Department of Social Services v. Emmanuel Baptist Pre-School

Decision Date18 June 1986
Docket NumberDocket No. 77946,PRE-SCHOOL and E
PartiesDEPARTMENT OF SOCIAL SERVICES, Plaintiff-Appellant, Cross-Appellee, v. EMMANUEL BAPTISTmmanuel Baptist Bible Church, Defendants-Appellees, Cross-Appellants.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Christopher D. Dobyns Asst. Atty. Gen., for plaintiff-appellant, cross-appellee.

Lee Boothby, Berrien Springs, for defendants-appellees, cross-appellants.

Before HOOD, P.J., and HOLBROOK and KERWIN *, JJ.

D.P. KERWIN, Judge.

On April 11, 1984, the circuit court entered an order enjoining defendant Emmanuel Baptist Bible Church from operating the defendant Emmanuel Baptist Pre-School (pre-school) without a license, and declaring the pre-school exempt on First Amendment grounds from complying with certain Department of Social Services (DSS) licensing requirements if and when it seeks licensure. Plaintiff DSS appeals as of right from that portion of the order holding the pre-school partially exempt from compliance. Defendants cross-appeal from that portion of the order enjoining them from operating an unlicensed child care center. We affirm the order requiring licensure, but reverse that part of the order finding exemptions.

I. Background

Defendant Emmanuel Baptist Bible Church (the church) is a fundamentalist Baptist church which operates the Emmanuel Baptist Pre-School. In 1974, the church received a provisional license permitting care of up to 20 children, ages 2 1/2 to 6 years. Two more provisional licenses were issued in 1975, and the pre-school received regular licensure in 1976. DSS representatives inspected the pre-school in 1978 and noted rule violations of which the church was informed in 1979. Pastor Harold Asire and Mark Asire, the pre-school's principal, informed DSS representatives in May, 1979, that the pre-school no longer desired licensure because of religious principles. The pre-school was delicensed in June, 1979. Notwithstanding, the church continued to operate the pre-school in violation of 1973 P.A. 116, Sec. 5(1); M.C.L. Sec. 722.115(1); M.S.A. Sec. 25.358(15)(1).

DSS sought a declaratory judgment holding that the pre-school was subject to the licensing requirements of the child care organizations act, as amended, M.C.L. Sec. 722.111 et seq.; M.S.A. Sec. 25.358(11) et seq. (the act), and sought to enjoin unlicensed operation of the pre-school. The church alleged as affirmative defenses that the Legislature had improperly delegated licensing authority to the DSS, that the child care organizations act was unconstitutional under the First Amendment as applied to the church and created an excessive entanglement between church and state, and that certain pending administrative rules under the act would infringe upon defendant church's First Amendment rights. The lower court, after hearing the evidence, ruled that the church should be required to obtain a license to operate its pre-school, but that neither the DSS administrative rules regulating staff qualifications, program and dicipline nor the statute regarding inspection of financial records should be utilized if the church sought licensure. The order provided:

" * * * Defendants are bound by the requirements of the child care organization act, 1973 P.A. 116, as amended; M.C.L. Sec. 722.111 et seq; M.S.A. Sec. 25.258(11) et seq, and the administrative rules promulgated thereunder, pertaining to the licensing of child care centers, subject to the following exceptions:

"1. Defendants should not be required to comply with 1980 AACS R 400.5104(2)(a)(b) & (3) [regarding program director qualifications];

"2. Defendants should not be required to comply with 1980 AACS R 400.5106(1)(c) [regarding fostering positive self-concept];

"3. Defendants should not be required to comply with 1980 AACS R 400.5107(2) to the extent that said rule prohibits the use of corporal punishment, provided Defendants' use of corporal punishment at the Emmanuel Baptist Pre-School be reasonable under the circumstances and limited in force and duration;

"4. Sections 2(3)(c) and 5(1) of 1973 P.A. 116; M.C.L. Secs. 722.112(3)(c) and 722.115(1); M.S.A. Secs. 25.358(12)(3)(c) and 25.358(15)(1) should not be strictly enforced against Defendant Emmanuel Baptist Bible Church to the extent that said statutory provisions allow Plaintiff to inspect the financial records of Defendant Church;

"IT IS FURTHER ORDERED that subject to the hereinabove enumerated exceptions, Defendants Emmanuel Baptist Bible Church and Emmanuel Baptist Pre-School * * * are hereby enjoined:

"1. From operating an unlicensed child care center in violation of 1973 P.A. 116, sec. 5(1); M.S.A. Sec. 722.115(1); M.S.A. Sec. 25.358(15)(1);

"2. From preventing the Michigan Department of Social Services from investigating and inspecting the operation of the Emmanuel Baptist Pre-School as a child care center for purposes of determining whether the Emmanuel Baptist Pre-School meets minimum licensing standards and determining whether the health, safety and well-being of the children attending the Emmanuel Baptist Pre-School are being protected."

DSS now appeals from the four exceptions to application of the administrative rules which were carved out by the lower court. The church cross-appeals, presenting a challenge to the entire issue of licensure.

II. The Act and the Rules

The child care organizations act protects children through the licensing and regulation of child care organizations and provides for establishment of standards for child care organizations. Under the act, an entity, such as the church, wishing to operate a child care center must apply for a license. Subsection 2(1) authorizes the DSS to develop rules for the care and protection of children in covered organizations. M.C.L. Sec. 722.112(1); M.S.A. Sec. 28.358(12)(1). The rules set minimum standards for child care. M.C.L. Sec. 722.112(3); M.S.A. Sec. 25.358(12)(3).

Prior to June 4, 1980, administrative rules governing child care organizations were those promulgated effective June 14, 1957. See 1979 AC, R 400.120 et seq. Pursuant to subsection 2(1) of the act, DSS promulgated new rules regarding child care licensing, including provisions regarding care of children ages 2 1/2 to 5 years, in 1980 AACS, R 400.5101 et seq.; effective June 4, 1980, one year after the church relinquished its license for the pre-school. 1 Under Rule 118, applicants or licensees may request an exemption from the administrative rule if there is clear and convincing evidence that they have an alternative which complies with the intent of the rule. 1980 AACS, R 400.5118.

III. Free Exercise of Religion

The church complained in the lower court that the administrative rules and general licensing requirements burdened its exercise of religion and constituted excessive enganglement with its affairs. We undertake our review in light of these complaints, which have been reasserted on appeal.

The First Amendment's free exercise clause provides that Congress shall make no law "prohibiting the free exercise" of religion. 2 U.S. Const. Am. I. While there is an unqualified prohibition against governmental interference with religious beliefs, governmental regulation may lawfully impose an incidental burden on otherwise protected religious conduct. See Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 1535, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963); Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S.Ct. 900, 903-904, 84 L.Ed. 1213 (1940).

A balancing test is employed to determine whether government may regulate conduct prompted by religious belief or principle. Yoder, supra, 406 U.S. 221, 92 S.Ct. at 1536; Sherbert, supra, 374 U.S. 403, 406, 83 S.Ct. at 1793, 1795. First, the belief, or conduct motivated by the belief, must be religious in nature. Second, the party complaining of a free exercise clause violation must show that the regulations under review impose a substantial burden on the exercise of religion. Third, if the complaining party demonstrates that it is burdened by the regulations, the state must have a compelling state purpose for its laws. Relevant to this prong is an inquiry into whether there exists a less restrictive alternative to the regulation. Sherbert, supra, 374 U.S. 403-407, 83 S.Ct. at 1793-1796. See also, Sheridan Road Baptist Church v. Dep't of Education, 132 Mich.App. 1, 348 N.W.2d 263 (1984), lv. den. 419 Mich. 916 (1984), reconsideration granted 422 Mich. 857 (1985).

A. Licensure Does Not Burden the Church's Free Exercise of Religion

In the lower court and again on appeal the church asserted that the pre-school is part of its ministry which may be governed by God but not by the state. The lower court held that the burden licensure imposes on the church's free exercise rights was outweighed by the state's interest in protecting children. We affirm this ruling.

Indirect financial or regulatory burdens do not necessarily infringe upon the free exercise of religion. Braunfeld v. Brown, 366 U.S. 599, 606, 81 S.Ct. 1144, 1147, 6 L.Ed.2d 563 (1961). In the licensure and regulation context, a free exercise claim can succeed only where the rule or statute suppresses the exercise of sincere religious beliefs or the dissemination of religious views, as opposed to regulating the manner in which secular activities are conducted. Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944); Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). Under this test, the free exercise clause has not prevented licensure or regulation of facilities such as day care centers. See, e.g., Roloff Evangelistic Enterprises, Inc. v. Texas, 556 S.W.2d 856 (Tex.Civ.App., 1977),...

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