• Key point: A city ordinance may exempt church-operated child care facilities from a requirement that child care facilities obtain a special permit before operating in residential neighborhoods.

• A federal appeals court ruled that a city ordinance that allowed churches to operate child care facilities in residential neighborhoods, but required other facilities to obtain a special use permit to do so, did not violate the first amendment prohibition of the establishment of religion. A woman who was denied a permit to open a secular child care center in a residential neighborhood challenged the constitutionality of the city ordinance that exempted churches from the permit requirement. A district court agreed that the ordinance constituted the establishment of religion in violation of the first amendment, noting that it conferred a benefit upon churches that is unavailable to others who wish to operate child care centers in residential areas. The court awarded the woman nearly $1 million in damages. The city appealed, and a federal appeals court ruled that the ordinance did not violate the first amendment. The court applied the Supreme Court’s three-part Lemon test for determining whether or not the ordinance constituted an impermissible establishment of religion. Under this test, first announced in a 1971 decision (Lemon v. Kurtzman), a law or government practice challenged as an establishment of religion will be valid only if it satisfies the following three conditions—a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive entanglement between church and state. The court concluded that the ordinance satisfied all three of these conditions. It observed that “the ordinance has the secular purpose of minimizing governmental meddling in religious affairs notwithstanding that the ordinance does not explicitly state that nursery schools (or day care centers) operated in churches in residential areas must give care or instruction defined as ‘religious.'” The court added, “we are wary of holding that the … ordinance would pass muster under Lemon’s purpose requirement only if it stated that nursery school and day care center activities must be ‘religious’ in nature …. [I]t is not up to the legislatures (or to courts for that matter) to say what activities are sufficiently ‘religious.’ Any legislative or judicial attempt at such a definition would surely fail. Worse, it would almost certainly undercut the neutral posture required of every branch of government under the [nonestablishment of religion clause of the first amendment].” The court also concluded that the ordinance met the second Lemon requirement—a primary effect that does not advance religion—so long as only nonprofit child care facilities operated by churches were exempted from the permit requirement. Finally, the court concluded that the ordinance did not foster an excessive entanglement with religion, and accordingly satisfied Lemon’s third requirement. The court added “[i]ndeed, as construed, the ordinance effectuates a separation between the two and avoids intrusive inquiry into religious belief and practice.” This case is important for two reasons. First, it is a strong recognition of the inadvisability of legislatures and courts attempting to define what is religious. The woman who brought the lawsuit against the city conceded that church-operated child care facilities that were “religious” or “taught religion” could legitimately be exempted from the permit requirement, but not those that were “secular” in their operation. The court wisely chose to avoid such a distinction, relying in part on a 1987 decision of the Supreme Court rejecting a claim that religious organizations can discriminate in employment decisions on the basis of religion only with respect to “religious” (and not “secular”) positions. The Supreme Court observed in that decision that “it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.” Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987). Second, the court recognized that “it is clear that the legitimate purpose of minimizing governmental interference with the decision making processes of a religious organization can extend to seemingly secular activities of the organization.” Cohen v. City of Des Plaines, 8 F.3d 484 (7th Cir. 1993).

See Also: Child Care Facilities

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