Monday, September 13, 2021

The Clearest Command of the EC


The "clearest command of the Establishment Clause," according to SCOTUS in Larson v. Valente, "is that one religious denomination cannot be officially preferred  over another."

The clearest examples of unlawful denominational preferences involve laws, like the one challenged in Larson itself, which facially classify on the basis of religion by drawing a line between religious organizations that receive a benefit or some other preference from government and those that do not. A religious classification exists whenever government prefers a particular religion by name or, as in Larson itself, distinguishes between religions based upon identifiable characteristics such as sources of funding or doctrinal distinctions.

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?  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 or in a loan subsidy program for non-profit colleges?

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