dissenting:
I respectfully dissent.
The conscientious District Court grappled with the difficult factual problem presented in this case in reaching the legal conclusion, affirmed by the majority opinion, which has firm rooting in' constitutional law. The particular problem relates to the definition of “religious” and “secular” activities and the interrelationship one to another. This, in turn, is bound up in one of the most trying and vexing tasks found in constitutional law-that of defining “religion” for purposes of First Amendment rights.
In the consideration of whether the “secular” law constitutes an impermissible burden on the free exercise of “religion” the State must show a compelling reason to enforce its law. This is difficult because the crux of many decisions seems to not only recognize the right of the individual to define his own religion and to exercise his individual beliefs therein free of government restraint or compulsion, but he is further protected in acting upon those beliefs even in the face of non-discriminatory secular enactments. The burden was traditionally on the person contending that his religious activity would not interfere with a recognized state interest. That burden, however, has shifted. Today it is the obligation of the state to show that both the religious belief and practice will endanger a state interest and that the restraining action imposed cannot be supplanted by any reasonable alternative. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); Sherbert v. Verner, 374 *483U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). No advantage can accrue to orthodox religious beliefs under the religious belief test announced in United States v. Seeger, supra. The breadth of the new test finds room for “religious” beliefs protected by the Free Exercise Clause relating to topics such as the use of drugs in religious exercise, refusal to work on Sabbaths, opposition to all war and blood transfusions.
In my view, the very breadth of the “religious” definition so recognized requires a common sense approach to the so-called “secular” entanglement therein. It is illogical, in my view, to simply prohibit the enforcement of a state law designed to protect the citizens from fraudulent solicitations in all cases where the “religious” cult, sect or organization proclaims that practices which have been historically secular in these United States, i. e., government aid to the poor, to the sick and the homeless, are, for statutory exemption purposes, “religious” activities because of the announced beliefs.
I believe that the accommodation between church and state so often recognized in the realm of the prohibition against the establishment of religion proclaimed in the First Amendment-the Establishment Clause-can and should be logically applied in cases such as that presented here involving the Free Exercise Clause. The Supreme Court has consistently recognized that a certain amount of church-state entanglement will exist. Abington School Dist. v. Schempp, 374 U.S. 203, 212, 83 S.Ct. 1560, 1565, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 434, 82 S.Ct. 1261, 1268, 8 L.Ed.2d 601 (1962). In the context of those decisions, the critical issue was not whether there exists some entanglement but rather whether the entanglement is excessive and thus violative of the Establishment Clause.
Just as the Supreme Court has recognized that the line of separation of church and state required under the Establishment Clause is neither straight nor easily determined, Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980), and that the First Amendment does not forbid all mention of religion in public schools, but rather that religion be neither advanced or inhibited, Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), I would impose similar criteria to the case at bar and pose this inquiry: Does the Albuquerque ordinance challenged here impose an undue, excessive restraint upon the Seventh Day Adventist Church’s religious activity [its annual solicitation drive in Albuquerque] by requiring a prior application for permit to solicit for funds intended for “secular activities”? I would answer the inquiry in the negative. In my view, then, the ordinance passes constitutional muster. I believe this to be so because the City’s determination that the solicitation of funds for medical, food, clothing and shelter are secular is common-sensed and rational. It does not impose an impermissible religious test violative of the mandate of Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). That case involved solicitations of funds going directly to the heart of religion. A distinction must be drawn, however, between those activities characteristic of secular life, historically of primary and compelling concern of the community and government, which are also pursued by religious organizations. Thus, I would sustain the Albuquerque ordinance, insofar as it pertains to those activities overwhelmingly secular in nature, in keeping with the City’s compelling interest in preventing fraud. The burden cast upon a religious organization in meeting the requirements of the licensing ordinance is de minimus in relation to the City’s compelling interest in preventing fraudulent solicitations of its residents.