Request By:
Ms. Susan Winans
Ms. Karen Hellard
Kentucky Association for
Child Care Management
221 W. Third Street
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
You have requested an opinion from our office relating to House Bill 225 passed by the 1986 General Assembly, particularly as to its requirement of a sex crime records check as to applicants for employment with day care centers. You are especially concerned with the constitutional validity of the exclusion of church sponsored day care centers from the requirements of House Bill 225.
The provisions of House Bill 225 that are the focus of your inquiry are now codified at KRS 17.165, which states in pertinent part:
". . . no child care center as defined in KRS 199.894 shall employ, in a position which involves supervisory or disciplinary power over a minor, any person convicted of a sex crime. Each . . . child care center shall request the criminal record of prior sex crime convictions or pleas of guilty of any applicant for employment from the justice cabinet prior to employing the applicant; except that the provisions of this section shall not apply to any . . . church sponsored day care center. "
By excluding church sponsored day care centers from the requirements of the Act, it may be that the legislature was concerned that the requirements of the Act not entangle the government with the church or infringe upon anyone's religious freedoms. Ironically, as discussed below the exemption granted to church sponsored day care centers in an effort to pass a constitutionally valid statute actually resulted in passage of an unconstitutional statute.
The Establishment Clause of the U.S. Constitution provides: "Congress shall make no law respecting an establishment of religion . . ." U.S.C.A. Const. Amend. 1. The U.S. Supreme Court has enunciated a three prong test to determine whether government action violates the Establishment Clause: (1) the statute must have a secular legislative purpose; (2) the statute's principal or primary effect must be one that neither advances nor inhibits religion; and (3) the statute must not foster excessive governmental entanglement with religion.
Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 2111, 29 L. Ed. 2d 745 (1971). The purpose of the Establishment Clause is to protect against state "sponsorship, financial support, and active involvement" in religious activity.
Walz v. Tax Commissioner, 397 U.S. 664, 668, 90 S. Ct. 1409, 1411, 25 L. Ed. 2d 697 (1970).
The legislature's apparent belief that requiring church sponsored day care centers to comply with the Act would violate the Establishment Clause seems to be unfounded. The Establishment Clause cases address the issue of whether some form of government aid to a religious institution, either directly or indirectly, violates the Establishment Clause. See e.g.,
Mueller v. Allen, 463 U.S. 388, 103 S. Ct. 3062, 77 L. Ed. 2d 721 (1983) (statute allowing parents tax deduction for expenses incurred in sending their children to parochial schools);
Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S. Ct. 2955, 37 L. Ed. 2d 948 (1973) (statute providing direct monetary grants from the state to qualifying public schools for maintenance and repair of facilities); Lemon, supra, (statute providing state aid in the form of salary supplements, textbooks, form of salary supplements, subjects); and, Walz, supra, and instructional materials for nonsectarian subjects); and, Walz, supra, (statute granting property tax exemptions to religious organizations for religious properties).
Unlike the traditional Establishment Clause cases involving state aid to religious programs, this Act involves government regulation of child-care centers. In
State v. Corpus Christi People's Baptist Church, Inc., 683 S.W.2d 692 (Tex., 1984) the Texas Supreme Court explained this distinction. The issue in Corpus Christi People's Baptist Church, Inc. was whether the state licensing requirements for day care centers violated the First Amendment religious freedoms of church sponsored day care centers. The Texas Supreme Court explained that to exempt church sponsored facilities would result in unequal treatment of church sponsored and non-church sponsored facilities and arguably be impermissible under the second prong of the three prong test because the primary effect would be to advance religion.
The exemption under KRS 17.165 is no different than the situation the Texas Court explained. By requiring only non-church sponsored day care centers to carry out sex crime background checks on prospective employees, the legislature has favored church sponsored centers.
In Corpus Christi Poeple's Baptist Church, Inc., supra, the Texas Court went on to explain that entanglement resulting from government regulations is much different than the entanglement the traditional Establishment Clause cases address. In those cases, the state must examine and determine what programs are religious and what programs are secular and ensure government aid only reaches the secular programs. Corpus Christi People's Baptist Church, Inc., supra, p. 695. KRS 17.165 requires no inquiry into religious beliefs of day care centers. The sole purpose behind the Act is to regulate the safety and welfare of children by requiring a uniform investigation of sex crime convictions and guilty pleas for all prospective employees supervising children in day care centers. If the Act were also applicable to church sponsored day care centers, the Act would not foster any excessive government entanglement with religion and there would certainly be a legitimate secular legislative purpose behind the Act. Finally, if the Act were applicable to church sponsored day care centers, the Act would not favor those centers. Therefore, the Religious Establishment Clause would not have been violated had KRS 17.165 been made applicable to church sponsored day care centers.
Turning now to the First Amendment Free Exercise Clause, this constitutional provision prohibits Congress from enacting any law prohibiting the free exercise of religion. U.S.C.A. Const. Amend. 1. The free exercise of religion involves freedom to believe and freedom to act in accordance with one's own religion. While the freedom to believe is an absolute right, the freedom to act is not. Conduct is subject to regulation for the protection of society.
Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S. Ct. 900, 84 L. Ed. 2d 1213, 1218 (1940);
Mosier v. Barren County Board of Health, Ky., 215 S.W.2d 967 (1948). A balancing test is employed by the court to determine when government may regulate certain conduct prompted by religious beliefs. First, the party asserting an infringement on his or her religion must show the regulation under review imposes a substantial burden on the exercise of his religion. Second, if such a burden is shown then the state must prove a compelling state purpose for the law and that there exists no less restrictive alternative to the regulation.
Wisconsin v. Yoder, 406 U.S. 205, 221, 92 S. Ct. 1526, 1536, 32 L. Ed. 2d 15 (1972);
Sherbert v. Verner, 374 U.S. 398, 403, 83 S. Ct. 1790, 1793, 10 L. Ed. 2d 965 (1963).
If KRS 17.165 were applicable to church sponsored day care centers, we do not believe it would burden anyone's free exercise of religion. We doubt that church sponsored day care centers would argue their religion prevented them from insuring the safest possible supervision for children attending their facilities, or that the purpose or effect of the law is to impede observance of religion. Any possible argument that one's religion prevented investigating the criminal record of an applicant for employment with a church sponsored day care center would certainly be outweighed by the state's compelling interest in safeguarding the health and well being of its children. The state has a right and a duty to protect and nurture its children.
Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944);
State v. Corpus Christi People's Baptist Church, Inc., 683 S.W.2d 692 (Tex. 1984). The state's compelling interest in requiring criminal background checks is to insure children in day care facilities are not under the supervision of personnel who might abuse them.
The legislature appears to have chosen the least restrictive means to guarantee that child care facilities receive complete and accurate information concerning the criminal background of any applicant for employment. And, the prohibition against hiring a person with a history of sex crime offenses appears to be the only way to minimize the risk that children in day care centers are not subject to abuse.
In
Forest Hills Early Learning Center, Inc. v. Lukhard, 728 F.2d 230 (4th Cir. 1984), operators of licensed day care centers filed suit challenging a Virginia statute which exempted child care centers operated or conducted under the auspices of religious institutions from state licensing requirements. The Court held that the exemption in the Virginia statute was facially overbroad in relation to the secular legislative purpose (that the legislature was accommodating the free exercise rights of religious institutions) claimed for it. Likewise, we fail to see how the exemption in KRS 17.165 is required for free exercise of religion protection.
The state has indicated its interest in maintaining certain standards for child care facilities by requiring such facilities to be licensed in order to operate. [KRS 199.892 - 199.896]. Those license requirements apply equally to all child care facilities. We find no valid reason why the requirements of KRS 17.165 should not also apply to all child care facilities as defined in KRS 199.894.
Since KRS 17.165 applies to less than all day care centers, we must consider Sections 59 and 60 of the Kentucky Constitution. Section 59 provides that the General Assembly shall not pass local or special acts in any case where a general law can be made applicable. Section 60 of the Constitution of Kentucky provides that the General Assembly shall not indirectly enact any special or local act by exempting from the operations of a general act any city, town, district or county.
"Special" or "local" legislation as defined in
Board of Education of Jefferson County v. Board of Education of Louisville, Ky., 472 S.W.2d 496 (1971), at 498 is as follows:
"A local act is one confined to territorial limits, other than that of the whole state or one which is applicable to some political subdivision and not to others. A special law is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favors others."
Since KRS 17.165 does not involve a geographical limitation less than the whole state, we are not concerned here with local legislation, but rather with whether KRS 17.165 constitutes special legislation.
The long and well-established rule is that a classification based upon a reasonable and natural distinction will not be voided. See,
Williams v. City of Bowling Green, 254 Ky. 11, 70 S.W.2d 967 (1934).
As discussed earlier in this opinion, the Religious Establishment Clause and the Free Exercise of Religion Clause of the U.S. Constitution do not necessitate exempting church sponsored day care centers from the scope of KRS 17.165. Since we can identify no reasonable distinction to justify the separate treatment given by KRS 17.165 to non-church sponsored day care centers and church sponsored day care centers, it is our opinion that KRS 17.165 is special legislation in violation of §§ 59 and 60 of the Kentucky Constitution.
It is unfortunate that a statute with such a noble purpose was not enacted in a constitutionally valid form. However, if KRS 17.165 is amended by the 1988 General Assembly to increase its scope of applicability so that it includes church sponsored day care centers, the net result will be protection of all children in day care centers from abuse.
CONCLUSION
KRS 17.165, which exempts church sponsored day care centers from its requirement that child care centers request a sex crime records check as to their applicants for employment, is unconstitutional as special legislation in violation of Kentucky Constitution Sections 59 and 60.