The "Clearest Command" of the Establishment Clause: Denominational Preferences, Religious Liberty, and Public Scholarships That Classify Religions

By Duncan, Richard F. | South Dakota Law Review, Fall 2010 | Go to article overview

The "Clearest Command" of the Establishment Clause: Denominational Preferences, Religious Liberty, and Public Scholarships That Classify Religions


Duncan, Richard F., South Dakota Law Review


I. INTRODUCTION

"The clearest command of the Establishment Clause," according to the United States Supreme Court, "is that one religious denomination cannot be officially preferred over another." (1) The source of the idea animating this core principle of nonestablishment is The Federalist Papers and Madison's insight that "security" for religious liberty results from a level playing field upon which a "multiplicity of sects" are free to compete with each other for adherents. (2) As the Court observed in Larson v. Valente, (3) "Madison's vision--freedom for all religion being guaranteed by free competition between religions--naturally assumed that every denomination would be equally at liberty to exercise and propagate its beliefs." (4) In other words, the clearest command of the Establishment Clause is to require legislators and voters "to accord to their own religions the very same treatment given to small, new, or unpopular denominations." (5)

Although the command against denominational preferences is strong and clear, there is much about Larson and its important doctrine that needs clarification. For example, when do laws create denominational preferences? Are they created when government enacts facially neutral laws that have a disparate impact on different religions? Or are they created only when government enacts denominational classifications directed at some "small, new, or unpopular" religion? Or is it enough that a law explicitly treats some religious institutions better than others? For example, suppose a zoning law conditions a special use permit for a college or university to be located in a certain neighborhood upon a showing that the applicant is not a "pervasively sectarian" institution or does not offer a degree or major in devotional theology. Does this law create a denominational preference for religious colleges that are not pervasively sectarian or for those that teach theology from a non-devotional, as opposed to a devotional, perspective? (6) Suppose that instead of being contained in a zoning law, these kinds of restrictions were enacted in an otherwise generally available scholarship program for needy college students. (7)

The purpose of this article is to analyze the Supreme Court's doctrine prohibiting denominational preferences with a view toward mapping out the boundaries of the doctrine in light of its animating principle of free religious competition. I will then attempt to apply the "clearest command of the Establishment Clause" to the facts of a recent free exercise decision of the Court, Locke v. Davey. (8) Although the Court in Davey rejected a free exercise challenge to a state scholarship program that denied funding to students pursuing college degrees in "devotional theology," (9) I will suggest that this exclusion creates a denominational preference that appears to violate the Establishment Clause and the teachings of Larson. Indeed, I will argue that Larson applies with particular force in cases in which religious lines are drawn by funding laws in which the benefit "if applied uniformly to all religions" would comply with the Establishment Clause. (10)

II. THE SUPREME COURT'S DOCTRINE CONCERNING DENOMINATIONAL PREFERENCES

A. THE CATEGORICAL RULE OF LARSON

In Larson v. Valente, Minnesota enacted a statute to regulate charitable solicitations in order to protect the public and the beneficiaries of charitable contributions from fraudulent practices. (11) Under this enactment, certain religious organizations were exempted from the law's registration and reporting requirements. In particular, the law exempted "only those religious organizations that received more than half of their total contributions from members or affiliated organizations...." (12)

The Supreme Court held that the fifty percent rule created a denominational preference, because it imposed "the registration and reporting requirements of the Act on some religious organizations but not on others. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

The "Clearest Command" of the Establishment Clause: Denominational Preferences, Religious Liberty, and Public Scholarships That Classify Religions
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.