Countless states, counties, and other political subdivisions have enacted laws designed to protect the public from abusive and fraudulent solicitation practices in order to maintain public confidence in charities and to promote the public welfare. Such governmental regulations are within the ambit of the state's police power and are generally held to be valid unless they conflict with constitutionally protected rights. Challenges to laws regulating public disclosure of charitable solicitation have traditionally been founded upon the free exercise and free speech clauses of the first amendment. But recently, in Larson v. Valente, the plaintiff challenged such a regulatory scheme by asserting that it violated not only the free exercise and free speech clauses but the establishment clause as well. In Larson, the Court held that the tests enunciated in the seminal establishment clause case, Lemon v. Kurtzman, were applicable to laws "affording a uniform benefit to all religions." Where an aid or benefit was not evident, but government regulations created denominational preferences by imposing burdensome requirements on some religions while exempting others, the Court held that the proper standard of review was strict scrutiny. Thus, the proper inquiry in these cases is whether the regulation of charitable solicitations is closely fitted to the furtherance of a compelling state interest. The Larson decision is important because it reveals the dual nature of the establishment clause: the clause applies when benefits are accorded to religions by governmental action and when laws place burdens on some religions while exempting others. Larson is unique because it represents the first occasion that the Court has applied the strict scrutiny analysis to governmental action under the establishment clause. This Note analyzes the issues raised in Larson and discusses the implications of the adoption of the strict scrutiny standard of review in cases of denominational preferences.
Daniel W. Evans,
Another Brick in the Wall: Denominational Preferences and Strict Scrutiny under the Establishment Clause: Larson v. Valente, 102 S. Ct. 1673 (1982),
62 Neb. L. Rev.
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