634 F.2d 477

(Cite as: 634 F.2d 477)

United States Court of Appeals,

Tenth Circuit.

Joseph ESPINOSA, Charles Shobe, Morton L. Dunkin, and

General Conference

Corporation of Seventh-Day Adventists,

Plaintiffs-Appellees,

v.

David RUSK, Mayor; Patrick Baca, Jor R. Abeyta, Mel

Aragon, Thomas W. Hoover,

Sandra L. West, Alan B. Reed, Jo McAleese, Jim Delleney,

Marion M. Cottrell,

members of the City Council of the City of Albuquerque,

New Mexico; and Bob V.

Stover, Chief of Police of the City of Albuquerque, New

Mexico, Defenants-

Appellants.

No. 79-1477.

Argued July 9, 1980.

Decided Oct. 21, 1980.

Church brought action to enjoin enforcement of city ordinance involving licensing and regulation of solicitation carried on by charitable organizations. The United States District Court for the District of New Mexico, Howard C. Bratton, Chief Judge, permanently enjoined city from enforcing ordinance insofar as church's annual solicitation drive was concerned, and appeal was taken. The Court of Appeals, William E. Doyle, Circuit Judge, held that the ordinance, which purported to exempt "religious" activities but not "secular" activities, was unconstitutionally applied to church's annual drive to raise monies for church activities, including medical, community, evangelical and educational services, as ordinance involved municipal officials in definition of what was religious and conception of religion entertained by the city was that it had to be purely spiritual or evangelical

Affirmed.

Barrett, Circuit Judge, filed dissenting opinion.

West Headnotes

[1] Constitutional Law 225.1

92k225.1 Most Cited Cases

[1] Constitutional Law 274(3.1)

92k274(3.1) Most Cited Cases

(Formerly 92k274(3))

Due process and equal protection clauses restrict state and city legislative bodies from encroaching on the free exercise of religion. U.S.C.A.Const. Amends. 1, 14.

[2] Constitutional Law 84.5(16)

92k84.5(16) Most Cited Cases

(Formerly 92k84)

City ordinance purporting to exempt "religious" but not "secular" activities from the licensing and regulation of solicitation carried on by charitable organizations was unconstitutional as applied to Seventh Day Adventists Church's annual solicitation drive to raise money to support various church activities, including medical, community, evangelical and educational services; vice was the broad definition of "secular" in that conception of religion entertained by the city was that it had to be purely spiritual or evangelical and although ordinance did not express any antireligious effort or object it involved municipal officials in the definition of what was "religious." U.S.C.A.Const. Amend. 1.

[3] Constitutional Law 82(3)

92k82(3) Most Cited Cases

Regulations which restrict the exercise of First Amendment rights by requiring prior approval are suspect and face an unfavorable presumption in regard to constitutional validity. U.S.C.A.Const. Amend. 1.

[4] Constitutional Law 82(4)

92k82(4) Most Cited Cases

Any standard specified in the regulation restricting exercise of First Amendment rights must be susceptible of objective measurement, and precision of regulation must be the touchstone, and sufficient procedural safeguards must be present. U.S.C.A.Const. Amend. 1.

[5] Constitutional Law 84.1

92k84.1 Most Cited Cases

(Formerly 92k84(1), 92k84)

Regulation which burdens the free exercise of religion and poses a threat of entanglement between the affairs of church and state must be justified by compelling state interest, and there must not exist less restrictive and entangling alternatives. U.S.C.A.Const. Amend. 1. *478 George R. "Pat" Bryan, III, City Atty., Albuquerque, N. M. (Susan Green, Asst. City Atty., Albuquerque, N. M., on briefs), for defendants- appellants.

Lee Boothby of Johns, Carson & Boothby, Washington, D. C. (Warren L. Johns, Walter E. Carson, Robert W. Nixon of Johns, Carson & Boothby, Washington, D. C., with him on briefs), for plaintiffs-appellees.

WILLIAM E. DOYLE, Circuit Judge.

The issue before us is whether an ordinance of the City of Albuquerque, New Mexico, as applied to the plaintiffs, violates the first and fourteenth amendments of the Constitution of the United States. The ordinance involves licensing and regulation of solicitation carried on by charitable organizations including some religious groups. The ordinance is numbered 72-1955.

[1]The Seventh Day Adventist Church challenges the application of the ordinance to its annual solicitation drive in Albuquerque. The drive is known as the Ingathering. The money received in the drive is used for the support of various activities of *479 the Adventist Church. These activities include medical, community, evangelical and educational services.[FN1] The Church maintains that all of these activities are part of its religious mission and thus are not subject to the ordinance's regulation; that such is prohibited by the Free Exercise of Religion Clause of the first amendment to the Constitution.[FN2] The mentioned clause of the Constitution is as follows:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The church maintains that all of its activities serve to spread the religious message of the Church

. The ordinance purports to exempt "religious" activities but does not exempt secular activities.

The controversy commenced when the Church contacted the City for the purpose of ascertaining whether the ordinance applied to the activities of the Church- the Ingathering. The Church provided the City with certain information required by the ordinance but refused to submit an application for a permit. When the City informed the Church that many of the activities which were being carried on were "secular" and that it was required to conform to the permit requirement, the present action challenging the constitutionality of the ordinance was filed.

The suit sought injunctive relief against the enforcement of the ordinance. Based on a stipulation of the parties, the district court entered a preliminary injunction which allowed the Church to continue with its activities during the pendency of the action. Later the cause was submitted to the court on a stipulation of the facts. Oral arguments were had and a judgment in favor of the Church was entered. The City was permanently enjoined from enforcing its ordinance insofar as the Ingathering program was concerned.

The ordinance undertakes to define the areas in which churches are exempt. These include solicitations by religious groups solely for "evangelical, missionary or religious but not secular purposes." The ordinance also defines the term secular as "not spiritual or ecclesiastical, but rather relating to affairs of the present world, such as providing food, clothing, and counseling." The City's determination was that the ordinance applied to the Church since it was soliciting funds for "secular" rather than for purely "religious or evangelical" purposes.

Compliance with the ordinance requires the payment of a $25.00 fee plus the filing of an application for a permit which calls for information as to the identity and address of the organization and its national and local officers, its purpose, the method of solicitation and the purposes for which funds are solicited. Also required is the time period during which solicitation will be pursued. In addition there must be furnished a financial statement.[FN3]

*480 The district court determined that the ordinance as applied to the Church was invalid in that it employed a religious test in the exemption in Sec. 3(a) of the ordinance for "evangelical missionary or religious but not secular purposes." A decision as to whether a cause was religious or secular was deemed to be a religious test.

Such a determination is contrary to the first and fourteenth amendments. The decision of the Supreme Court in Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1943) was deemed by the trial court to be controlling. In Cantwell the Supreme Court held that the application of a statute which prohibited solicitations not found to be for religious causes was invalid. The statute in Cantwell prohibited solicitations:

310 U.S. at 301, 60 S.Ct. at 902.

As we have previously noted the first amendment declares that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. This provision is applicable to the states through the fourteenth amendment. Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943).

Cantwell is applicable to the present facts because the officials there were called upon, as in the present case, to ascertain and determine whether the proposed solicitations were for religious purposes. If the application failed the test there was no certification and no solicitations could legally take place. The Supreme Court held that the statute constituted a prior restraint on the free exercise of religion. It was said:

310 U.S. at 305, 60 S.Ct. at 904.

Albuquerque seeks to distinguish Cantwell on the ground that the consequences of the religious/secular distinction in its ordinance does not result in a prohibition of the right to solicit but rather results only in regulation in the interest of preventing fraud. It is argued that if the solicitation is determined to be secular rather than religious it is merely necessary to apply for a permit (and be subject to the scrutiny of an official). No blanket prohibition is involved.

It is argued in addition that the present ordinance does not, as in Cantwell, allow an administrative official to make decisions as to whether a religious cause conformed to "reasonable standards of efficiency." It is said that this granted overbroad discretion, a condition which is not here present. The ordinance which we consider is said to not require a determination as to what is religious, for the purpose of censoring the activity, but merely for imposing reasonable regulations for preventing fraud and other similar conduct. But Cantwell found that an administrative determination as to what was religion or religious was objectionable.

[2] The foregoing overlooks the fact that this is a very sensitive area. The setting up of a city agency to make distinctions as to that which is religious and that which is secular so as to subject the latter to regulation is necessarily a suspect effort. It may be that applied to an organization which can be shown to commit atrocities in the name of religion or with a religious cloak would present a different problem. We do not, however, have this condition here. The conception of religion entertained by the City in this very case was that it had to be purely spiritual or evangelical. Thus, the charitable activity of the church having to do with the feeding of the hungry or the offer of clothing and shelter to the poor was deemed to be subject to regulation. This broad definition of secular is part of the problem. Whether a less vigorous construction would result in a different conclusion is not, of course, before us and is not a proper subject for us to consider. Inasmuch, however, that the challenge is to the ordinance as applied we must conclude that the present effort is an invalid interference.

The drafters of the ordinance sought to accommodate free exercise by exempting evangelical, missionary or religious but not secular causes. Such an effort is a difficult one because of the continuing necessity for making judgments as to what is or is not religious. Thus, although the ordinance does not express any anti-religious effort or object, it is objectionable because it involves municipal officials in the definition of what is religious.

For this court to condemn all regulation of religious solicitation in broad terms would be out of harmony with the decided cases. The City retains its secular mission which is to protect its citizenry from fraudulent or overreaching solicitations. The opinion of the Supreme Court in Hynes v. Mayor of Oradell, 425 U.S. 610, 619, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243 (1976) recognizes this. Its teaching is to be gleaned from the following statement:

See also Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945); Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943).

*482 It is well to review this further admonition contained in the Cantwell opinion. The Court said: 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 fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent.

310 U.S. at 306, 60 S.Ct. at 904.

[3][4][5]Regulations, however, which restrict the exercise of first amendment rights by requiring prior approval are going to be suspect, and will face an unfavorable presumption in regard to constitutional validity. Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Any standard set forth must be "susceptible of objective measurement," Keyishian v. Board of Regents, 385 U.S. 589, 603-604, 87 S.Ct. 675, 683-684, 17 L.Ed.2d 629 (1967), and "precision of regulation must be the touchstone." NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963). Sufficient procedural safeguards must be present. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Regulation which burdens the free exercise of religion and poses a threat of entanglement between the affairs of Church and State must be justified by a compelling state interest, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and there must not exist less restrictive and entangling alternatives. Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). There are some recent decisions which have considered the validity of solicitation ordinances in light of these constitutional standards. See International Society for Krishna Consciousness v. Rochford, 585 F.2d 263 (7th Cir. 1978); Fernandes v. Limmer, 465 F.Supp. 493 (N.D.Tex.1979); Cherris v. Amundson, 460 F.Supp. 326 (E.D.La.1978); Swearson v. Meyers, 455 F.Supp. 88 (Kan.1978); International Society for Krishna Consciousness v. Griffin, 437 F.Supp. 666 (W.D.Pa.1977).

Judge Bratton's opinion in the district court reached the conclusion which we have come to and we do not disagree with any of the reasoning which was employed by him.

The judgment of the district court is affirmed.

BARRETT, Circuit Judge, dissenting:

I respectfully dissent.

The conscientious District Court grappled with the difficult factual problem presented in this case in reaching the legal conclusion, affirmed by the majority opinion, which has firm rooting in constitutional law. The particular problem relates to the definition of "religious" and "secular" activities and the interrelationship one to another. This, in turn, is bound up in one of the most trying and vexing tasks found in constitutional law-that of defining "religion" for purposes of First Amendment rights.

In the consideration of whether the "secular" law constitutes an impermissible burden on the free exercise of "religion" the State must show a compelling reason to enforce its law. This is difficult because the crux of many decisions seems to not only recognize the right of the individual to define his own religion and to exercise his individual beliefs therein free of government restraint or compulsion, but he is further protected in acting upon those beliefs even in the face of non-discriminatory secular enactments. The burden was traditionally on the person contending that his religious activity would not interfere with a recognized state interest. That burden, however, has shifted. Today it is the obligation of the state to show that both the religious belief and practice will endanger a state interest and that the restraining action imposed cannot be supplanted by any reasonable alternative. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); *483 Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). No advantage can accrue to orthodox religious beliefs under the religious belief test announced in United States v. Seeger, supra. The breadth of the new test finds room for "religious" beliefs protected by the Free Exercise Clause relating to topics such as the use of drugs in religious exercise, refusal to work on Sabbaths, opposition to all war and blood transfusions.

In my view, the very breadth of the "religious" definition so recognized requires a common sense approach to the so-called "secular" entanglement therein. It is illogical, in my view, to simply prohibit the enforcement of a state law designed to protect the citizens from fraudulent solicitations in all cases where the "religious" cult, sect or organization proclaims that practices which have been historically secular in these United States, i. e., government aid to the poor, to the sick and the homeless, are, for statutory exemption purposes, "religious" activities because of the announced beliefs.

I believe that the accommodation between church and state so often recognized in the realm of the prohibition against the establishment of religion proclaimed in the First Amendment-the Establishment Clause-can and should be logically applied in cases such as that presented here involving the Free Exercise Clause. The Supreme Court has consistently recognized that a certain amount of church-state entanglement will exist. Abington School Dist. v. Schempp, 374 U.S. 203, 212, 83 S.Ct. 1560, 1565, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 434, 82 S.Ct. 1261, 1268, 8 L.Ed.2d 601 (1962). In the context of those decisions, the critical issue was not whether there exists some entanglement but rather whether the entanglement is excessive and thus violative of the Establishment Clause.

Just as the Supreme Court has recognized that the line of separation of church and state required under the Establishment Clause is neither straight nor easily determined, Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980), and that the First Amendment does not forbid all mention of religion in public schools, but rather that religion be neither advanced or inhibited, Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), I would impose similar criteria to the case at bar and pose this inquiry: Does the Albuquerque ordinance challenged here impose an undue, excessive restraint upon the Seventh Day Adventist Church's religious activity (its annual solicitation drive in Albuquerque) by requiring a prior application for permit to solicit for funds intended for "secular activities"? I would answer the inquiry in the negative. In my view, then, the ordinance passes constitutional muster. I believe this to be so because the City's determination that the solicitation of funds for medical, food, clothing and shelter are secular is common-sensed and rational. It does not impose an impermissible religious test violative of the mandate of Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). That case involved solicitations of funds going directly to the heart of religion. A distinction must be drawn, however, between those activities characteristic of secular life, historically of primary and compelling concern of the community and government, which are also pursued by religious organizations. Thus, I would sustain the Albuquerque ordinance, insofar as it pertains to those activities overwhelmingly secular in nature, in keeping with the City's compelling interest in preventing fraud. The burden cast upon a religious organization in meeting the requirements of the licensing ordinance is de minimus in relation to the City's compelling interest in preventing fraudulent solicitations of its residents.

C.A.N.M., 1980.

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