CHURCH OF SCIENTOLOGY FLAG SERVICE ORG., INC., Plaintiff-Appellant,
v.
CITY OF CLEARWATER, Milton A. Galbraith, Jr., City Attorney of the City of
Clearwater, Cynthia E. Goudeau, City Clerk of the City of Clearwater,
Defendants-Appellees.
No. 91-3988.
United States Court of Appeals,
Eleventh Circuit.
Sept. 30, 1993.
Church brought action challenging city's charitable solicitation ordinance.
The United States District Court for the Middle District of Florida, No. 84-
719-CIV-T-17, Elizabeth A. Kovachevich, J., granted summary judgment in favor
of city, 756 F.Supp. 1498, and church appealed. The Court of Appeals,
Dubina, Circuit Judge, held that: (1) ordinance requiring disclosure of use of
funds resulted in excessive entanglement with religion in violation of First
Amendment establishment clause; (2) genuine issue of fact was presented as to
whether the ordinance was enacted for impermissible motive of driving church
from the city; (3) city could not present justification defense, as Lemon
provides prophylactic wall of separation between church and state; but (4)
certain requirements for registering the identity of the person making
solicitation were permissible; and (5) requirement that refund policy be
disclosed in full contemporaneously with the offer of a refund was
constitutionally permissible.
Affirmed in part, vacated in part, reversed in part, and remanded.
[1] COURTS
Fifth Circuit decisions rendered by Unit A of that Court after September 30,
1981, are not binding on the Eleventh Circuit, but they are persuasive
authority.
[2] CONSTITUTIONAL LAW
Charitable organization within definition of solicitation ordinance had
standing to challenge the ordinance on First Amendment grounds. U.S.C.A.
Const. Art. 3, s 1 et seq.; Amend. 1.
[3] CONSTITUTIONAL LAW
Religious groups and their members that are singled out for discriminatory
government treatment by official harassment or symbolic conduct analogous to
defamation have standing to seek redress in federal courts. U.S.C.A. Const.
Art. 3, s 1 et seq.; Amend. 1.
[4] CONSTITUTIONAL LAW
Church would not be required to prove that it was bona fide religion entitled
to First Amendment protection in order to obtain standing to challenge
charitable solicitation ordinance. U.S.C.A. Const. Art. 3, s 1 et seq.;
Amend. 1.
[5] FEDERAL CIVIL PROCEDURE
Zone of interest requirement is a prudential standing doctrine which is not
mandated directly by Article III. U.S.C.A. Const. Art. 3, s 1 et seq.
[6] CIVIL RIGHTS
Zone of interest analysis which determines standing under federal civil rights
statute is limited to ascertaining whether substantive constitutional or
statutory provision confers rights intended by the legislature to be
enforceable under the remedial statute; test requires only that relationship
between plaintiff's alleged interest and purposes implicit in the substantive
provision be more than marginal. 42 U.S.C.A. s 1983.
[7] CIVIL RIGHTS
First Amendment creates enforceable rights under federal civil rights statute,
and any citizen's interest in preventing violation of those rights is more than
marginally related to constitutional provision which protects the public at
large as well as the individual plaintiff from government invasion of
religious, political, and intellectual activity. 42 U.S.C.A. s 1983.
[7] CIVIL RIGHTS
First Amendment creates enforceable rights under federal civil rights statute,
and any citizen's interest in preventing violation of those rights is more than
marginally related to constitutional provision which protects the public at
large as well as the individual plaintiff from government invasion of
religious, political, and intellectual activity. 42 U.S.C.A. s 1983.
[8] FEDERAL COURTS
District court's order granting summary judgment is reviewed under the de novo
standard. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.
[9] CONSTITUTIONAL LAW
When challenged under the establishment clause, statute must have secular
legislative purpose, its principal or primary effect must be one that neither
advances nor inhibits religion, and the statute must not foster an excessive
government entanglement with religion; only if all three of the criteria are
satisfied may the law be upheld. U.S.C.A. Const.Amend. 1.
[10] CONSTITUTIONAL LAW
Under Lemon analysis of statute challenged under the establishment clause,
review of government purpose is deferential and religious purpose alone is not
enough to invalidate the act; religious purpose must predominate, and statute
is invalid only if it does not have a clearly secular purpose. U.S.C.A.
Const.Amend. 1.
[11] CONSTITUTIONAL LAW
If legislature's stated purpose is not actually furthered by enactment, that
purpose is disregarded as being insincere or sham for purposes of Lemon
analysis under the establishment clause; even if proffered purpose is not a
sham, court must evaluate effect of statute's provisions and consider
historical context of the statute and the specific sequence of events leading
to its passage. U.S.C.A. Const.Amend. 1.
[12] CONSTITUTIONAL LAW
Statute in which impermissible religious purpose predominates is invalid even
if legislative body was motivated in part by legitimate secular objectives;
even if ordinance in fact furthers secular purpose, actual purpose may in
certain cases be found by asking whether government intends to convey a message
of endorsement or disapproval of religion. U.S.C.A. Const.Amend. 1.
[13] CONSTITUTIONAL LAW
City's purpose in enacting ordinance was not irrelevant to claim of
establishment clause violation. U.S.C.A. Const.Amend. 1.
[14] CONSTITUTIONAL LAW
Predominantly or preeminently sectarian purpose will invalidate otherwise
permissible law under the establishment clause. U.S.C.A. Const.Amend. 1.
[15] CONSTITUTIONAL LAW
When plaintiff shows by direct evidence that sectarian or religious purpose was
substantial or motivating factor behind enactment of statute, burden shifts to
defendant to show by preponderance of the evidence that action challenged under
the establishment clause would have been undertaken even in the absence of the
improper considerations. U.S.C.A. Const.Amend. 1.
[16] FEDERAL CIVIL PROCEDURE
Materials, including newspaper articles, which may not have been admissible at
trial were appropriately submitted by the nonmoving in opposition to motion for
summary judgment. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.
[17] COURTS
Decisions of the Fifth Circuit rendered before October 1, 1981, are binding on
panels of the Eleventh Circuit, but they must be disregarded if necessary to
give effect to decision of United States Supreme Court.
[17] COURTS
Decisions of the Fifth Circuit rendered before October 1, 1981, are binding on
panels of the Eleventh Circuit, but they must be disregarded if necessary to
give effect to decision of United States Supreme Court.
[18] FEDERAL CIVIL PROCEDURE
Evidence, including newspaper articles, showed widespread political movement
intent on driving church from city and raised genuine issue of fact as to
whether enactment of charitable contribution ordinance was motivated by
sectarian goal of driving the church from the city, thus precluding summary
judgment on establishment clause claim of church. U.S.C.A. Const.Amend. 1.
[19] CONSTITUTIONAL LAW
Objective of employing tax laws to discriminate against church is a purpose
that is patently offensive to the First Amendment. U.S.C.A. Const.Amend. 1.
[20] CHARITIES
Charitable solicitation ordinance which made executive and judicial authorities
the ultimate arbiters of appropriate level of disclosure to church members in
all matters of ecclesiastical fiscal administration and also conferred
responsibility for apprising themselves and the public concerning such matters
resulted in excessive entanglement and violated the establishment clause.
U.S.C.A. Const.Amend. 1.
[20] CONSTITUTIONAL LAW
Charitable solicitation ordinance which made executive and judicial authorities
the ultimate arbiters of appropriate level of disclosure to church members in
all matters of ecclesiastical fiscal administration and also conferred
responsibility for apprising themselves and the public concerning such matters
resulted in excessive entanglement and violated the establishment clause.
U.S.C.A. Const.Amend. 1.
[21] ASSOCIATIONS
While democratic participation by individual members in affairs of society is
cornerstone of public life, government may not mandate such arrangements in
private organizations. U.S.C.A. Const.Amend. 1.
[22] CONSTITUTIONAL LAW
State may not require churches to forego protected religious and speech
activity, like public solicitation, in order to avoid becoming entangled with
civil authorities; unconstitutional entanglement may not be excused on the
ground that it is imposed only as condition of avoiding otherwise permissible
regulation or as prerequisite to receiving valuable privilege. U.S.C.A.
Const.Amend. 1.
[23] CHARITIES
Procedures for citizen complaint to city attorney concerning charitable
solicitation by and provision of city ordinance for investigation by subpoena
increased substantial risk of government participation in intramural church
conflict and decision making, in violation of establishment clause, as did
provisions requiring prospective and retrospective disclosure of church
finances, activities, and organization as a condition of soliciting funds.
U.S.C.A. Const.Amend. 1.
[23] CONSTITUTIONAL LAW
Procedures for citizen complaint to city attorney concerning charitable
solicitation by and provision of city ordinance for investigation by subpoena
increased substantial risk of government participation in intramural church
conflict and decision making, in violation of establishment clause, as did
provisions requiring prospective and retrospective disclosure of church
finances, activities, and organization as a condition of soliciting funds.
U.S.C.A. Const.Amend. 1.
[24] CHARITIES
Charitable solicitation ordinance requiring organization to make limited public
disclosure of the nature and identity of the organization, its tax-exempt
status, other cities in which it was registered, and criminal histories of its
officers and solicitors did not result in excessive entanglement and did not
violate establishment clause, as those disclosures required no continuing
monitoring by private or public entities, imposed only minimal burden
on organization, and did not significantly interfere in ordering of church
affairs voluntarily accepted by members.
[24] CONSTITUTIONAL LAW
Charitable solicitation ordinance requiring organization to make limited public
disclosure of the nature and identity of the organization, its tax-exempt
status, other cities in which it was registered, and criminal histories of its
officers and solicitors did not result in excessive entanglement and did not
violate establishment clause, as those disclosures required no continuing
monitoring by private or public entities, imposed only minimal burden
on organization, and did not significantly interfere in ordering of church
affairs voluntarily accepted by members.
[25] CONSTITUTIONAL LAW
Unlike limitations placed upon government power to protect the individual's
freedoms of expression and conscience under other clauses of the First
Amendment, limitations under the establishment clause imposed by Lemon
provide prophylactic wall of separation between church and state; regulations
affecting freedom of speech are subject to strict scrutiny under a compelling
interest standard, with regulations fostering excessive entanglement between
government and church are not. U.S.C.A. Const.Amend. 1.
[26] CONSTITUTIONAL LAW
City cannot assert compelling interest to justify charitable solicitation
ordinance against establishment clause challenge where the ordinance was
facially neutral among religions and applied to wholly secular charities as
well as churches.
[27] CONSTITUTIONAL LAW
Establishment clause is implicated when government entangles itself on a
continuing basis in nondoctrinal affairs of church function. U.S.C.A.
Const.Amend. 1.
[28] CONSTITUTIONAL LAW
Although government conduct may be impermissible under both free exercise and
establishment clauses, challenged conduct that satisfies the former may offend
the latter. U.S.C.A. Const.Amend. 1.
[29] CONSTITUTIONAL LAW
Neutral and generally applicable criminal laws may be applied to an individual
without compelling justification even if they conflict with his religious
beliefs. U.S.C.A. Const.Amend. 1.
[30] CONSTITUTIONAL LAW
Solicitation by secular charities, as well as fundraising by political advocacy
groups, no less than solicitation by religious organizations, is protected as
aspects of First Amendment speech and associational freedoms. U.S.C.A.
Const.Amend. 1.
[30] CONSTITUTIONAL LAW
Solicitation by secular charities, as well as fundraising by political advocacy
groups, no less than solicitation by religious organizations, is protected as
aspects of First Amendment speech and associational freedoms. U.S.C.A.
Const.Amend. 1.
[31] CONSTITUTIONAL LAW
Exacting First Amendment scrutiny would be applied to free exercise challenge
to city's charitable solicitation ordinance. U.S.C.A. Const.Amend. 1.
[32] CONSTITUTIONAL LAW
State has compelling interest in protecting church members from affirmative,
material misrepresentations designed to part them from their money, and penal
laws are available to punish that conduct; interests are not diminished by the
fact that victims may be voluntarily members of religious association.
U.S.C.A. Const.Amend. 1.
[33] CONSTITUTIONAL LAW
When no affirmative misrepresentations are made concerning uses for which funds
will be employed, either explicitly or by clear implication, state has no
compelling interest in requiring members of church or the public to be made
aware of those matters when a solicitation is made; if church members are
willing to contribute money without being told how it will be used, city or
state has no interest in forcing church to make that information available.
U.S.C.A. Const.Amend. 1.
[34] CONSTITUTIONAL LAW
Associational interests protected by the religion clauses stand on equal
footing with protected political rights. U.S.C.A. Const.Amend. 1.
[35] CONSTITUTIONAL LAW
State may not compel specific disclosures by church in connection with
fundraising merely because, in the state's view, some potential contributors to
some causes might tend to think that those facts evidence unfairness or some
other objectionable quality in the use to which the funds will be put.
U.S.C.A. Const.Amend. 1.
[36] CONSTITUTIONAL LAW
City could not defend charitable solicitation ordinance by contending that
tenets of church were fantastic or false or by arguing, as a consequence, that
the church's collection of funds under the cloak of religion was fraudulent;
First Amendment precludes civil authorities from evaluating truth or falsity of
religious beliefs. U.S.C.A. Const.Amend. 1.
[37] CONSTITUTIONAL LAW
Fact that church's doctrine of "exchange" might appear to nonadherents as a
crass rationalization to justify enrichment of a few select leaders at the
expense of neophytes was no basis for imposing burdensome and entangling
regulations for the "benefit" of the church members who voluntarily chose to
adhere to that doctrine, and such an official perception of theological
unsoundness could not justify regulation respecting church disclosure of the
use of solicited funds to nonmembers. U.S.C.A. Const.Amend. 1.
[37] RELIGIOUS SOCIETIES
Fact that church's doctrine of "exchange" might appear to nonadherents as a
crass rationalization to justify enrichment of a few select leaders at the
expense of neophytes was no basis for imposing burdensome and entangling
regulations for the "benefit" of the church members who voluntarily chose to
adhere to that doctrine, and such an official perception of theological
unsoundness could not justify regulation respecting church disclosure of the
use of solicited funds to nonmembers. U.S.C.A. Const.Amend. 1.
[38] CONSTITUTIONAL LAW
To extent that it was determined that a single church's beliefs were insincere,
imposition by city ordinance of record keeping and disclosure requirements on
all churches and charities engaged in public and private solicitation would
burden a great deal of protected expression without serving any legitimate
purpose. U.S.C.A. Const.Amend. 1.
[39] CONSTITUTIONAL LAW
Whatever evidence might appropriately be considered at hearing to determine
that religious beliefs asserted by certain persons were not sincere and thus
not protected, those espousing the beliefs would not be required to show the
sincerity with which their deceased prophets espoused religious revelations per
se.
[40] CHARITIES
Requirements that organization seeking to undertake charitable solicitation in
city disclose name of person registering and desiring to solicit funds and
whether the person is an actual person, partnership, corporation, or
association, provide reference to determinations of tax exempt status under
federal and state law, and provide the names of other cities within the state
in which the person has collected funds for charitable purposes within the last
five years are narrowly tailored to prevent fraud by religious and charitable
organizations and do not impermissibly impose discriminatory regulation of
speech on the basis of the speaker's identity as a religion or charity.
U.S.C.A. Const.Amend. 1.
[40] CONSTITUTIONAL LAW
Requirements that organization seeking to undertake charitable solicitation in
city disclose name of person registering and desiring to solicit funds and
whether the person is an actual person, partnership, corporation, or
association, provide reference to determinations of tax exempt status under
federal and state law, and provide the names of other cities within the state
in which the person has collected funds for charitable purposes within the last
five years are narrowly tailored to prevent fraud by religious and charitable
organizations and do not impermissibly impose discriminatory regulation of
speech on the basis of the speaker's identity as a religion or charity.
U.S.C.A. Const.Amend. 1.
[41] CONSTITUTIONAL LAW
Even if there was evidence that church's finances and operations were
implicitly or explicitly misrepresented to members and contributors, that would
not justify far reaching regulation of charitable solicitations by city in view
of the potent but significantly less intrusive regulatory alternatives
available to authorities for dealing with fraud. U.S.C.A. Const.Amend. 1.
[41] CONSTITUTIONAL LAW
Even if there was evidence that church's finances and operations were
implicitly or explicitly misrepresented to members and contributors, that would
not justify far reaching regulation of charitable solicitations by city in view
of the potent but significantly less intrusive regulatory alternatives
available to authorities for dealing with fraud. U.S.C.A. Const.Amend. 1.
[42] CONSTITUTIONAL LAW
System of licensing speech or religious activity may be upheld against First
Amendment challenge only if criteria for denying license are narrowly tailored
to serve compelling governmental interests. U.S.C.A. Const.Amend. 1.
[43] CONSTITUTIONAL LAW
System of prior restraint must guarantee prompt and final judicial review of
executive determination to deny license, so that erroneous abridgment of
freedom of speech may be corrected as quickly as reasonably possible in the
adversarial setting of a courtroom; in most instances, scheme must place upon
government burden of initiating the proceeding and demonstrating the propriety
of the restraint. U.S.C.A. Const.Amend. 1.
[44] CONSTITUTIONAL LAW
Whether speech is prohibited before the exercise of judicial review or after,
effect of such a ban is to impose a prior restraint. U.S.C.A. Const.Amend.
1.
[45] CONSTITUTIONAL LAW
Vague law regulating speech is not rendered more precise by virtue of court
having passed upon its application to particular facts, as such process merely
shifts exercise of impermissibly broad discretion from executive officials to
judges, a shift that has no significance in First Amendment jurisprudence.
U.S.C.A. Const.Amend. 1.
[46] CHARITIES
Requirements of charitable solicitation ordinance requiring disclosure of the
identity of the party making the solicitation, the cities within which the
party has solicited funds in the state within the past five years, and a
reference to tax-exempt status determinations under federal state law were not
void for vagueness. U.S.C.A. Const.Amend. 1.
[46] CONSTITUTIONAL LAW
Requirements of charitable solicitation ordinance requiring disclosure of the
identity of the party making the solicitation, the cities within which the
party has solicited funds in the state within the past five years, and a
reference to tax-exempt status determinations under federal state law were not
void for vagueness. U.S.C.A. Const.Amend. 1.
[47] CONSTITUTIONAL LAW
Under free exercise clause, court applies strict scrutiny to legislation that
imposes substantial burden on observation of religious belief or practice.
U.S.C.A. Const.Amend. 1.
[48] CONSTITUTIONAL LAW
Solicitation of funds by religious organization is protected religious
expressive activity under the First Amendment. U.S.C.A. Const.Amend. 1.
[48] CONSTITUTIONAL LAW
Solicitation of funds by religious organization is protected religious
expressive activity under the First Amendment. U.S.C.A. Const.Amend. 1.
[49] CHARITIES
Provision of city charitable solicitation ordinance requiring full disclosure
of refund policy was constitutionally permissible method of preventing
affirmative fraudulent conduct, as was requirement that statement be
contemporaneous with the offer of a refund and that it be in writing.
U.S.C.A. Const.Amend. 1.
[49] CONSTITUTIONAL LAW
Provision of city charitable solicitation ordinance requiring full disclosure
of refund policy was constitutionally permissible method of preventing
affirmative fraudulent conduct, as was requirement that statement be
contemporaneous with the offer of a refund and that it be in writing.
U.S.C.A. Const.Amend. 1.
[50] CONSTITUTIONAL LAW
City could not require church to adopt policy for refunding money which it has
solicited nor dictate the terms of any policy voluntarily adopted, and could
not require that money be refunded within 60 days of request whenever any
refund policy was adopted. U.S.C.A. Const.Amend. 1.
[50] RELIGIOUS SOCIETIES
City could not require church to adopt policy for refunding money which it has
solicited nor dictate the terms of any policy voluntarily adopted, and could
not require that money be refunded within 60 days of request whenever any
refund policy was adopted. U.S.C.A. Const.Amend. 1.
*1519 Paul B. Johnson, Johnson & Johnson, Tampa, FL, Eric M. Lieberman,
Edward Copeland, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New
York City, for plaintiff-appellant.
Alan S. Zimmett, Sargent, Repka & Covert, M.A. Galbraith, Jr., City Atty.,
Clearwater, FL, Lawrence R. Velvel, Nasha, NH, for defendants-appellees.
Appeal from the United States District Court for the Middle District of
Florida.
Before ANDERSON and DUBINA, Circuit Judges, and CLARK, Senior Circuit Judge.
DUBINA, Circuit Judge:
This appeal involves a challenge to an ordinance regulating the
solicitation of funds by charitable organizations in the City of Clearwater,
Florida ("Clearwater"). Plaintiff Church of Scientology Flag Service
Organization, Inc. ("Scientology") claims that the ordinance deprives it of
rights and liberties guaranteed by the First and Fourteenth Amendments of the
Constitution of the United States in violation of 42 U.S.C. s 1983.
Scientology appeals the district court's order granting summary judgment to the
defendants (collectively "the City") [FN1] and denying summary judgment to
Scientology. Church of Scientology Flag Servs. Org. v. City of Clearwater,
756 F.Supp. 1498 (M.D.Fla.1991). We affirm in part, vacate in part, reverse in
part and remand.
FN1. Defendants are the City of Clearwater, its city attorney Milton A.
Galbraith, Jr., as successor to Thomas Bustin, and city clerk Cynthia
Goudeau, as successor to Lucille Williams.
I. BACKGROUND
Scientology, a worldwide organization, maintains one of the largest centers of
its activities in Clearwater. The history, organization, doctrine and
practices of Scientology have been thoroughly recounted in numerous judicial
decisions. See, e.g., Hernandez v. Commissioner, 490 U.S. 680, 684-86, 109
S.Ct. 2136, 2141, 104 L.Ed.2d 766 (1989); Church of Scientology v.
Commissioner, 823 F.2d 1310, 1313-14 (9th Cir.1987), cert. denied, 486 U.S.
1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988); Founding Church of
Scientology v. United States, 409 F.2d 1146, 1151-52 (D.C.Cir.), cert. denied,
396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969), and on *1520 remand,
United States v. Article or Device Hubbard Electrometer, 333 F.Supp. 357
(D.D.C.1971); Christofferson v. Church of Scientology, 57 Or.App. 203, 644
P.2d 577, 580-81, pet'n denied, 293 Or. 456, 650 P.2d 928 (1982), and cert.
denied, 459 U.S. 1206, 103 S.Ct. 1196, 75 L.Ed.2d 439 (1983).
We need not reiterate this background because the district court found that no
genuine factual issues existed to dispute Scientology's claim of being a bona
fide religion. See 756 F.Supp. at 1502-04. The district court granted
partial summary judgment to Scientology on that issue. Id. at 1532;
accord Founding Church of Scientology, 409 F.2d at 1160; Christofferson,
644 P.2d at 600-01. As the City has neither appealed from that order nor
argued that Scientology is not entitled to protection under the religion
clauses of the First Amendment, we must assume that the district court was
correct. In addition, without deciding the question ourselves, we note that
research has not uncovered any holdings that Scientology is not a religion for
First Amendment purposes. But cf. Church of Scientology v. Commissioner,
823 F.2d at 1316-18 (upholding Tax Court determination that Church of
Scientology was not entitled to religious tax exemption under 26 U.S.C. s
501(c)(3) for certain years because its revenues inured to the benefit of
individuals and non-religious entities).
II. PROCEDURAL HISTORY
In 1983 the City enacted Ordinance No. 3091-83 (the "1983 Ordinance").
The 1983 Ordinance imposed substantial recordkeeping and disclosure
requirements for all charities and religious organizations soliciting funds in
Clearwater. Scientology filed an action in the district court seeking an
injunction against its enforcement. That action was consolidated with a
similar case brought by Americans United for Separation of Church and State,
Inc. ("Americans United"). Before the district court could rule on the law's
validity, however, the City enacted Ordinance No. 3479-84 (the "1984
Ordinance"), repealing and modifying the 1983 Ordinance in part. Clearwater,
Fla., Code Ordinances, tit. VIII, s 100 (1984) (hereinafter "Code s ---").
Both plaintiffs filed new lawsuits to challenge the revised ordinance and its
1983 predecessor.
In the second Scientology suit, the district court ruled the 1983 Ordinance
unconstitutional on its face and permanently enjoined the City from enforcing
it. The court further ruled the 1984 version facially valid, without reaching
the question of its validity as applied to Scientology and Americans United.
The City appealed the former ruling and Scientology and Americans United were
permitted to file interlocutory cross-appeals of the latter. We vacated the
former as moot, reasoning that challenges to the repealed 1983 Ordinance posed
no live controversy suitable for judicial resolution. Church of Scientology
Flag Serv. Org. v. City of Clearwater, 777 F.2d 598, 604-06 (11th Cir.1985),
cert. denied, 476 U.S. 1116, 106 S.Ct. 1973, 90 L.Ed.2d 656
(1986) (hereinafter Scientology-Clearwater I ), overruled, Northeastern
Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508
U.S. 656, ----, 113 S.Ct. 2297, 2301, 124 L.Ed.2d 586 (1993). We dismissed the
interlocutory cross-appeals as improvidently granted, finding nothing in the
record to support (or controvert) a conclusion that the plaintiffs possessed a
sufficient interest in the outcome of the litigation to confer standing.
Scientology-Clearwater I, 777 F.2d at 607. But see Pennell v. City of
San Jose, 485 U.S. 1, 7-8, 108 S.Ct. 849, 855, 99 L.Ed.2d 1 (1988) (holding
that allegations of complaint should be accepted as true and construed in favor
of standing when there is no factual record). We also affirmed the district
court's denial of preliminary injunctive relief. 777 F.2d at 608.
Scientology continued to prosecute its second action challenging the 1984
Ordinance. Scientology also petitioned for leave to amend the complaint in its
first pending action to challenge the new 1984 law. The district court
apparently did not rule on that petition but rather proceeded to address the
merits in the second Scientology case. Upon granting summary judgment to the
City in that second case, from which this appeal followed, the district court
dismissed with prejudice the earlier action for want of prosecution. The court
also denied Scientology's *1521 request for attorney fees in the first
action. In Church of Scientology Flag Service Organization v. City of
Clearwater, 2 F.3d 1514 (11th Cir.1993) (hereinafter Scientology-Clearwater
II ), this panel vacated the district court's denial of attorney fees in the
first filed action. [FN2]
FN2. We reasoned that the filing of the lawsuit had caused the City to
amend the 1983 Ordinance in a manner that significantly affected the legal
relationship between the parties. Therefore, Scientology was a "prevailing
party" under 42 U.S.C. s 1988 and presumptively entitled to an award of
attorney fees.
Having found that Scientology had standing to sue in the second action,
the district court further found the 1984 Ordinance constitutional, both on its
face and as applied to Scientology, and therefore granted the City's motion for
summary judgment and denied Scientology's cross-motion for summary judgment.
Scientology then perfected this appeal.
III. THE ORDINANCES
The 1984 Ordinance, like its 1983 predecessor, is designed to regulate the
solicitation of contributions within Clearwater by "charitable organizations,"
a term that includes religious groups. Code s 100.01(1). The regulated
"solicitation of funds" is defined to mean:
any request, within the City of Clearwater, for the donation of money,
property, or anything of value ...; or the selling or offering for sale of any
property, real or personal ..., whether of value or not, including but not
limited to, goods, books, pamphlets, tickets, publications or subscriptions to
publications, upon the representation, express or implied, that the proceeds of
such sale will be used for a charitable purpose.
Code s 100.01(2) (emphasis added). "Expressly excluded from the meaning of
'solicit funds' ... is any offer of membership in any charitable
organization." Id. As Scientology points out, virtually any sale of
religious literature carries the implied representation that the proceeds will
be used to further the seller's purposes or, at least, to "benefit" the
organization. (Appellant's Br. at 34-35). In essence, therefore, all speech
that is not delivered gratis will subject a charitable organization to
regulation. An organization is exempt, however, if it is all-volunteer and/or
small in scale. Code s 100.02(1). A similar exemption applies to all-
volunteer scholarship organizations. Code s 100.02(2).
[1] The 1984 Ordinance is a licensing statute that requires charitable
organizations to disclose certain information about themselves, their officers
and the methods and purposes of the solicitation. A non-exempt organization
that solicits without obtaining an annual registration certificate from the
city clerk commits a criminal offense. Code s 100.05(1)(i). To obtain that
certificate, an organization must file a registration form with the clerk. The
form is a public document, Code s 100.03(7), submitted under oath, which must
disclose among other things:
(a) The name of the person registering and desiring to solicit funds for
charitable purposes.
(b) Whether the person registering is a natural person, partnership,
corporation, or association and, ...
(c) A reference to all determinations of tax-exempt status under the Internal
Revenue Code of the United States and law of any state, and the laws of any
county or municipality.
(d) A brief description of the charitable purpose for which the funds are to
be solicited, and a brief explanation of the intended use of the funds toward
that purpose.
(e) The names, mailing address[es] and telephone number[s] of all individuals
authorized to disburse the proceeds of the solicitation.
(f) The names, mailing address[es] and telephone number[s] of all
individuals who will be in direct charge or control of the solicitation of
funds.
(g) The time period within which the solicitation of funds is to be made....
(h) A brief description of the methods and means by which the solicitation of
funds is to be accomplished.
*1522 (i) An estimated schedule of salaries, wages, fees, commissions,
expenses and costs to be expended and paid in connection with the solicitation
of funds and in connection with their disbursement, and an estimated percentage
of the total projected collections which the costs of the solicitation will
comprise.
(j) The names of any other cities in Florida in which the person registering
has collected funds for charitable purposes within the past five (5) years....
....
(m) The names of any officer ... or any current agent or employee engaging in
the solicitation of funds who has been convicted of a felony or a misdemeanor
involving moral turpitude within the past seven (7) years, the nature of the
offense, the State in which the conviction occurred, and the year of such
conviction.
(n) A brief explanation of the reasons, if the person registering is unable
to provide any of the foregoing information, why such information is not
available.
Code s 100.03(1) (emphasis added). This information is virtually identical to
the disclosure required under the ordinance upheld against facial attack on
free exercise and associational privacy grounds in International Society for
Krishna Consciousness v. City of Houston, 689 F.2d 541, 559-61 (5th Cir. Unit A
1982) (hereinafter ISKCON-Houston ), although, as discussed below, there are
significant differences between the Clearwater and Houston laws. [FN3]
FN3. Fifth Circuit decisions rendered by Unit A of that court after
September 30, 1981, are not binding upon this court, but they are
persuasive authority. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34
(11th Cir.1982).
Unlike the Houston submission, the Clearwater form must be filed even if the
organization intends to solicit only from its own members, although the form
may omit certain information "regarding the solicitation of funds from
members," provided it so states. Code s 100.02(3). Thus, as we read the
Clearwater ordinance, an organization soliciting only from its members may omit
the information required by subsections (d) through (i) of Code s 100.03(1).
Nevertheless, even when no public solicitation is planned, subsections
100.03(1)(a), (b), (c), (j) and (n) of the code require an organization
publicly to disclose significant information, namely the nature and identity of
the organization, its tax-exempt status, the detailed criminal histories of its
officers and solicitors, the names of other Florida cities in which it has
registered and an explanation why any of the foregoing information is
unavailable.
The City's law also requires organizations omitting information from the
registration form to prepare a sworn "private statement at least annually that
contains all of the information" that otherwise would be required in the
registration form. Code s 100.02(3)(b). The organization must maintain the
records used to complete the private statement for at least three years "and,
together with the private statement, make[ ] them reasonably available for
inspection by every member of the charitable organization." Code
s 100.02(3)(c). Wilful failure to prepare a truthful private statement,
maintain the records or make the statement and records available to members is
a criminal offense. Code s 100.05(1)(k). The same supporting documentation
must be maintained when the organization files a public registration form,
Code s 100.04, and failure to do so is also an offense, Code s 100.05(1)(j).
At the end of each annual registration period the organization must file
a retrospective reporting statement giving "the full amount of money and
property collected" in Clearwater and "a complete list of any and all expenses
incurred in procuring those funds ... broken down into salaries, wages, fees,
commissions, advertising and all other expenses." Code s 100.03(8). The
organization must reveal "the bank, if any, where the proceeds of those
solicitations of funds were placed" and the "actual or proposed utilization in
approximate amounts of the said proceeds," id., and maintain supporting
documentation for three years, Code s 100.04. Information about solicitations
from members may be omitted on the same terms as the omission of similar
information from the registration form, namely, upon condition *1523 that
the organization prepare a "private statement" subject to disclosure along with
supporting documentation upon request by a member, failure to prepare or
disclose the materials being a criminal offense. Code s 100.02(3). Wilful
failure to file truthful registration forms and retrospective annual statements
is also an offense. Code s 100.05(1)(b). These provisions for
retrospective disclosure differ from the Houston ordinance by (1) requiring
detailed disclosure of the expenses incurred in the solicitation, (2) requiring
disclosure of the bank account in which funds are located, (3) requiring
disclosure of every proposed or actual use of the funds, (4) requiring the
maintenance of supporting documentation for three years, (5) applying
themselves to membership solicitations, and (6) imposing criminal penalties.
The Clearwater ordinance defines a number of other criminal offenses,
including:
(a) wilful[ly] us[ing] any solicited funds or soliciting or retaining funds
to support or execute any conduct that is criminal or illegal under the laws of
the [city, county, state, or federal government];
. . . . .
(c) us[ing] any scheme or artifice to defraud or obtain money or property by
means of any false statement or representation;
(d) wilfully concealing the identity of an organization on whose behalf
solicitations are being made;
(e) knowingly misrepresenting that the proceeds of any solicitation of funds,
under current law, would entitle the donor to a Federal or State income tax
deduction;
(f) promising any person that the proceeds of a solicitation of funds will be
refunded upon request, and thereafter wilfully failing within 60 days to make a
refund that has been requested in writing;
(g) promising any person that refunds of the proceeds of the solicitation of
funds will be made upon request without providing such person, at the time such
representation is made, with a written statement of the terms and conditions
upon which refunds are made; provided, however, that any statement made in
good faith at the time is not prohibited by this section;....
Code s 100.05(1). All offenses under the law are punishable by a fine of
up to $1,000 and/or imprisonment for up to six months. Code s 100.05(2).
No such criminal provisions were included in the Houston ordinance.
The city clerk has power to review the registration form to determine
whether it meets the ordinance's requirements and may deny registration if she
determines that it does not. The clerk testified that she and her staff would
exercise their personal judgment, under the direction of the city attorney, to
decide whether a given response was adequate. For example, she and the city
attorney would determine whether the stated purpose of the solicitation was in
fact a charitable one. [R5-110-Tab 2-Exh. A-46-49.] In addition, although the
statute provides no guidance on the subject, the city attorney testified that a
general statement along the lines of "We are a benevolent society and we will
use [the funds] as our governing board decides is within our purposes" would
not provide adequate information to satisfy the requirements of Code
s 100.03(1)(d). He was unable to say, however, whether a statement like "We
are a church and we will use [the funds] for general church purposes" would be
sufficiently specific. [R5-110-Tab 2-Exh. B-49.]
Whatever level of detail would meet the city officials' standards concerning
disclosure of charitable purpose, we may presume that they require a more
specific explanation of how the funds will be used to further the purposes
stated. In these respects the Clearwater ordinance confers broader executive
discretion than the Houston law, which the Fifth Circuit interpreted as
conferring only the ministerial authority to determine "two objective facts:
(1) whether information is provided, and (2) whether an explanation for failure
to supply the information is provided," ISKCON-Houston, 689 F.2d at 547.
The City of Houston had adopted an interpretation of the law giving the
administering official no discretion to evaluate the adequacy of information
provided by registrants. For example, any question about the required
*1524 detail of disclosure concerning the purposes of solicitation would
have been resolved in the registrant's favor. Id. at 555.
If the city clerk denies registration, the organization may still continue to
solicit in Clearwater. The clerk must initiate a declaratory judgment action
in state circuit court to "review" her decision. Code s 100.03(3).
Presumably the court may set aside the denial if it finds the clerk acted
improperly, but neither the ordinance nor the Florida declaratory judgment act
provides express criteria by which the decision should be judged. The
ordinance also permits the court to dispense with the requirement of furnishing
information whose disclosure it finds to constitute a "special or unique
hardship to the charitable organization." Code s 100.03(4). Again, no
further express guidance is offered.
Upon receiving ten "bona fide complaints," sworn in writing and suggesting
that an offense has occurred, the city attorney may investigate. [FN4] The
attorney may subpoena witnesses and documents, including "private statements"
and the documentation supporting them. Upon investigation, and having found
probable cause to believe that an offense has occurred, the attorney "shall"
institute a prosecution. Code s 100.06. We note that these provisions entitle
the city attorney to obtain the so-called "private" statements (and all of the
supporting records), and presumably treat them as public documents, in the
course of an investigation or prosecution to determine whether an organization
was entitled to omit the specified information from its public registration
form.
FN4. Although the relevant provision of the 1984 Ordinance substituted the
phrase "shall investigate ... only after receiving ten bona fide
complaints" for the apparently equivalent language in the 1983 Ordinance
providing that the city attorney "may investigate ... upon receiving ten
bona fide complaints," the City adopted the position in Scientology-
Clearwater II that this change removes all discretion from the city
attorney. Nevertheless, it appears that the prosecutor retains
unreviewable discretion to determine whether a complaint is "bona fide."
The ordinance has an express severability clause. 1984 Ordinance s 10.
IV. ISSUES
We confront several complex issues in this appeal. First, Scientology argues
that there are sufficient facts in dispute to preclude summary judgment on its
claim that the 1984 Ordinance (like its 1983 predecessor) was enacted for the
impermissible purpose of discriminating against it in favor of more popular
religious organizations. Second, Scientology contends that, as a matter of
law, the disclosure requirements applicable to solicitations of members and the
public constitute an impermissible government "entanglement" in matters of
ecclesiastical authority and governance in violation of the Establishment
Clause. Although Scientology contends that such excessive entanglements may
not be justified by resort to the balancing of compelling governmental
interests that is applicable in other areas of constitutional law, it further
contends that this disclosure of information concerning member solicitation is
not narrowly tailored to serve such an interest. Third, Scientology argues
that the ordinance is vague and confers overly broad discretion upon the city
clerk to deny a registration certificate, thereby imposing an impermissible
prior restraint upon its exercise of religion. Finally, Scientology argues
that the requirements of providing a refund policy in writing and making
refunds within sixty days also represent impermissible invasions of church
governance and religious practice. [FN5]
FN5. While Scientology argues on appeal that the entire 1984 Ordinance is
unconstitutional, its brief challenges certain provisions only. See
generally Code ss 100.01(2), 100.01(3), 100.02(3)(c),
100.03(1), 100.03(1)(a), (b), (c), (d), (j) and (n), 100.03(2),
100.03(3), 100.03(4), 100.03(7), 100.03(8), 100.04,
100.05(1)(b), (f) and (g), 100.05(2), 100.06, 100.06(1), and
100.06(2). It is these provisions that we confront. All other
provisions of the 1984 Ordinance not specifically addressed or encompassed
by this opinion remain valid should the district court on remand determine
that (1) the 1984 Ordinance was enacted without a discriminatory purpose
and (2) the remaining provisions are severable.
After considering the question of standing, we address these issues in turn.
V. STANDING
[2] Scientology is a charitable organization as defined under the 1984
Ordinance and *1525 is subject to direct regulation thereunder. As already
detailed, the regulation is substantial and, accordingly, represents a
sufficiently direct injury to Scientology to confer standing. The injury is
caused by the City's ordinance (in other words, the injury is fairly traceable
to the challenged conduct) and would be redressed by invalidation of the
regulatory scheme. Therefore, Scientology meets the "case" or "controversy"
requirements for standing imposed by Article III of the Constitution. See
California Bankers Ass'n v. Shultz, 416 U.S. 21, 44-45, 68-69, 76, 94 S.Ct.
1494, 1509, 1521, 1524-25, 39 L.Ed.2d 812 (1974). Moreover, it is well settled
that "a party may challenge a licensing statute regardless of whether he or she
was denied a permit, or whether one has ever been sought." Fernandes v.
Limmer, 663 F.2d 619, 625 (5th Cir. Unit A Dec. 1981), cert. dismissed, 458
U.S. 1124, 103 S.Ct. 5, 73 L.Ed.2d 1395 (1982); see also, e.g.,
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 938,
22 L.Ed.2d 162 (1969).
[3] Scientology's interest in avoiding challenged regulation is greater than
the minimum interest in the outcome of a lawsuit required for standing. Just
as the Establishment Clause "does not depend upon any showing of direct
governmental compulsion and is violated by the enactment of laws which
establish an official religion whether those laws operate directly to coerce
nonobserving individuals or not," Engel v. Vitale, 370 U.S. 421, 430, 82
S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962), so also does the clause prohibit the
casting of official disfavor upon a particular sect even though its members are
not directly regulated. Religious groups and their members that are singled
out for discriminatory government treatment by official harassment or symbolic
conduct analogous to defamation have standing to seek redress in federal
courts. Church of Scientology v. Cazares, 638 F.2d 1272, 1279-80 (5th
Cir.1981); see also, e.g., Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct.
3315, 3326, 82 L.Ed.2d 556 (1984) (noting that stigmatic injury associated with
invidious official conduct is cognizable for standing purposes if the plaintiff
is directly affected).
[4] The question of standing is distinct from the broader issues
concerning the merits of Scientology's case. Therefore, we would not require
Scientology to prove that it is a bona fide religion entitled to First
Amendment protection in order to obtain standing, any more than we would
require a contract claimant to demonstrate that it is a party to a valid
agreement before invoking jurisdiction in an ordinary private law dispute.
See Larson v. Valente, 456 U.S. 228, 254 n. 30, 102 S.Ct. 1673, 1689 n. 30,
72 L.Ed.2d 33 (1982) (finding standing to challenge regulation, but noting
"[n]othing in our opinion suggests that appellants could not ... put the Church
to the proof of its bona fides as a religious organization"). Moreover, in our
view the facts considered by the district court, 756 F.Supp. at 1509-11,
provide much more than "a sufficiently strong demonstration that [Scientology]
is a religion to overcome any prudential standing obstacles to consideration
of [its] Establishment Clause claim" and its free exercise claim, Valente,
456 U.S. at 244 n. 16, 102 S.Ct. at 1683 n. 16, assuming for present purposes
that such a prudential obstacle exists.
Nevertheless, we do not accept the district court's application of the "zone
of interests" requirement for standing to raise a First Amendment challenge
under s 1983, see 756 F.Supp. at 1509-12. The requirement that "the
interest sought to be protected by the complainant [must be] arguably within
the zone of interests to be protected or regulated by the statute or
constitutional guarantee in question," Association of Data Processing Serv.
Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184
(1970) (emphasis added) (hereinafter ADAPSO ), was first developed as a
limitation on judicial review of agency action under the Administrative
Procedure Act ("APA"). The APA provides that a plaintiff must be adversely
affected by challenged action "within the meaning of a relevant statute." 5
U.S.C. s 702. The Supreme Court has used a similar standard to determine
whether particular federal statutes create actionable "rights" under s 1983,
which creates a federal cause of action for "the deprivation of any rights,
privileges, or immunities secured by the Constitution and *1526 laws."
[FN6] The Court has undertaken the same zone of interests inquiry to determine
whether a particular constitutional provision creates rights intended by
Congress to be enforceable under s 1983. [FN7]
FN6. Compare Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118
L.Ed.2d 1 (1992) (holding s 1983 remedy unavailable for violation of
vaguely defined statutory "right") with Wilder v. Virginia Hosp. Ass'n,
496 U.S. 498, 508-10, 110 S.Ct. 2510, 2516-17, 110 L.Ed.2d 455
(1990) (finding definite and enforceable "right") and Wright v. Roanoke
Redev. & Hous. Auth., 479 U.S. 418, 431-32, 107 S.Ct. 766, 774-75, 93
L.Ed.2d 781 (1987) (finding specific enforceable "right" defined by
administrative regulations that clarified statutory language).
FN7. Compare Dennis v. Higgins, 498 U.S. 439, 449, 111 S.Ct. 865, 872,
112 L.Ed.2d 969 (1991) (Commerce Clause creates rights enforceable under
s 1983) and Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 321
n. 3, 97 S.Ct. 599, 603 n. 3, 50 L.Ed.2d 514 (1977) (victims of
discriminatory taxation are within "zone of interests" protected by
Commerce Clause) with Golden State Transit Corp. v. City of Los Angeles,
493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) (Supremacy Clause by
itself was intended to provide no enforceable "rights" under s 1983)
and Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S.Ct. 1905,
60 L.Ed.2d 508 (1979) (same).
[5][6] The zone of interest requirement is a prudential standing doctrine,
not mandated directly by Article III. Allen v. Wright, 468 U.S. at 751, 104
S.Ct. at 3324; Valley Forge Christian College v. Americans United for
Separation of Church and State, 454 U.S. 464, 474-75, 102 S.Ct. 752, 760, 70
L.Ed.2d 700 (1982). Whatever the nature of the inquiry in the absence of
congressional legislation, the Court's precedents show that the zone of
interests analysis under s 1983 is limited to ascertaining whether the
substantive constitutional or statutory provision confers rights intended by
the legislature to be enforceable under the remedial statute. See also
Holmes v. Securities Investor Protection Corp., 503 U.S. 258, ----, 112
S.Ct. 1311, 1328, 117 L.Ed.2d 532 (1992) (Scalia, J., concurring) (zone of
interests test is an "element of statutory standing"). The test does not
require the plaintiff to show an identifiable "legal interest" that may entitle
him to relief. ADAPSO, 397 U.S. at 153-56, 90 S.Ct. at 830-31; see also
Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 399-400, 107 S.Ct. 750,
757, 93 L.Ed.2d 757 (1987); Valente, 456 U.S. at 254 n. 30, 102 S.Ct. at
1689 n. 30. The test requires only that the relationship between the
plaintiff's alleged interest and the purposes implicit in the substantive
provision be more than "marginal[ ]." Securities Indus. Ass'n, 479 U.S. at
399, 107 S.Ct. at 757.
[7] Therefore the district court erred when it investigated the merits
of Scientology's claim by evaluating whether it is in fact a religion.
Moreover, it is clear that the First Amendment creates enforceable "rights"
under s 1983. Any citizen's interest in preventing violations of those
rights is more than marginally related to the constitutional provision, which
protects the public at large as well as the individual plaintiff from
government invasion of religious, political and intellectual activity, although
requirements other than the zone of interests test may preclude a finding of
standing. Cf. Valley Forge, 454 U.S. at 478-87, 102 S.Ct. at 762-67
(holding citizens' generalized interest in preventing establishment of religion
by federal government insufficient to confer standing without allegations that
tax funds were improperly collected or expended by Congress). See generally
Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343
(1975). Thus, the complaint on its face alleges interests within the zone
arguably protected by the constitutional provision. Since we have already held
that all other requirements are satisfied, Scientology has standing.
VI. STANDARD OF APPELLATE REVIEW
[8] A motion for summary judgment may be granted only if no genuine dispute
remains as to any material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c). As with all questions of law, we
review the district court's order granting summary judgment under the de novo
standard of review. See Woodruff v. United States Dep't of Labor, 954 F.2d
634, 636 (11th Cir.1992) (per curiam).
*1527 The moving party bears the initial burden to show the district
court, by reference to materials on file, that there are no genuine issues of
material fact that should be decided at trial. Only when that burden has been
met does the burden shift to the non-moving party to demonstrate that there is
indeed a material issue of fact that precludes summary judgment.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). With
these principles in mind, we address the contentions of the parties.
VII. DISCRIMINATORY PURPOSE
[9] Under the Establishment Clause jurisprudence which has followed Lemon
v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), courts
undertake a three-part analysis of challenged legislation. "First, the statute
must have a secular legislative purpose; second, its principal or primary
effect must be one that neither advances nor inhibits religion, ...; finally,
the statute must not foster 'an excessive government entanglement with
religion.' " 403 U.S. at 612-13, 91 S.Ct. at 2111 (citations omitted).
Only if all three criteria are satisfied may the law be upheld. As the
district court correctly recognized, "the three-part Lemon test remains the
basic standard of judicial review in Establishment Clause cases." 756
F.Supp. at 1513; see, e.g., Hernandez, 490 U.S. at 695-96 & n. 11, 109
S.Ct. at 2146-47 & n. 11.
A. Standard of Judicial Review
[10] Judicial review of governmental purpose is deferential. "A
religious purpose alone is not enough to invalidate an act of a state
legislature. The religious purpose must predominate." Edwards v.
Aguillard, 482 U.S. 578, 599, 107 S.Ct. 2573, 2586, 96 L.Ed.2d 510
(1987) (Powell, J., concurring) (citations omitted). Thus, a statute is
invalid only if it "does not have a clearly secular purpose." Wallace v.
Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 2489-90, 86 L.Ed.2d 29
(1985) (emphasis added); see, e.g., Church of Scientology v. Commissioner,
823 F.2d at 1321. Nevertheless, the City cannot overcome the first Lemon
prong merely by articulating a legitimate purpose. "[N]o legislative
recitation of a supposed secular purpose can blind us" to an enactment's "pre-
eminent purpose." Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 194, 66
L.Ed.2d 199 (1980) (per curiam).
[11] Inquiry into legislative purpose begins with interpreting the law
itself. "The plain meaning of the statute's words, enlightened by their
context and the contemporaneous legislative history [or explained by the
interpretation of a responsible administrative agency], can control the
determination of legislative purpose." Aguillard, 482 U.S. at 594, 107
S.Ct. at 2583 (citations omitted). If the legislature's stated purpose is not
actually furthered by the enactment then that purpose is disregarded as being
insincere or a sham. Id., 482 U.S. at 586-87, 107 S.Ct. at 2579. Even if
the proffered purpose is not a sham, the court must evaluate the effect of the
statute's provisions and "consider[ ] the historical context of the statute ...
and the specific sequence of events leading to [its] passage ...," id., 482
U.S. at 595, 107 S.Ct. at 2583 (citations omitted); see, e.g., Jaffree, 472
U.S. at 59-60, 105 S.Ct. at 2491; Valente, 456 U.S. at 253-55, 102 S.Ct. at
1688-89; see also Village of Arlington Heights v. Metropolitan Hous. Dev.
Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977) (noting that
Fourteenth Amendment challenge invokes inquiry into "historical background"
and "specific sequence of events" preceding enactment); Hunter v.
Underwood, 471 U.S. 222, 228, 105 S.Ct. 1916, 1920, 85 L.Ed.2d 222 (1985);
cf. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573,
606, 109 S.Ct. 3086, 3107, 106 L.Ed.2d 472 (1989) (applying the effects
criterion of Lemon by evaluating the "particular contexts" in which the
government acts).
[12] A statute in which an impermissible purpose predominates is invalid
even if the legislative body was motivated in part by legitimate secular
objectives. Thus, for example, even if the ordinance in fact furthers a
secular purpose, the "actual purpose" may in certain cases be found by asking
"whether the government intends to convey a message of endorsement or
disapproval of religion," Lynch v. Donnelly, 465 U.S. 668, 690-91, 104
*1528 S.Ct. 1355, 1368, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring).
See Jaffree, 472 U.S. at 56, 105 S.Ct. at 2489-90. [FN8] If the "pre-
eminent purpose" is illicit then the law is void. Stone, 449 U.S. at 41,
101 S.Ct. at 194.
FN8. This newly articulated principle that creation of the appearance of
official disapproval for a sect may constitute a violation of the
Establishment Clause appears to have overruled in part Church of
Scientology v. Cazares, 638 F.2d 1272 (5th Cir. Mar.1981), in which the
court held that defamatory public condemnation by former Clearwater mayor
Gabriel Cazares did not violate Scientology's civil rights and could not,
consistent with the mayor's freedom of expression, be condemned under state
law. See also Aguillard, 482 U.S. at 585, 107 S.Ct. at 2578; cf.
Lee v. Weisman, 505 U.S. 577, ----, 112 S.Ct. 2649, 2655-57, 120 L.Ed.2d
467 (1992).
Although the Court stated in Bowen v. Kendrick, 487 U.S. 589, 108
S.Ct. 2562, 101 L.Ed.2d 520 (1988), that a statute is void only if "motivated
wholly by an impermissible purpose," 487 U.S. at 602, 108 S.Ct. at 2570
(emphasis added), we do not believe that this statement was intended to
overrule the "predominate" standard of Aguillard, the "clearly secular"
standard of Jaffree or the "pre-eminent" standard of Stone. First, the
statement in Kendrick was dictum. "[T]he [statute] was motivated primarily,
if not entirely, by a legitimate secular purpose." Kendrick, 487 U.S. at
602, 108 S.Ct. at 2571 (emphases added). Second, we do not believe the Court
would have overruled the principle of deferential yet searching analysis
applied to questions of legislative purpose so recently (in Aguillard and
Jaffree ) and so broadly (for example, in Underwood and Metropolitan
Housing ) without explicitly acknowledging its intention to do so. Instead,
the Court simply cited Donnelly and Stone with apparent approval. See
Kendrick, 487 U.S. at 602, 108 S.Ct. at 2570. Third, the Court's statement
in Stone that "Kentucky's statute requiring the posting of the Ten
Commandments in public schoolrooms had no secular legislative purpose, and is
therefore unconstitutional," 449 U.S. at 41, 101 S.Ct. at 193 (emphasis
added), does not represent a holding that any secular purpose is sufficient to
validate an enactment. Cf. Stone, 449 U.S. at 43-47, 101 S.Ct. at 195-96
(Rehnquist, J., dissenting) (arguing that teaching children about the secular
significance of the Ten Commandments is a sufficient legislative purpose).
Finally, adopting the standard suggested by the Kendrick dictum would make
Lemon 's purpose criterion a virtual dead letter, for "[r]arely can it be
said that a legislature or administrative body operating under a broad mandate
made a decision motivated solely by a single concern ...," Metropolitan
Housing, 429 U.S. at 266, 97 S.Ct. at 563.
[13] Inexplicably, the City continues to argue that its purpose in enacting
the ordinances is irrelevant to Scientology's allegation of an Establishment
Clause violation. (Appellees' Br. at 48). As discussed above, the Supreme
Court has unmistakably rejected this contention, most recently in Hernandez,
in which the Court invoked the test of whether the challenged law "was born of
animus to religion in general or Scientology in particular." 490 U.S. at
696, 109 S.Ct. at 2147. The cases relied upon by the City, Palmer v.
Thompson, 403 U.S. 217, 224-26, 91 S.Ct. 1940, 1944-45, 29 L.Ed.2d 438
(1971) (upholding against equal protection challenge city decision to close
swimming pools rather than operate them on racially integrated basis), and
United States v. O'Brien, 391 U.S. 367, 382-86, 88 S.Ct. 1673, 1682-84, 20
L.Ed.2d 672 (1968) (upholding against free speech challenge federal statute
prohibiting burning of draft card), are obviously distinguishable, as neither
involved a claim arising under the Establishment Clause. Contrary to the
dictum of Palmer that judicial invalidation of a law on the basis of
improper legislative purpose might be "futil[e]" because the statute "would
presumably be valid as soon as the legislature or relevant governing body
repassed it for different reasons," 403 U.S. at 225, 91 S.Ct. at 1945, the
requirement that a court entertaining an Establishment Clause challenge must
consider "the specific sequence of events leading to [re-]passage of the
statute," Aguillard, 482 U.S. at 595, 107 S.Ct. at 2583, embodies a
sensitivity to the political realities of the legislative process that is amply
refined to *1529 discern such a crude attempt to circumvent federal judicial
determination. [FN9]
FN9. In any event, we are not inclined to accord too much weight to
Palmer. Four Justices dissented and Justice Blackmun's concurrence
makes clear that he joined the majority only because facts developed in the
record and conceded at oral argument rebutted the allegation of
discriminatory motive. 403 U.S. at 228-30, 91 S.Ct. at 1946-47
(Blackmun, J., concurring). See generally Underwood v. Hunter, 730 F.2d
614, 617 n. 7 (11th Cir.1984), aff'd, 471 U.S. 222, 105 S.Ct. 1916, 85
L.Ed.2d 222 (1985).
Furthermore, Palmer 's holding simply has not withstood the test of
time, even in the Fourteenth Amendment equal protection context. See, e.g.,
Personnel Adm'r v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870
(1979) (sex discrimination); Washington v. Davis, 426 U.S. 229, 96 S.Ct.
2040, 48 L.Ed.2d 597 (1976) (race discrimination); see also City of Mobile
v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) (race
discrimination under Fourteenth and Fifteenth Amendments). "Once racial
discrimination is shown to have been a 'substantial' or 'motivating' factor
behind enactment of the law, the burden shifts to the law's defenders to
demonstrate that the law would have been enacted without this factor."
Underwood, 471 U.S. at 228, 105 S.Ct. at 1920. The Court's 1968 decision
in O'Brien, holding in the free speech context "that this Court will not
strike down an otherwise constitutional statute on the basis of an alleged
illicit motive," 391 U.S. at 383, 88 S.Ct. at 1682, may also effectively
have been overruled in relevant part. In Pickering v. Board of Education,
391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), Perry v.
Sinderman, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972), and
Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274,
283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977), the Court held that improper
retaliatory purpose would invalidate action directed against a government
employee's protected speech. In Metropolitan Housing, 429 U.S. at 270 n.
21, 97 S.Ct. at 566 n. 21, and Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at
576, both decided on the same day, the Court applied identical standards of
proof to a zoning action allegedly motivated by racial considerations and an
employment action allegedly motivated by a purpose to chill free speech, the
same standard that it would later apply in Underwood to determine racially
discriminatory legislative purpose. See also Lee v. Russell County Bd. of
Educ., 684 F.2d 769, 773-74 (11th Cir.1982) (applying identical Mt. Healthy
standards to free speech and equal protection challenges to government
employment action). These decisions, which treat the evaluation of
governmental purpose in challenges under the First Amendment as identical to
the inquiry under the Equal Protection Clause, suggest that action by any
branch of government may be invalid if the challenger shows the action was
partly motivated by purposes offensive to the Free Speech Clause and the
defender cannot prove that illicit motivation was not in fact the cause of the
action. See Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue,
460 U.S. 575, 579-80, 585, 103 S.Ct. 1365, 1364-65, 1372, 75 L.Ed.2d 295
(1983). [FN10]
FN10. A sharply divided Court recently relied on O'Brien for guidance
in evaluating regulation of non-verbal expressive conduct, such as burning
draft cards or dancing nude, that also has significant components lacking
expressive content. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111
S.Ct. 2456, 115 L.Ed.2d 504 (1991). Only Justice Souter alluded to
O'Brien's holding concerning legislative purpose, although he would have
recognized that illicit purpose is dispositive in the Establishment Clause
context. Id., 501 U.S. at ---- & n. 1, 111 S.Ct. at 2469 & n. 1
(Souter, J., concurring in the judgment).
[14] If Hernandez, Aguillard, Jaffree, Stone and Lemon
were not enough to show that the City's contention is meritless, our holding
in American Civil Liberties Union v. Rabun County Chamber of Commerce, 698
F.2d 1098, 1110-11 (11th Cir.1983) (per curiam), that improper religious motive
invalidates official action challenged under the Establishment Clause, would
suffice. We readily conclude that a predominantly or pre-eminently sectarian
purpose will invalidate an otherwise permissible law under the Establishment
Clause. We therefore turn to consider the allocation of proof in applying the
purpose criterion of Lemon, and conclude that the frequently invoked Mt.
Healthy standard is the most appropriate. See Price Waterhouse v. Hopkins,
490 U.S. 228, 252-54, 109 S.Ct. 1775, 1792-93, 104 L.Ed.2d 268 *1530
(1989) (plurality opinion) (applying Mt. Healthy to private intentional sex
discrimination case under Title VII); id., 490 U.S. at 258-60, 109 S.Ct. at
1795 (White, J., concurring) (same); NLRB v. Transportation Management
Corp., 462 U.S. 393, 403, 103 S.Ct. 2469, 2475, 76 L.Ed.2d 667
(1983) (applying Mt. Healthy to discriminatory anti-union discharge case);
Thompkins v. Morris Brown College, 752 F.2d 558, 563-64 (11th
Cir.1985) (anticipating Hopkins ); Hayes v. Shelby Mem. Hosp., 726 F.2d
1543, 1548 (11th Cir.1984) (applying Mt. Healthy to Pregnancy Discrimination
Act).
[15] To be sure, the competing interests implicated in an Establishment
Clause case may differ from those in free speech cases, as well as those
involved in discrimination cases under the equal protection aspect of the
Fourteenth Amendment, the disparate treatment aspect of Title VII, the
Pregnancy Discrimination Act and the National Labor Relations Act.
Nevertheless, the Establishment Clause requirement that a statute must have a
"clearly secular" purpose, over which any sectarian motivation does not
"predominate," is consistent with the allocation of proof adopted by the Court
in Hopkins, Underwood, Transportation Management, Metropolitan
Housing and Mt. Healthy and by our court in Hayes. Just as the plurality
in Hopkins and Justice White were "not inclined to say that the public
policy against firing employees because they spoke out on issues of public
concern [in violation of the First Amendment] or because they affiliated with a
union is less important than the policy against discharging employees on the
basis of their gender," 490 U.S. at 254, 109 S.Ct. at 1793, we are not
inclined to conclude that the constitutional prohibition of laws tending to
establish one or more official religions is less important than any of those
policies just addressed. "Each of these policies is vitally important, and
each is adequately served by requiring proof by a preponderance of the
evidence [that the defendant would have reached the same result in the absence
of improper motivation]." Id. (rejecting proposal to require defendant's
proof by clear and convincing evidence). When a plaintiff shows by direct
evidence that a sectarian or religious purpose was a substantial or motivating
factor, the burden shifts to the defendant to show by a preponderance of the
evidence that action challenged under the Establishment Clause would have been
undertaken even in the absence of such improper considerations. See
Aguillard, 482 U.S. at 595, 107 S.Ct. at 2583 (citing Metropolitan
Housing ); cf. Gillette v. United States, 401 U.S. 437, 451-52, 91 S.Ct.
828, 837, 28 L.Ed.2d 168 (1971) (requiring challenger to show the absence of
legitimate purpose when there is no direct evidence of sectarian motive).
B. Discussion
The district court's opinion did not expressly address Scientology's
claim of discriminatory purpose, see 756 F.Supp. at 1505, 1516, although the
City concedes that the claim was vigorously argued throughout the course of
this litigation. Having granted the City's motion for summary judgment,
however, the district court did deny Scientology's motion to alter or amend the
judgment on the basis of this issue. [R7-168-1; R6-147-4-9.]
[16][17] Scientology points to various materials, including newspaper
articles, that it submitted to the district court and which it argues tend to
show sectarian motivation. Even if they would have been inadmissible at trial
(and we do not hold that they would have been), such materials were
appropriately submitted by the non-moving party in opposition to the motion for
summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 319, 324, 106
S.Ct. 2548, 2551, 2553, 91 L.Ed.2d 265 (1986) (non-moving party opposing motion
for summary judgment with hearsay documents need not "produce evidence in a
form that would be admissible at trial in order to avoid summary judgment");
see also Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1015 & n.
1 (11th Cir.1987) (per curiam) ("The claim by [the moving party] that the
letter is inadmissible hearsay does not undercut the existence of any material
facts the letter may put into question."). [FN11]
FN11. Although the Former Fifth Circuit had previously held that hearsay
newspaper articles are ordinarily not competent evidence that a court may
consider in ruling on a motion for summary judgment under Federal Rule
of Civil Procedure 56(e), Pan-Islamic Trade Corp. v. Exxon Corp., 632
F.2d 539, 556-57 (5th Cir.1980), cert. denied, 454 U.S. 927, 102 S.Ct.
427, 70 L.Ed.2d 236 (1981); cf. Victoria L. ex rel. Carol A. v.
District School Bd., 741 F.2d 369, 373 (11th Cir.1984) (dictum), this
holding appears to have been overruled in part by Celotex. See
Pennington v. Vistron Corp., 876 F.2d 414, 426 & n. 15 (5th
Cir.1989) (assuming for purposes of argument that hearsay medical journal
article was competent to counter motion for summary judgment). While
decisions of the Fifth Circuit rendered before October 1, 1981, are binding
upon panels of this court, Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir.1981) (en banc), we must disregard them if necessary to give
effect to a decision of the Supreme Court of the United States. E.g.,
United States v. Giltner, 972 F.2d 1563, 1566 (11th Cir.1992).
Celotex does not modify Pan-Islamic with respect to the materials
that may be submitted by the moving party. As noted, we express no opinion
concerning the admissibility of these materials at trial, a matter that is
initially committed to the sound discretion of the district court.
*1531 [18] Construed in the light most favorable to the non-moving party,
as they must be in evaluating a motion for summary judgment, Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970),
these materials provide explicit evidence that the city commission conducted
its legislative process from beginning to end with the intention of singling
out Scientology for burdensome regulation. The record shows a widespread
political movement, apparently driven by an upsurge of sectarian fervor, [FN12]
intent on driving Scientology from Clearwater. It also shows that various
members of the commission had made their affiliation with that movement known
to the public in the plainest terms possible, not only in the official
legislative record leading to adoption of the ordinances but also in documents
concerning unrelated government activity and in extemporaneous remarks.
FN12. See Epperson v. Arkansas, 393 U.S. 97, 98, 89 S.Ct. 266, 267, 21
L.Ed.2d 228 (1968).
The city commission hired a Boston lawyer named Michael Flynn to coordinate
the publicly televised hearings that eventually led to adoption of the 1983 and
1984 Ordinances. [R1-18-Exh. S.] As reported in the Clearwater media and well
known to the commission and the public, Flynn had dedicated much of his career
to fighting Scientology. It was Flynn who first suggested adoption of a
charitable solicitation ordinance, the avowed purpose of which was to target
Scientology. [Id. Exh. K.] In his written report Flynn appealed to the
prejudices of his clients when he observed that such an ordinance would require
lengthy and costly litigation to defend but that "Scientology has rarely been
successful in any judicial system in the world, including numerous cases in the
U.S., in using its religious front to conceal its activities." [Id. Exh. K-
2.] (He did observe that Scientology was likely to achieve preliminary success
in such litigation, noting "the only analogy I can give is it's like dealing
with the Nazis. They will litigate right to the bunker." [Id. Exh. N1-
13.] )
[19] Flynn told the commission that a primary purpose of the statute
was the collection of data to support the City's position (since abandoned for
purposes of this case) that Scientology is not a bona fide religion and
therefore is not entitled to exemption from the payment of property taxes.
[Id. N-1-9.] Although proper enforcement of property tax laws is a
legitimate local governmental interest, the highly charged political context in
which it was pursued created a risk that the taxation purpose was a mere
pretext. Certainly, the City had no interest in depriving Scientology of its
privilege to pay the lower non-profit rate for United States mail bulk
postage. [Id. Exh. N-3.] Nor did the City have any interest in confounding
Scientology's state and federal income tax exemptions. [E.g., id. Exh. O-8-
9.] Rather, viewed in the light most favorable to Scientology, these
statements of purpose reveal an underlying objective to employ the tax laws to
discriminate against Scientology, a purpose that is patently offensive to the
First Amendment. See Powell v. United States, 945 F.2d 374 (11th Cir.1991).
As late as June 1983, commission members continued to express concern over
suggestions that the proposed ordinance would "create a hardship for legitimate
organizations," including other "churches," [R1-18-Exh. ZZ-33 to 34, 36,] and
ordered further consideration *1532 of the matter by City Attorney Thomas
Bustin. [Id. Exh. CCC, EEE (transcript of consultation between Bustin and
Episcopal and Jewish representatives).] Viewed in the light most favorable to
Scientology, we may interpret this response as a sign of deference to the main-
line denominations. Yet when identical concerns had been raised by Scientology
at a public meeting, [id. Exh. HH-49, 52-57,] [FN13] the commission's entire
response had been limited to an argumentative discussion in which members of
the body debated the constitutionality of the ordinance with Scientology's
advocate. [Id. at 57-64.] [FN14] Clearwater did not invite Scientology
representatives to consult with Bustin. According to City Manager Anthony
Shoemaker, "Why should we? We've heard their objections over and over
again." [Id. Exh. FFF-3.] [FN15]
FN13. Those concerns included the scope of the recordkeeping burden, the
potential for governmental entanglement in matters of church organization,
the adequacy of existing anti-fraud statutes, the need to avoid
governmental participation in intra-denominational disputes, the
questionable constitutionality of the measure and the likelihood of
expensive litigation to defend it.
FN14. The tone of that discussion was apparently determined at the outset
when then-Mayor Charles LeCher took the opportunity to remind the assembly
of the Scientology lawyer's allegiance. [R1-18-Exh. HH-57; see also R5-
108-Exh. 1-Vol. I-15-17 (transcript of denial of Scientology motion for
leave to make opening statement at televised hearings); id. Exh. 2-Tape
1 (videotape of same).]
FN15. Shoemaker apparently was not a voting member of the commission,
although he and Bustin participated as panelists in the televised hearings.
Scientology also points to a number of changes embodied in successive drafts
of the 1983 Ordinance, changes inserted at the instance of more popular
denominations and other charities. [See id. Exh. DD, FF, HH.] For example,
the 1983 Ordinance was redrafted to remove any requirement that charitable
organizations report or retain records concerning the identity of individual
donors, [id. Exh. ZZ-4,] a provision that main-line charities and churches
suggested might discourage contributions. Similarly, the exemption for small-
scale solicitations was adopted in response to more respected religious groups'
concern for affiliated charities based outside Clearwater whose local
activities were likely to be regular but small in scope. [Id. Exh. EEE;
see generally id. Exh. III-30; id. Exh. JJJ.] Such tinkering creates a
significant "risk of politicizing religion," Valente, 456 U.S. at 253-55,
102 S.Ct. at 1688-89, a danger that for purposes of summary judgment appears to
have been realized in the present case.
Mayor Kathleen Kelly and others frequently voiced concern that main-
line denominations opposed to the ordinance might express their dissension by
refusing to comply with its provisions; no such solicitude was ever expressed
concerning Scientology's objections. [R1-18-Exhs. MMM, III-6-15.] In voting
against the 1983 Ordinance, Commissioner James Berfield noted one of the
competing concerns before the body as "Will the ordinance be so cumbersome on
the legally recognized religions and charitable organizations that it will be
burdensome to them?" [Id. Exh. OOO-6.] Voting in favor of the ordinance,
Commissioner William Justice observed:
[A]fter the amendments, I talked to a number of people in churches and
charitable organizations, and they convinced me that [the 1983 Ordinance] would
not work any hardship on them. They felt it was a good ordinance. Any [sic]
of the ministers--I won't say all of them but many of them--ministers whom I'm
very familiar with and trust their opinion said it would not affect their
organization either way and they would be glad to show their records.
Consequently, I changed my opinion and I will vote for the ordinance.
[Id. Exh. 000-9-10.]
In response to concerns over the cost of litigation to defend the ordinances,
Commissioner James Calderbank noted in 1981 the relatively large size of the
City's budget and further observed "[a]nd I think number two, even emotionally,
we are representatives of the citizens ( [then-Commissioner] KELLY agreeing
here) and I think in the last few elections, [Commissioner] Rita [Garvey] was
the first one, and [then-Mayor] Charlie [LeCher], that I heard years ago say,
We've *1533 got to find a legal route." [Id. Exh. N-1-17.] This
reference to the continuing political movement against Scientology during
election campaigns is amply corroborated by unrebutted newspaper clippings
contained in several volumes of the record. Then-candidate Calderbank declared
in 1980 that "I will explore every avenue and support every legal means of
encouraging the Scientologists to leave.... I am a doer, not a talker."
[Id. Exh. D-7.] In 1981 candidate Calderbank "said that Scientology 'has to
be treated like a cancer--first you arrest its growth, then remove it from the
city ... or nullify its existence.' " [Id. Exh. D-13 (ellipses in
original).] During his successful 1983 re-election campaign Calderbank again
emphasized his opposition to Scientology, although he remained careful to
articulate his respect for the law. [FN16] Mayor LeCher, successfully seeking
re-election in 1981, characterized Scientology as a "dark cloud ... that is
upon us." [Id. Exh. D-16.] [FN17] Candidate Rita Garvey, successfully
seeking election to the commission in 1980, entertained a "position on
Scientology [that] is forceful but balanced with a concern that the rule of law
be followed. Mrs. Garvey says that Scientologists lie, steal and cheat. She
feels the community must work to destroy the organization at the top." [Id.
Exh. E-2.] Then-Commissioner Richard Tenney, unsuccessfully seeking re-
election in 1980, "said his campaign will focus on one issue--forcing
Scientology to leave town." [Id. Exh. D-8.] [FN18] Candidate Justice,
successfully seeking election to the commission in 1983, stated his position
that the City should "[u]se every legal means to show that they [Scientology]
are a fraud." [Id. Exh. D-33.] During a press conference Flynn and another
person engaged in a colloquy to the effect that enacting a charitable
solicitation ordinance would drive Scientology out of Clearwater. [Id. Exh.
N-7.]
FN16. Speaking on the subject of Scientology, Calderbank said, "[t]he
public record gives us a reason to enact ordinances to make sure fraud is
not used in solicitation and the money goes for charitable purposes." [R1-
18-Exh. D-32.]
FN17. LeCher was not mayor when the commission voted to adopt the
ordinances. He did, however, oversee the televised legislative hearings
that preceded his defeat by former commissioner Kelly in 1983.
FN18. Tenney was not a member of the commission during the hearings or
when it voted to adopt the ordinances.
Mayor LeCher gave a television interview concerning the hearings in
which the following exchange took place.
Interviewer: ... Respond to the argument that at least some of the church
members raise that this is, in essence, an organized effort to run
[Scientology] out of town.
LeCher: It is an organized effort of the City of Clearwater, ... [ellipses
in original] Where ever I go they say, "What about the Scientologists?" They
seem to care more [about] that than the boat, than the pier, or the hotel, or
whatever. It has been proven that street corner confrontation in politics no
longer work in this issue. So we believe that government should be of laws.
And we are trying to carry out the wish of the people. Again, if there is
nothing there then there is nothing there. And [the Scientologists] should
want to come to a conclusion on this issue....
Interviewer: Would you like to see them run out of town?
LeCher: The county has a lawsuit with them. I don't really care to comment
publicly how I honestly feel with the threat of any possible litigation. But I
would like to say that I yearn for the olden days when the Fort Harrison Hotel
was full of Canadian tourists spending lots of money in the city of Clearwater.
....
Interviewer: ... Is anyone other than the Scientologists being brought
before these hearings?
LeCher: Not that I know of. I don't know anyone else that is claiming to be
a religion that is not.
[Id. Exh. Q-2 to 3; see also id. Exh. W-13, P 21.] As late as August
1983, Mayor Kelly was reported to have expressed "frustrati[on]" that the First
Amendment restricted the City's ability to prevent Scientology from
distributing literature in public fora, while Calderbank called for increased
police patrols *1534 to deal with this problem. [Id. Exh. FFF-3.] [FN19]
FN19. Other evidence of animus toward Scientology can be found in the
commission's derisive response to letters submitted by the group at the
hearings.
CALDERBANK: There's a typo on the second page of the one where it says it
should be. We really could return this.
(giggling from a woman).
GARVEY: I think you should get a paper shredder (to Flynn)[.]
FLYNN: Among other things....
[R1-18-Exh. N1-20; see also, e.g., R5-108-Exh. 1-Vol. I-249-50.]
The City also considered but rejected proposals to employ its power of eminent
domain to condemn Scientology property "even though the condemnation might put
the organization out of business." [Id. Exh. O-16.] In response to
concerns over the cost of acquiring and renovating the former hotel which
Scientology had purchased in downtown Clearwater, Commissioner Calderbank
observed: "There are other locations that they own that might be more
practical." [Id. Exh. P-18 (emphasis added).] A newspaper article reported
that Mayor LeCher had expressed reservations that "even if the move were
successful, it would not guarantee Scientology will leave the city." [Id.
Exh. P-30.] As late as December 1983, City Manager Shoemaker stated in an
official memorandum that "I think total condemnation of all the
Scientologist's [sic] property in the city might be a workable solution to this
problem facing the City. This might even give them the needed boost to decide
to relocate." [Id. Exh. QQQ-1.] In considering Flynn's proposal to create
a special taxing zone in the downtown area and prohibit real estate conveyances
to tax exempt owners, commissioners expressed concern that the impact of the
action be limited to Scientology. [See id. Exh. P-25; id. Exh. KK-35-
37.]
The City may have tried to conduct a second round of hearings to
sanitize the legislative record and suggest a neutral motivation. [E.g.,
id. Exhs. ZZ, III, JJJ.] Whatever weight may be accorded this fact, the new
legislative record is insufficient to warrant summary judgment in the face of
all that had gone before. [See also id. Exh. LLL (commission delayed vote
on 1983 Ordinance pending receipt of "important" information from disenchanted
ex-Scientologists to "help bolster Clearwater's legal position").] Although it
may not prove directly probative, we also note a Clearwater newspaper's 1983
opinion that "[t]his charitable solicitation ordinance was conceived as a means
of attacking the Church of Scientology, and nothing the city does now can
remove that defect." [Id. Exh. UU; see generally id. Exh. DDD.] There
is sufficient evidence supporting that conclusion to shift to the City the
ultimate burden of showing, under all the circumstances, that it would have
enacted the ordinance even without impermissible motive. [FN20] The same
evidence precludes judgment as a matter of law for the City. We therefore
reverse the district court's order of summary judgment in the City's favor.
The district court's order denying summary judgment for Scientology is vacated,
and the case is remanded for further proceedings concerning the Lemon
purpose criterion. If the district court concludes that the City was
improperly motivated then the entire ordinance will be invalid. No further
proceedings are necessary concerning Lemon's excessive entanglement
analysis, however, in view of our discussion that follows.
FN20. These references to the record do not reflect the only evidence
tending to support Scientology's position. [See generally, e.g., R5-108-
Exh. 1 (transcript of hearings).] We express no opinion about the
magistrate judge's discovery orders denying Scientology's motion to compel
deposition testimony concerning the legislators' subjective thought
processes. [R6-132; R5-115.] But see Jaffree, 472 U.S. at 56-57, 105
S.Ct. at 2490 (sponsor of legislation "confirmed this purpose before the
District Court"); cf., e.g., Branch v. Tunnell, 937 F.2d 1382, 1385-88
(9th Cir.1991) (discussing prerequisites for discovery concerning
subjective intent or motive in a suit against officials who may also be
entitled to qualified immunity based on objective considerations, and
citing cases).
VIII. EXCESSIVE ENTANGLEMENT
The three-prong Lemon inquiry also asks whether the challenged conduct
"foster[s] 'an excessive government entanglement with religion.' " Lemon,
403 U.S. at 613, 91 S.Ct. at 2111 (quoting Walz v. Tax Comm'n, 397 U.S. 664,
674, 90 S.Ct. 1409, 1414, 25 L.Ed.2d 697 *1535 (1970)). Later decisions
have clarified this aspect of the Establishment Clause in part. In Jimmy
Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 110 S.Ct. 688, 107
L.Ed.2d 796 (1990), the Court held that the required recordkeeping and
disclosure associated with administering neutral collection of sales taxes on
transfers of religious and other materials did not excessively entangle the
government in church affairs. "[G]enerally applicable administrative and
recordkeeping regulations may be imposed on religious organizations without
running afoul of the Establishment Clause." 493 U.S. at 395, 110 S.Ct. at
698. Such "routine regulatory interaction which involves no inquiries into
religious doctrine, no delegation of state power to a religious body, and no
'detailed monitoring and close administrative contact' between secular and
religious bodies, does not of itself violate the nonentanglement command."
Hernandez, 490 U.S. at 696-97, 109 S.Ct. at 2147 (citations omitted); see
also Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290, 305-06,
105 S.Ct. 1953, 1963-64, 85 L.Ed.2d 278 (1985) (holding that requirements of
Fair Labor Standards Act foster no impermissible entanglement).
A. Contentions of the Parties
Scientology argues that the effect of the 1984 Ordinance is to mandate
disclosure of its entire operation. By requiring disclosure of the purpose for
which funds are and have been solicited and the uses to which funds will be and
have been put, the ordinance in effect makes the entire functioning of the
church a matter of public record, either directly through reporting in the
registration form and retrospective filing or indirectly by means of the
"private" statement and disclosure of supporting records. This effect is
heightened by the further requirements of particular disclosures, such as the
amount of funds spent on salaries, overhead and the like, and the names and
addresses of every person in the organization with authority to spend its
money. And Scientology contends that, because funds solicited in Clearwater
may be spent anywhere in the world, the ordinance perforce requires disclosure
of its activities worldwide. See generally Code ss 100.03(1),
100.03(8). [FN21]
FN21. Scientology raises a large portion of its revenues through its
Clearwater activities.
Scientology further argues that the disclosure provisions "require disclosure
of the financial affairs of churches and other voluntary associations and
provide rights to members of a church (or other voluntary association[ ] ) that
they would not have absent the Ordinance. Thus, these requirements impose on a
church the form of organization Clearwater deems proper ... [and] removes from
churches the ability to decide how they will govern and organize themselves."
(Appellant's Br. at 18). Scientology contends, finally, that such an
entanglement is categorically prohibited by Supreme Court precedent and can
never be justified.
The City responds that these are merely "generally applicable administrative
and recordkeeping regulations" and therefore permissible. Even if otherwise
improper, it argues, the 1984 Ordinance is sufficiently closely tailored to
serve the City's legitimate interest in preventing fraud.
B. The Government Entanglement
None of the recent cases discussed above addressed facts similar to the ones
presented here. All of the challenged regulations imposed recordkeeping and
disclosure obligations that were narrowly drawn to specific regulatory
objectives. See Jimmy Swaggart, 493 U.S. at 394-97, 110 S.Ct. at 698-99
(sales tax on books and similar material); Hernandez, 490 U.S. at 696-98,
109 S.Ct. at 2147-48 (tax deductibility of contributions as quid pro quo);
Tony & Susan, 471 U.S. at 305-06, 105 S.Ct. at 1963-64 (wage and hour
regulation). None of the regulations required a church to divulge its entire
budget and all its operations on a continuing basis to a large group of
governmental and non-governmental persons. In contrast, the 1984 Ordinance
mandates a "detailed monitoring and close administrative interaction" by
empowering the city clerk to review in detail the disclosure of proposed
spending for the coming year and to assess disclosure of all such activities
over the preceding year, by mandating public access to a detailed accounting of
church expenditures, *1536 by opening the books and records to members of
organizations employing the private statement and by involving criminal courts
in enforcing these provisions. The disclosure and recordkeeping is
"significantly more intrusive into religious affairs," Tony & Susan, 471
U.S. at 306, 105 S.Ct. at 1964, than that imposed by any of the regimes
recently upheld by the Supreme Court.
[20] The monitoring imposed by the 1984 Ordinance is just as "close"
as the surveillance of parochial school expenditures condemned in Aguilar v.
Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985), and equally as
"detailed" as the program at issue in that case, if not more so, for the 1984
Ordinance in effect requires recordkeeping and disclosure concerning every
expenditure. As the Court noted in Jimmy Swaggart, even a generally
applicable recordkeeping regulation is permissible only if "the statutory
scheme requires neither the involvement of state employees in, nor on-site
continuing inspection of, [the church's] day-to-day operations." 493 U.S.
at 395, 110 S.Ct. at 699 (emphases added). The 1984 Ordinance offends this
principle because it involves executive and judicial authorities in every
aspect of the church's activities, not only making them the ultimate arbiters
of the appropriate level of disclosure to the church's members in all matters
of ecclesiastical fiscal administration, but also conferring responsibility for
apprising themselves and the public concerning such matters. The City's law
violates the command that "[n]either a state nor the Federal Government can,
openly or secretly, participate in the affairs of any religious organizations
or groups and vice versa." Everson v. Board of Educ., 330 U.S. 1, 16, 67
S.Ct. 504, 512, 91 L.Ed. 711 (1947).
Although it does not require continuous or on-site inspection by government
employees, the private statement option for member solicitations subjects
religious organizations to the continuous surveillance of their own members by
requiring disclosure of all records underlying the statements upon request.
The City's legislative officials may not delegate to an individual citizen a
power that they do not possess themselves, no matter how intimate the
individual's relationship with the subject of the regulation may be, when the
exercise of that power by the City would have infringed impermissibly a
fundamental liberty guaranteed under our Constitution. Planned Parenthood
v. Danforth, 428 U.S. 52, 69-72, 96 S.Ct. 2831, 2841-42, 49 L.Ed.2d 788 (1976).
[21] The potential for government invasion of church affairs is compounded
by the ordinance's direct effect upon church hierarchy. By requiring a church
to make detailed information about its activities available to members and the
public, the ordinance has the direct effect of subtly shifting the balance of
power between the laity and the central ecclesiastical authority. While
democratic participation by individual members in the affairs of society is a
cornerstone of our public life, government may not mandate such arrangements in
private organizations. March Fong Eu v. San Francisco County Democratic
Cent. Comm., 489 U.S. 214, 232-33, 109 S.Ct. 1013, 1025, 103 L.Ed.2d 271
(1989). In addition to this legislatively sanctioned reordering of church
hierarchy, of course, the ordinance requires prosecutorial and judicial
authorities to assure compliance with its provisions by investigation and
criminal enforcement. In accomplishing these results the legislative arm of
the City's government has impermissibly imposed its own preferences concerning
the degree of disclosure to members concerning daily operations.
By fiat it displaces one church administrator with another. It passes
control of matters strictly ecclesiastical from one church authority to
another. It thus intrudes for the benefit of one segment of a church the power
of the state into the forbidden area of religious freedom contrary to the
principles of the First Amendment.
Presbyterian Church v. Hull Mem. Presbyterian Church, 393 U.S. 440, 448, 89
S.Ct. 601, 606, 21 L.Ed.2d 658 (1969) (quoting Kedroff v. St. Nicholas
Cathedral, 344 U.S. 94, 119, 73 S.Ct. 143, 156, 97 L.Ed. 120 (1952)). The
interposition of official authority on behalf of a church's laity is equally as
offensive to the Establishment Clause as the delegation of such authority to
church leaders that was condemned in Larkin v. Grendel's Den, Inc., 459 U.S.
116, 123, 103 S.Ct. 505, 510, 74 *1537 L.Ed.2d 297 (1982). For these
reasons the recordkeeping and disclosure requirements of the 1984 Ordinance
cannot be characterized as "routine."
This type of surveillance is not rendered permissible by virtue of the fact
that it does not expressly require the clerk or the court to make an assessment
of the religious content of Scientology's activities. Cf. Jimmy Swaggart,
493 U.S. at 396-97, 110 S.Ct. at 699. For the imposition of civil authority in
matters of "church policy and administration" by itself may pose a "substantial
danger that the State will become entangled in essentially religious
controversies or intervene on behalf of groups espousing particular doctrinal
beliefs." Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696,
710, 709, 96 S.Ct. 2372, 2381, 2380, 49 L.Ed.2d 151 (1976); cf. Jones v.
Wolf, 443 U.S. 595, 603-04, 99 S.Ct. 3020, 3025-26, 61 L.Ed.2d 775
(1979) (holding that civil courts may apply only neutral principles of law to
resolve disputes over church property).
The Fifth Circuit applied a settled principle when it declared that "the law
is clear: civil courts are barred by the First Amendment from determining
ecclesiastical questions." Simpson v. Wells Lamont Corp., 494 F.2d 490,
493 (5th Cir.1974); accord, e.g., Natal v. Christian & Missionary Alliance,
878 F.2d 1575 (1st Cir.1989). In applying this principle we must not "narrowly
limit" its scope to actual
differences in church doctrine. The cases negative such a strict view. A
"spirit of freedom for religious organizations, an independence from secular
control or m[a]nipulation[,] in short, power to decide for themselves, free
from state interference, matters of church government as well as those of faith
and doctrine" is reflected in the Supreme Court's decisions.
Simpson, 494 F.2d at 493 (quoting Kedroff, 344 U.S. at 116, 73 S.Ct. at
154). The district court erred when it concluded that "[t]he present situation
does not involve an ecclesiastical dispute," 756 F.Supp. at 1521. To the
contrary, the principle that civil authorities must abstain from interposing
themselves in matters of church organization and governance is directly
violated by the public financial, operational and organizational disclosures
required of churches that solicit from members and the public and the
alternative private statement procedures applicable to member solicitations.
[22] The same excessive entanglement in church affairs that is
triggered by member solicitation under the 1984 Ordinance occurs when churches
solicit the public. The Court has never suggested that an excessive government
entanglement that happens to involve church solicitation is mitigated by the
fact that the public rather than the church's membership is the object of a
request for funds. See Valente, 456 U.S. at 252-55, 102 S.Ct. at 1687-89
(noting that facial denominational preferences in law regulating public
solicitation implicates excessive entanglement concerns). The ordinance
provides for exactly the same public disclosure and exactly the same mechanisms
for official monitoring and enforcement with respect to both member and non-
member solicitations. [FN22] The tendency toward establishing religion that
inheres in laws requiring public disclosure and official surveillance of church
finances and activities is the same whether the regulation is occasioned by
solicitations of co-religionists or church outsiders. See, e.g., Larkin,
459 U.S. at 126-27, 103 S.Ct. at 511-12 (condemning entanglement of official
and ecclesiastical authority in matters entirely external to church affairs).
The effect of such disclosure upon the associational interests of members in
maintaining the privacy of their activities is the same whether the church
engages in public solicitation or not. Moreover, the state may never require
churches to forego protected religious and speech activity like public
solicitation, see, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303-05, 60
S.Ct. 900, 903-04, 84 L.Ed. 1213 (1940), in order to avoid becoming entangled
with civil authorities. We need not determine in the present case whether
prohibiting such speech in the absence of entangling regulation would be
*1538 adequately tailored to some substantial interest, although we doubt
that such a blanket prohibition could be sustained. An unconstitutional
entanglement may not be excused on the ground that it is imposed only as a
condition of avoiding otherwise permissible regulation or as a prerequisite to
receiving a valuable privilege. See generally, e.g., Rutan v. Republican
Party, 497 U.S. 62, 72, 110 S.Ct. 2729, 2736, 111 L.Ed.2d 52 (1990). [FN23]
FN22. As already noted, the optional private statement for member
solicitations is equally as offensive as the alternative public disclosure.
FN23. For example, the Court in Felton condemned government
entanglement in the administration of benefits to religious schools even
though the schools could have escaped the entanglement by foregoing the
benefits and despite the fact that the government was under no obligation
to provide such benefits in the first instance.
It is clear from the many entanglement cases that have involved direct
regulation by executive rather than judicial institutions, beginning with
Walz and continuing through Jimmy Swaggart, as well as those addressed to
intervention by legislatures, see Kreshik v. St. Nicholas Cathedral, 363
U.S. 190, 80 S.Ct. 1037, 4 L.Ed.2d 1140 (1960) (per curiam), that the same
prophylactic rule must also apply to intervention in church affairs by non-
judicial branches of civil government. In general "[i]t is of no moment that
the State" has selected a particular branch of its government to carry out the
challenged conduct, "for whether legislative or judicial, it is still the
application of state power which we are asked to scrutinize." NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d
1488 (1958). The principle of abstention is equally applicable to the
decisions of church authorities that are not constituted as canonical courts or
judicatories but merely as administrators. See, e.g., Gonzalez v. Roman
Catholic Archbishop, 280 U.S. 1, 15-16, 50 S.Ct. 5, 7-8, 74 L.Ed. 131 (1929).
Thus, the potential for entanglement by executive officials like the city
clerk, judicial officials involved in applying the ordinance's criminal
provisions and legislative authorities like the commission, whether
intentionally undertaken or not, is sufficiently "substantial" to invoke the
abstention principles first articulated in Watson v. Jones, 80 U.S. (13
Wall.) 679, 728-29, 20 L.Ed. 666, 676-77 (1872), reiterated in Gonzalez, and
incorporated into First Amendment jurisprudence by Kedroff. [FN24]
FN24. Both Watson and Gonzalez were decided before the religion
clauses had been deemed applicable to the states by virtue of their
incorporation into the Fourteenth Amendment. As a case arising under the
diversity jurisdiction of the federal courts prior to the ruling in Erie
R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the
decision in Watson was reached by reference to general principles of
common law. Gonzalez was decided under the Court's appellate
jurisdiction over the inferior courts of the Philippines and applied the
same principles. In Kedroff the Court adopted Watson, as elaborated
in Gonzalez, as federal constitutional law.
[23] When combined with the imposition of criminal enforcement
mechanisms, the regime may become doubly offensive. We need not reiterate the
many important concerns that underlie the principle of separation between the
functions of government and those of churches under the First Amendment. See,
e.g., Kedroff, 344 U.S. at 116, 73 S.Ct. at 154; Illinois ex rel.
McCollum v. Board of Educ., 333 U.S. 203, 212, 68 S.Ct. 461, 465, 92 L.Ed. 649
(1948); Watson, 80 U.S. (13 Wall.) at 728-29, 20 L.Ed. at 676-77. We
simply note that the procedures for citizen complaint to the city attorney and
investigation by subpoena enacted in the 1984 Ordinance underscore the already
substantial risk of government participation in intramural church conflict and
decisionmaking. The provisions of the 1984 Ordinance requiring prospective and
retrospective disclosure of church finances, activities and organization as a
condition of soliciting funds foster an excessive government entanglement.
[FN25]
FN25. We have no need to consider the validity of other governmental
regimes for disclosure of financial information by churches, such as that
imposed by the Internal Revenue Service in administering 26 U.S.C. s
501(c)(3), which was evaluated against a claim of excessive entanglement by
neither the Ninth Circuit in Church of Scientology v. Commissioner nor
the Supreme Court in Bob Jones University v. United States, 461 U.S.
574, 604 n. 30, 103 S.Ct. 2017, 2035 n. 30, 76 L.Ed.2d 157 (1983). See
generally, e.g., Rev.Rul. 89-74, 1989-1 C.B. 311 (explaining I.R.S.
treatment of exemptions or deductions claimed in relation to "churches"
that actually constitute tax shelters). Such regimes may or may not be
distinguishable from the City's in a number of respects, such as the scope
or detail of required disclosure, the mechanisms for monitoring and
enforcement and the confidentiality which routine filings are accorded.
See, e.g., 26 U.S.C. ss 508(c)(1)(A), 6033(a)(2)(A)(i), 6042,
6049(b)(2)(C)(i), (b)(4)(B), 6050N(c), 6104, 7611; Rev.Proc.
86-23, 1986-1 C.B. 564; cf. Hernandez, 490 U.S. at 696-98 & n. 12,
109 S.Ct. at 2147-48 & n. 12 (holding that determination of quid pro quo
nature of religious contributions in administering 26 U.S.C. s 170
threatened no excessive entanglement).
*1539 [24] The ordinance requires organizations to make limited public
disclosure even when other information is omitted from the registration form in
reliance upon the private statement option. This mandatory public disclosure
includes the nature and identity of the organization, its tax-exempt status,
other Florida cities in which it is registered and the criminal histories of
its officers and solicitors. Code s 100.03(1)(a), (b), (c), (j). This
limited disclosure requires no continuing monitoring by private or public
entities, imposes only a minimal burden on the organization and does not
significantly interfere in the ordering of church affairs voluntarily accepted
by members. This requirement standing alone does not foster an excessive
entanglement. "The internal operations of the organization ... remain under
the veil of privacy." ISKCON-Houston, 689 F.2d at 556. The Supreme Court
has said that "a 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." Cantwell, 310 U.S. at
306, 60 S.Ct. at 904; see also Riley v. National Fed'n of the Blind, 487
U.S. 781, 799 n. 11, 108 S.Ct. 2667, 2679 n. 11, 101 L.Ed.2d 669 (1988). Upon
remand, if the district court finds that the ordinance as a whole was not
enacted with impermissible motive, it should proceed to determine whether the
severability provision may appropriately be applied to preserve such limited
disclosure.
C. Asserted City Justification
[25] The protections of the First Amendment are not absolute. The City
argues that the excessive entanglement analysis also requires an evaluation of
the objectives of the government's regulation and an assessment of whether it
is adequately tailored to serve them. Scientology argues to the contrary that
such an approach is inconsistent with the Supreme Court's precedents, which it
contends have followed a categorical rather a comparative balancing approach in
applying the Lemon Establishment Clause criteria and have reserved the
familiar "compelling interest" test of Sherbert v. Verner, 374 U.S. 398, 83
S.Ct. 1790, 10 L.Ed.2d 965 (1963), and its progeny [FN26] for application under
the Free Exercise Clause. We note that the continuing vitality of the
Sherbert test has been limited by the Court's decision in Employment
Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which
held that generally applicable criminal laws need not be justified by a
compelling interest to withstand attack under the Free Exercise Clause. See
also Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, ----,
113 S.Ct. 2217, 2226, 124 L.Ed.2d 472 (1993).
FN26. See Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 141-42,
107 S.Ct. 1046, 1049, 94 L.Ed.2d 190 (1987); United States v. Lee, 455
U.S. 252, 257-58, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982); Thomas
v. Review Bd., 450 U.S. 707, 717-19, 101 S.Ct. 1425, 1431-33, 67 L.Ed.2d
624 (1981); Wisconsin v. Yoder, 406 U.S. 205, 220-21, 92 S.Ct. 1526,
1535-36, 32 L.Ed.2d 15 (1972); Gillette v. United States, 401 U.S. 437,
462, 91 S.Ct. 828, 842, 28 L.Ed.2d 168 (1971); see also West Va. State
Bd. of Educ. v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed.
1628 (1943).
The criteria adopted in Lemon and elaborated in its progeny are
absolute in themselves, and a law that fails to meet any of them is per se
invalid. Unlike the limitations placed upon government power to protect the
individual's freedoms of expression and conscience under other clauses of the
First Amendment, limitations which are themselves circumscribed by the flexible
analysis of compelling interests, those imposed by Lemon provide a
prophylactic wall of separation between church and state. See Everson, 330
U.S. at 15-16, 67 S.Ct. at 511-12; Larkin, 459 U.S. at 122-23, 103 S.Ct. at
510. The Supreme Court has often invalidated statutes without asking how the
challenged *1540 legislation was related to a government objective. See,
e.g., Aguillard, 482 U.S. at 585-94, 107 S.Ct. at 2578-83 (impermissible
purpose); Felton, 473 U.S. at 408-15, 105 S.Ct. at 3236-39 (excessive
entanglement); Meek v. Pittenger, 421 U.S. 349, 367-70, 95 S.Ct. 1753,
1764-66, 44 L.Ed.2d 217 (1975) (same); Lemon, 403 U.S. at 618-19, 91 S.Ct.
at 2114 (same). In Larkin the Court noted that the state's asserted
interests in providing for the regulation of liquor distribution and
controlling the use of property in the vicinity of schools, churches, hospitals
and similar institutions readily could have been furthered by other
regulation, 459 U.S. at 124-25, 103 S.Ct. at 510-11, but it did not rely
upon this observation to invalidate a statute that conferred government liquor
licensing powers upon churches and thereby enmeshed secular and ecclesiastical
authority, 459 U.S. at 126-27, 103 S.Ct. at 511-12. Nor has the Court ever
implied that it favored such an approach to the Lemon standards, even in
decisions that simultaneously applied a compelling interest analysis under the
Free Exercise Clause. See, e.g., Hernandez, 490 U.S. at 699-700, 109 S.Ct.
at 2149; Gillette, 401 U.S. at 461, 91 S.Ct. at 842; cf. Corporation of
the Presiding Bishop v. Amos, 483 U.S. 327, 339, 107 S.Ct. 2862, 2870, 97
L.Ed.2d 273 (1987) (stating that judicial review of statute that "passes the
Lemon test" requires inquiry "whether Congress has chosen a rational
classification to further a legitimate end"). The statement in Allegheny
that "strict scrutiny" should be applied to the Lemon "effects" prong,
492 U.S. at 608-09, 109 S.Ct. at 3109, appears to have been a misleading
choice of words, for no compelling interest analysis was undertaken. The
Establishment Clause prevents seemingly important justifications from becoming
a shield to defend the subtle and incremental advance of government
administration into the field of church activities. It is this function of the
excessive entanglement analysis which helps to give meaning to the textual
distinction in the First Amendment between "law[s] respecting an establishment
of religion" on the one hand and "[laws] prohibiting the free exercise
thereof."
Moreover, nothing in Smith has thrown doubt upon the categorical
analytical approach embodied in Lemon and its progeny. The City's reliance
upon Smith, together with Nineteenth Century decisions upholding laws that
forbade polygamy, [FN27] decisions applying labor and tax laws in the face of
religious objections, [FN28] and those sustaining zoning regulations, [FN29] is
clearly misplaced, for those decisions involved Free Exercise rather than
Establishment Clause challenges. The City's invocation of Bob Jones
University v. United States, 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157
(1983), is unavailing for the same reason. [FN30]
FN27. Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637
(1890); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879).
To the extent that Davis may have interpreted the Establishment Clause
(as distinct from the Free Exercise Clause) as subordinate to state
regulation of "acts recognized by the general consent of the Christian
world in modern times as proper matters for prohibitory legislation,"
133 U.S. at 343, 10 S.Ct. at 301, 33 L.Ed. at 640, we regard it as no
longer controlling. Neither Davis nor Reynolds presented issues of
Establishment Clause concern, as those concerns are understood in
contemporary decisions like Lemon.
FN28. Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed.
645 (1944); United States v. Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051,
1055, 71 L.Ed.2d 127 (1982); United States v. Sun Myung Moon, 718 F.2d
1210, 1227 (2d Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80
L.Ed.2d 818 (1984).
FN29. Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir.1983), cert.
denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984); Lakewood
Congregation of Jehovah's Witnesses v. City of Lakewood, 699 F.2d 303,
303 & n. 1 (6th Cir.), cert. denied, 464 U.S. 815, 104 S.Ct. 72, 78
L.Ed.2d 85 (1983).
FN30. The bulk of the constitutional analysis in Bob Jones addressed
the government's compelling interest in preventing racial discrimination,
which the Court held was served by a narrowly tailored regulation denying
religious and charitable tax exemptions to discriminatory schools and
colleges. This discussion applied the Free Exercise Clause. The Court
also found the regulation permissible under Lemon 's effects criterion
of Establishment Clause analysis because it was "founded on a neutral,
secular basis." 461 U.S. at 604 n. 30, 103 S.Ct. at 2035 n. 30
(quoting Gillette, 401 U.S. at 452, 91 S.Ct. at 837). Nothing in Bob
Jones suggests a holding that regulations which are otherwise impermissible
under Lemon may be justified by showing their close fit to a compelling
interest.
*1541 Similarly, Village of Schaumberg v. Citizens for a Better
Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), involved
asserted violations of the plaintiffs' freedom of speech by government conduct
directly addressed to such protected activity. Regulations having such an
effect upon speech are also subject to strict scrutiny under the compelling
interest standard. See, e.g., Sable Communications v. FCC, 492 U.S. 115,
126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989); Citizens for a Better
Environment, 444 U.S. at 637, 100 S.Ct. at 836; First Nat'l Bank v.
Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978).
Regulations fostering an excessive entanglement between government and church
are not.
In Gonzalez the Court suggested by negative implication that civil courts
may supplant a decision of church authorities "[i]n the [presence] of fraud,
collusion, or arbitrariness." 280 U.S. at 16-17, 50 S.Ct. at 7-8; cf.
Presbyterian Church, 393 U.S. at 452 n. 7, 89 S.Ct. at 607 n. 7. In
Serbian Diocese, however, the Court cast doubt upon the continuing vitality
of the Gonzalez dictum by holding that "whether or not there is room for
'marginal civil court review' under the narrow rubrics of 'fraud' or
'collusion' when church tribunals act in bad faith and for secular purposes,
no 'arbitrariness' exception" to the rule of abstention in "matters of
discipline, faith, internal organization, or ecclesiastical rule, custom or
law" is permissible under the First Amendment. Serbian Diocese, 426 U.S. at
713, 96 S.Ct. at 2382. [FN31] Even if the common law reasoning of Gonzalez
also embodies the constitutional rule governing civil review of particular
church decisions, the Court has not imported a judicial inquiry concerning
fraud or collusion into the general Lemon analysis embracing the broad range
of potentially establishmentarianist laws. In Felton, Meek and Lemon,
for example, the Court did not pause to consider whether the state's interest
in preventing "fraudulent" misappropriation of government funds to sectarian
uses was "compelling" or otherwise substantial, or whether the means chosen
were well tailored to accomplish that end, before it condemned the state's
regulatory oversight of church expenditures. Cf. Felton, 473 U.S. at 409,
105 S.Ct. at 3236 ("At best, the supervision in this case would assist in
preventing the Title I program from being used, intentionally or unwittingly,
to inculcate the religious beliefs of the surrounding parochial school.").
Indeed, even in applying the Free Exercise Clause itself, we have held that no
flexible analysis of compelling interest justifications may be entertained when
the challenger shows either that the law was actually enacted for a sectarian
purpose or that "the 'essential effect' of the government action is to
influence negatively the pursuit of religious activity or the expression of
religious belief." Grosz v. City of Miami Beach, 721 F.2d 729, 733 (11th
Cir.1983), cert. denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984).
[FN32]
FN31. See also Brundage v. Deardorf, 92 F. 214, 228-30 (6th Cir.1899).
FN32. In addition, of course, "[t]he freedom to hold religious beliefs and
opinions is absolute." Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct.
1144, 1146, 6 L.Ed.2d 563 (1961).
[26] Lemon is not the only guiding light in the Establishment
Clause firmament. When the Court found explicitly preferential treatment for
one sect over another to be plain on the face of an ordinance, it allowed the
government to show that the preference was "closely fitted" to serve a
"compelling governmental interest," Valente, 456 U.S. at 246 & n. 23, 102
S.Ct. at 1684-85 & n. 23, and invalidated the statute only upon finding that
the government had failed to carry this burden. Nevertheless, the compelling
interest justification held out by Valente is unavailable to the City in the
present case because the 1984 Ordinance is facially neutral among religions and
indeed applies to wholly secular charities as well as churches. See
Hernandez, 490 U.S. at 695-96, 109 S.Ct. at 2146-47. [FN33] Therefore, we
need not decide how Valente's strict scrutiny complements Lemon. See
Amos, 483 U.S. at 339, 107 S.Ct. at *1542 2870; Donnelly, 465 U.S. at
696 n. 2, 104 S.Ct. at 1371 n. 2 (Brennan, J., dissenting). [FN34] Thus, we
need go no further to conclude that the law's recordkeeping and disclosure
requirements associated with the prospective and retrospective public
disclosure and alternative private statements are invalid as applied to church
solicitations of members and the public. The district court's orders denying
summary judgment to Scientology and granting summary judgment to the City must
be reversed in this respect.
FN33. The exemption provided by Code s 100.02(1) for volunteer and
small scale organizations is a denominational preference favoring such
groups at the expense of larger denominations. Scientology has not
challenged the exemption directly and the City has articulated no
justification, compelling or otherwise, in support of this classification.
FN34. Moreover, to the extent that the concerns presented in the instant
case are similar to the concerns implicated in Valente, we believe our
holding in this case--regarding which disclosures pass muster and which are
too intrusive--is consistent with Valente. See Valente, 456 U.S. at
253-54 & n. 29, 102 S.Ct. at 1688 & n. 29. We believe the same can be said
with respect to Village of Schaumburg, supra, and the other strict
scrutiny cases relied upon by the city.
D. Free Exercise Analysis
[27] Some early cases appeared to proscribe civil intervention in church
affairs by applying the Free Exercise Clause. See, e.g., Kedroff, 344 U.S.
at 114, 73 S.Ct. at 153-54. The Fifth Circuit's citation of free exercise
cases in Simpson, 494 F.2d at 493, shows that it viewed the principle as
flowing from that source. As such, the prohibition against civil intervention
arguably might be overcome by showing that it was necessary to serve a
compelling interest, although at the time Kedroff was decided in 1952 the
Court had not yet applied contemporary strict scrutiny standards to the Free
Exercise Clause. See Kedroff, 344 U.S. at 117-19, 73 S.Ct. at 155-56
(distinguishing American Communications Ass'n v. Douds, 339 U.S. 382, 399-
400, 70 S.Ct. 674, 684-85, 94 L.Ed. 925 (1950)). [FN35] Nevertheless, as our
discussion above shows, the Establishment Clause also is implicated when the
government entangles itself on a continuing basis in the non-doctrinal affairs
of church functioning.
FN35. See NAACP v. Alabama, 357 U.S. at 463, 78 S.Ct. at 1172;
Sweezy v. New Hampshire, 354 U.S. 234, 265, 77 S.Ct. 1203, 1219, 1
L.Ed.2d 1311 (1957) (Frankfurter, J., concurring) ("For a citizen to be
made to forego even a part of so basic a liberty as his political autonomy,
the subordinating interest of the State must be compelling."). That
expansion was not explicitly accomplished until Sherbert was decided in
1963. Cf. Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 323, 89
L.Ed. 430 (1945).
The two clauses are closely related in their purposes. For instance, the
Establishment Clause prohibition of denominational preferences "is inextricably
connected with the continuing vitality of the Free Exercise Clause."
Valente, 456 U.S. at 245, 102 S.Ct. at 1683. And the Court has observed,
[w]hen the state becomes enmeshed with a given denomination in matters
of religious significance, the freedom of religious belief of those who are not
adherents of that denomination suffers, even when the governmental purpose
underlying the involvement is largely secular. In addition, the freedom of
even the adherents of the denomination is limited by the governmental intrusion
into sacred matters.
Felton, 473 U.S. at 409-10, 105 S.Ct. at 3236 (condemning excessive
entanglement). In Serbian Diocese, for instance, the Court referred broadly
to "the First Amendment," without specifically citing either the Free Exercise
or the Establishment Clause, and employed language that plainly implicated
Establishment Clause concerns, 426 U.S. at 709, 710, 96 S.Ct. at 2380,
2381. In Presbyterian Church the Court adverted to both Free Exercise and
Establishment Clause concerns. 393 U.S. at 449, 89 S.Ct. at 606; see also
Kedroff, 344 U.S. at 121, 73 S.Ct. at 157 (Frankfurter, J., concurring)
("What is at stake here is the power to exercise religious authority."). In
the seminal case establishing the principles of civil abstention upon which our
opinion relies so heavily, the Court unmistakably identified Establishment
Clause values as contributing. "The law knows no heresy, and is committed to
the support of no dogma, the establishment of no sect." Watson, 80 U.S. (13
Wall.) at 728, 20 L.Ed. at 676 (distinguishing American legal principles from
the British jurisprudence respecting "the Established Church").
[28] Yet the two clauses are distinct. E.g., Gillette, 401 U.S. at 453,
91 S.Ct. at 838. Although government conduct may be impermissible under both
the Free Exercise and the Establishment Clauses, challenged conduct *1543
that satisfies the former may offend the latter. E.g., Engel, 370 U.S. at
430-31, 82 S.Ct. at 1266-67. Thus, we have concluded, the Establishment Clause
may condemn certain entanglements that take the form of civil intervention in
church political organization under Lemon even if they might otherwise have
been justifiable under the strict scrutiny of the Free Exercise Clause.
The "establishment of religion" clause of the First Amendment means at least
this: Neither a state nor the Federal Government can set up a church. Neither
can pass laws which aid one religion, aid all religions, or prefer one religion
over another.... Neither a state nor the Federal Government can, openly or
secretly, participate in the affairs of any religious organizations or groups
and vice versa.
Allegheny, 492 U.S. at 591, 109 S.Ct. at 3100 (quoting Everson, 330 U.S.
at 15-16, 67 S.Ct. at 511-12).
In support of the ordinance the City has pointed to its interests in
the prevention of fraud in charitable solicitations, together with concerns
that Scientology may continue to engage in alleged illicit surveillance,
intimidation and blackmail of political adversaries, dissident members and
apostates, as well as bizarre physically and psychologically coercive forms of
social control over members. The prevention of these ills is legitimate.
Nevertheless, even if the 1984 Ordinance's entangling provisions were capable
of justification as narrowly tailored to serve important or compelling
interests, the justifications offered by the City are lacking.
[29][30][31] Neutral and generally applicable criminal laws may be applied
to an individual without compelling justification even if they conflict with
his religious beliefs. See Smith, 494 U.S. at 882-90, 110 S.Ct. at 1602-
06. But cf. Wisconsin v. Yoder, 406 U.S. 205, 220-24, 92 S.Ct. 1526, 1535-
37, 32 L.Ed.2d 15 (1972) (holding that generally applicable regulatory law
requiring mandatory school attendance cannot be applied without exemption for
religious objectors unless denial of exemption is necessary to serve compelling
interest). But the 1984 Ordinance is not a "generally applicable" law
"unconcerned with regulating" protected activity, Smith, 494 U.S. at 886 n.
3, 110 S.Ct. at 1604 n. 3. Rather, the law applies only to the solicitation of
funds by religious and charitable organizations. As such, the statute is
directed solely to activity protected by the First Amendment. Solicitation by
secular charities, e.g., National Fed'n of the Blind, 487 U.S. at 789, 108
S.Ct. at 2673; Secretary of State v. Joseph H. Munson Co., 467 U.S. 947,
967 & n. 16, 104 S.Ct. 2839, 2852-53 & n. 16, 81 L.Ed.2d 786 (1984), as
well as fundraising by political advocacy groups, e.g., Citizens for a
Better Environment, 444 U.S. at 632, 100 S.Ct. at 834, no less than
solicitation by religious organizations, e.g., Murdock v. Pennsylvania, 319
U.S. 105, 108-12, 63 S.Ct. 870, 872-74, 87 L.Ed. 1292 (1943), are protected as
aspects of First Amendment speech and associational freedoms. The ordinance
thus has no application to conduct whose exercise is not regarded as a
fundamental constitutional liberty and the rule of Smith therefore does not
apply. [FN36] In lieu thereof, we employ "exacting First Amendment
scrutiny." National Fed'n of the Blind, 487 U.S. at 789, 108 S.Ct. at 2673.
FN36. We therefore need not consider whether the lenient review envisioned
by Smith embodies the appropriate standard for assessing criminal laws
that merely enforce malum prohibitum regulatory provisions like these, or
whether Smith is limited to malum in se offenses like the drug crimes
there at issue. In other words, we do not decide whether the government
may evade strict scrutiny of particular regulatory statutes merely by
employing more severe criminal sanctions. See Yoder, 406 U.S. at 220-
22, 92 S.Ct. at 1535-36 (applying strict scrutiny to mandatory schooling
law); cf. Smith, 494 U.S. at 884, 110 S.Ct. at 1603 ("Whether or not
the [Court's precedents requiring strict scrutiny] are ... limited [to
unemployment benefit decisions], they at least have nothing to do with an
across-the-board criminal prohibition on a particular form of
conduct."). But cf. Montgomery v. County of Clinton, 743 F.Supp. 1253,
1259 & n. 5 (W.D.Mich.1990) (applying Smith as if it had overruled
Yoder), aff'd without opinion, 940 F.2d 661 (6th Cir.1991).
The Supreme Court has never expressly decided whether the state's interest in
preventing church-sponsored fraud upon members or the public should be
considered "compelling," although in National Federation of the Blind the
Court concluded that the state's interest in protecting secular charities and
the public from fraudulently *1544 excessive fundraisers' fees was "a
sufficiently substantial interest to justify a narrowly tailored regulation."
487 U.S. at 792, 108 S.Ct. at 2675. Faced with the state's asserted
interest in "protecting its citizens from abusive practices in the solicitation
of funds for charity," including religious causes, the Court in Valente
"assume[d], arguendo, that the Act generally is addressed to a sufficiently
'compelling' governmental interest," 456 U.S. at 248, 102 S.Ct. at 1685, but
proceeded to hold that the regulation at issue was not "closely fitted" to
serve that interest. See also Citizens for a Better Environment, 444 U.S.
at 636, 100 S.Ct. at 836 (same).
[32] We conclude that the state does indeed have a compelling
interest in protecting church members from affirmative, material
misrepresentations designed to part them from their money. "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." Cantwell, 310 U.S. at 306, 60
S.Ct. at 904. The same interests are not diminished by the fact that victims
may be voluntary members of a religious association. See, e.g., Wright v.
Downs, 972 F.2d 350 (6th Cir.1992) (per curiam) (unpublished) (imposing
securities fraud liability upon pastor who touted fraudulent mortgage notes
from the pulpit), aff'g Guthrie v. Downs, [1992 Transfer Binder]
Fed.Sec.L.Rep. (CCH) P 96,896, 1991 WL 354939 (E.D.Mich. Aug. 7, 1991);
United States v. Rasheed, 663 F.2d 843, 847-48 (9th Cir.1981) (affirming
mail fraud convictions for church-sponsored Ponzi scheme), cert. denied, 454
U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982). This is so whether the ill-
gotten funds are used for a "legitimate" religious purpose (however that might
be defined by civil authorities), for the personal benefit of church leaders or
for some other ends.
[33][34] When no affirmative misrepresentations are made concerning the uses
for which funds will be employed, either explicitly or by clear implication,
the state has no compelling interest in requiring members or the public to be
made aware of such matters. If Scientologists are willing to contribute money
without being told how it will be used, then the City has no interest in
forcing the church to make such information available. "All who unite
themselves to such a body do so with an implied consent to this government, and
are bound to submit to it." Watson, 80 U.S. (13 Wall.) at 728, 20 L.Ed. at
676. The continuing vitality of this principle is demonstrated by the 1989
decision in March Fong Eu, in which the Court held that "a State cannot
substitute its judgment for that of [a political] party as to the desirability
of a particular internal party structure, any more than it can tell a party
that its proposed communication to party members is unwise." 489 U.S. at
233, 109 S.Ct. at 1025 (citation omitted). [FN37] Therefore, the City may not
substitute its own judgment as to the desirable level of disclosure to church
members.
FN37. Associational interests protected by the religion clauses stand on
equal footing with protected political rights. NAACP v. Alabama, 357
U.S. at 460-61, 78 S.Ct. at 1171.
The City's argument that devout church members may refrain from availing
themselves of information that the ordinance requires to be disclosed is
specious, for it fails to address the concerns of adherents whose interests in
maintaining the privacy of church finances are impaired by disclosure to the
public or to dissident members. The City may not intervene on behalf of such
dissidents. If they remain dissatisfied with the church's voluntarily assumed
disclosure policy then they may attempt to reform that policy from within, they
may acquiesce in the policy despite their objections or they may leave the
church. Civil authority "cannot penetrate the veil of the church for the
forbidden purpose of vindicating the alleged wrongs of ... members; when they
became members they did so upon the condition of continuing or not as they and
their churches might determine, and they thereby submit to the ecclesiastical
power and cannot now invoke the supervisory power of the civil tribunals."
Watson, 80 U.S. (13 Wall.) at 731, 20 L.Ed. at 677 (quotations omitted).
[35] Similarly, the Court has held that "the State's interest in
unilaterally imposing *1545 its notions of fairness in the [charitable]
fundraising contract is ... constitutionally invalid." National Fed'n of
the Blind, 487 U.S. at 792, 108 S.Ct. at 2675. For this reason, as the
district court recognized, the state may not compel specific disclosures merely
because, in its view, some potential contributors to some causes might tend to
think that those facts evidence unfairness or some other objectionable quality
in the use to which funds will be put. 756 F.Supp. at 1515-16 (citing
Indiana Voluntary Firemen's Ass'n v. Pearson, 700 F.Supp. 421, 442
(S.D.Ind.1988)). Just as a church-goer may refrain from tithing if he or she
is unsatisfied with the degree of disclosure, a non-member may also demand any
information desired, and "if the solicitor refuses to give the requested
information, the potential donor may (and probably would) refuse to donate."
National Fed'n of the Blind, 487 U.S. at 799, 108 S.Ct. at 2679. Although
substantial, the City's interest in preventing affirmative misrepresentations
is not precisely furthered by the broad disclosures compelled by the 1984
Ordinance.
[36][37] The City could not defend the ordinance by contending that the
tenets of Scientology are fantastic or false and by arguing as a consequence
that its collection of funds under the cloak of religion is therefore
fraudulent. The First Amendment precludes civil authorities from evaluating
the truth or falsity of religious beliefs. United States v. Ballard, 322
U.S. 78, 85-88, 64 S.Ct. 882, 886-87, 88 L.Ed. 1148 (1944). Thus, the fact
that Scientology's doctrine of "exchange" may appear to non-adherents as a
crass rationalization to justify the enrichment of a few select leaders at the
expense of neophytes provides no basis for imposing burdensome and entangling
regulations for the "benefit" of church members who voluntarily choose to
adhere to that doctrine. Nor, for that matter, could such an official
perception of theological unsoundness justify regulation respecting church
disclosure to non-members.
[38][39] The City's brief does refer to certain evidence in the legislative
record suggesting that Scientology's now-deceased founder L. Ron Hubbard and
others may have been insincere in professing church doctrines. (Appellees' Br.
at 5-12). Although the City does not rely upon the principle directly, the
Supreme Court has long held that civil tribunals may adjudicate the sincerity
with which a religious belief is held by an individual. See, e.g., United
States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1965).
We need not consider how a determination concerning the sincerity of an
organization's religious beliefs might appropriately be made in support of a
specific administrative adjudication consistent with the procedural
requirements of due process. To the extent that such a determination as to a
single church is the sole support for legislation having general applicability
and effect, however, the law must be fatally imprecise. Even assuming that the
commission properly relied upon a conclusion that Scientology's beliefs were
insincere, a contention only implicitly advanced by the City in this appeal,
[FN38] the imposition of recordkeeping and disclosure requirements upon all
churches and charities engaged in public and private solicitation would burden
a great deal of protected expression without serving any legitimate purpose.
The law would not be narrowly tailored, for a blanket application of regulation
cannot distinguish between "fraudulent" and sincere religions. Joseph H.
Munson Co., 467 U.S. at 964-68, 104 S.Ct. at 2851-53; City Council v.
Taxpayers for Vincent, 466 U.S. 789, 798 & n. 14, 104 S.Ct. 2118, 2125 & n. 14,
80 L.Ed.2d 772 (1984). Moreover, any City interest in the administrative
convenience of dispensing with an individualized determination concerning the
sincerity of particular religious beliefs is not compelling. Memorial Hosp.
v. Maricopa County, 415 U.S. 250, 267-69, 94 S.Ct. 1076, 1086-88, 39 L.Ed.2d
306 (1974) (concluding that interest in convenient prevention of fraud did not
justify denying health care benefits to all out-of-state immigrants in first
year of residency). [FN39] In addition, whatever evidence might
*1546 appropriately be considered at such a hearing, religious adherents
have never been required to show the sincerity with which their deceased
prophets espoused religious revelations per se; only the sincerity of
contemporary church leadership might properly be put in issue. [FN40]
FN38. The City has conceded "for purposes of the summary judgment motion"
that "Scientology's beliefs, as opposed to its actions, are religious in
character." (Appellees' Br. at 15).
FN39. See also Kraft Gen. Foods, Inc. v. Iowa Dep't of Revenue & Fin.,
--- U.S. ----, ----, 112 S.Ct. 2365, 2371-72, 120 L.Ed.2d 59
(1992) (holding that avoiding "marginal loss in convenience" does not
constitute a "compelling justification" for discrimination against foreign
commerce); Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 1693,
48 L.Ed.2d 126 (1976) (finding that convenience to jail administrators is
no "essential state policy" imposing a "substantial need" sufficient to
justify requiring the wearing of jail clothing at criminal trials);
Stanley v. Illinois, 405 U.S. 645, 653-58, 92 S.Ct. 1208, 1213-16, 31
L.Ed.2d 551 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29
L.Ed.2d 90 (1971); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13
L.Ed.2d 675 (1965).
FN40. We express no opinion concerning whether a finding of insincere
belief would validate the regulation imposed by this ordinance, nor do we
decide its validity as applied to non-religious voluntary associations
engaged in protected speech activities. The Supreme Court has noted that a
regulatory scheme requiring such inquiries into the beliefs of an entire
religion may itself pose a risk of excessive government entanglement.
E.g., Bob Jones, 461 U.S. at 604 n. 30, 103 S.Ct. at 2035 n. 30.
[40] Only a few provisions of the 1984 Ordinance appear narrowly
tailored to serve the City's compelling interest in preventing affirmative
fraud. For example, Code s 100.05(1)(c) prohibits the "use of any scheme or
artifice to defraud or obtain money or property by means of any false statement
or representation." [FN41] Consistent with the dicta of Cantwell, 310 U.S.
at 306, 60 S.Ct. at 904, and National Federation of the Blind, 487 U.S. at
799 n. 11, 108 S.Ct. at 2679 n. 11, we hold that the identifying disclosure
requirements of Code s 100.03(1)(a), (b), (c) and (j) are narrowly tailored
to prevent fraud by religious and charitable organizations. We therefore must
reject Scientology's claim that the ordinance, as we have circumscribed it,
impermissibly imposes discriminatory regulation of speech on the basis of the
speaker's identity as a religion or charity. See Cox v. New Hampshire, 312
U.S. 569, 576, 61 S.Ct. 762, 766, 85 L.Ed. 1049 (1941). [FN42]
FN41. The validity of this provision is not before us.
FN42. We recognize the tension between cases addressing regulation of
charitable and religious solicitation like Cantwell and National
Federation of the Blind, on the one hand, and cases addressing more broadly
applicable regulation of speech like Talley v. California, 362 U.S. 60,
63-64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559 (1960), in which the Court has held
that a speaker may not be forced to identify himself as a condition of
obtaining a license to sell or distribute books, handbills and the like
even for the purpose of preventing fraud. Cf. Thornburgh v. American
College of Obstetricians & Gynecologists, 476 U.S. 747, 767, 106 S.Ct.
2169, 2182, 90 L.Ed.2d 779 (1986) ("the Court consistently has refused to
allow government to chill the exercise of constitutional rights by
requiring disclosure of protected, but sometimes unpopular, activities");
Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 624-30 &
n. 2, 96 S.Ct. 1755, 1763-65 & n. 2, 48 L.Ed.2d 243 (1976) (Brennan, J.,
concurring) (finding "substantial questions whether identification
requirements" for charitable solicitation were "so adequately related to
their purpose as to withstand First Amendment challenge"). We do not
attempt to reconcile the two lines of cases.
[41] Despite many volumes of testimony and exhibits, however, there is
simply nothing in the record to suggest that any more extensive regulation is
necessary to control fraudulent conduct by charitable organizations than is
available to sanction similar activities by other entities. See, e.g.,
United States v. Rasheed, 663 F.2d at 847-48 (affirming fraud
convictions); Fla.Stat.Ann. ss 812.012-812.021 (larceny, including fraud
and false pretenses) (West 1993). One witness at the legislative hearings did
testify that she would have abstained from membership in Scientology if more
complete financial disclosure had been made available. [See R5-108-Exh. 1-Vol.
IV-71-73; see also id. at 345, 412-13.] To be sure, even when a speaker's
express statements are truthful in the literal sense, wilful omissions which
render those statements materially misleading half-truths may constitute fraud
just as surely as overt falsehoods. [FN43] Even if we construed *1547 this
and other testimony as evidence that Scientology's finances and operations were
implicitly or explicitly misrepresented to members and contributors, however,
we would not regard this conclusion as sufficient to justify the far-reaching
regulation advanced by the City. In light of the potent but significantly less
intrusive regulatory alternatives available to authorities for dealing with
such fraud, the ordinance cannot be characterized as narrowly tailored. Nor
has the City tried to explain why less restrictive alternatives like generally
applicable penal laws that proscribe extortion, burglary, kidnapping and the
like are inadequate to address its other asserted interests in controlling the
alleged illegal and coercive conduct of charitable and religious organizations
like Scientology. See, e.g., Sun Myung Moon, 718 F.2d at 1227 (affirming
religious leaders' convictions for filing false tax returns, obstructing
justice, perjury and making false statements and submitting false documents to
government agencies); [FN44] United States v. Heldt, 668 F.2d 1238, 1241 n.
2, 1242, 1244 (D.C.Cir.1981) (per curiam) (affirming Scientologists'
convictions for theft of government property and conspiracy to steal government
property, to intercept oral communications, to forge United States government
credentials, to burglarize offices of the Internal Revenue Service, the
Department of Justice and a United States Attorney, to obstruct justice, to
obstruct a criminal investigation, to harbor and conceal a fugitive and to make
false declarations to a federal grand jury), cert. denied, 456 U.S. 926, 102
S.Ct. 1971, 72 L.Ed.2d 440 (1982); Fla.Stat.Ann. ss 812.021(1)(e),
836.05 (extortion and obtaining property thereby), 810.011-810.115 (burglary
and trespass), 787.01-787.02 (kidnapping and false imprisonment) (West 1993).
[FN45] Thus, we conclude that the City has not carried its burden of showing
that the required financial, operational and organizational disclosures are
narrowly tailored to serve compelling interests. Those provisions are
therefore void even under the strict scrutiny of the Free Exercise Clause.
FN43. See, e.g., Virginia Bankshares, Inc. v. Sandberg, 501 U.S.
1083, ---- & n. 7, 111 S.Ct. 2749, 2761 & n. 7, 115 L.Ed.2d 929 (1991);
United States v. Sampson, 371 U.S. 75, 77 & n. 3, 83 S.Ct. 173, 174 & n.
3, 9 L.Ed.2d 136 (1962); United States v. Romano, 736 F.2d 1432, 1439
(11th Cir.1984), vacated in other respects as moot, 755 F.2d 1401
(11th Cir.1985) (per curiam); United States v. Martino, 648 F.2d 367,
393 (5th Cir. June 1981), vacated in other respects as moot sub nom.
United States v. Holt, 650 F.2d 651 (5th Cir. July 1981) (per curiam),
and aff'd on other grounds sub nom. Russello v. United States, 464 U.S.
16, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983); Adams v. G.D. Searle & Co.,
576 So.2d 728, 730 (Fla.Dist.Ct.App.), review denied, 589 So.2d 290
(Fla.1991); Whigham v. Muehl, 500 So.2d 1374, 1379-81
(Fla.Dist.Ct.App.1987).
FN44. We respectfully express no approval of Sun Myung Moon to the
extent that the Second Circuit's opinion could be read to authorize a jury
to displace a church's sincere determination of appropriate religious
purposes under the terms of a charitable trust, 718 F.2d at 1225-27.
See Serbian Diocese, 426 U.S. at 713, 96 S.Ct. at 2382.
FN45. Cf. Church of Scientology v. Armstrong, 232 Cal.App.3d 1060, 283
Cal.Rptr. 917, 925 (1991) (disaffiliated church worker's reasonable fear of
physical harm to himself and his family justified his taking of church
records and rebutted Scientology's tort claims of conversion and invasion
of privacy), review denied, (Cal. Oct. 17, 1991).
IX. PRIOR RESTRAINT
Scientology contends that the city clerk's discretion in administering
the prospective disclosure requirements for obtaining a registration
certificate is overly broad, and therefore constitutes an impermissible prior
restraint of religion. The City contends that the ordinance's provision
allowing continued solicitation pending judicial review through an action for
declaratory judgment, Code s 100.03(3), makes the clerk's denial of a
registration statement an insignificant act.
[42] A system of licensing speech or religious activity may be upheld
against First Amendment challenge only if the criteria for denying a license
are narrowly tailored to serve compelling governmental interests. See, e.g.,
Joseph H. Munson Co., 467 U.S. at 967-68 & n. 13, 104 S.Ct. at 2852-53 & n.
13; Fernandes v. Limmer, 663 F.2d at 628. Closely related to this
requirement, although distinct, is the rule that "[s]uch a scheme may not
delegate overly broad licensing discretion to a government official."
Forsyth County v. Nationalist Movement, 505 U.S. 123, ----, 112 S.Ct. 2395,
2401, 120 L.Ed.2d 101 (1992); see also, e.g., Saia v. New York, 334 U.S.
558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948).
[43][44][45] The requirement of definite and precise standards to guide
regulations of speech is distinct from the procedural requirements *1548
imposed by Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649
(1965), and its progeny. [FN46] See, e.g., City of Lakewood v. Plain Dealer
Publishing Co., 486 U.S. 750, 771, 108 S.Ct. 2138, 2151-52, 100 L.Ed.2d 771
(1988). For whether speech is prohibited before the exercise of judicial
review functions or after, the effect of such a ban is to impose a prior
restraint. Moreover, a vague law is not rendered more precise by virtue of a
court having passed upon its application to particular facts. Rather, such a
process merely shifts the exercise of impermissibly broad discretion from
executive officials to judges, a shift that has no significance in First
Amendment jurisprudence. Baggett v. Bullitt, 377 U.S. 360, 373, 84 S.Ct.
1316, 1323, 12 L.Ed.2d 377 (1964) ("judicial safeguards do not neutralize the
vice of a vague law" under the First Amendment); see also, e.g., Maynard v.
Cartwright, 486 U.S. 356, 364, 108 S.Ct. 1853, 1859, 100 L.Ed.2d 372
(1988) (holding that judicial finding of factual basis for death sentence did
not cure vagueness in criteria for penalty determination); cf. Vance v.
Universal Amusement Co., 445 U.S. 308, 317, 100 S.Ct. 1156, 1162, 63 L.Ed.2d
413 (1980) (per curiam) (requiring procedural safeguards for judicial
injunctions of speech). Indeed, we note that declaratory judgment under
Fla.Stat.Ann. s 86.011 (West 1993) is itself a discretionary remedy, and the
circuit court's decision to grant or deny review is accorded great deference.
E.g., Travelers Ins. Co. v. Emery, 579 So.2d 798, 800-01
(Fla.Dist.Ct.App.1991).
FN46. A system of prior restraint must guarantee prompt and final judicial
review of an executive determination to deny a license, so that an
erroneous abridgment of freedom of speech may be corrected as quickly as
reasonably possible in the adversarial setting of a courtroom. E.g.,
National Fed'n of the Blind, 487 U.S. at 802, 108 S.Ct. at 2680-81. In
most circumstances, the scheme must place upon the government the burden of
initiating such proceedings and demonstrating the propriety of the
restraint. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-27,
110 S.Ct. 596, 604-07, 107 L.Ed.2d 603 (1990) (three-Justice opinion of
O'Connor, J.); id., 493 U.S. at 238-42, 110 S.Ct. at 611-13 (three-
Justice opinion of Brennan, J.). Scientology has not challenged the
procedural safeguards adopted in the 1984 Ordinance, and we therefore
express no opinion concerning them.
[46] Nevertheless, the limited prospective disclosure requirements of
identifying information under Code s 100.03(1)(a), (b), (c) and (j), which
we have held to be otherwise permissible against the religion clause challenges
raised by Scientology, are not void for vagueness. It is a purely ministerial
function to determine whether a registration form provides a statement of the
nature and identity of the organization, its tax-exempt status, other Florida
cities in which it is registered, and the criminal histories of its officers
and solicitors. The ordinance on its face provides the clerk with no authority
to make an investigation of the truthfulness of these statements or an
evaluation of their completeness, and Scientology has not pointed to evidence
that responsible administrative officials have inferred such authority. Nor
may the clerk pass judgment upon the truthfulness or persuasiveness of any
proffered explanation under Code s 100.03(1)(n) why such information is not
available to be disclosed. Thus, the clerk has no latitude to engage in
invidious discrimination against disfavored speakers or religions. Cf., e.g.,
Cox v. Louisiana, 379 U.S. 536, 557-58, 85 S.Ct. 453, 466, 13 L.Ed.2d 471
(1965). In this respect the district court's order upholding the ordinance is
affirmed. [FN47]
FN47. We express no opinion concerning the degree of discretion afforded
the clerk to review disclosures that we have held cannot be required in any
event. To the extent that the district court's order addressed these
provisions it is vacated as moot. Scientology has not argued that the
circuit court's authority to excuse disclosure on grounds of "special or
unique hardship to the charitable organization," Code s 100.03(4),
embodies impermissible discretion and we therefore express no opinion as to
that provision.
X. REFUND POLICY REGULATIONS
As part of its doctrine of "exchange," Scientology collects payments from
adherents whenever they receive religious services or training. As a corollary
to that doctrine, the organization has a practice of offering to refund the
payments to anyone who is not satisfied with the spiritual benefits he or she
derives from such services. Scientology challenges the provision of the 1984
Ordinance requiring that it provide a written *1549 statement of any refund
policy "at the time such representation is made." Code s 100.05(1)(g). It
also objects to the provision mandating that money be returned within sixty
days of request. Code s 100.05(1)(f). Wilful violations of these
provisions are criminal offenses. Code s 100.05(2).
The district court recognized, and the parties agree, that the City may not
require an organization to adopt a refund policy in the first instance. 756
F.Supp. at 1523. Scientology contends that the ordinance "both mandates the
manner in which a church policy is communicated to a church member ..., and
engrafts an additional condition upon the church policy, i.e., a time limit in
which to make the refund." (Appellant's Br. at 24). The City contends that it
has a compelling interest in preventing fraudulent offers of refunds that
justifies the provisions.
A. Standard of Judicial Review
[47][48] Under the Free Exercise Clause we apply strict scrutiny to
legislation that imposes a substantial burden on the observation of a religious
belief or practice. Hernandez, 490 U.S. at 699, 109 S.Ct. at 2148. (As
already noted, the more lenient standard of Smith is inapplicable to the
1984 Ordinance). Solicitation of funds by religious organizations is protected
religious expressive activity under the First Amendment. See Murdock, 319
U.S. at 108-12, 63 S.Ct. at 872-74; Cantwell, 310 U.S. at 303-05, 60 S.Ct.
at 903-04. There can be no contention that the practice of "exchange" in the
solicitation of funds in connection with religious services and training is
anything other than central to Scientology's religious practice, because "[i]t
is not within the judicial ken to question the centrality of particular beliefs
or practices to a faith, or the validity of particular litigants'
interpretations of those creeds." Hernandez, 490 U.S. at 699, 109 S.Ct. at
2149. [FN48]
FN48. We therefore need not consider the Fifth Circuit's conclusion in
ISKCON-Houston that "conduct relating to the solicitation of funds from
the public [is] primarily a secular function." 689 F.2d at 556. Nor
must we address the significance of this conclusion in considering the
impact of solicitation regulation upon freedoms protected by other aspects
of the First Amendment. Cf. National Fed'n of the Blind, 487 U.S. at
789, 108 S.Ct. at 2673; Citizens for a Better Environment, 444 U.S. at
632, 100 S.Ct. at 834.
B. Discussion
[49] We have held above that the City has a compelling interest in
preventing affirmatively fraudulent conduct but no interest in regulating
religious conduct as such. The legislative history contains substantial
evidence that the refund policy had not been followed as promised, with the
consequence that many contributors were deprived of their money by their
reliance on statements appearing to be incomplete or only half-true. For
instance, it appears that most contributors were not informed of the
substantial procedural obstacles placed before applicants seeking refunds from
Scientology, [see R5-108-Exh. 1-Vol. II-205-06,] and some contributors who had
previously signed prospective waiver forms may have been led to the erroneous
belief that their refund rights would be unaffected, [see id. Vol. III-79-
81.] As we have already pointed out, wilful omission of such material facts
constitutes fraud. The clear scope of Code s 100.05(1)(g)'s requirement
that solicitors provide "a written statement of the terms and conditions upon
which refunds are made" at the time when a refund promise is given encompasses
the very sort of deception revealed at the hearings. We agree with the
commission's apparent conclusion that requiring a complete and contemporaneous
written statement will help substantially in preventing subtle and overt
misrepresentations about the substance of a refund policy.
To the extent that the ordinance requires the statement to be contemporaneous
with the offer of a refund, it merely duplicates the generally applicable
principle that one may not wilfully and fraudulently omit material facts in the
course of attempting to secure money from others. The requirement that the
statement be given in writing goes beyond otherwise applicable law, but is
narrowly tailored to meet the specific problems presented by the sophisticated
practices of coercion, deception and psychological manipulation of groups like
Scientology. This particular *1550 provision does not, by itself, require
civil authorities to attempt to interpret or apply a church policy, an
undertaking that is forbidden under both religion clauses by Serbian
Diocese, 426 U.S. at 713, 96 S.Ct. at 2382. [FN49] Moreover, we can think of
no significantly less restrictive alternative proposal for combatting this
established evil, particularly in view of the fact that the restriction on
religious practice is sharply reduced by the limited role that civil
authorities may play in enforcing such a policy. [FN50] The provision is
closely fitted to serve its evident purposes, and the need for regulation is
supported by actual evidence. This limited and precise disclosure provision,
based on empirical evidence of actual abuses, is valid under the First
Amendment. Cf. Peel v. Attorney Registration & Disciplinary Comm'n, 496
U.S. 91, 106-11, 110 S.Ct. 2281, 2290-93, 110 L.Ed.2d 83 (1990) (plurality
opinion); id., 496 U.S. at 112-1, 110 S.Ct. at 2294-95 (Marshall, J.,
concurring) (analyzing reasonable regulation of commercial speech). The
district court's order granting summary judgment to the City and denying
summary judgment to Scientology is affirmed in this respect.
FN49. The requirement of a written statement thus fosters no excessive
entanglement under the Establishment Clause.
FN50. We have no occasion in this appeal to consider the circumstances in
which the terms of such a policy might appropriately be construed or
applied by a civil court.
[50] The City concedes that it may not require a church to adopt a
refund policy or dictate the terms of a policy voluntarily adopted. Yet Code
s 100.01(5)(g) would require a policy of refunding money within sixty days
of request whenever a refund policy is adopted, a course of conduct at odds
with Scientology's current policy of submitting refund requests to a church
authority that determines the bona fides of the request and counsels the member
who is dissatisfied with the spiritual benefits he has received. [R5-110-Tab
1-2-3.] The statute has the principal effect of mandating a church policy, an
effect on the free exercise of religion which is sufficiently direct to
implicate our strict scrutiny. In this respect it differs from the incidental
financial burden upon free exercise imposed by generally applicable, neutrally
applied taxation laws like the sales tax upheld in Jimmy Swaggart, and the
non-deductibility and exemption provisions construed in Hernandez and Bob
Jones. In addition, we also note that the mandated policy would be especially
burdensome in cases where a refund is requested many years after the
contribution is given, [FN51] for by imposing potentially limitless contingent
liabilities the provision would significantly undermine the security of a
church's finances. [FN52]
FN51. The 1984 amendment eliminated a clause restricting the mandatory
sixty day refund to cases in which the request is made within a
"reasonable" time.
FN52. Unlike the district court, 756 F.Supp. at 1522-23, we do not
believe that the non-deductibility of such contributions under the Internal
Revenue Code following Hernandez is at all material.
The sixty-day refund is not narrowly tailored to serve the City's compelling
interests. Although we agree that the provision conceivably might help to
deter or remedy fraud, those interests are far better served by the less
restrictive alternatives of requiring written disclosure of whatever policy the
church adopts and enforcing generally applicable anti-fraud laws to the extent
permitted by the First Amendment. Cf., e.g., Ballard, 322 U.S. at 85-88, 64
S.Ct. at 886-87; Dovydenas v. The Bible Speaks (In re The Bible Speaks),
869 F.2d 628, 643-44, 645-46 (1st Cir.), cert. denied, 493 U.S. 816, 110
S.Ct. 67, 107 L.Ed.2d 34 (1989); Founding Church of Scientology, 409 F.2d
at 1161, 1163-64; Van Schaick v. Church of Scientology, 535 F.Supp. 1125,
1140, 1141 (D.Mass.1982). [FN53] At best the provision affords only marginal
additional benefits beyond those already conferred by other regulation. See
City of Cincinnati v. Discovery Network, 507 U.S. 410, ----, 113 S.Ct. 1505,
1515, 123 L.Ed.2d 99 (1993) (commercial speech case). Instead, the provision
advances the City's illegitimate goal of dictating to churches what the policy
*1551 shall be, simultaneously imposing its own enforcement mechanisms in
support of the mandated policy. The provision is void under the Free Exercise
Clause, [FN54] and the district court's order granting the City's motion for
summary judgment and denying Scientology's motion for summary judgment is
reversed in this respect.
FN53. Not coincidentally, the plaintiff in Van Schaick was also a
client of Flynn's and a witness at the televised hearings.
FN54. We therefore need not consider the Establishment Clause implications
of the provision.
XI. CONCLUSION
With the exception of the limited prospective disclosure of identifying
information, the provisions of the 1984 Ordinance requiring prospective and
retrospective disclosure and recordkeeping concerning solicitations directed
toward members and the public foster an excessive entanglement between
government and religion in violation of the Establishment Clause, substantially
interfere in church organization without compelling justification in violation
of the Free Exercise Clause, and are therefore void as applied to churches.
The requirement of the otherwise valid disclosure in the registration form,
however, does not impermissibly restrain free speech and religion by conferring
undue discretionary power to deny a certificate. The district court's order
upholding these provisions against the claim of vagueness is affirmed, although
its order is vacated with respect to the invalid disclosure requirements.
The mandatory sixty-day refund provision is an impermissible intrusion on
Scientology's free exercise of religion and is void as applied to churches.
The requirement of providing a written statement of a refund policy, however,
is otherwise valid. Upon remand, the district court should determine,
consistent with this opinion, whether the 1984 Ordinance was enacted with
impermissible sectarian motives. If the district court finds a predominantly
or pre-eminently sectarian motive then it should permanently enjoin the City
from enforcing the ordinance. If the district court finds no such motive then
it should consider which of the otherwise valid provisions, if any, may
appropriately be preserved by the ordinance's severability clause.
AFFIRMED in part, VACATED in part, REVERSED in part, and REMANDED.