State v. Pendleton

Justice Whichard

dissenting.

I agree with the Court of Appeals’ conclusion that former Chapter 74A of the General Statutes did not violate the Establishment Clause of the First Amendment to the Constitution of the United States. I believe Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 74 L. Ed. 2d 297 (1982), upon which the majority relies to find Chapter 74A unconstitutional, is distinguishable and does not invalidate the statute.

The Massachusetts statute at issue in Larkin conferred upon the governing body of a church or school an absolute veto over applications for liquor licenses when the applicant sought to sell liquor within five hundred feet of the church or school. The United States Supreme Court determined that the statute

substitutes the unilateral and absolute power of a church for the reasoned decisionmaking of a public legislative body acting on evidence and guided by standards, on issues with significant economic and political implications. The challenged statute , thus *392enmeshes churches in the processes of government and creates the danger of “[political fragmentation and divisiveness on religious lines.”

Larkin, 459 U.S. at 127, 74 L. Ed. 2d at 307 (quoting Lemon v. Kurtzman, 403 U.S. 602, 623, 29 L. Ed. 2d 745, 762 (1971)). It therefore created an excessive entanglement between church and state in violation of the First Amendment.

The majority opinion views Larkin as standing for the proposition that no important discretionary power may be delegated to a religious institution. I believe the holding is less expansive, namely, that a delegation of state power to a church violates the First Amendment when the church’s exercise of that power fuses religious and governmental functions. Because the nature of both the institution involved and the power delegated differ in this case from those in Larkin, I do not believe the Larkin precedent requires that we hold Chapter 74A unconstitutional.

The entity that received and exercised state power in Larkin was a “formally constituted parish council,” an “institution of religious government.” Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, — U.S. —, —, 129 L. Ed. 2d 546, 557 (1994). Campbell University is neither a church nor an “institution of religious government.” It is an institution of higher education affiliated with the North Carolina Baptist Convention. The University’s Board of Trustees, though comprised of members of Baptist churches from across the state, governs university affairs, not religious matters. Thus, the Board is not a religious governing body like a parish council.

The Supreme Court has long recognized that colleges and universities closely affiliated with, or even governed by, a religious denomination are not necessarily pervasively sectarian institutions as a result. See, e.g., Hunt v. McNair, 413 U.S. 734, 37 L. Ed. 2d 923 (1973); Tilton v. Richardson, 403 U.S. 672, 29 L. Ed. 2d 790 (1971). In Hunt the Supreme Court concluded that the Baptist College at Charleston was not “an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.” Hunt, 413 U.S. at 743, 37 L. Ed. 2d at 931. The members of the Board of Trustees of the College were elected by the South Carolina Baptist Convention, which also had the sole power to amend the College’s charter and whose approval was required for certain financial transactions. However, neither students nor faculty members had to *393meet religious qualifications for admission or appointment, and the College’s operations were not “oriented significantly towards sectarian rather than secular education.” Id. at 744, 37 L. Ed. 2d at 931.

The Supreme Court reached a similar conclusion in Tilton. There the Court described the “general pattern” of education at religiously affiliated colleges and universities: “[B]y their very nature, college and postgraduate courses tend to limit the opportunities for sectarian influence by virtue of their own internal disciplines. Many church-related colleges and universities are characterized by a high degree of academic freedom and seek to evoke free and critical responses from their students.” Tilton, 403 U.S. at 686, 29 L. Ed. 2d at 803. The Court proceeded to note that the four universities receiving aid were “governed by Catholic religious organizations” and populated by predominantly Catholic faculties and student bodies. Id. However, all four schools admitted and employed non-Catholics, and none mandated student attendance at religious services. Theology courses, though required, were not limited to consideration of Roman Catholicism and were taught according to the professors’ professional standards and “the academic requirements of the subject matter.” Id. at 686-87, 29 L. Ed. 2d at 803-04. Thus the Court concluded that all four universities were “institutions with admittedly religious functions but whose predominant higher education mission is to provide their students with a secular education.” Id. at 687, 29 L. Ed. 2d at 804.

Campbell University fits the mold of the church-related universities involved in both Hunt and McNair. The institution’s mission statement, quoted in the trial court’s findings of fact and in the majority opinion here, contains both sectarian rhetoric and secular academic aims. Of the nine goals stated, five — a majority — are secular and reveal a commitment to academic rigor and intellectual development. The Supreme Court has declined to rely solely or significantly on an institution’s religious rhetoric when determining whether it is pervasively sectarian. See Hunt, 413 U.S. at 743, 37 L. Ed. 2d at 931. Similarly, such rhetoric does not render Campbell a religious institution as that term is used in Larkin. Though closely affiliated with a religious denomination, Campbell does not subordinate secular education to religious doctrine; it functions neither as a church nor as a religious governing body.

Just as the nature of the institution involved here differs from that involved in Larkin, the nature and result of the power delegated also distinguish this case from that one. The statute challenged in *394Larkin conferred upon a church the power to veto applications for liquor licenses; the church thus effectively usurped the role of the state. Such abdication by the state created “ ‘a fusion of governmental and religious functions,’ ” thus excessively entangling church and state. Larkin, 459 U.S. at 126-27, 74 L. Ed. 2d at 307 (quoting School Disk of Abington Township, Pa. v. Schempp, 374 U.S. 203, 222, 10 L. Ed. 2d 844, 858 (1963)).

The church-state relationship created by the state’s delegation of its veto power to churches in Larkin “presented an example of united civic and religious authority, an establishment rarely found in such straightforward form in modern America.” Grumet, — U.S. at —, 129 L. Ed. 2d at 557. Religious authority completely supplanted civic authority, allowing churches to use civic power for purely religious ends: “[The statute] substitute^] the unilateral and absolute power of a church for the reasoned decisionmaking of a public legislative body acting on evidence and guided by standards, on issues with significant economic and political implications. The . . . statute thus enmeshe[d] churches in the processes of government . . . .” Larkin, 459 U.S. at 127, 74 L. Ed. 2d at 307.

By contrast, neither an abdication of state power to a church nor the resulting fusion of governmental and religious functions occurred here; thus, we are not forced to adopt the result the Supreme Court reached in Larkin. At issue here is the delegation of the state’s police power. The Attorney General commissioned employees of Campbell University to act as police officers for the school under the authority of former Chapter 74A. Campbell paid the officers’ salaries as required by section 74A-4 and remained civilly liable for the acts of the police in the exercise of their authority under the statute. N.C.G.S. § 74A-1 (1989). The officers had the same authority as municipal and county police “to make arrests for both felonies and misdemeanors and to charge for infractions.” N.C.G.S. § 74A-2(b).

Additionally, the officers were required to take “the usual oath.” N.C.G.S. § 74A-2(a). N.C.G.S. § 11-11 contains the oath for law enforcement officers:

I, [name], do solemnly swear (or affirm) that I will be alert and vigilant to enforce the criminal laws of this State; that I will not be. influenced in any matter on account of personal bias or prejudice; that I will faithfully and impartially execute the duties of my office as a law enforcement officer according to the best of my skill, abilities, and judgment; so help me, God.

*395N.C.G.S. § 11-11 (1990). The officers also had to take the oath found in Article VI, section 7 of the Constitution of North Carolina, id., which states:

I, [name], do solemnly swear (or affirm) that I will support and maintain the Constitution and laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith, and that I will faithfully discharge the duties of my office as [a law enforcement officer], so help me God.

Thus, members of Campbell’s police force pledged to operate within the limits imposed on their law-enforcement power by the federal and state constitutions and laws, and to exercise their power in a neutral manner. The police power exercised by Campbell officers served not as a standardless vehicle for the advancement or protection of religious interests but as a neutral means of protecting the safety of all citizens and residents at and near the University. The existence of constitutional and statutory standards distinguishes this case from Larkin, where churches were not required to follow any standards or to explain the exercise of their veto power. Further, the record here does not show that members of Campbell’s police force proselytized students, visitors, or faculty or otherwise acted in a religious manner or for a religious purpose in their exercise of the powers delegated to them. The police power conferred was quintessentially secular, neutral and nonideological.

Finally, this delegation of power did not substitute the opinion of a religious body for that of the state and therefore did not fuse religious and governmental functions. “Where ‘fusion’ is an issue [as in Larkin], the difference lies in the distinction between a government’s purposeful delegation on the basis of religion and a delegation on principles neutral to religion, to individuals whose religious identities are incidental to their receipt of civic authority.” Grumet, — U.S. at —, 129 L. Ed. 2d at 558. Chapter 74A authorized the delegation of the police power to any company or educational institution on neutral bases, not on the basis of any belief or practice that was religious in nature. The First Amendment does not prohibit church-related institutions from receiving “public benefits that are neutrally available to all.” Roemer v. Board of Public Works of Md., 426 U.S.” 736, 746, 49 L. Ed. 2d 179, 187 (1976). That Campbell is affiliated with the North Carolina Baptist Convention is wholly incidental to the state’s commissioning of the University’s police officers to enforce secular statutes of general applicability; in Larkin, by contrast, the churches received their civic authority because they were churches.

*396In Tilton the Supreme Court warned that

[t]here are always risks in treating criteria discussed by the Court from time to time as “tests” in any limiting sense of that term. Constitutional adjudication does not lend itself to the absolutes of the physical sciences or mathematics. The standards should rather be viewed as guidelines with which to identify instances in which the objectives of the Religion Clauses have been impaired.

Tilton, 403 U.S. at 678, 29 L. Ed. 2d at 798-99. The objectives of the Establishment Clause of the First Amendment were not impaired by the operation of former Chapter 74A because the statute did not create an excessive entanglement between church and state. The standard established by Larkin soundly prohibits states from allowing churches to exercise civic authority without appropriate standards and with the goal of protecting religious interests. The delegation here, however, was not to a church or a religious governing body, did not involve the exercise of civic power without standards, and did not have the purpose or effect of protecting or promoting religious interests. It thus did not run afoul of the Establishment Clause of the First Amendment.

I therefore respectfully dissent and vote to affirm the result reached by the Court of Appeals.

Justices MEYER and WEBB join in this dissenting opinion.