In God’s Name --
As Exemptions Grow, Religion Outweighs Regulation

By Diana B. Henriques, New York Times, October 8, 2006

A four-part series examining how American religious organizations benefit from an increasingly accommodating government.

Excerpt from Part 1: Favors for the Faithful

. . .

Breaks for Social Services

On an early summer day at the Harvest Temple Church of God in Montgomery, a lively group of older children tossed soccer balls around a dim, cool gymnasium. In a smaller room to the side, staff members rocked sleeping infants and comforted cranky toddlers.

This bustling church-based center, next to the church sanctuary in a well-tended middle-class neighborhood, covers its costs and helps support the work of the church, the church pastor said.

“We have talked about getting licensed before in the past, but it would cost us quite a bit of money,” Pastor Fuson said. The staff would probably be large enough to meet state standards, he said, but the center would need costly renovations to upgrade the facilities.

Ms. White, whose licensed program, Auburn Daycare Centers, has become nationally accredited during her tenure, understands how demanding the state requirements are. Her centers in Auburn have to comply with them, down to the specific toys required for each age group.

In Alabama alone, almost a dozen children died in day care facilities in the two years before the state began upgrading its licensing requirements in 2000.
As in many states, these regulations were a response to conditions that had put young lives at risk. In Alabama alone, almost a dozen children died in day care facilities in the two years before the state began upgrading its licensing requirements in 2000.

Ms. White said the root problem in Alabama is that there is not enough state aid for working families who need good day care. But given the state’s limited resources, she said, it seems unfair that subsidies are available to unlicensed centers as well as licensed ones — a view shared by the Federation of Child Care Centers of Alabama, which has lobbied for greater financing and universal licensing.

Some churches in Alabama have voluntarily obtained licenses. The Rev. Paul B. Koch Jr., of First Christian Church in Huntsville, whose day care center is licensed, thinks licensing for such programs is appropriate and raises the quality of care. “But the Christian Coalition is still strong in Alabama and this is an issue for them,” he said.

John W. Giles, president of the state’s Christian Coalition, confirmed that his organization supported the exemption, noting that state oversight would be intrusive and was unnecessary “because the pastors and congregations are your quality control.” Although most of the unlicensed centers are run by Protestant churches or ministries, the exemption covers all faiths, from an Islamic preschool program in Huntsville to a Catholic parish center in Tuscaloosa.

Eleven other states — including Utah, Maryland, Illinois and Florida — also have exempted religious child care programs from at least some of the rules that apply to other nonprofit programs, according to the National Child Care Information Center in Fairfax, Va.

One state that has dropped off that list is Texas.

In 1997, George Bush, who was the governor, pushed through legislation that exempted faith-based day care centers and addiction treatment programs from state licensing, allowing them to be monitored instead by private associations controlled by pastors, program directors and other private citizens. Other laws enacted on his watch steered more state financing to these “alternatively accredited” institutions.

STUDY: The rate of confirmed cases of abuse and neglect at alternatively accredited facilities in Texas is more than 10 times that of state-licensed facilities.
Fewer than a dozen child care centers and about 130 addiction treatment programs took advantage of this new alternative, according to subsequent studies. But several of these later became the focus of state investigations into complaints of physical abuse. A study by the Texas Freedom Network Education Fund, a nonprofit research organization that opposed the faith-based initiatives, found that “the rate of confirmed cases of abuse and neglect at alternatively accredited facilities in Texas is more than 10 times that of state-licensed facilities.”

In spring 2001, the Texas Legislature quietly allowed the alternative accreditation program for day care centers to lapse.

Two leading First Amendment scholars, asked about faith-based day care licensing exemptions like these, said they were unfamiliar with the practice but thought it sounded legally dubious. “I think what you describe is unconstitutional,” said Ira C. Lupu, a law professor at George Washington University and the co-director of legal research for the Roundtable on Religion and Social Welfare Policy, an independent project of the Rockefeller Institute of Government.

Professor Witte, the director of Emory University’s Center for the Study of Law and Religion, said in an e-mail response that he “would frankly be surprised to find even this Supreme Court going that far.”

However, when a group of licensed day care centers challenged the Alabama law in a federal court in mid-2001, arguing that it deprived them of their constitutional right to equal protection before the law, the group lost.

Judge Myron H. Thompson of United States District Court, who ruled on the case, said the state could have adopted the arrangement to avoid church-state entanglements or simply to accommodate the free exercise of religion. Indeed, he cited four other federal cases, all decided since 1988, that had upheld similar exemptions for day care centers in other states.

In Judge Thompson’s view, it is “well settled” constitutional law that “the possible economic inequalities that might result from religious exemptions such as day care licensing exemptions” are not a violation of anyone’s equal-protection rights.

. . .


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