State, Michigan Dept. of Social Services v. Emmanuel Baptist Preschool

Decision Date09 April 1990
Docket NumberDocket No. 79024
Citation434 Mich. 380,455 N.W.2d 1
PartiesSTATE of Michigan, MICHIGAN DEPARTMENT OF SOCIAL SERVICES, Plaintiff-Appellee, v. EMMANUEL BAPTIST PRESCHOOL, an unincorporated association, and Emmanuel Baptist Bible Church, a nonprofit corporation, Defendants-Appellants.
CourtMichigan Supreme Court

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

Lee Boothby, James M. Parker, Boothby Ziprick & Yingst, Berrien Springs, for defendants-appellants.


We granted leave in this declaratory judgment case to decide whether the State of Michigan, Department of Social Services, may constitutionally require the Emmanuel Baptist Bible Church and its preschool 1 to obtain a license and comply with certain administrative rules in order to operate their preschool and day-care programs. Defendant objects to the license requirement and to certain administrative rules promulgated pursuant to the childcare organization act, 1973 P.A. 116, 2 on the ground that the statute and rules violate its constitutional rights to religious freedom contained in the Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment. The particular rules objected to are Rule 400.5104, 3 which sets educational qualifications for program directors; Rule 400.5106, 4 which requires day-care centers to provide a program for emotional development of children "including [a] positive self-concept;" and Rule 400.5107, 5 which prohibits corporal punishment. 6 The defendant also objects to §§ 2(3)(c) and 5(1) of the act, M.C.L. § 722.122(3)(c); M.S.A. § 25.358(12)(3)(c), and M.C.L. § 722.115(1); M.S.A. § 25.358(15)(1), to the extent that the provisions give the DSS authority to inspect the financial records of the defendant.

From September 15, 1974, to June 1, 1979, the church's preschool was licensed by the DSS to operate as a "childcare center" under 1973 P.A. 116 to care for twenty children from two and one-half through six years of age. During those years the format of the church's preschool and day-care programs varied somewhat. Initially, the preschool program was operated on a half-day, morning basis. By the time of application for the second renewal of a license in 1975, the defendant operated a full-day program, presumably as a day-care center, along with the preschool half-day program. In 1978, twenty to forty children were in the preschool and about ten children remained in the afternoon for day care.

On May 18, 1978, the defendant was issued a two-year license by the DSS. However, on May 3, 1979, the principal of the Emmanuel Baptist Preschool, Mr. Mark Asire, informed representatives of the DSS that the defendant no longer wanted its preschool and day-care center to be licensed. This assertion was subsequently confirmed by the church's pastor, Rev. Harold E. Asire. On November 8, 1979, the DSS "closed" the license of the preschool to operate as a childcare center, effective June 1, 1979. However, the church continued thereafter to conduct its preschool/day-care programs until the time of trial in December, 1982. From 1980 to 1982, twelve to twenty-eight children were in defendant's preschool or day-care programs.

The DSS filed the instant action against defendant on April 29, 1980, seeking a declaratory judgment that defendant is subject to the requirements of the childcare organization act, 1973 P.A. 116, and seeking a preliminary and permanent injunction enjoining defendant from operating or maintaining a childcare center without a license from the DSS. Defendant raised as affirmative defenses that the Legislature had improperly delegated licensing authority to the DSS, that the act was unconstitutional under the First Amendment as applied to defendant, and that the administrative rules enumerated above infringed upon its First Amendment rights.

Following a bench trial, the trial court issued a written opinion on January 19, 1984. The court specifically found that defendant's preschool and day-care programs constituted "religiously grounded" activity. Nevertheless, it held that defendant was required to obtain a license to operate its preschool/day-care programs on the ground that the state had a compelling interest in protecting children in childcare centers which outweighed defendant's interest in being free from such state regulation.

The trial court also decided, however, that the administrative rules relating to director qualifications, program content, and corporal punishment, as well as the statutory provisions relating to inspection of financial records, should not be applied to this defendant. The court held that the state "should develop and employ less intrusive means of regulating a church-operated day-care center.... In all other respects Defendant Church should be required to obtain a license from [the] DSS and to comply with reasonable regulations of fire, safety and health requirements of the Act."

On appeal in the Court of Appeals, the DSS challenged that portion of the trial court's order which held that defendant was exempt from particular rules and statutory provisions. Defendant filed a cross-appeal challenging the underlying licensing requirement of the act.

In its opinion, the Court of Appeals agreed with the circuit court that the defendant's "claim is undoubtedly rooted in [its] fundamentalist Christian doctrine. Moreover, regulation poses some burden on the free exercise of religion...." 150 Mich.App. 254, 264, 388 N.W.2d 326 (1986). However, the Court of Appeals found that the state's interest in protecting children outweighed the burden imposed on the defendant's First Amendment rights. The Court of Appeals thus affirmed the trial court's requirement of licensure but reversed the trial court's ruling on exemptions. We then granted leave to appeal. 428 Mich. 909 (1987).

A unanimous Court holds that the regulation prohibiting corporal punishment is justified by a compelling state interest and may be enforced.

A majority of the justices is of the opinion that

(1) The First and Fourteenth Amendments do not prevent the state from compelling the defendant to conform to the licensure requirements of the childcare organization act.

(2) The state may not enforce the accreditation aspects of the program director qualification rule, 1980 AACS, R 400.5104(2)(a), since to do so would violate the free exercise of religious beliefs of the defendants.

(3) The state may not enforce the program content rule, 1980 AACS, R 400.5106(1)(c), since the rule is unconstitutionally vague and unconstitutionally overbroad.

The Court does not decide whether the financial disclosure provisions violate the defendants' rights of the free exercise of religion and freedom of association, since the state has not exercised its statutory authority to compel financial disclosure, making these issues unripe for review.

At least four justices concur in every holding statement.


CAVANAGH, Justice (concurring).

I conclude (1) that the state may require defendant pre-school to obtain a license pursuant to the terms of the childcare organization act; (2) that the Michigan Department of Social Services either must exempt defendants 1 from the program director qualifications rule (1980 AACS, R 400.5104) insofar as it requires that the director obtain minimal educational training only from a state accredited college or university or must undertake an independent evaluation of the credentials of defendants' program director to determine whether his qualifications satisfy the minimal educational criteria set forth in Rule 104; (3) that the program content rule (1980 AACS, R 400.5106) is unconstitutionally vague on its face and may not be enforced against the defendants; (4) that in order to protect the defendants' (members') rights of association under the First Amendment, the DSS, in applying the provisions of the act which give authority to the DSS to inspect defendants' financial records, may not request information from the defendants that reveals the source or identity of the defendants' financial support; and (5) that the administrative rule (1980 AACS, R 400.5107) prohibiting corporal punishment is justified by a compelling state interest and therefore enforceable against defendants.

I write separately to join Justice Griffin's "concurring" opinion 2 to form a majority on the issue of the Free Exercise Clause standard of review, 3 the issue whether the defendants' claims regarding the licensing rules are ripe for review, and the issue whether the licensing rules are unconstitutional. 4 I also write separately to join the dissenting opinion (Boyle, J.) 5 to form a separate majority on the issue whether the license requirement is constitutional as applied. 6

I. Standard of Review to be Applied to Free Exercise Claims

The religion clauses of the First Amendment of the United States Constitution 7 encompass two distinct but interrelated concepts--the guarantee of free exercise of religion by all persons, and the prohibition of the establishment of religion by government. I am primarily concerned here with the free exercise facet of the First Amendment.

In Sheridan Road Baptist Church v. Dep't of Ed, 426 Mich. 462, 396 N.W.2d 373 (1986), cert. den. 481 U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 839 (1987), this Court divided equally and affirmed a holding by the Court of Appeals that a statute requiring nonpublic school teachers to be certified by the state is constitutional. The three opinions in Sheridan Road recognized the four basic elements of the Free Exercise Clause standard of review described by Justice Williams, 426 Mich. at 475, 396 N.W.2d 373, though each opinion applied that standard...

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