective exemption *‘is an attempt to deal with the religious

organizations which are soliciting on the streets and soliciting by direct

mail but who are not substantial religious institutions in. . . our state."’

Shortly thereafter, another senator asked an assistant attorney general

who had helped draft the amendment, **| A]s | understand it, what you're

ans.

actual improper motivation can be proved, such laws are

at the very least suspect because of the greater risk that their

enactment may have been tainted by improper consid-

erations.

For all these reasons, laws like the Charitable Solicitations

Act that expressly accord favored status to only some re-

ligious organizations pose a different, and far more serious,

threat to the policies underlying the establishment clause

than laws having a mere de facto disparate impact. And

although laws expressly granting special benefits to some

religious organizations and not others may not be as prob-

lematic under the establishment clause as laws distinguish-

ing expressly between religious organizations by name, and

may thus not be subject to the same *‘absolute’’ prohibition,

they should at the very least be held invalid unless justified

by, and closely fitted to, a substantial governmental interest.

B. The fifty percent member-funded criterion of the

religious exemption provision is not substantially

related to a significant governmental interest.

Under any standard but the most lenient, the favored

Status granted some religious organizations under the Char-

itable Solicitations Act cannot stand. The sole explanation

offered by the state affords barely a rational basis for the

selective exemption, much less the showing necessary to

satisfy the demands of the establishment clause in this cir-

cumstance.

trying to get at here is the people that are running around the airports

and running around streets and soliciting people — and —— are you

trying to remove them from the exemption that normally applies to

religious organizations, is that correct?’ He received the response,

**It is.’ Finally, a senator who apparently had some reservations about

the proposed selective exemption stated, *‘I'm not sure why we're so

hot to regulate the Moonies anyway. |Laughter].’’ Hearings on Pro-

posed Amendments to the Minnesota Charitable Solicitations Act Before

the Minn. Senate Subcomm. on Judicial Administration of the Minn.

Senate Comm. on Judiciary (Mar. 7, 1978) (audio tape). [Note: Min-

nesota legislative history is recorded by voice tape. Jur. St. 12 n. 6.

See id. 12-13.]

ox, Y

The state claims that the Act serves the public interest

in minimizing fraud in charitable solicitations through public

reporting and disclosure. Brief for Appellants at 27. As the

court of appeals recognized, that purpose is no doubt a

salutary one and one that may be advanced by the Act as

a whole. Jt. App. A-137, 637 F.2d at 567. It is, however,

undercut rather than furthered by the selective religious ex-

emption. Indeed, that exemption stands logic on its head.

Concerns over possible fraud and the need for public dis-

closure are obviously greater, for example, when an exempt

religious organization receives from non-members $1 mil-

lion in charitable contributions, even if that constitutes less

than half of the organization's total contributions, than when

a non-exempt religious organization receives $20,000 from

non-members, even if that constitutes more than half its

total charitable contributions. The operation of the Act thus

flies in the face of all reasonable expectations and does not

**follow[] any ‘natural perimeters’ of public policy con-

cerns.’’ /d. A-135, 637 F.2d at 565 (quoting Welsh v. United

States, 398 U.S. 333, 357 (1970) (Harlan, J., concurring)).

Before the court of appeals, the state failed to offer *‘any

explanation for the sizable loophole created for some reli-

gious organizations."’ See id. A-136, 637 F.2d at 566. Be-

fore this Court, however, the state attempts to construct

such an explanation. In essence, the state maintains that

when more than fifty percent of a religious organization's

funds come from its own members, those members may

confidently be relied upon to supervise the organization's

fund-raising practices so as to protect not only themselves,

but somehow the public as well. When more than fifty

percent of a religious organization's funds come from the

public, however, the organization's members, the state ar-

gues, can no longer be trusted to supervise the organization's

fund raising practices, and the state must then step in to

pe es

assume this supervisory role. Brief for Appellants at 28-30.

In the state’s view, ‘*when an organization raises more than

half its money from non-members, it becomes by definition

more the financial creature of the public than of its internal

membership.” Jur. St. 18.

Even putting aside the rather disquieting notion that a

religious organization could ever become, *“‘by definition”

or otherwise, the *‘financial creature’’ of the general public,

a notion that in itself suggests grave first amendment ques-

tions, the state’s purported explanation of the selective ex-

emption is doubtful at best. If there is a ‘‘need for public

disclosure,”’ Brief for Appellants at 29, with respect to

organizations receiving relatively small total contributions

from the public, there is an even greater ‘‘need’’ for such

disclosure with respect to organizations receiving relatively

large total contributions from the public, whether the or-

ganization looks to the public for more or less than fifty

percent of its support. There is, simply, nothing talismanic

about the fifty-percent cut-off.

An exempt religious organization, dependent upon the

public for less than half its support, is no less likely than

a non-exempt organization to engage, for example, in mis-

representation in its public solicitations if it believes that

to be an expedient means of increasing its total revenues.

That an organization receives more than half its funds from

members bears no substantial relation to its incentive or

potential willingness to employ improper practices in its

solicitation of funds from the public.

Moreover, there is no reason to believe that organizations

raising more than half their funds from members are sub-

stantially more likely than other organizations to provide

their members with detailed information about their finan-

cial affairs. The state’s discussion of this point, it should

be noted, relies upon an incomplete and misleading analysis

lil ais

of the Minnesota statutes governing the right of members

of religious organizations to obtain information about the

organizations’ finances. The state cites Minn. Stat. § 317.28

(1980), for example, which grants members of non-profit

organizations the right to inspect books and records and to

obtain an accounting. Brief for Appellants at 28. Only or-

ganizations organized under id. ch. 317, the general non-

profit corporations statute, however, have such rights. Re-

ligious organizations may be organized in other states and,

more important, even in Minnesota they may be organized

under id. ch. 315, which is designed to deal specifically

with religious associations and which contains no provision

for the regulation, supervision, inspection, or control of

fund raising activities or records by members. In any event,

even if a religious organization were for some reason or-

ganized under chapter 317, its members’ right to examine

its books and records would in no way be dependent upon

the percentage of funds raised by the organization from the

public. The selective exemption at issue in this appeal thus

cannot sensibly be justified by reference to chapter 317.

Beyond this, however, the state seriously overestimates

both the power and likely incentive of members of exempt

religious organizations to protect the interests of non-

members. Although parishioners in some Protestant denom-

inations may have the power to oversee and participate in

church management, members of highly structured, hier-

archical churches would have no general claim to such su-

pervisory powers. And even if information concerning an

exempt religious organization's financial affairs is in fact

available to members, and those members happen to have

the power to influence the organization's practices, there

is little reason to believe that such members would have any

particular incentive to protect the interests of non-members.

a, a

And, of course, the members of exempt organizations would

not have any greater incentive to protect the interests of

non-members than would the members of non-exempt or-

ganizations. Similarly, the members of religious organiza-

tions receiving more than half their funds from members

are no more likely than the members of organizations re-

ceiving less than half their funds from members carefully

to supervise their organization's expenditures for, in either

situation, the individual member's own money is equally

at stake.

The state’s explanation of the Act's selective exemption

of some, but only some, religious organizations is dramat-

ically undercut by the Act’s inconsistent treatment of non-

religious charitable organizations. The state asserts that

‘the criterion in the religious exemption [is not] so unique

as to give rise to the suspicion that it is actually a religious

based differentiation in another form. The same criterion

applies to fraternal, patriotic, and professional organizations

(exemption d). . . .”’ Brief for Appellants at 11.

In fact, however, the fifty-percent ‘criterion in the re-

ligious exemption”’ is ‘‘unique;’’ under the Act, even where

non-religious charitable organizations receive more than half

(but less than all) their support from members, they are not

exempt from the reporting and disclosure requirements. In-

deed, the only roughly analogous exemption for non-

religious charitable organizations — ‘‘exemption d’’ —-

covers only a narrow class of such organizations which limit

‘solicitation of contributions to persons who have a right

to vote as a member."’ Minn. Stat. § 309.515(1)(d) (1980). —

The failure to grant an exemption to charitable organizations

indistinguishable from exempt religious organizations in all

respects relevant to the state’s claimed rationale thus indeed

**give|s] rise to the suspicion that [the selective exemption]

is actually a religious based differentiation’’ and strongly

suggests that the selective exemption at issue in this appeal

cannot fairly be justified in terms of the state’s asserted

explanation. ''

Whatever interest the state may be seeking to further by

granting a special exemption to some, but only some, re-

ligious organizations from the reporting and disclosure re-

quirements of the Act, it has failed entirely in its effort to

demonstrate either that that interest is substantial or that it

bears a substantial relation to the exemption as drafted. If

government is ever permitted expressly to grant favored

status to some, but not all, religious organizations, it must

support such extraordinary legislation with a much stronger

showing of justification than that here offered by Minnesota.

C. Gillette v. United States is not controlling here be-

cause the statute in Gillette had only a de facto

disparate impact upon religions, did not make a de

jure religious differentiation, and was, in any event,

supported by an overriding government interest.

Throughout this suit, the state has fastened on Gillette

v. United States, 401 U.S. 437 (1971), as controlling au-

thority for its position that the Charitable Solicitations Act's

express grant of an exemption to some, but only some,

religious organizations does not violate the first amend-

ment’s proscription of laws respecting an establishment of

"The state's assertion that the court of appeals was wrong in sug-

gesting that a different question might be presented if religious orga-

nizations, like non-religious charitable organizations, were exempted

only if funded solely from internal sources, Brief for Appellants at 30,

is itself in error. In such circumstances, the express distinction among

religious organizations would be eliminated, for such organizations

would then be subsumed under the provision governing all charitable

organizations. Mureover, whether or not ultimately constitutional, an

exemption limited to organizations funded entirely by their own mem-

bers is obviously more defensible than the exemption here at issue.

== 99

religion. Brief for Appellants at 20-22, 26. Every judicial

official who has considered that contention in this litigation

has correctly recognized that Gillette does not control this

case.

In Gillette, the Court considered the constitutionality of

the conscientious objector provision of the Military Selec-

tive Service Act of 1967, 50 U.S.C. app. § 456(j) (1976),

which relieved from conscription those with conscientious

religious scruples in opposition *‘to participation to war in

any form.’’ The Court rejected a claim that because the

statute had the effect of failing also to relieve from con-

scription religious objectors only to particular wars, it

worked an establishment. As the Court emphasized, the

‘‘critical weakness’’ of the claim that this provision was

invalid under the establishment clause arose from the fact

that the statute did not ‘‘on its face . . . discriminate on the

basis of religious affiliation or religious belief . . . ."* Gil-

lette v. United States, supra, 401 U.S. at 450. Indeed, a

law drawn on the basis of beliefs concerning war is no more

an express religious discrimination than a law prohibiting

the use of peyote or the practice of polygamy or regulating

the operation of radio stations or the sale of securities.

Thus, ‘‘properly phrased,”’ the establishment clause con-

tention in Gillette was simply that the failure to exempt

selective conscientious objectors amounted to a mere ‘‘de

facto discrimination among religions.’’ /d. at 451-52. As

already explained, see pp. 17-21, supra, the Minnesota

Charitable Solicitations Act's express line-drawing between

classes of religious organizations poses a sharply distinct

analytical issue and creates a far more substantial threat to

the constitutional guarantee that government may not

**single out any religious organization . . . for special treat-

ment.’” See Gillette v. United States, supra,

401 U.S. at 451.

ins

Gillette is clearly distinguishable from the instant case

for another reason as well. Unlike the Charitable Solicita-

tions Act, the statute at issue in Gillette was supported by

overriding governmental interests arising from the duty of

Congress under article I, section 8, of the Constitution to

provide for the national defense. See Rostker v. Goldberg,

101 S. Ct. 2646, 2651 (1981) (°‘|PJerhaps in no other area

has the Court accorded Congress greater deference’ than

in matters of ‘‘national defense and military affairs.’’). See

also Brown v. Glines, 444 U.S. 348 (1980); Greer v. Spock,

424 U.S. 828 (1976); Parker v. Levy, 417 U.S. 733 (1974).

The present Act plainly serves no such overriding interest.

D. Although the tests of Lemon v. Kurtzman need not

be applied to this case of explicit state preferential

treatment of only some religious organizations, the

Minnesota statute violates both the principal or

primary effect and excessive government entangle-

ment branches of Lemon.

The court of appeals correctly perceived that laws that

expressly prescribe differential governmental treatment of

religious groups are inherently and strongly disfavored un-

der the establishment clause and that the constitutional con-

cerns thus evoked are so fundamental to the interests safe-

guarded by the clause that such laws may be upheld, if at

all, only if they are closely tailored to further governmental

policies of overriding importance. See Jt. App. A-136, 637

F.2d at 566. Since the expressly selective exemption here

at issue could not satisfy this standard, the court noted that

the statute contravened core establishment principles of neu-

trality. See id.

As an alternative ground of decision, however, the court

of appeals held the statute invalid under the three-fold cri-

teria enunciated in Lemon v. Kurtzman, 403 U.S. 602

(1971). Although clearly correct in invalidating the statute

under Lemon, the court of appeals was also correct in placing

primary emphasis on the neutrality principle.

The Lemon test comprises three criteria: **First, the statute

must have a secular legislative purpose; second, its principal

or primary effect must be one that neither advances nor

inhibits religion . . .; finally, the statute must not foster

‘an excessive governmental entanglement with religion.’ *’

Lemon v. Kurtzman, supra, 403 U.S. at 612-13 (citations

omitted).

The difficult and intricate inquiries required by the Lemon

tests were designed primarily to evaluate the constitution-

ality of government programs providing benefits to all re-

ligious organizations. Indeed, the Lemon formulation orig-

inated in a school aid case, a situation in which establishment

issues are especially subtle. In Lemon and in subsequent

cases of a similar nature, the Court faced the task of applying

the language of the religion clauses in contexts in which

‘‘the lines of demarcation’’ can ‘‘only dimly [be] per-

ceive[d].’’ /d. at 612. In cases like the present, where a law

conflicts on its face with the establishment clause’s core

guarantee of neutrality, application of the Lemon tests is

unnecessary.

If Lemon is applied to the Minneseta Charitable Solici-

tations Act, however, the seiective exemption is clearly

invalid. In applying the Lemon standards in this case, the

disirict court held that the primary effect of the exemption

was to benefit some churches at the expense of others, and

that it threatened to entangle the state in religious affairs,

Jur. St. A-18 to -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 -65 (magistrate’s report and recom-

mendation on preliminary injunction); the court of appeals,

applying the Lemon standards, held that the selective ex-

emption violated the first and second prongs of the test,

finding it unnecessary to consider whether it violated the

third prong as well.

In light of the arguments presented by the state to the

court of appeals, that court’s finding that the Act did not

pass constitutional muster under the first prong of the Lemon

standard is fully supportable. As noted, the state failed to

offer the court of appeals ‘‘any explanation for the sizable

loophole created for same religious organizations.’’ 637

F.2d at 566. Accordingly, the court of appeals had no re-

course but to find that the Act had no valid secular purpose."

Before this Court, however, the state maintains for the first

time that the selective exemption is explicable because mem-

bers of exempt religous organizations are supposedly more

likely than members of non-exempt religious organizations

to supervise the organization's fund-raising practices. As

already demonstrated, this explanation is tenuous at best,

and thus is unlikely to satisfy the requirement of a valid

secular purpose. The Court need not reach that question,

however, for the selective exemption is clearly invalid under

the second and third prongs of the Lemon standard.

1. Principal or primary effect.

Both the court of appeals and the district court correctly

found that the Act failed to satisfy the second prong of the

Lemon standard, that, to be valid, a statute's “principal or

"In criticizing the court of appeals for speculating *‘that the law in

} ages was the result of intentional and invidious discrimination by

Minnesota legislature,’’ Brief for Appellants at 15, the state fails

to comprehend the court of appeals’ dilemma — a dilemma of the state's

own making. As that court quite reasonably observed, ‘intentional

discrimination is a very real issue’’ precisely because of the state's

failure of explanation. Jt. App. A-136. 637 F.2d at 566. As explained

earlier, see pp. 22-23, supra, the presence or absence of an actual

improper motivation is not the issue in this appeal.

= i

primary effect must be one that neither advances nor inhibits

religion . . . ."’ Lemon v. Kurtzman, supra, 403 U.S. at

612.’’ [W]hatever its legislative purpose, the Act has the

immediate effect of subjecting some churches to far more

rigorous requirements than others.” Jur. St. A-63 (magis-

trate’s report and recommendation on preliminary injunc-

tion). The principal or primary effect prong of the Lemon

test does not require courts to engage in ‘‘metaphysical

judgments.’’ Rather, unless the effect of a law on religious

affairs is ‘‘remote and incidental,”’ it must be invalidated

if it carries even the ‘‘possibility’’ that it might ** ‘in part

have the effect of advancing religion.’ *’ Committee for

Public Education & Religious Liberty v. Nyquist, 413 U.S.

756, 783 n. 39 (1973) (emphasis in the original) (quoting

Tilton v. Richardson, 403 U.S. 672, 683 (1971)). In light

of the ‘‘material burdens’’ that “‘certain religious groups

will suffer . . . as a result of the obligations imposed by

the act,”’ Jt. App. A-143, 637 F.2d at 569, there can be

little doubt that, by exempting some, but only some, reli-

gious organizations from these obligations, the Minnesota

scheme fails the second prong of the test. See pp. 14-23,

supra.

2. Excessive government entanglement.

Although the Court need not reach the question, and may

dispose of this appeal on the much narrower ground that the

Act violates the guarantee of neutrality, there can be little

doubt that the Act ‘‘foster|s] ‘an excessive government en-

tanglement with religion,’ '* and thus violates the third

Lemon test as well. Lemon v. Kurtzman, supra, 403 U.S.

at 613 (quoting Walz v. Tax Commission, supra, 397 U.S.

at 674). See Heritage Village Church & Missionary Fel-

lowship, Inc. v. State, 229 N.C. 399, 414-16, 263 S.E.2d

726, 735-36 (1980). Indeed, the Act imposes precisely the

sorts of ‘‘susiained and detailed administrative . . . stan-

dards*’ that have repeatedly been condemned by the Court.

Walz v. Tax Commission, supra, 397 U.S. at 675; see NLRB

v. Catholic Bishop, 440 U.S. 490, 501 (1979); Committee

for Public Education & Religious Liberty v. Nyquist, supra,

413 U.S. at 794-95; Lemon v. Kurtzman, supra, 403 U.S.

at 619-22.

The Act sets up “*[a] comprehensive, discriminating, and

continuing state surveillance,’’ Lemon v. Kurtzman, supra,

403 U.S. at 619, of non-exempt religious organizations. In

order to effectuate the statutory enterprise, the Act first

requires non-exempt churches to supply state authorities

with detailed structural, organizational, and financial in-

formation on a regular basis. Minn. Stat. §§ 309.52-.53

(1980). These already comprehensive data may be supple-

mented through the plenary subpoena powers granted by id.

§ 309.533(2), and the prerogative of ‘‘public or private

investigations within or outside the state”’ vested under id.

§ 309.533(1)(a).

The entanglement of the state in religious affairs does not

end with the obtaining of information.'’ Rather, the Act

authorizes state officials to use the information they obtain

for purposes that themselves contravene the third Lemon

prong.

"The statute's requirements are thus poles apart from the mere passive

provision of information for the purpose of informing the public, see

Village of Schaumburg v. Citizens for a Better Environment, 444 U.S.

620, 637-38 (1980), assuming arguendo that a scheme of even that

nature may constitutionally be imposed upon churches as distinguished

from the non-religious charitable organizations affected by the Hlinois

law cited in Schaumburg. Id. at 638 n.12. The state's apparent assertion

to the contrary, Brief for Appellants at 29, notwithstanding, Heffron

v. international Soc'y for Krishna Consciousness, OL S.Ct. 2559,

2568-72 (1981) (Brennan, J., concurring in part and dissenting in part),

does not propose the validity of such a hypothetical law.

The Act empowers state officials, for example, to *‘sus-

pend or revoke’’ the right of non-exempt religious organi-

zations to solicit contributions if they find that the organi-

zation has violated the Act and that such revocation or

suspension is ‘‘in the public interest.’’ Minn. Stat.

§ 309.532(1) (d) (1980). For the state to operate in this

context under a “‘public interest’’ standard is wholly foreign

to the first amendment’s guarantee that government ‘‘chart

a course that preserve[s] the autonomy and freedom of re-

ligious bodies . . . .’” Walz v. Tax Commission, supra, 397

U.S. at 672. Under such a scheme,

[t]he potential exists for the state not only to substitute

its own judgment as to the substantive ‘‘purpose’’ of

a particular expenditure, but also to inject itself into

the very center of religious disputes. Absent narrow

circumstances of outright fraud or collusion or other

specific illegality, the propriety of a religious organi-

zation’s expenditures can be evaluated only by refer-

ence to the organization’s own doctrinal goals and pro-

cedures. The question of proper purpose is an

ecclesiastical one, and its resolution necessarily entails

an interpretative inquiry into possible deviations from

religious policy. “‘But this is exactly the inquiry that

the First Amendment prohibits . . . .”’

Heritage Village Church & Missionary Fellowship, Inc. v.

State, supra, 299 N.C. at 415, 263 S.E. 2d at 735-36 (foot-

note omitted) (quoting Serbian Eastern Orthodox Diocese

v. Milivojevich, 426 U.S. 696, 713 (1976)).

Similarly impermissible entanglements arise out of the

Act’s overly broad authorization to state officials to under-

take investigation and surveillance to determine whether a

non-exempt religious organization *‘expends or agrees to

expend an unreasonable amount for management and gen-

eral costs and fund raising costs,’ Minn. Stat. § 309.555(1a)

ins

(1980), and, upon making such a determination, to strip the

organization of its ‘‘eligib[ility] to maintain registration,”

id., and, hence, of its right to solicit funds from the public.

Id. § 309.52(1). These processes unconstitutionally enmesh

the state in the internal, and appropriately autonom wus, atf-

fairs of religious organizations.

As is apparent from examination of the statutory scheme,

such examples could be multiplied. Indeed the coercive

powers granted to the state under the Act may apply even

to churches that believe themselves exempt, since the in-

vestigative authority extends to the commissioner's discre-

tionary judgment that ‘‘any person . . . is about to violate

any provision of [the Act] or any rule or order thereunder

....” Minn. Stat. § 309.533(1) (a) (1980). The *‘self-

perpetuating and self-expanding propensities,’’ Lemon v.

Kurtzman, supra, 403 U.S. at 624, of the statute are thus

all too evident on its face. The interaction, in sum, of the

state’s powers of investigation and surveillance and the pur-

poses to which the information obtained are put results in

a pervasive state-church ‘‘relationship pregnant with dan-

gers of excessive government direction .. . .”’ /d. at 620.

Il.

APPELLEES HAVE ALLEGED INJURY IN FACT AS A RESULT

OF ENFORCEMENT OF THE MINNESOTA CHARITA-

BLE SOLICITATIONS ACT AND THEREFORE HAVE

STANDING TO RAISE ESTABLISHMENT CLAUSE

CLAIMS.

As the Court has often observed, whether a party has

‘alleged such a personal stake in the outcome of the con-

troversy as to assure that concrete adverseness which sharp-

ens the presentation of issues’’ is ‘‘the gist of the question

of standing.’’ Baker v. Carr, 369 U.S. 186, 204 (1962)

(emphasis added). Accord, e.g., Duke Power Co. v. Car-

olina Environmenta! Study Group, 438 U.S. 59, 72 (1978);

Sr, =

Simon v. Eastern Kentucky Welfare Rights Organization,

426 U.S. 26, 41 (1976); Sierra Club v. Morton, 405 U.S.

738, 740 (1972). There is no question here but that appellees

have alleged that the Unification Church is a religious or-

ganization. Jt. App. A-3 to -6. The declaration of appellee

Larry Haft, moreover, sets forth factual details of the Uni-

fication Church’s religious tenets and practices. /d. A-7 to

-14. Hence, appellees have alleged that they are injured in

fact by the establishment of religion created by the Act’s

selective exemption of only some religious organizations,

and they therefore have standing to raise the establishment

issue. '*

The factual setting from which this litigation arose makes

appellees’ injury by virtue of the challenged Act particularly

clear. As indicated in the statement of the case, the Act

prior to 1978 exempted all religious organizations from its

coverage. Shortly after the 1978 amendment carved out

some religious organizations as non-exempt, the state ad-

vised appellees to register if they intended to continue fund

raising in Minnesota. Thereafter, the state filed an action

against appellee Unification Church claiming that its failure

to register violated the Act. State v. Holy Spirit Association

jor the Unification of World Christianity, File No. 431272

(Minn. Dist. Ct. 2d Dist., filed Nov. 6, 1978). The state’s

own actions thus demonstrate that appellees are adversely

affected by the Act and, accordingly, have standing to chal-

lenge its validity.

Be pete: have not sought to disturb the decision of the court of

appeals to remand the action for the purpose of affording **[t}he parties

. . » 4M Opportunity to develop the record and obtain rulings below’’

as to the question of whether the Unification Church is in fact a religious

organization. Jt. App. A-145, 637 F.2d at 570. Thus, the very inquiry

that the state seeks is mandated by the terms of the Eighth Circuit's

opinion in any event.

x ea

Moreover, this Court’s establishment clause decisions

clearly refute the state’s contention that appellees lack stand-

ing in the absence of a prior judicial determination that the

Unification Church constitutes a religious organization

within the meaning of the Act. In no decision of this Court

has actual inquiry into the religious beliefs or practices of

a litigant raising an establishment clause claim been re-

quired. To the contrary, in determining whether individuals

*“*have standing to complain that the statutes are laws re-

specting the establishment of religion,’’ this Court has in-

quired only as to whether such individuals ‘‘have suffered

direct economic injury’’ allegedly due to the operation of

the law in question. McGowan v. Maryland, 366 U.S. 420,

430-31 (1961).

Compared to the attenuated effects of the laws this Court

has in the past held justiciable under the establishment

clause, the direct effects of the registration and disclosure

requirements are more than sufficient to support a finding

of standing. See, e.g., School District v. Schempp, 374

U.S. 203 (1963). The effects on appellees are prohibition

or inhibition of their activities rather than mere passive

participation in practices offensive to them. Moreover, the

indirect pressure implicit in the operation of the Act to alter

one’s solicitation practices in order to avoid the statute's

burdens reinforces the conclusion that appellees have stand-

ing. Cf. Engel v. Vitale, 370 U.S. 421, 431 (1962) (*When

the power, prestige and financial support of government is

placed behind a particular religious belief, the indirect coer-

cive pressure upon religious minorities to conform to the

prevailing officially approved religion is plain.’’) It is thus

entirely appropriate that the Court consider the merits of

this case."°

CONCLUSION.

For the foregoing reasons, the judgment of the United

States Court of Appeals for the Eighth Circuit should be

affirmed.

Dated: September 18, 1981.

Respectfully submitted,

BARRY A. FISHER

Counsel of record

David GROsz

ROBERT C, MOEST

LARRY J. ROBERTS

WILLIAM M. KRAMER

FisHER & MOEST

2049 Century Park East

Los Angeles, Calif. 90067

(213) 557-1077

GEOFFREY R. STONE

1111 East 60th Street

Chicago, Ill. 60637

(312) 753-2449

Of counsel

Attorneys for appellees.

"Moreover, to avoid enmeshing federal courts in difficult and con-

situtionally lematic inquiries into whether organizations are in fact

“‘religious,"’ prudential considerations strongly suggest that any orga-

nization making a colorable claim to qualifying as ‘‘religious’’ be ac-

corded standing to raise an establishment claim. Cf. Thomas v. Review

Bd., 101 S.Ct. 1425, 1431 (1981) (**[T}he judicial process is singularly

- equipped to resolve [scriptural] differences in relation to the Religion

auses.**).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.