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St. Elizabeth's Child Care Center v. Dep't of Public Welfare


January 7, 2010


The opinion of the court was delivered by: Senior Judge Friedman

Argued: December 8, 2009



St. Elizabeth's Child Care Center (St. Elizabeth's) petitions for review of the July 29, 2005, order of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals (Bureau), which denied St. Elizabeth's appeal from an administrative order directing it to cease and desist operation of an uncertified child day care center. We affirm.

St. Elizabeth's is a nonprofit child day care center affiliated with the Roman Catholic Church. A DPW field representative visited St. Elizabeth's and determined it did not have a certificate of compliance as required by DPW regulations. 55 Pa. Code §§3270.3, 3270.11. Accordingly, DPW ordered St. Elizabeth's to cease and desist operating the center. St. Elizabeth's appealed to the Bureau, arguing that DPW lacked statutory authority to promulgate regulations requiring certification of nonprofit child day care centers. St. Elizabeth's also raised constitutional concerns regarding the regulations' impact on religious liberty. An administrative law judge (ALJ) concluded that Article IX of the Public Welfare Code (Code), Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§901-922, authorizes DPW to require nonprofit child day care centers to obtain a certificate of compliance. Because of statutory constraints, the ALJ did not rule on the regulations' constitutionality. The Bureau adopted the ALJ's recommendation and denied St. Elizabeth's appeal.

Commonwealth Court reversed, holding that Article IX of the Code does not give DPW the power to require a nonprofit child day care center to obtain a certificate of compliance in order to operate. St. Elizabeth's Child Care Center v. Department of Public Welfare, 895 A.2d 1280 (Pa. Cmwlth. 2006), rev'd, 600 Pa. 131, 963 A.2d 1274 (2009). Having so decided, this court did not address St. Elizabeth's constitutional arguments. However, on further appeal, our supreme court reversed on the issue of DPW's regulatory authority and remanded to this court for consideration of St. Elizabeth's constitutional claims. St. Elizabeth's Child Care Center v. Department of Public Welfare, 600 Pa. 131, 963 A.2d 1274 (2009). Accordingly, we now consider whether the application of DPW's licensing and regulatory scheme to St. Elizabeth's infringes upon St. Elizabeth's right to free exercise of religion in violation of the First Amendment to the U.S. Constitution,*fn1 Article I, Section 3 of the Pennsylvania Constitution*fn2 and/or the Religious Freedom Protection Act.*fn3

Asserting that the primary purpose of its child care center is "to assist parents in raising their children and forming in them a Christian personality consistent with the values and beliefs of the Church and their parents," (St. Elizabeth's brief at 40), St. Elizabeth's argues that enforcement of DPW's regulatory scheme would significantly burden St. Elizabeth's religious mission. Relying on Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963), St. Elizabeth's argues that the state failed to establish that it has a compelling interest justifying the infringement of its rights and/or that it cannot protect that compelling interest through less burdensome means.

DPW counters that no actual religious liberty interest is implicated in this case. DPW also argues that, in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the United States Supreme Court abandoned the compelling state interest standard of review and held that states are free to enact and enforce facially neutral laws of general applicability even though they may interfere with the religious practices of some individuals. According to DPW, the Sherbert/Yoder compelling interest standard of review is not applicable in this case, because the regulations at issue constitute neutral laws of general applicability that are subject to a rational basis standard of review.

St. Elizabeth's responds that an exception for claims involving "hybrid rights" was recognized in Smith and is applicable here. However, St. Elizabeth's acknowledges that, regardless of which standard of review applies, St. Elizabeth's first must establish that the application of DPW regulations substantially burdens St. Elizabeth's free exercise of religion. Wiest v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362 (1974). We conclude that St. Elizabeth's has not satisfied its threshold burden.*fn4

St. Elizabeth's first characterizes DPW's licensing requirement as a prior restraint on its core religious functions. In support of this argument, St. Elizabeth's contends that the regulations at 55 Pa. Code §§3270.1,*fn5 3270.101,*fn6 3270.111*fn7 and 3270.113*fn8 are designed to promote social competence and self-esteem and that, because opinions within the child care community vary as to what constitutes proper social competence and self-esteem, enforcement of these regulations will require subjective determinations by DPW inspectors. Noting that governmental or secular world views may frequently be at odds with the Church's view of what constitutes proper social development, St. Elizabeth's asserts that it would be difficult and intrusive to have government bureaucrats evaluate its religious ministries under standards that are not part of Church teaching or are at variance with it. However, St. Elizabeth's does not identify the specific impact of any particular regulation; instead, its prior restraint argument consists of vague and speculative assertions.

St. Elizabeth's also contends that, because the purpose of its child care facility is to contribute to the formation of children's religious beliefs, the child care center is engaged in missionary evangelism similar to preaching privileges protected from a license tax in Murdock v. Pennsylvania, 319 U.S. 105 (1943). However, St. Elizabeth's does not explain how the regulations at issue interfere with the facility's ability to communicate Church teachings.

Next, arguing that it must be free to choose employees with specific religious beliefs, St. Elizabeth's asserts that the regulations in Chapter 20 place restrictions on the center's hiring decisions. For example, St. Elizabeth's complains that "Appendix A - Civil Rights Compliance - Statement of Policy," (Brief, AppendiX C), requires child care facilities to implement civil rights policies and procedures in accordance with applicable civil rights laws, thereby requiring that St. Elizabeth's employment actions be taken without regard to religious creed. St. Elizabeth's notes that federal and state civil rights laws include exemptions for religious facilities but that DPW's regulations do not. However, we accept DPW's construction of this provision as a statement of policy that merely requires compliance with existing statutes and regulations and does not impose any additional requirements. We also note that each of the civil rights laws that otherwise affect religious organizations (that do not accept government funding) contain an exception for religion that would preclude the kind of interference or control that St. Elizabeth's fears will result.

St. Elizabeth's further complains that some of DPW's regulations require all staff to have governmentally designated educational degrees before they can be employed in various positions. 55 Pa. Code §§3270.34-3270.37. According to St. Elizabeth's, uniform training for staff would be one of the most effective means of attempting to exercise governmental control over its instructional and developmental program. However, St. Elizabeth's again is short on specifics and does not identify how the staff educational requirements impose a burden on its religious liberty. Moreover, waivers from the regulatory standards set forth at 55 Pa. Code §§3270.34-36,*fn9 3270.101-108 (relating to equipment) and 3270.111-118 (relating to programming) may be obtained pursuant to 55 Pa. Code §3270.13.

Although St. Elizabeth's has analyzed and distinguished a variety of cases addressing constitutional issues, the remainder of its argument consists merely of conclusory statements that DPW's regulations substantially burden St. Elizabeth's constitutionally protected religious liberties. Because St. Elizabeth's has failed to identify any actual or imminent infringement upon St. Elizabeth's rights, its constitutional claims necessarily fail.

Accordingly, we affirm.


AND NOW, this 7th day of January, 2010, the order of the Department of Public Welfare, dated July 29, 2005, is hereby affirmed.



In my judgment, St. Elizabeth's justifiably points out significant areas of legitimate concern. For example, it suggests that subjectivity will be involved with respect to the nature of evaluating issues concerning self-esteem. It also suggests that compliance with civil rights rules (however laudable generally) and other non-discrimination issues, could cause the requirement of hiring persons who do not share similar religious beliefs. St. Elizabeth's further points out that the government requirement of designated educational degrees could again impact on this day care center in a way contrary to St. Elizabeth's religious mission.

However, as the majority correctly points out, St. Elizabeth's is "short on specifics" sufficient to support a present religious liberty issue.

We can only hope that when an issue arises -- probably by agency action with respect to certificate of compliance (license?) an adequate procedure will exist to not only safeguard children from harm, but provide respect for the religious liberty issues not presently, in advance of events, threatened here.

KEITH B. QUIGLEY, Senior Judge

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