Health Services Division, Health and Environment Dept. of State of N.M. v. Temple Baptist Church

• Decision Date: 07 May 1991
• Docket Number: No. 10536,10536
• Citation: 112 N.M. 262,1991 NMCA 55,814 P.2d 130
• Parties: HEALTH SERVICES DIVISION, HEALTH AND ENVIRONMENT DEPARTMENT OF the STATE OF NEW MEXICO, Plaintiff-Appellee, v. TEMPLE BAPTIST CHURCH, Bill Whitehead, Pastor, Charles Shaw, Principal, and Temple Christian School, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 130

814 P.2d 130

112 N.M. 262

HEALTH SERVICES DIVISION, HEALTH AND ENVIRONMENT DEPARTMENT OF the STATE OF NEW MEXICO, Plaintiff-Appellee, v. TEMPLE BAPTIST CHURCH, Bill Whitehead, Pastor, Charles Shaw Principal, and Temple Christian School Defendants-Appellants.

No. 10536.

Court of Appeals of New Mexico.

May 7, 1991.

Certiorari Denied June 20, 1991.

[112 N.M. 263] Jerry Dickinson, Sp. Asst. Atty. Gen., Health & Environment Dept., Santa Fe, for plaintiff-appellee.

Charles E. Craze, Robin S. Hom, and Zachary S. Gray, Gibbs & Craze Co., L.P.A., Cleveland, Ohio, and Sumner S. Koch, White, Koch, Kelly & McCarthy, P.A., Santa Fe, for defendants-appellants.

OPINION

CHAVEZ, Judge.

Temple Baptist Church, its pastor, child care center, and the center's principal ("the church") appeal a district court's order granting judgment to the Health Services Division of the Health and Environment Department ("the division"). The judgment enjoined the church from operating its child care center without a license. The church claims the division's rules infringe on free exercise of religion by prohibiting the church from spanking its pupils. See New Mexico Regulations Governing Facilities Providing Day/Night Care to Children Sec. 501(G)(1) (1987). The church claims that the statutory requirement of obtaining a license to operate a child care center also violates its right to freely exercise religion. See NMSA 1978, Sec. 24-1-5(A) (Repl.Pamp.1986). We affirm.

BACKGROUND

The parties agree on the following facts. The church runs a child care center. No children who attend the center stay overnight. It offers a curriculum to the children, which includes religious matters. It has a policy, which the church believes is mandated by the Bible, by which the teachers spank the children when they misbehave. While the church characterizes this as corporal discipline, the division characterizes it as corporal punishment. The practical effect of this policy has been the spanking of three boys throughout the history of the child care center. Absent this policy sanctioning spanking, the church's child care center meets or exceeds all standards the division requires of child care centers generally. The church operated under a license from 1974 to 1979.

In 1980, the church's pastor concluded that acquiescing to the need for a license was tantamount to subordinating allegiance to Jesus Christ to allegiance to the secular state. He returned the license to the division. After reaching an impasse in negotiations with the church, the division filed suit in 1981. The division sought an injunction against the church's further operation of a child care center without a license.

DISCUSSION

The first amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * * * " U.S. Const. amend. I. It applies to the division's actions here by virtue of the fourteenth amendment due process clause. See U.S. Const. amend. XIV; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). At trial, the parties based their arguments on Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (Sherbert ). However, while this appeal was pending, the United States Supreme Court decided Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) ("Smith II "). Supplemental briefing was ordered after that decision was announced. We conclude Smith II controls this appeal.

1. The Free Exercise Clause From Sherbert to Smith II

To track the changes in the free exercise clause of the first amendment, we first note Sherbert v. Verner in which a Seventh-Day Adventist quit her employment rather than work a new schedule which included her Sabbath day. The state unemployment compensation agency denied the worker's compensation claim, finding she had quit without good cause. In reversing, the Court held that the agency had burdened the worker's right to freely exercise her religious beliefs. The Court's operative premise was that the agency was penalizing her by requiring her to compromise either her right to important government benefits or her sincerely held religious beliefs. The agency was thus burdening her right to freely exercise her religious beliefs. Id. The Court then went on to hold that spurious claims and consequent dilution of funds were legitimate government concerns. These concerns might have legitimized the agency's burden on the worker's free exercise right. However, the agency failed to prove the likelihood that these problems would occur if it allowed workers to receive compensation even though they quit for religious reasons. Moreover, the agency failed to prove that it undertook the least restrictive means to protect its legitimate interests. Id.

A structured free exercise clause analysis arose out of Sherbert. First, the party claiming the free exercise right must prove a sincerely held religious belief. Second, that party must prove that state action burdens the exercise of that belief. Third, upon proof of these first two elements, the state must demonstrate a compelling interest which the action serves in the least restrictive manner. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); State ex rel. Pringle v. Heritage Baptist Temple, Inc., 236 Kan. 544, 693 P.2d 1163 (1985); Department of Social Servs. v. Emmanuel Baptist Pre-School, 150 Mich.App. 254, 388 N.W.2d 326 (1986).

The Supreme Court has found the task of parsing out which beliefs are and which are not central to a faith is " 'not within the judicial ken.' " See Smith II, 494 U.S. at 494 U.S. 872, 110 S.Ct. at 1604, 108 L.Ed.2d at 891 (collecting cases) (quoting Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 700, 109 S.Ct. 2136, 2149, 104 L.Ed.2d 766, 786 (1989)); but see United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1965); Quaring v. Peterson, 728 F.2d 1121 (8th Cir.1984), aff'd by an equally divided court sub nom. Jensen v. Quaring, 472 U.S. 478, 105 S.Ct. 3492, 86 L.Ed.2d 383 (1985) (whether belief is religious and sincerely held is determined in part by reference to scripture, tradition, and the belief's role in daily life). The Court has also found the process of balancing the individual's civil liberties against the state's interests and choosing a victor to be "a particularly delicate task." Braunfeld v. Brown, 366 U.S. 599, 605, 81 S.Ct. 1144, 1147, 6 L.Ed.2d 563 (1961). As a consequence of these inherent difficulties, the Supreme Court has, over time, changed its approach to free exercise claims.

The first case to signal this change is United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982), in which an Amish merchant opposed paying social security taxes. His reason was that he and his workers did not want to receive benefits upon retirement. The merchant argued the Amish should not have to pay into a fund from which they would never receive a return. The government's rejoinder was that Lee's sincerely held religious belief was independent from government assistance. The requirement that he pay money to the government did not burden his belief that he should not receive benefits. However, this argument did not persuade the Court. It could not determine whether the payment of taxes threatened the integrity of Lee's religious beliefs because such questions are not susceptible to judicial understanding. However, the Court accepted the government's argument that an exception for Lee would lead to exceptions for other taxes which conflicted with a person's beliefs. Since compulsory participation in tax schemes is vital to the government, the Court would not allow an exception here. The government's compelling interest outweighed Lee's free exercise right. Id.

In Lee, the Court's inability to determine the exact nature of religious beliefs worked in the individual's favor. In other words, the Court appears to have assumed that Lee sincerely held a broad enough religious belief that the government's actions burdened the belief. However, the Court also assumed that making room for that belief would disrupt government. The practical effect of this analysis was to focus the inquiry on the final balance of state interests and individual liberty, with the state's interest in uniform applicability being of utmost importance.

We see this approach in use in Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988), in which Native Americans sought to enjoin a United States forest service road through sacred areas. Writing for the Court, Justice O'Connor stated:

However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires. A broad range of government activities--from social welfare programs to foreign aid to conservation projects--will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures and other institutions.

Id. at 452, 108 S.Ct. at 1327. The Court conceded that the road as proposed might well lead to the dissolution of the very foundation of the Native Americans' religion. However, the Court said that the Native...