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

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. …