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§ 9.01

The amenability of churches to some governmental regulation is not seriously disputed. For example, few would protest the application to churches of laws prohibiting fraud in the sale of securities, requiring donated funds to be expended for the purposes represented, protecting copyright owners against infringement, or prohibiting activities that cause physical harm, property damage, or material disturbance to others. Similarly, churches routinely comply with municipal building codes and zoning regulations in the construction and location of worship facilities.

There is much less agreement concerning the degree to which churches should be subject to governmental regulation. The United States Supreme Court has observed:

The [First Amendment] embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. … It is clear that a state may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the [First Amendment]. …
Nothing we have said is intended even remotely to imply that, under the cloak of religion, persons may, with impunity, commit frauds upon the public. Certainly penal laws are available to punish such conduct. Even the exercise of religion may be at some slight inconvenience in order that the state may protect its citizens from injury.[1] Cantwell v. Connecticut, 310 U.S. 296 (1940). Similarly, the Supreme Court has concluded: (1) "[E]ven when [an] action is in accord with one's religious convictions, it is not totally free from legislative restrictions. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order." Sherbert v. Verner, 374 U.S. 398, 403 (1963), quoting Braunfeld v. Brown, 366 U.S. 599, 603 (1961). (2) "The mere fact that the petitioner's religious practice is burdened by a governmental program does not mean that an exemption accommodating his practice must be granted. The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest. However, it is still true that the essence of all that has been said and written on the subject is that only those interests of the highest order can overbalance legitimate claims to the free exercise of religion." Thomas v. Review Board, 450 U.S. 707, 718 (1981). (3) "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities." Minersville School District v. Gobitis, 310 U.S. 586, 594-595 (1940) (Justice Frankfurter).

Laws affecting churches consistently are upheld by the courts if they (1) are neutral and of general applicability, (2) avoid excessive governmental entanglement with religion, (3) are the least restrictive means of accomplishing the intended result, and (4) require no judicial determination of the validity of religious belief. To illustrate, the courts consistently uphold reasonable governmental regulation of church securities offerings, employment practices, construction projects, fundraising schemes, child-care and nursing-care facilities, and private schools. One court, in rejecting a religious organization's claim to immunity from governmental regulation on the ground that it was engaged in God's work, observed that no court has ever found that conduct, by being so described, is automatically immunized from all regulation in the public interest.[2] Securities and Exchange Commission v. World Radio Mission, Inc., 544 F.2d 535, 539 n.7 (1st Cir. 1976).

Key point. Laws that are not neutral toward religion, or that are not of general applicability, must be supported by a compelling government interest in order to be consistent with the First Amendment guaranty of religious freedom.[3] See generally chapter 12, infra.

The application of many laws and regulations to religious organizations has been addressed in previous chapters. These include:

  • child abuse reporting laws [4] See § 4-08, supra.
  • the regulation of church counselors [5] See § 4-10, supra.
  • nonprofit corporation law [6] See § 6-02, supra.
  • state and federal reporting requirements [7] See § 6-04, supra.
  • zoning [8] See § 7-06, supra.
  • building codes [9] See § 7-08, supra.
  • landmarking legislation [10] See § 7-10, supra.
  • eminent domain [11] See § 7-11, supra.
  • workers compensation [12] See § 8-07, supra.
  • immigration law reporting requirements [13] See § 8-04, supra.
  • Title VII of the Civil Rights Act of 1964 [14] See § 8-12, supra.
  • the Age Discrimination in Employment Act [15] See § 8-13, supra.
  • the Americans with Disabilities Act [16] See § 8-14, supra.
  • the Fair Labor Standards Act (federal minimum wage and overtime pay) [17] See § 8-08, supra.
  • the Employee Polygraph Protection Act [18] See § 8-18, supra.
  • the Occupational Safety and Health Act [19] See § 8-19, supra.

This chapter will address the application of additional federal and state laws and regulations to religious organizations.

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