Judges: DANIEL E. LUNGREN, Attorney General
Filed Date: 6/2/1998
Status: Precedential
Modified Date: 7/5/2016
DANIEL E. LUNGREN Attorney General CLAYTON P. ROCHE Deputy Attorney General
THE HONORABLE STEVE BALDWIN, MEMBER OF THE CALIFORNIA ASSEMBLY, has requested an opinion on the following questions:
1. May a private nonprofit religious school deny admission to a student solely on the basis that the student's religious beliefs are inconsistent with the religious beliefs of the school?
2. May a city lease a public building to a private nonprofit religious school without requiring that the school be open to all religious beliefs of prospective students?
3. May a city refuse to lease a public building to a private nonprofit religious school solely on the basis that the school is not open to all religious beliefs of prospective students?
2. A city may lease a public building to a private nonprofit religious school without requiring that the school be open to all religious beliefs of prospective students.
3. A city may not refuse to lease a public building to a private nonprofit religious school solely on the basis that the school is not open to all religious beliefs of prospective students.
The first question presented for analysis is whether a private nonprofit religious school may deny admission to a student solely because the student's religious beliefs are in conflict with the religious beliefs of the school. We conclude that the school may do so.
We note initially that a private nonprofit religious school is not part of the public school system required by the Constitution. (Cal. Const., art.
We also note that a private school normally would not be subject to either the equal protection clause of the
Of these four tests, it might superficially appear that a private religious school "carries on a traditional public function" for purposes of constitutional analysis. However, this test is applicable only when the state delegates to a private party public functions under circumstances that leave no alternative source of benefits for its citizens. (See Flagg Bros., Inc. v. Brooks (1978)
Indeed, we find constitutional language that generally protects the school's decision to exclude those who do not subscribe to its religious beliefs. The "religion clauses" are contained in the
In Molko v. Holy Spirit Assn. (1988)
"The religion clauses protect only claims rooted in religious belief. [Citation.] The free exercise clause protects religious beliefs absolutely. [Citation.] While a court can inquire into the sincerity of a person's beliefs, it may not judge the truth or falsity of those beliefs. [Citation.] The government may neither compel affirmation of a religious belief [citation], nor penalize or discriminate against individuals or groups because of their religious beliefs [citation], nor use the taxing power to inhibit the dissemination of particular religious views. [Citation.]
"However, while religious belief is absolutely protected, religiously motivated conduct is not. [Citations.] Such conduct ``remains subject to regulation for the protection of society.' [Citation.] Government action burdening religious conduct is subject to a balancing test, in which the importance of the state's interest is weighed against the severity of the burden imposed on religion. [Citation.] The greater the burden imposed on religion, the more compelling must be the government interest at stake. [Citations.] A government action that passes the balancing test must also meet the further requirements that (1) no action imposing a lesser burden on religion would satisfy the government's interest and (2) the action does not discriminate between religions, or between religion and nonreligion. [Citation.]"
The religion clauses were more recently described in Rowe v. SuperiorCourt (1993)
". . . Commonly referred to as the establishment and free exercise clauses, they together permit and require that government maintain a ``benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.' [Citation.]
"The ``benevolent neutrality' required by the
First Amendment involves a delicate balance between the avoidance of sponsorship on the one hand and interference on the other. The United States Supreme Court has noted that the two religion clauses exist in ``tension' with one another [citations] and has ``struggled to find a neutral course between [them], both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.' [Citation.]"
The free exercise clause "does not relieve an individual of the obligation to comply with a ``valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" (EmploymentDiv., Ore. Dept. of Human Res. v. Smith (1990)
Here, not only is the free exercise clause implicated, so also is the constitutional right to associate with those of similar beliefs. "Congress shall make no law . . . prohibiting . . . the right of the people peaceably to assemble. . . ." (U.S. Const.,
With these constitutional freedoms and rights in mind, we examine whether there is a "valid and neutral law of general applicability" that would prevent a private religious school from denying admission to a student with contrary religious beliefs. Only one statute appears to require analysis, the Unruh Civil Rights Act (Civ. Code, §
"All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."
In interpreting the language of section
Recently the California Supreme Court examined the requirements of the Act with respect to membership in the Boy Scouts of America. (Curran v.Mount Diablo Council of the Boy Scouts (1998)
". . . [A]lthough past California decisions demonstrate that the Act clearly applies to any type of for-profit commercial enterprise, and to nonprofit entities . . . whose purpose is to serve the business or economic interests of its owners or members, no prior decision has interpreted the ``business establishments' language of the Act so expansively as to include the membership decisions of a charitable, expressive, and social organization, like the Boy Scouts, whose formation and activities are unrelated to the promotion or advancement of the economic or business interests of its members. (See, e.g., Hart v. Cult Awareness Network (1993)
13 Cal. App. 4th 777 [organization established to educate the public about the harmful effect of cults is not a business establishment for purposes of the Unruh Civil Rights Act].) In our view, given the organization's overall purpose and function, the Boy Scouts cannot reasonably be found to constitute a business establishment whose membership decisions are subject to the Act." (Id., at p. 697; fn. omitted.)
The court described the Boy Scouts' educational function as particularly significant in finding that the organization was not a "business establishment" for purposes of the Act:
". . . The record establishes that the Boy Scouts is an organization whose primary function is the inculcation of a specific set of values in its youth members, and whose recreational facilities and activities are complementary to the organization's primary purpose. . . . Scouts meet regularly in small groups (often in private homes) that are intended to foster close friendship, trust and loyalty, and scouts are required to participate in a variety of activities, ceremonies, and rituals that are designed to teach the moral principles to which the organization subscribes." (Id., at pp. 697-698.)
Similarly, here, a private nonprofit religious school has as its "overall purpose and function" the education of children in keeping with its religious beliefs. The "inculcation of a specific set of values," with programs "designed to teach the moral principles to which the [school] subscribes," prevents such a school from being considered a "business establishment" whose student admission practices would be subject to the Act.6 Such construction of the Act is consistent with the requirements of the Constitution. (See Curran v. Mount Diablo Councilof the Boy Scouts, supra,
No other constitutional or statutory provision appears to be relevant to our discussion. We thus conclude that a private nonprofit religious school may deny admission to a student solely on the basis that the student's religious beliefs are inconsistent with the religious beliefs of the school.
2. Leasing City Property
The second question presented is whether a city may lease a public building to a private nonprofit religious school without requiring the school to be open to all religious beliefs of prospective students. We conclude that a city may do so.
For our purposes we may assume that (1) the city has made the public building available to all private organizations or persons who might wish to utilize it, (2) the city has not restricted the building's use to religious schools, and (3) the lease has been negotiated in an arms-length transaction showing no preference to the religious school and for an adequate consideration.
A city may generally lease property to private individuals or organizations. (See Cal. Const., art.
In Christian Science v. City and County of San Francisco, supra,
Likewise, in Woodland Hills Homeowners Organization v. Los AngelesCommunity College District (1990)
These California cases are supported by cases in other jurisdictions. In Brashich v. Port Auth. of New York (S.D.N Y 1979)
". . . [T]he chapel serves the secular purpose of accommodating the religious needs of travellers and providing them with a place for rest and comfort. Moreover, because a reasonable observer would not conclude that the city endorses religion by allowing the diocese to maintain the chapel, the chapel's lease and its authorizing ordinance do not constitute an endorsement of religion, and thus their primary effect is one that neither advances nor inhibits religion. We find, finally, that the chapel's lease and its authorizing ordinance also do not foster an excessive government entanglement with religion. Accordingly, the lease and the ordinance do not violate the Establishment Clause of the
First Amendment. (Id., at p. 822, fn. omitted.)
Here, we believe that a lease of a public building to a private nonprofit religious school in an arms-length transaction without preference being given to religion per se would not constitute a violation of either the federal or state Constitutions. (See 45 Ops.Cal.Atty.Gen. 89 (1965); 43 Ops.Cal.Atty.Gen. 62 (1964); 25 Ops.Cal.Atty.Gen. 309,supra.) As reaffirmed by the United States Supreme Court in Corporationof Presiding Bishop v. Amos (1987)
"``This court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.'. . . There is ample room under the Establishment Clause for ``benevolent neutrality which will permit religious exercise to exist without sponsorship and without interferences.'. . ."
We conclude that a city may lease a public building to a private nonprofit religious school without requiring that the school be open to all religious beliefs of prospective students.
3. Refusing to Lease City Property
The final question presented is whether a city may refuse to lease a public building to a private nonprofit religious school solely on the basis that the school is not open to all religious beliefs of prospective students. We conclude that the city may not so refuse.
With respect to the equal protection clause of the federal Constitution, it is evident that the city's leasing policy would divide potential private religious school lessees into two groups: those who would not allow admission to students of all religious beliefs, and those who would. Whether a city may make such a division is not easily resolved. In what the United States Supreme Court has characterized as an "extraordinarily sensitive area of constitutional law," "we can only dimly perceive the lines of demarcation" between permissible and impermissible government action involving religious institutions. (Lemon
v. Kurtzman (1971)
On the one hand, the city's interests would include preventing religious discrimination on public property, fostering educational opportunities for all students, and avoiding giving the city's "imprimatur of approval" to the school's religious creed, whatever it might be. The establishment clause "prohibits government from appearing to take a position on questions of religious belief. . . ." (Id., at pp. 593-594; see Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993)
On the other hand, the interests of the school officials include, as discussed in answer to the first question, the free exercise of religion clause, the freedom of speech clause, and the freedom of association clause of the state and federal Constitutions. (See Widmar v. Vincent,supra,
Weighing these competing interests, we find that although a state or local government may not discriminate against religious groups, a religious group is not subject to the same requirement, even when on public property. While the city may wish to foster educational opportunities, the public school system, including charter schools, is available as an alternative, as well as other religious schools that accept students of all religious faiths.7 Moreover, as discussed above, courts have rejected the claim that an arm's-length lease of public property to a religious group gives the government's "imprimatur of approval" and "endorsement" to the religious beliefs of the group. (SeeHawley v. City of Cleveland, supra,
While the issue is not free from doubt, we believe that a court would side with the private religious school officials' free exercise of religion, speech, and association constitutional rights, regardless of which balancing test (the compelling state interest test or rational basis test) is used. (See Christian Science v. City and County of SanFrancisco, supra,
In answer to the third question, therefore, we conclude that a city may not refuse to lease a public building to a private nonprofit religious school solely on the basis that the school is not open to all religious beliefs of prospective students.
County of Allegheny v. American Civil Liberties Union ( 1989 )
Jane Hawley Eileen Roberts and David Finley v. City of ... ( 1994 )
Cantwell v. Connecticut ( 1940 )
Leal v. Holy Spirit Ass'n for Unification of World ... ( 1988 )
Flagg Bros., Inc. v. Brooks ( 1978 )
Harris v. Capital Growth Investors XIV ( 1991 )
Curran v. Mount Diablo Council of Boy Scouts of America ( 1998 )
christian-science-reading-room-jointly-maintained-a-california-non-profit ( 1986 )