Child Care

Church Law and Tax 1990-05-01 Recent Developments Child Care Richard R. Hammar, J.D., LL.M., CPA

Church Law and Tax 1990-05-01 Recent Developments

Child Care

Does a Florida law exempting church-operated child care facilities from state licensing violate the first amendment’s “nonestablishment of religion” clause? No, concluded a federal district court in Florida. A number of years ago, the Florida legislature enacted a law setting forth detailed safety and health standards that Florida child care facilities must meet in order to obtain a license to operate. The standards impose a broad range of requirements relating to personnel, physical facilities, emergency medical care, disease control, nutrition and food preparation, admission and recordkeeping, and transportation. Compliance with the standards imposes substantial costs on child care facilities, and these costs must be passed along to customers. Child care facilities that are an “integral part of a church” are specifically exempted from the licensing requirement. Although church-operated facilities still must comply with minimum local health and safety ordinances and Florida’s personnel screening requirements, they are not subject to the extensive regulations other child care facilities must conform to, and therefore they have lower operating costs. Because of their lower operating costs, church-operated facilities can charge lower rates to their customers than non-exempt facilities, giving them a competitive economic advantage. A non-exempt child care center filed a lawsuit challenging the validity of the church exemption. The court noted that any law challenged on the basis of the first amendment’s “nonestablishment of religion” clause will be upheld only if it (1) has a secular purpose, (2) does not have a primary effect of advancing religion, and (3) does not create an excessive entanglement between church and state. The court concluded that the Florida law’s exemption of church-operated child care facilities was valid under this test. The law had the legitimate “secular purpose” of “refraining from imposing governmental regulation [on churches] and avoiding any interference with the ability of a religious organization to define and carry out its mission.” Further, in concluding that the law’s “primary effect” was not the advancement of religion the court observed: “Simply because religious organizations are afforded an economic advantage over secular child care facilities does not mean that the law has a ‘primary effect’ that advances religion. Florida, rather than advancing religion … is simply allowing for an accommodation of the free exercise of religion by permitting exemption from licensure.” Finally, the Florida law did not create an “excessive entanglement” between church and state. “Rather, it accomplishes a more complete separation of the two. By exempting child care facilities that are an integral part of church or parochial schools from compliance with state licensing requirements the state is removing the potential for burdensome … litigation that would be necessary absent a general exemption.” Forte v. Coler, 725 F. Supp. 488 (M.D. Fl. 1989).

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