• Is it legally permissible for a city ordinance regulating child care facilities to exempt from regulation only those child care programs conducted in churches? No, said a federal district court in Illinois. A city ordinance required child care providers to comply with a substantial number of regulations designed to assure the safety of children. The ordinance exempted child care programs conducted in any church building. This exemption was challenged by a person whose application for a child care license was denied by the city. The court agreed that the ordinance’s exemption of church-operated child care programs violated the constitutional guaranty of the “equal protection of the laws” and in addition violated the first amendment’s prohibition of any “establishment of religion.” With regard to the “equal protection” claim, the court noted that a law is invalid if it treats groups differently without any rational basis. The court concluded that there was no rational basis for the ordinance’s exemption of church-operated child care programs from any regulation. The city’s reason for treating church-operated programs more favorably than other programs was that “child care programs located in church buildings will be operated in a sufficiently noncommercial manner so as not to work a detrimental alteration of the surrounding single family neighborhood.” In rejecting this claim, the court noted that several child care programs operated in churches were commercial activities that charged fees, advertised publicly, and offered no religious teaching whatever. The court concluded: “Nothing suggests that such facilities, merely because they are housed in buildings that are used for church purposes at some times, will at other times engage in their commercial activities with any less rigor than would any facility lacking an alternate religious use.” The court also ruled that the ordinance’s wholesale exemption of church-operated child care programs violated the first amendment’s prohibition of any establishment of religion. In concluding that the ordinance’s exemption provided churches with a significant benefit that was not available to others, the court observed: “A religious facility is able to enroll many more children in a much smaller facility than its nonreligious counterpart. These benefits not only increase the religious facility’s ability to generate revenues, but also reduce its costs of operation, particularly the cost of maintaining a larger facility. These factors, when added to the already substantial advantage of not being required to pay taxes on either the land or the income of the day care operation, significantly benefit the facility.” Making such a benefit available to churches, the court concluded, is precisely the type of activity that the first amendment forbids, since it “provides unjustifiable awards of assistance to religious organizations and cannot but convey a message of endorsement to slighted members of the community.” On the other hand, the court suggested that an ordinance may well be valid if it only exempted those church-operated child care programs that actively taught religion and that were “pastoral.” But exempting all church-operated child care programs from regulation, whether or not they are “an integral part” of a church’s educational function, is too broad. Cohen v. City of Des Plaines, 742 F. Supp. 458 (N.D. Ill. 1990).

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