State and Local Regulation of Religious Solicitation of Funds: A Constitutional Perspective

Abstract

In recent years, state and local governments have increasingly sought to regulate solicitation on behalf of religious groups. Predictably, these governments are using existing laws and also enacting new laws for this purpose. Such tactics can be seen as part of a growing effort by government to regulate and monitor the actions of all religious groups. Implicit in this growing trend toward regulation of religious activities is the arrogation by state and local officials and lawmakers of the authority to decide what is "religion" and therefore exempt from regulation. Particularly significant is the impact of statu tory regulation on the fundraising and other activities of both traditional and nontraditional churches. The increased regula tion of religious solicitation touches a longstanding tension in American life involving the separation of church and state, and invokes three central themes: our money, our privacy, and our faith. Not surprisingly, the courts are now being asked to review the constitutionality of statutes that regulate religious solicitation and are being asked to balance the interests involved. Most laws and regulations currently used to regulate religious solicitation are constitutionally infirm. They are either too vague to protect against arbitrary or capricious enforcement by public officials, or they place officials in the position of deciding what is religious and what is secular activity. The use of traditional time, place, and manner regulations—and sparing use of the existing criminal fraud law—are better means of curbing abuse in religious solicitation, and will prevent dangerous blurring of the boundary between church and state.