Could Maryland exempt religious child care centers from state licensing without violating the separation of church and state?

Plain-English summary

A Maryland delegate asked the Attorney General, in early 1989, whether the First Amendment's Establishment Clause would let the General Assembly exempt religiously-affiliated child care centers from the state's newly consolidated child care licensing law. The Attorney General concluded that such an exemption would be constitutional, though not constitutionally required: the state could validly require licensing of religious child care centers to protect children's health and safety without violating the Free Exercise Clause, but it could also choose to step back and exempt them, following the Supreme Court's reasoning in Corporation of Presiding Bishop v. Amos (upholding a religious-employer exemption from Title VII) and a Fourth Circuit decision applying that same reasoning to uphold Virginia's exemption of religious child care centers from licensing.

Currency note

This opinion was issued in January 1989 and analyzed Maryland's child care licensing statute as it existed shortly after a 1988 legislative overhaul, Chapter 247 (House Bill 767) of the Laws of Maryland 1988. The specific statutory citations, licensing definitions, and the delegate's then-pending bill discussed here reflect the law as it stood at that time and may have since changed. This page is a historical record of how the Attorney General analyzed the constitutionality of a possible religious exemption in 1989. It describes what the opinion concluded then and is not a statement of current Maryland child care licensing law or current Establishment Clause doctrine, which has continued to develop since 1989. Verify current law directly before relying on anything here.

Common questions

Could Maryland's legislature have exempted church-run day care centers from state licensing in 1989 without violating the Constitution?
Yes, according to the opinion. It concluded that such an exemption would be constitutionally permissible under the Establishment Clause, following the Supreme Court's Corporation of Presiding Bishop v. Amos decision and a Fourth Circuit case upholding an identical exemption for Virginia child care centers, while also making clear the state was not constitutionally required to grant the exemption.

Did Maryland already exempt all religious child care centers from licensing as of 1989?
No. The opinion explained that the 1988 law had only two narrow exemptions tied to religious organizations, one for an in-school program serving only that school's own enrolled children, and one for a nonpublic nursery school separately approved by the State Department of Education, so most religiously-affiliated child care centers still needed a Department of Human Resources license under the law as it then stood.

Would requiring religious child care centers to get a state license have violated their religious freedom?
No, in the opinion's view. It concluded that licensing aimed at protecting children's health and safety, without interfering in a program's religious content, advanced a compelling state interest and did not violate the Free Exercise Clause, citing federal and state court decisions upholding similar licensing requirements for religious preschools.

Background and statutory framework

Maryland's 1988 child care overhaul, Chapter 247 (House Bill 767), required a license from the Department of Human Resources to operate a "child care center," defined broadly to include most part-day or full-day care arrangements for unrelated children, and specifically including nonpublic nursery schools for two-to-four-year-olds, while excluding nonpublic kindergartens and elementary schools. The statute carved out two narrow religious-affiliated exemptions: an in-school program serving only that school's own enrolled students, and a nonpublic nursery school that had obtained a separate certificate of approval from the State Department of Education. Absent one of those exemptions, a religiously-affiliated child care center otherwise meeting the statutory definition needed a Department of Human Resources license addressing environmental, health, and safety standards under COMAR 10.05.01.

The opinion first addressed whether the state could require licensing of religious child care centers at all, concluding yes, this did not violate the Free Exercise Clause because licensing served the compelling interest of protecting children's health and safety without dictating a program's religious content, citing federal and state decisions from California, Kansas, and Michigan upholding similar licensing schemes for religious preschools. The opinion then turned to whether the state could instead choose to exempt religious centers, applying the three-part Establishment Clause test from Lemon v. Kurtzman as the Supreme Court had applied it in Corporation of Presiding Bishop v. Amos, which upheld a Title VII exemption letting religious organizations discriminate on the basis of religion in their own hiring. The opinion reasoned that a Maryland child care licensing exemption would satisfy the same test: it would serve the permissible secular purpose of avoiding governmental interference with a religious organization's mission, it would not itself have the state "advancing" religion merely because the exempted organizations advanced their own religious purposes, and it would reduce entanglement between church and state rather than increase it. The opinion found this reasoning directly supported by the Fourth Circuit's Forest Hills Early Learning Center decision, which had applied Amos to uphold Virginia's parallel exemption of religious child care centers from licensing, and by an Illinois Supreme Court decision reaching a similar result. The opinion noted that the delegate and colleagues had prefiled legislation, House Bill 206, that would have created exactly this kind of broader religious exemption, including for Amish and Mennonite church parochial schools.

Citations and references

Statutes:

• Chapter 247 (House Bill 767) of the Laws of Maryland 1988, the 1988 overhaul consolidating child care licensing authority in the Department of Human Resources
• §5-574(a) of the Family Law Article, the general child care center licensing requirement
• FL §5-570(c)(1), defining "child care center"
• FL §5-570(c)(2), including certain nonpublic nursery schools within that definition
• FL §5-570(c)(3), excluding nonpublic kindergartens and elementary schools from that definition
• FL §5-574(b)(2), the two narrow religious-affiliated exemptions from licensing
• COMAR 10.05.01, the Department of Human Resources' child care licensing regulations
• COMAR 13A.09.09.01C, the State Department of Education's certificate-of-approval regulation for bona fide church schools

Cases:

• North Valley Baptist Church v. McMahon, 696 F.Supp. 518, 527 (E.D. Cal. 1988), federal decision upholding preschool licensing as advancing a compelling state interest
• Kansas ex rel. Pringle v. Heritage Baptist Temple, Inc., 236 Kan. 544, 693 P.2d 1163 (1985), cited alongside North Valley Baptist Church
• Department of Social Serv. v. Emmanuel Baptist Pre-School, 150 Mich. App. 254, 388 N.W.2d 326 (1986), cited alongside North Valley Baptist Church
• Walz v. Tax Commission, 397 U.S. 664, 673 (1970), cited for the principle that permissible accommodation of religion is broader than what the Free Exercise Clause strictly requires
• Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 334 (1987), the core Supreme Court precedent upholding a religious-employer exemption under the Lemon test, applied here by analogy
• Lemon v. Kurtzman, 403 U.S. 602 (1971), the three-part Establishment Clause test applied throughout the opinion
• Forest Hills Early Learning Center, Inc. v. Grace Baptist Church, 846 F.2d 260, 264 (1988), Fourth Circuit decision applying Amos to uphold Virginia's religious child care licensing exemption
• Pre-School Owners Association v. Department of Children and Family Services, 119 Ill. 2d 268, 518 N.E.2d 1018, 1023-25 (1988), Illinois Supreme Court decision reaching a similar result

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 71-75 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONSTITUTIONAL LAW

Child Care - First Amendment - Establishment Clause - Exemption Of
Religiously-Affiliated Child Care Centers From Licensing Would
Not Violate Establishment Clause

January 17, 1989

The Honorable Patrick J. Scannello
Maryland House of Delegates

You have requested our opinion on whether the Establishment

Clause of the First Amendment permits the General Assembly to
exempt child care centers affiliated with religious organizations from
an otherwise generally applicable licensing requirement.

 For the reasons stated below, we conclude that an exemption from

licensing for religiously-affiliated child care centers would be
constitutional.

                                I

                     Child Care Regulation

 At its 1988 Session, the General Assembly enacted comprehensive

legislation for the regulation of child care facilities. This law, Chapter
247 (House Bill 767) of the Laws of Maryland 1988, was intended to
"streamlin[e] the regulatory process for child care by consolidating
certain regulatory authority in the Department of Human Resources."

 In general, "a person shall be licensed by the Department [of

Human Resources] before the person may operate a child care center
in this State." §5-574(a) of the Family Law Article ("FL" Article).
The key term "child care center" means "an agency, institution, or
establishment that, for part or all of a day, or on a 24-hour basis on a
regular schedule, and at least twice a week, offers or provides child
care to children who do not have the same parentage except as
otherwise provided for in law or regulation." FL §5-570(c)(1). The
term includes "a nonpublic nursery school in which an instructional
program is offered or provided for children between 2 to 4 years old."
FL §5-570(c)(2). However, the term excludes both "a nonpublic
kindergarten in which an instructional program is offered or provided
for children who are at least 5 years old" and "a nonpublic elementary
school in which an instructional program is offered or provided for
children who are in grades 1 through 8." FL §5-570(c)(3).

The statute does not contain a general exemption for child care

centers operated by religious organizations. Rather, it has two more
limited exemptions pertaining to religious organizations. The licensure
requirement does not apply to:

        (i) the instructional program, curriculum, or
     teacher, principal, or administrator qualifications of a
     nursery school or child care center that is operated by
     a religious organization in a school building
     exclusively for children who are enrolled in that
     school; or

        (ii) a nonpublic nursery school operated by a
     religious organization that has been issued a certificate
     of approval by the State Department of Education.1

FL §5-574(b)(2).

 In sum, under current law, a child care center affiliated with a

religious organization must obtain a license if it falls within the
definition of "child care center" and is not approved by the State
Department of Education. The Department of Human Resources's
licensing process addresses those aspects of a child care center's
program that are not related to its educational component, to ensure the
center's compliance with environmental, health, and safety standards.
See COMAR 10.05.01.

   1
    "A school operated by a bona fide church organization is not required to be

approved by the State Department of Education. However, such a school may apply
for a certificate of approval, and, if approved, shall comply with [the State
Department of Education's] regulations." COMAR 13A.09.09.01C.

                                       II

                     Constitutionality of Regulation

 In our view, the State may require licensing of child care centers

affiliated with religious organizations in furtherance of the State's
interest in the well-being of children. This form of State regulation
does not violate the Free Exercise Clause of the First Amendment. As
one federal court recently put it, "the licensure requirement [for
preschools] effectively advances a compelling, indeed paramount, state
interest, protection of the health and safety of young children." North
Valley Baptist Church v. McMahon, 696 F.Supp. 518, 527 (E.D. Cal.
1988). See also, e.g., Kansas ex rel. Pringle v. Heritage Baptist
Temple, Inc., 236 Kan. 544, 693 P.2d 1163 (1985); Department of
Social Serv. v. Emmanuel Baptist Pre-School, 150 Mich. App. 254,
388 N.W.2d 326 (1986), remanded in part 418 N.W. 2d 94 (Mich.
1988).2

                                      III

                     Constitutionality of Exemption

 The fact that the State may regulate religiously-affiliated child care

centers without offending the Free Exercise Clause does not mean that
the State must do so. In our view, the General Assembly is
constitutionally free to exempt from licensing child care centers
affiliated with religious organizations, if it should choose to do so as
a policy matter.

"The limits of permissible State accommodation to religion are by

no means co-extensive with the noninterference mandated by the Free
Exercise Clause." Walz v. Tax Commission, 397 U.S. 664, 673

 2
    In a letter of advice, Assistant Attorney General Nancy B. Shuger concluded

that the licensing of religiously affiliated child care centers required by Chapter 247
was constitutionally permissible, "because the license is designed to address the
State's compelling interest in assuring the health and safety of children in child care
without interfering in the nature or content of the religious program provided." Letter
to Senator Victor Cushwa (June 23, 1988). Earlier, during the consideration of
House Bill 767, Assistant Attorney General Kathryn M. Rowe advised that "the State
may subject day care centers run by religious organizations to regulation of their
disciplinary policies without running afoul of the free exercise clause." Letter to
Delegate Carol S. Petzold (Feb. 29, 1988). We reaffirm these conclusions.

(1970). As the Supreme Court recently observed,
"[t]here is ample room under the Establishment Clause for 'benevolent
neutrality which will permit religious exercise to exist without
sponsorship and without interference.'" Corporation of Presiding
Bishop v. Amos, 483 U.S. 327, 334 (1987) (quoting Walz v. Tax
Commission, 397 U.S. at 669).

 In Amos, the Supreme Court upheld the constitutionality of an

exemption for religious organizations in Title VII of the Civil Rights
Act of 1964. Title VII, among other provisions, generally prohibits
discrimination in employment on the basis of religion. However,
religious organizations are exempt from this prohibition.

 The Supreme Court held that this exemption satisfied the three-part

test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971), for analyzing
claimed violations of the Establishment Clause.3 First, the Supreme
Court held that a legislative purpose "to alleviate significant
governmental interference with the ability of religious organizations to
define and carry out their religious missions" is a permissible secular
purpose. 483 U.S. at 334. Second, the exemption did not have the
forbidden effect of advancing religion. Although the exemption
obviously "allows churches to advance religion, which is their very
purpose," the exemption did not mean that "the government itself has
advanced religion through its own activities and influence." 483 U.S.
at 337 (emphasis in original). Finally, the exemption "effectuates a
more complete separation of" church and state and thus avoids
impermissible entanglement. 483 U.S. at 339.

Applying the reasoning in Amos, the Fourth Circuit upheld the

constitutionality of Virginia's exemption of religiously-affiliated child
care centers from licensing requirements:

     [W]e do not discern any distinctions that would justify
     a result in this case different from that reached in
     Amos. Indeed, if an exemption is permissible in the
     context of employment practices ..., one can only be

 3
   This office has frequently considered the application of the Lemon criteria.

See, e.g., 73 Opinions of the Attorney General 68 (1988); 69 Opinions of the
Attorney General 100 (1984); 67 Opinions of the Attorney General 26 (1982); 65
Opinions of the Attorney General 186 (1980); 59 Opinions of the Attorney General
209 (1974).

     more solidly justified where it acts to prevent state
     interference with church programs that provide
     education and care for children.

Forest Hills Early Learning Center, Inc. v. Grace Baptist Church, 846
F.2d 260, 264 (1988). See also, e.g., Pre-School Owners Association
v. Department of Children and Family Services, 119 Ill. 2d 268, 518
N.E.2d 1018, 1023-25 (1988). A similar exemption in Maryland
would likewise be constitutional, in our view.4

                                    IV

                               Conclusion

In summary, it is our opinion that the General Assembly is

constitutionally free to exempt child care centers operated by religious
organizations from licensing.5 Such an exemption is not
constitutionally required, however. Thus, the matter is a policy
decision for the General Assembly.

                                                 J. Joseph Curran, Jr.
                                                 Attorney General

                                                 Jack Schwartz
                                                 Chief Counsel
                                                   Opinions & Advice

 4
    In a letter of advice, Assistant Attorney General Kathryn M. Rowe reached a

similar conclusion in light of the Forest Hills decision. Letter to Delegate Donald B.
Elliott (June 1, 1988).
5
We note that you and two of your colleagues have prefiled legislation, House
Bill 206, that would exempt from licensing "an institution operated by a bona fide
church organization, including the Amish and Mennonite church parochial schools."