An explanation of HB76 (the “Daycare Bill”) from Eric Johnston is found below.
ALCAP, the Alabama Christian Educators Association and the Southeast Law Institute are all supporting this bill, but other conservative groups are opposing it. I believe that this bill protects children, while also protecting the religious freedoms of churches. It does not keep churches that receive government subsidies from being licensed by the Alabama Department of Human Resources (DHR), but only churches that receive no government subsidies (which we believe to be a reasonable compromise). Two facts should be considered:
- Many good legislators who voted against the bill last year were vilified for “not caring about children.” Passing this bill will show that they do care about children, but also the religious freedoms of churches.
- Those who are pushing this bill will keep coming back if this bill is not passed. With the upcoming elections later this year, the makeup of the legislature next year might result in a climate that is less concerned about religious freedom.
Please read Eric Johnston’s explanation for a better understanding:
SOUTHEAST LAW INSTITUTE™
1200 Corporate Drive, Suite 107
Birmingham, Alabama 35242
Telephone: (205) 408-8893, Facsimile: (205) 408-8894
E-mail: [email protected]
TO: Interested Persons
FROM: A. Eric Johnston
DATE: January 30, 2018
RE: HB76 – Daycare Bill
The bill related to church daycare center licensure was voted out of a House committee today. The bill was a compromise of one from last year, but which is now acceptable to advocates for church daycares. However, there were complaints from others for separation of church and state reasons.
Those who have normally agreed on religious freedom issues find themselves at odds with a small group. This is unfortunate since it confuses not only legislators but citizens, as well. People do not know what to believe because of the apparent disagreement.
The disagreement is not over protecting religious freedom. The ideas articulated by opponents of the bill in committee and in media are well stated and accepted by conservatives who support the First Amendment Free Exercise of Religion Clause. The problem is, however, while it is possible to articulate principles and platitudes, it is more difficult to apply those in the real world. That is the problem here.
To be clear, the purpose of HB76 is to differentiate between proper church daycare ministries and those church daycare operations which either masquerade as such or operate using federal or state funds for profit. This problem did not exist until a federal funding act passed in 2014 required licensure and significant regulation of all daycares which take federal funds. Many church daycare operations in Alabama had begun accepting those funds. This created the ministry versus for-profit dichotomy which has now created the confusion.
HB76 is protection for proper church daycare ministries from regulation which is being forced by the federal government on the State Department of Human Resources (“DHR”). While DHR is often seen as the enemy, it is a public agency created to protect the public good. There must be a line at which it may not transgress when it comes to religious freedom. HB76 maintains the 1981 church daycare licensure exemption.
DHR must distinguish between legitimate church ministry and other operations. HB76 clarifies the law to provide that churches operating legitimate ministries will send in a minimum of paperwork, most of which is already required, to validify their operations. If a church cannot provide that information, it would be subject to inspection. The only other time the bill permits an inspection by DHR is if there is reasonable cause to believe that a child is in danger. This is a stringent requirement. Last year, advocates wanted annual inspections by DHR and that is what ultimately killed the bill. They gave up that requirement this year.
Child advocates are strident in their support for the bill. They speak only about protecting children. Most of their examples occur in licensed agencies. Merely being licensed does not stop human error. However, we cannot become disoriented in our effort but must work through the process to address changes in the real world that have occurred over the last 38 years while at the same time protecting the integrity of church ministry. That is what advocates for legitimate church ministry have done in coming up with this compromise bill.
The bill approved in committee today does not require licensure. As long as a church operates on the basis of its own principles and with its own funds, there is no improper interference by DHR. Licensure and more significant regulation only occurs if the church is in taking the federal or state funds for its support. Through decades of religious liberty litigation, we have never been able to adequately argue that regulation does not come with government funding.
Annual inspections are required by fire and health departments. That is already the fact. Those reports must be turned in annually. Routine fire and safety inspections should be made in churches, as well as other venues. There is a requirement for a church to carry property, casualty and liability insurance, but not health insurance as some have reported. Any reputable entity, church or otherwise, should be properly insured for its own protection, as well as for providing relief to injured persons. These type requirements are not burdensome and improper, but realistic. Criminal background checks are already required by current law, a necessity in today’s culture.
Actually, very little of the existing law is changed. The only real substantive change is the distinction between federally supported and self-supported church daycare operations. There was a suggestion that HB76 is a foot in the door for future church regulation. This bill adds a provision not in existing law that clearly says that even the religious teaching or practices of a licensed faith-based childcare facility are not infringed. Clearly, remaining exempt, as the bill states, maintains the proper separation of church and state.
We regret the confusion created by our friends who feel compelled to express their opinions. They have a right to do so. We hope they will study the issue more closely and confer with those who have spent hundreds of hours coming to this conclusion. If they will do so, we believe they will understand how to apply the principles they so clearly articulate.