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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