# Appellees Brief — Larson v. Valente

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellees Brief
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 228

## Text

Office -Supreme Court, U.S.

CORRECTED COPY |“

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

1.

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

iv

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

vi

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.
Minn.
Minn.
Minn.
Minn.
Minn.
Minn.
Minn.
Minn.
Minn.
Minn.
Minn.
Minn.
Minn.
Minn.
Minn.
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Minn.
Minn.
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Minn.
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Minn.
Minn.
Minn.

Stat , Sec.
Siat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., Sec.
Stat., 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).

ol

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.

oa

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)).

a

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-

a

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.
1.
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-

a

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.

a

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-

a

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]

98

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

a

(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,

a,

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

an

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.

ao

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

a

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.**).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2000%3A05. Public record. Not legal advice.