Many States Ceding Regulations to Church Groups

New York Times/July 27, 2001
By Pam Belluck

State officials in Missouri were distressed earlier this year when they received a complaint that a religious boarding school in the rural town of Bethel was punishing students by forcing them to muck out deep pits of manure.

The state was unaware that such a practice was going on. But there was no reason it should have known. In Missouri, residential schools and homes for troubled youths are exempt from virtually all state regulation if they are run by religious organizations.

"They have no obligation to even make themselves known to us," said Denise Cross, director of the Missouri Division of Family Services. "There is no regulatory body for those facilities."

When it comes to exempting religious institutions from state laws and regulations, Missouri is not alone. Some states grant exemptions to religious academies or boarding homes; others allow day care centers run by religious groups to operate without licenses.

Increasingly, legal experts say, religious organizations have been seeking and winning exemptions from other areas of the law, from land-use regulations to health requirements, like immunization.

In the last few years, more than a dozen states have passed or considered legislation to prohibit state and local laws from interfering with religious practices or beliefs unless the state or city can show that a compelling public interest is at stake.

A similar federal law, the Religious Freedom Restoration Act, was enacted in 1993 and was struck down by the Supreme Court in 1997. As a result, nine states, including Connecticut, Florida, Illinois, Rhode Island and Texas, have enacted so- called religious protection measures. And supreme courts in six other states, including Massachusetts and Minnesota, have issued rulings that have the same effect.

Last year Congress passed a measure allowing religious institutions to be exempt from land-use rules that impose "a substantial burden on religious exercise." Under the law, a house of worship seeking to, say, build a sanctuary violating height or historic preservation ordinances might be able to exempt itself.

"We're in an era when government is extraordinarily deferential to religious organizations," said Marci A. Hamilton, a professor of constitutional law at Yeshiva University's Benjamin N. Cardozo School of Law, who challenged the federal religious protection act before the Supreme Court. "Legislators think that in this era there's a lot of political benefit in doing good things for religion, and saying no to religious requests is hard for them to do."

David Gibbs III, general counsel for the Christian Law Association, which advises legislators and groups on gaining religious liberties, said that "there is a push to get religious freedom restoration acts imposed on a state level" and that his group and others had been trying to make state and local governments aware of the federal land-use law.

"People ask why should there be a religious exemption," Mr. Gibbs said. "No. 1 is the First Amendment, which guarantees that government would not excessively entangle itself with religion. No. 2, lots of the traditional government regulations will conflict with the purpose of a religious organization," including, he said, the ability to hire only people of a certain faith, to proselytize and to incorporate the Bible throughout the programs.

Mr. Gibbs and others said they expected that efforts by religious organizations to expand legal exemptions would intensify in light of President Bush's proposal to increase federal financing for charitable works of religious organizations.

That proposal, passed by the House of Representatives, would allow religions that receive federal money for charitable work to continue hiring solely within their faith. Under current law, religions are allowed to impose such a hiring restriction, using private money, to maintain the character of their faith. Civil rights groups argue that the president's proposal would amount to federally financed discrimination in hiring.

The debate over exemptions can be passionate, particularly when it concerns children. Religious sites run by evangelical Christian groups, for example, may resist licensing so they can use corporal punishment or hire employees whose experience caring for children comes primarily from being parents, not from training or education that the state might require. Most children are put in these places by their parents; advocates of licensing say state regulation is needed to keep children safe.

"It's a little war that's going on," Ms. Hamilton said, "a heated battle between children's advocates and religious representatives." But in the roughly 15 states that have religious exemptions for day care centers or residential academies, the exemptions are often fashioned in a more shaded manner. Religious groups agree to follow basic health and safety requirements in exchange for being allowed to teach, discipline and hire as they please.

In Florida, church day care centers and residential homes for troubled youths used to be licensed by the state, but now they are allowed to be accredited by an association of their peers instead, provided they get no government financing.

Ed MacClellan, director of the Florida Association of Christian Child Caring Agencies, which accredits residential homes for youths, said the association's standards exempted homes from state rules on hiring and religious teaching.

"Initially we started the group when it was a period where the state was using the licensing to effect a religious agenda," Mr. MacClellan said. "They wanted you to take down the crosses and the pictures of Jesus, but we didn't want them to go. And there were some concerns about not wanting to give a lick or a spank to a kid. But if a program is biblically based then in our state they can still give a spanking."

In South Carolina, religious day care centers must either be state licensed or registered. If registered, they are exempt from regulations on personnel and curriculum.