Regulation of Religious Solicitation Under the First Amendment

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The solicitation cases have generally been decided under the free exercise or free speech clauses.1 However, in one instance the Court, intertwining establishment and free exercise principles, voided a provision in a state charitable solicitations law that required only those religious organizations that received less than half their total contributions from members or affiliated organizations to comply with the registration and reporting sections of the law.2

Applying strict scrutiny equal protection principles, the Court held that, by distinguishing between older, well-established churches that had strong membership financial support and newer bodies lacking a contributing constituency or that may favor public solicitation over general reliance on financial support from the members, the statute granted denominational preference forbidden by the Establishment Clause.3

Footnotes:

1.    See discussion under Door-to-Door Solicitation and Charitable Solicitation, infra.

2.    Larson v. Valente, 456 U.S. 228 (1982). Two Justices dissented on the merits, id. at 258 (Justices White and Rehnquist), while two other Justices dissented on a standing issue. Id. at 264 (Chief Justice Burger and Justice O’Connor).

3.    456 U.S. at 246–51. Compare Heffron v. ISKCON, 452 U.S. 640, 652–53 (1981)and id. at 659 n.3 (Justice Brennan, concurring in part and dissenting in part) (dealing with a facially neutral solicitation rule distinguishing between religious groups that have a religious tenet requiring peripatetic solicitation and those who do not).

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