City of Sumner v. First Baptist Church of Sumner, Wash., 47096-1

• Citation: 97 Wn.2d 1,639 P.2d 1358
• Decision Date: 04 February 1982
• Docket Number: No. 47096-1,47096-1
• Parties: , 2 Ed. Law Rep. 589 The CITY OF SUMNER, a municipal corporation, Respondent, v. The FIRST BAPTIST CHURCH OF SUMNER, WASHINGTON, a Washington nonprofit corporation; Jim Floyd and Jane Doe Floyd, husband and wife; Larry Ferguson and Jane Doe Ferguson, husband and wife; and the First Baptist Church of Sumner, Washington, Jim Floyd and Larry Ferguson, d/b/a Washington Christian Academy, Appellants.
• Court: United States State Supreme Court of Washington

Page 1

97 Wn.2d 1

639 P.2d 1358, 2 Ed. Law Rep. 589

The CITY OF SUMNER, a municipal corporation, Respondent, v. The FIRST BAPTIST CHURCH OF SUMNER, WASHINGTON, a Washington nonprofit corporation; Jim Floyd and Jane Doe Floyd, husband and wife; Larry Ferguson and Jane Doe Ferguson, husband and wife; and the First Baptist Church of Sumner, Washington Jim Floyd and Larry Ferguson, d/b/a Washington Christian Academy, Appellants.

No. 47096-1.

Supreme Court of Washington, En Banc.

Feb. 4, 1982.

Robert Gunter, Seattle, Charles Craze, Cleveland, Ohio, for appellants.

Gordon Scraggin, Tacoma, for respondent.

Fredric Tausend, Professor of Law, Tacoma, for amicus curiae.

HICKS, Justice.

This cause, certified here by the Court of Appeals, presents a conflict between the power of the state to require conformance to zoning and building code regulations on the part of a private, church-operated school, and conversely, upon the right of members of the appellant church to freely exercise their professed religious beliefs by providing Christian education for their children.

The case was first argued to this court in October 1980, and it was reargued in November 1981. As is apparent from the extended period we have held the matter under consideration, the court has not been of one mind on the issues concerned. For reasons hereinafter discussed, we reverse and remand for additional proceedings.

The First Baptist Church has been located at its present site in a residential section of the City of Sumner for the past 75 years. For much of that time it has operated a vacation Bible school in the church building.

Adult members of the church congregation believe their children should be educated in conformance with biblical standards and philosophies. It is asserted that a tenet of their faith and belief requires this as a convictional matter. Because the instruction their children receive in the public schools cannot comport with their belief, in September 1978, the church membership established the Washington Christian Academy which purports to offer an educational program structured to conform with scriptural principles.

The academy is claimed to be an integral and inseparable part of the educational ministry of the First Baptist Church of Sumner. At oral argument here, respondent City's counsel conceded appellants' ability to prove both the claimed tenet of faith and belief and that the school was an integral part of the educational ministry of the church, if the case was remanded for the purpose of taking evidence on those issues.

This church-operated school is housed in the basement of the church building which does not meet, for use as a school, the City of Sumner's building code and zoning ordinance. The City's building inspector, who is also its fire chief, declared that the church building, particularly the basement, failed to meet the City's building code safety standards applicable to structures used for educational purposes. The building had, however, previously passed inspection for use as a church. The City sought to enjoin use of the edifice for the church-operated school.

A limited attempt by the church was made to bring the basement into compliance with City requirements. Several safety precautions were undertaken and appellants claim a number of the purported violations noted by the City's inspector are highly technical and do not in any way endanger occupants of the building. Financial constraints, however, make unlikely any early implementation of the major structural and mechanical modifications required for full compliance with the City's demands.

The trial court found that under the City building code the academy's use of the church building constituted a "Group C Occupancy", thus subjecting the structure to the code's school safety standards. The court enjoined use of the building for school purposes until such time as it is brought into compliance with the code; the church obtains a special use permit for the school from the City; and off-street parking requirements are met. The building's use as a church was not affected. The basement multipurpose area, where the school is operated, is thus, under the court's order and the building code, available to be used for church purposes but not for school purposes even though church-purpose use on occasion may be more congested than school use.

The City did not submit specific evidence demonstrating danger to student safety, but only that the building violated the code. The fact of danger was either assumed or thought unnecessary to be established as the trial below was substantially devoted to detailing the code deficiencies. Neither the City nor the court attempted to find compromises regarding some of the noncritical building code provisions. An uncompromising position was taken that strict enforcement of all code provisions was required regardless of the technical nature of the rules or the consequences to the church's efforts to operate its school.

Appellant church appeals on three grounds: (1) uncompromising enforcement of the building code and zoning ordinance violates its religious freedoms embodied in the First Amendment and Const. art. 1, § 11; (2) the academy's use of the church building is not a "Group C Occupancy" and thus not subject to the school safety standards; and (3) notwithstanding the two initial contentions, the school is entitled to the benefit of the "grandfather or nonconforming use" clauses contained in the City's building code and zoning ordinance.

I.

Under the circumstances presented here, a majority of the court believe this case raises a conflict between the fundamental rights of the congregation of the First Baptist Church of Sumner and the police power of the City of Sumner.

The congregants' right to send their children to a church-operated school is protected as a fundamental right under the United States Constitution. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); State v. Whisner, 47 Ohio St.2d 181, 351 N.E.2d 750 (1976). ¹ The free exercise clause is violated by burdensome state regulation. See generally Bird, Freedom from Establishment and Unneutrality in Public School Instruction and Religious School Regulation, 2 Harv.J.L. & Pub. Pol'y 125, 188-195 (1979). The City's police power derives from the state and its inherent power to govern. Spokane v. J-R Distribs., Inc., 90 Wash.2d 722, 585 P.2d 784 (1978), and cases cited therein.

Basically, the City here attempts an evenhanded application of a regulation concerning a valid governmental interest. It may be granted that such apparent evenhanded enforcement will not directly adversely impact religious beliefs or prohibit religious exercise. The indirect effect, however, of the government regulation in this instance will profoundly impact the church and its members. This parallels Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and Thomas v. Review Bd., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), wherein it was stated:

A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.

Yoder, 406 U.S. at 220, 92 S.Ct. at 1535; Thomas, 450 U.S. at 717, 101 S.Ct. at 1431.

In Yoder, the state attempted to apply, in a nondiscriminatory fashion, its compulsory education law requiring all children to attend school until age 16. The Amish withdrew their children from school after they finished the 8th grade, which usually occurred when they were 14. The Amish were not adverse to education in general; rather, they believed that if their children were forced to attend public high school the youngsters could not help but be influenced by the secular world. The Court acknowledged that the state may have a "compelling interest" in the compulsory education of children. Nevertheless, it "searchingly examine(d)" the specific interest of the state in requiring Amish children to attend 2 additional years of schooling. The Court concluded that the state's interest did not outweigh the Amish interest in having their children not be exposed to worldly influences.

In Thomas, the Court again held that the nondiscriminatory application of a state regulation could not stand in the face of the indirect impact it had on a person's right to free exercise of religion. There, Thomas terminated his employment when his employer transferred him to a department which produced turrets for military tanks. He felt his religious beliefs forbade participation in the production of armaments. He was denied unemployment compensation benefits because he had not left his job for "good cause" as defined by Indiana law. The Supreme Court held the denial of unemployment compensation benefits constituted an indirect burden upon the free exercise of religion. It was said to have imposed a "substantial pressure on an adherent to modify his behavior and to violate his beliefs". Thomas, at 718, 101 S.Ct. at 1432. The Court noted, "(w)hile the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial." Thomas, at 718, 101 S.Ct. at 1432.

It is argued that because the regulation here involved does not impact directly a fundamental tenet of the church, it does not violate a member's First Amendment rights. Direct impact, however, has never been a requirement. It was not against a fundamental tenet of the Amish to send their children to high school; it was the incidental effects of that requirement the Amish believed to be detrimental to their faith and hence violative of their First Amendment rights. Wisconsin v. Yoder, supra. It was not a fundamental tenet of the Catholic faith that unionization of teachers be disallowed; yet the Supreme Court indicated that for the National Labor Relations Board to become involved regarding parochial school teachers could pose a significant risk of...