Department of Social Services v. Emmanuel Baptist Preschool

Cavanagh, J.

(concurring). I conclude (1) that the state may require defendant preschool to obtain a license pursuant to the terms of the childcare organization act; (2) that the Michigan Department of Social Services either must exempt defendants1 from the program director qualifications rule (1980 AACS, R 400.5104) insofar as it requires that the director obtain minimal educational training only from a state accredited college or university or must undertake an independent evaluation of the credentials of defendants’ program director to determine whether his qualifications satisfy the minimal educational criteria set forth in Rule 104; (3) that the program content rule (1980 AACS, R 400.5106) is unconstitutionally *390vague on its face and may not be enforced against the defendants; (4) that in order to protect the defendants’ (mefnbers’) rights of association under the First Amendment, the dss, in applying the provisions of the act which give authority to the dss to inspect defendants’ financial records, may not request information from the defendants that reveals the source or identity of the defendants’ financial support; and (5) that the administrative rule (1980 AACS, R 400.5107) prohibiting corporal punishment is justified by a compelling state interest and therefore enforceable against defendants.

1 write separately to join Justice Griffin’s "com curring” opinion2 to form a majority on the issue of the Free Exercise Clause standard of review,3 the issue whether the defendants’ claims regarding the licensing rules are ripe for review, and the issue whether the licensing rules are unconstitutional.4 I also write separately to join the dissenting opinion (Boyle, J.)5 to form a separate majority *391on the issue whether the license requirement is constitutional as applied.6

I. STANDARD OF REVIEW TO BE APPLIED TO FREE EXERCISE CLAIMS

A. INTRODUCTION

The religion clauses of the First Amendment of the United States Constitution7 encompass two distinct but interrelated concepts — the guarantee of free exercise of religion by all persons, and the prohibition of the establishment of religion by government. I am primarily concerned here with the free exercise facet of the First Amendment.

In Sheridan Road Baptist Church v Dep’t of Ed, 426 Mich 462; 396 NW2d 373 (1986), cert den 481 US 1050; 107 S Ct 2183; 95 L Ed 2d 839 (1987), this Court divided equally and affirmed a holding by the Court of Appeals that a statute requiring nonpublic school teachers to be certified by the state is constitutional. The three opinions in Sheridan Road recognized the four basic elements of the Free Exercise Clause standard of review described by Justice Williams, 426 Mich 475, though each opinion applied that standard differently. I write separately, in part, to discuss the proper application of the standard.

B. ELEMENTS OF THE STANDARD

The first inquiry is whether the free exercise *392claim is "rooted in religious belief,” Wisconsin v Yoder, 406 US 205, 215; 92 S Ct 1526; 32 L Ed 2d 15 (1972). A religious belief must be based on more than purely secular or philosophically based personal concerns to be protected by the First Amendment, id. at 215-216. Religiously motivated conduct need not stem from adherence to the tenets of a particular religious organization, however, to enjoy the protection of the Free Exercise Clause, Frazee v Illinois Dep’t of Employment Security, 489 US 829, —; 109 S Ct 1514; 103 L Ed 2d 914, 920 (1989).

While a court may inquire into whether a religious belief is genuine or sincere, it should not decide the "truth” or "reasonableness” of the belief. United States v Ballard, 322 US 78; 64 S Ct 882; 88 L Ed 1148 (1944). As explained by the Court in Thomas v Review Bd Ind Employment Security Div, 450 US 707, 714; 101 S Ct 1425; 67 L Ed 2d 624 (1981):

The determination of what is a "religious” belief or practice is more often than not a difficult and delicate task .... However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.

In sum, the Court must accept an organization’s good-faith characterization that its activity is grounded in religious belief because "[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.” Hernandez v Comm’r of Internal Revenue, 490 US —; 109 S Ct 2136; 104 L Ed 2d 766, 786 (1989) (citation omitted).

Assuming the sincerity of a claimant’s religious *393beliefs, the party asserting a free exercise claim must show that a particular regulation burdens its practice of religion. Tony & Susan Alamo Foundation v Secretary of Labor, 471 US 290, 303; 105 S Ct 1953; 85 L Ed 2d 278 (1985); United States v Lee, 455 US 252, 256-257; 102 S Ct 1051; 71 L Ed 2d 127 (1982). The question is whether the "affected individuals [would] be coerced by the Government’s action into violating their religious beliefs ... [or whether] governmental action [would] penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Lyng v Northwest Indian Cemetery Protective Ass'n 485 US 439, 449; 108 S Ct 1319; 99 L Ed 2d 534 (1988).

A substantial burden was shown in Yoder because the school attendance law pressured the claimant with severe penalties to forego activity mandated by the claimant’s religious beliefs. There is an equally significant constitutional burden on religious belief if the law compels conduct that is contrary to religious faith, see, e.g., Sherbert v Verner, 374 US 398, 404, 406; 83 S Ct 1790; 10 L Ed 2d 965 (1963); Lyng, supra at 448-449.

A claimed burden on religious beliefs may be deemed constitutionally insignificant, but only (1) if the claimant’s beliefs do not create an irreconcilable conflict between the mandates of law and religious duty, or (2) if the legal requirement does not directly coerce the claimant to act contrary to religious belief, Jimmy Swaggart Ministries v California Bd of Equalization, 493 US_; 110 S Ct 688; 107 L Ed 2d 796 (1990);8 Hernandez v Comm’r of *394Internal Revenue, supra; Tony & Susan Alamo Foundation, supra.

In Jimmy Swaggart Ministries, supra, there was no evidence that the collection and payment of the sales tax violated the appellant’s sincere religious beliefs. In Hernandez v Comm’r of Internal Revenue, supra, 104 L Ed 2d 786, the claimant’s religious beliefs, unlike those in this case, did not forbid entirely compliance with the law (i.e., receiving or paying taxes for the religious sessions). The Court found that the denial of a tax deduction to the Church of Scientology for expenses incurred in conducting "auditing or training sessions” did not impose a substantial burden on the claimant’s faith.9 In Tony & Susan Alamo Foundation, supra, there was no necessary conflict between law and religious duty, making it unnecessary to order a Free Exercise Clause exemption.

In all these cases, the Court evaluated the claimants’ assessment of the religious nature of the conflict between law and religious faith, rather than imposing an objective evaluation of the degree of burden on the claimant. For example, in Hernandez, supra, 104 L Ed 2d 786-787, rather than substituting its own objective analysis of the degree of burden imposed on the activity (i.e., to avoid strict scrutiny of the regulation), the Court accepted the claimant’s characterization of the degree of burden and applied strict scrutiny.

Once it is established that a substantial burden has been imposed by a civil authority on the practice of a sincerely held religious belief, the *395state must prove a compelling interest that justifies both (1) any direct burdens on religiously motivated conduct, and (2) the imposition upon individuals of a "hard choice” between religious belief and conformity to a legal obligation because of their religious beliefs. See Hobbie v Unemployment Appeals Comm of Florida, 480 US 136, 141-142; 107 S Ct 1046; 94 L Ed 2d 190 (1987).10

C. APPLYING THE STANDARD

No balancing of interests is required if accommodation of that burden would not unduly impair or materially detract from the furtherance of compelling state interests.11 It is the state’s burden to prove that there are no alternative, less drastic *396means to accommodate the free exercise claim. See Sheridan Road, supra at 540-544 (Riley, J.); see also Yoder, supra at 215 (only state interests "of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion”).

Of course, it is true that "[not] all burdens on religion are unconstitutional,” United States v Lee, supra at 257. But this conclusion must be reached after applying strict scrutiny. The United States Supreme Court has consistently applied strict scrutiny where a law compelled conduct in violation of a sincerely held religious belief, see Sherbert v Verner and Wisconsin v Yoder, supra.12 In fact, in Lee, the Court specifically rejected the use of an "objective burdens” analysis as a threshold requirement preliminary to applying strict scrutiny balancing analysis.13

In a more recent case, Bowen v Roy, 476 US 693; 106 S Ct 2147; 90 L Ed 2d 735 (1986), a majority of the Court determined that strict scrutiny balancing analysis must be applied to decide the constitutionality of requiring an applicant for welfare benefits to submit a number in order to receive benefits if that act violates the applicant’s sincerely held religious belief.14 The Bowen Court *397ordered that, on remand, the claimant, Stephen Roy, must be exempted from the duty to supply the number (assuming the dispute remained justiciable).15 The burden that the licensing law imposes on defendants in this case is analogous to the burden imposed on claimant Stephen Roy, at least as to the second issue addressed in Bowen, supra at 727 (O’Connor, J.) (partial concurrence).16

Even more recently, in Lyng, supra, the Court made it clear that it is not applying a new version of strict scrutiny, and has not adopted a threshold burden requirement for all Free Exercise Clause cases. In Lyng, supra at 457-458, the Court applied a threshold burden analysis to determine the degree to which a law burdened the claimant’s religious practices. Lyng involved no direct legal coercion which forced the claimant to act in a manner contrary to a religious belief.17 Moreover, the Court sought to foreclose a broad reading of its Lyng decision by including the proviso that the case would be decided differently if the destruction of sacred lands had directly coerced the claimants to act contrary to their religious beliefs, id. at 453.18

*398Because Lyng was limited by the language of the decision to its facts, it is readily distinguishable from this case. The claimants in Lyng sought access to sacred Indian sites on lands that they did not own or have any legal right to use. By contrast, the defendants here are affirmatively compelled to submit to a license requirement that directly infringes upon religiously motivated activity.

Since strict scrutiny has consistently been applied in cases where the challenged statute or regulation directly coerces the defendant to violate religious beliefs "under pain of criminal penalty,” see Bowen, supra at 706, n 16 (Burger plurality), Yoder, supra at 207-209, 223, and Lyng, supra (O’Connor, J.), it must be applied here as well. But, it must be applied properly.

The dissent applies a version of strict scrutiny— the "substantial state interest test” — that is not consistent with established law, see post, pp 455, n 4, 456, n 5, and 466-467 (Boyle, J.). This standard departs from established precedent in at least two respects. First, it improperly places the burden of proof on the free exercise claimant in establishing the existence of less restrictive alternatives. Second, it does not place the burden on the state of showing that there are no less restrictive alternatives that can accommodate the claimant’s burden.19 Yoder remains good law, and must be applied here in the manner as described in Sheridan Road, supra at 574-578 (Riley, J.).

*399D. OBJECTIVE ANALYSIS OF BURDENS

The dissent takes the position that strict scrutiny need not be applied to the licensing requirement because the burdens imposed on defendants’ religious beliefs are not constitutionally significant.20 Yet, the dissent offers no clear standard or methodology by which this Court can, on this record, reject the defendant’s sincerely held religious belief that the licensure requirement compels it to violate a religious duty.21

While the dissent relies upon Lyng, supra, to avoid the demands of strict scrutiny, post, p 456 (Boyle, J.), the case cannot be extended to the type of burden that licensing imposes on the defendants’ religious beliefs.22 The Lyng majority expressly declined to disturb prior cases which applied strict scrutiny on facts much more similar to the facts present here.23

To substitute an objective judicial determination of the degree of burden imposed by the licensure requirement for the religious beliefs articulated by the claimants, as the dissent has done, would inject this Court into the realm of theologians. Such an "objective burdens” analysis, if adopted, would eventually create a body of law giving *400greater weight to some burdens than to others. Under this approach to the Free Exercise Clause, there is a distinct danger that the protection of religious freedom will be limited to those religious groups whose identity or convictions are familiar to and accepted by the members of the court deciding a free exercise claim.

II. GENERAL LICENSURE REQUIREMENT

The defendants-appellants claim that the state impermissibly burdens the free exercise of their religious belief by requiring a license before the church may engage in its childcare ministry. Since we hold that the First Amendment requires that defendant be protected from the coercive burdens that licensure imposes, we must determine if the license requirement can survive the exacting demands of strict scrutiny.

a. defendants’ interest

According to defendants’ religious beliefs, it is sinful to submit to a license in order to practice their day-care ministry. Being forced to accept the submission that licensure connotes, the defendants’ doctrinal autonomy is offended:

It is the function of a license that causes the religious objection. . . . Submitting to licensing is seen as submitting a religious ministry commanded by God to the authority of the state to decide whether or not the activity may be conducted. The state’s own expert witness on licensing explained the philosophy of licensing as "the administrative lifting of a legislative prohibition.”

I assume, as did the trial court, that defendants’ *401religious objection to submitting to a licensing statute is sincere. See post, pp 432-433 (Griffin, J.).

Turning to the question whether the licensing requirement burdens the exercise of defendants’ religious belief, I conclude that the burden is coercive in the required sense so as to trigger strict scrutiny.24 The defendants may go to jail if they follow their religious beliefs instead of submitting to the licensure requirement.25

There is ample support in the record for the conclusion that it is, the defendants’ belief that licensure of their day-care ministry would be a sin contrary to church doctrine. The defendants object to licensing because they think submission to a license amounts to what the Bible defines for them as a form of "Moloch worship.”26

The defendant church offers a scriptural basis for its more general objection to licensure, and, of course, "[c]ourts are not arbiters of scriptural in*402terpretation.” Thomas, supra at 716.27 Dr. Rushdoony testified that the operation of a day-care ministry has become central to the exercise of the defendants’ religion. According to his testimony, the day-care center, as an "instrument of evangelization,” has also become essential to the very survival of the church as a growing religious community.

The testimony taken during trial reveals why defendants believe licensing of their day-care center to be a violation of a religious duty.28 The operation of the day-care center is an act of religious worship for the church. The day-care center functions both as a forum for religious instruction and as a forum for evangelization (i.e., by bringing new membership into the church). The defendants view licensing of their day-care center as intrusive upon their evangelical and worship ministry. Their faith dictates that they may not submit that ministry to a licensing agent of the state.

The defendants are offended by the legal mandate to obtain a license for their day-care center, *403but are not offended by a license for driving a motor vehicle or a license to insure the safety of their buildings. The defendants do not object to safety regulations because the licensing of their secular activities does not infringe upon the practice of religion. The defendants have drawn religious distinctions between different kinds of licenses because they view the activity which the license regulates very differently. "[I]n every sense, [licensure], affirmatively compel[s] [the defendant church], by threat of sanctions, to refrain from religiously motivated conduct or to engage in conduct that [it] find[s] objectionable for religious reasons,” Sheridan Road, supra at 553-554, and n 48 (Riley, J.) (citations omitted).29

The record does not support the dissent’s characterization of defendants’ religious beliefs and of how those beliefs are burdened.30 This characterization ignores the religious meaning to defendants of submitting the operation of a day-care ministry to a state licensing authority and thereby exceeds the restraints on our interpretative role suggested by the United States Supreme Court in Hernandez, supra, 104 L Ed 2d 786.

To summarize, the burden imposed by licensure of the day-care center must be analyzed under strict scrutiny because (1) the day-care ministry cannot be operated without a license, and (2) the state is unwilling to adopt an alternative form of regulation to accommodate the defendants’ religious concerns. Given the nature of the defendants’ sincerely held religious objection to licen*404sure, it is clear as a matter of " 'constitutional fact,’ ” post, p 463 (Boyle, J.), that the burden imposed by licensure is both direct and coercive so that strict scrutiny must be applied to analyze the constitutionality of the state’s restriction on defendants’ religious practices, see Hobbie, Sherbert, and Thomas, supra, and Bowen, supra at 727 (O’Connor, J.) (partial concurrence).

B. THE STATE’S INTEREST

I conclude that the state has met its burden of showing a compelling state interest. Moreover, the state has met its burden of showing the existence of its interest in licensing, which is " 'of the highest order,’ ” Thomas, supra at 718; Sherbert v Verner, supra at 405 (defining what constitutes a "compelling state interest”). A compelling state interest attends the imposition of some type of license or registration requirement on child daycare centers. At oral argument, even defendant agreed that a license or registration certificate is necessary to make sure that no childcare institution falls below a certain level of performance with respect to the obvious criteria of health and safety. In order to vindicate its interest in prohibiting unsafe or unhealthy conditions in day-care centers,31 the state must assert its authority over those centers before they can be allowed to operate. The state cannot determine if minimum standards are met unless it has a regulatory mechanism that allows it to inspect those aspects of the management of any childcare facility which might pose reasonably foreseeable harm to children. The *405failure of even one day-care center to submit to prior on-site or random inspections creates a possibility of serious harm to children unable to protect themselves.

C. NO LESS RESTRICTIVE ALTERNATIVE

I also find that the state has carried its burden of showing that the license requirement is the least restrictive alternative capable of accomplishing the state’s legitimate objective. The state produced adequate evidence proving that licensing, compared to registration, is a superior method of achieving compliance with fire, health, and safety rules;32 indeed, licensing is essential to the achievement of compelling state interests in all child daycare centers.33

The concurrence concludes that "a different scheme of regulation,” such as the registration of unapproved government-run day-care centers, could be employed as an alternative to licensing, post, p 442 (Griffin, J.). While registration may be a " 'less obtrusive form of regulation’ than licensing, Sherbert, supra, 374 US 407,” post, p 442 (Griffin, J.), it does not accomplish the state’s compelling interests. The specific registration program that the defendant church proposed as a less *406restrictive alternative cannot accomplish the state’s compelling interests adequately since it makes no explicit provision for either prior on-site inspection or random spot inspections by dss personnel.34 Thus, registration is not an adequate substitute for licensing.

The dissent concludes that the defendant’s claim of burden regarding some forms of registration but not others is "difficult to understand,” post, pp 465-466 (Boyle, J.). The incomprehensibility of a religious belief, however, is no reason to refuse to accord it the protection of the First Amendment.35

On this factual record, it is not possible to determine if registration as a form of regulation burdens defendant’s sincerely held religious beliefs.36 Since registration would not achieve the state’s compelling interests, it is unnecessary to address the degree to which registration burdens the defendant’s religious beliefs.

Therefore, I reject the defendants’ claim that they are entitled to be exempt from the license requirement. The state’s interest in licensing is compelling enough to justify the burdens on defendants’ free exercise of religion that licensing and registration impose. Because the state has satisfied *407its burden under strict scrutiny of proving with evidence that there are no alternative, less drastic means of regulation to accomplish the state’s interest, the defendants’ request for an exemption from the licensing requirement need not be granted.37

III. PROGRAM DIRECTOR QUALIFICATION RULE 104

The defendants challenge the constitutional validity of the accreditation requirement in the program director qualifications rule.38 The pertinent language of Rule 104(2) specifies:

(a) A program director shall have completed a minimum of 60 semester hours of credit at an accredited college or university and shall have completed not less than 12 semester hours in child development, child psychology, or early childhood education. . . .
(b) A program director shall have been awarded the child development associate credential by the child development associate consortium and shall have completed not less than 12 semester hours in child development, child psychology, or early child*408hood education at an accredited college or university.

A. JUSTICIABILITY

1. The Factual Record: The record reflects that the defendants employed program directors from unaccredited institutions. The defendant church returned its license, in part, due to the "accreditation problem,” as well as to avoid the inherent conflict between licensure and the church’s religious beliefs.39 The record also reflects that the defendant indicated a willingness to violate the terms of Rule 104 after extensive consultations with the plaintiff regarding the accreditation aspects of the rule. The dss refused to provide a license to defendants, in part because they employed program directors who had received degrees from unaccredited schools (and who, as a result, were found not to be in compliance with 1979 AC, R 400.121[3]).40 Finally, it is clear that the removal *409of the accreditation limitation would eliminate the defendants’ objection to Rule 104.

The state filed this declaratory judgment action in 1981 in response to defendants’ decision to discontinue the license. The plaintiff’s complaint and prior enforcement actions sought, inter alia, to enjoin the operation of the preschool until the defendants would supply documentation of the fact that their program directors complied with Rule 104 in conformity with its interpretation of the predecessor regulation, R 400.121(3). The result of granting the state’s prayer for declaratory relief would be thát the court could immediately order, pursuant to this litigation, that the defendants cease operation of their preschool until such time as they comply with Rule 104.41

Therefore, the result of the plaintiff’s filing of these proceedings is that defendants face a real and immediate threat of irreparable injury to the constitutional rights they alleged (in their answer to plaintiff’s complaint) to be infringed by Rule 104.

2. Ripeness: The defendants’ claims are ripe for review. The violation of the defendants’ allegedly constitutionally protected conduct is an "injury in fact.” This "chilling” injury is directly related to a legitimate fear of prosecution. Since the state has not disavowed its intent to enforce the regulations as written, a declaratory judgment on the merits *410of defendants’ claims regarding Rule 104 is appropriate in this context.

MCR 2.605(A)(1) provides that a Michigan court may grant declaratory relief "[i]n a case of actual controversy within its jurisdiction . . . .” An adjudication of the defendants’ claims will serve to prevent defendants’ actual injuries or losses before they have occurred.42

There is ample authority for the proposition that a real and immediate threat to protected constitutional rights can give rise to standing under Article III of the United States Constitution. The defendants need not first expose themselves to an actual prosecution under the challenged provision so long as their fear of prosecution is not imaginary or wholly speculative,43 and so long as the state agency has not disavowed its intent to *411invoke the criminal penalty provisions in the statute.44 Moreover, the factual record is too well developed to have any valid basis for conjecture as to the defendants’ "fear of prosecution” arising from the possibility that the plaintiff will deny a license for their failure to comply with Rule 104. By maintaining this action, and by its prior enforcement actions, the plaintiff has provided a "palpable basis” for assuming that the license will be revoked.45

The dissent contends that "[tjhere is no evidence that if defendants decided to comply with the licensure requirement, that the state would deny them a license on the basis that the program director did not attend an accredited college or university.” Post, p 472 (Boyle, J.). This argument misses the mark for purposes of analyzing the ripeness issue. The opportunity for an adjudication of constitutional rights in a judicial forum, as authorized by state and federal declaratory judgment procedures, must remain available where there is " 'a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment,’ ” Ellis v Dyson, 421 US 426, 433; 95 S Ct 1691; 44 L Ed 2d 274 (1975).46

*412The ripeness issue we have addressed is not based upon Article III considerations, but is prudential in nature. The fact that the statute or regulation being challenged has not yet been applied to anyone, or has not been enforced against the person challenging its constitutionality, is not a constitutional obstacle to reaching the merits of the claim.47 There are simply no ripeness concerns of constitutional magnitude that prevent us from deciding these claims.48

Thus, a proper ripeness analysis must balance the need for further factual development, combined with any uncértainty as to whether defendants will actually suffer future injury, with the potential hardship of denying anticipatory relief.49 *413The "prudential rules” of standing and ripeness that might preclude this Court from reaching the merits of defendants’ claims need not be invoked here. First, the declaratory judgment procedure has allowed the issues to become sharpened so as to make them fit for judicial resolution, Warth v Seldin, 422 US 490, 500-501; 95 S Ct 2197; 45 L Ed 2d 343 (1975). Second, the hardship that would result from not deciding the case is a severe one.

3. Exhaustion of Remedies: The defendants are not barred from raising a constitutional challenge to Rule 104 in this judicial forum as the dissenting opinion implies, see post, p 470, n 28 (Boyle, J.). A party need not first adjudicate its constitutional claims before the administrative body which has jurisdiction over the matter if such effort would be useless in resolving the constitutional claim. See Trojan v Taylor Twp, 352 Mich 636, 638-639; 91 NW2d 9 (1958).50

The record demonstrates that the dss has developed a four-step test as an alternative to Rule 104:

First, [t]he Department would look to a long list of accrediting agencies, including the American Association of Bible Colleges to see if any of those organizations recognized the college in question. Secondly, . . . the Department would . . . determine whether or not a Michigan state college . . . would recognize any of those credits on a transfer basis .... [TJhirdly, the Department would go to the state in question such as South Carolina where Bob Jones University is, and to see whether any colleges in South Carolina would accept those credits on a transfer basis. And, finally, if that didn’t pan out there’s the exemption provision in *414Rule 118 which any licensee or applicant can apply for an exemption as long as the goal of the rule is complied with. [Emphasis added.]

This exemption procedure is inadequate for several reasons. The dss has not established the adequacy of this procedure because it produced no evidence to prove that the program directors employed by defendant could transfer all their credits to an accredited institution (i.e., so as to comply with the terms of Rule 104.)51

The dss also has not demonstrated that defendants’ religious objection to Rule 104 could be accommodated by the 1980 AACS, R 400.5118 exemption. The Rule 118 exemption is inadequate because it is available only where the "intent” of Rule 104 is satisfied, an ambiguous and undefined criteria.52

Finally, upon this record, I conclude that the dss never formalized the exemption procedure (Rule 118) in a manner that created an adequate alternative to Rule 104.53 The practice of the dss in *415enforcing Rule 104 was to withhold an exemption to Rule 104 unless an "accredited” school was willing to accept transfer credits from an unaccredited college or university.54 Given this agency practice, the likelihood that a successful agency settlement of defendants’ free exercise claims, even if defendants had sought an exemption from Rule 104, is extremely remote. This Court may decide these claims, and there is a need for settled law to govern the agency’s future regulation in this area.55

B. MERITS

For the reasons set forth by Justice Griffin, I believe that "the record clearly establishes that the accreditation limitation [imposed by Rule 400.5104(2)(a) in selecting a program director] places a burden upon defendants’ free exercise rights.” Post, p 444 (Griffin, J.). Strict scrutiny of Rule 104 is justified in this case because the regu*416lation is a substantial infringement of defendants’ religious beliefs, backed by the coercive threat of injunctive and criminal penalties that may be imposed for noncompliance with this condition for licensure.

Also, the enforcement of Rule 104 infringes upon a parental "privacy” right to be free of the kind of state regulation embodied in Rule 104. The United States Supreme Court in Wisconsin v Yoder, supra, acknowledged the existence of the "fundamental rights” of parents "to direct the intellectual and religious education of their children, and the rights of their children to receive that direction without unnecessary interference by the state.”56I agree that the constitutional right implicated in Yoder and Pierce v Society of Sisters, 268 US 510; 45 S Ct 571; 69 L Ed 1070 (1925), is infringed upon here for the same reason that the Yoder Court determined that such a right was implicated by the Wisconsin compulsory school law.57 Indeed, "this parental interest is particularly compelling [when it is] combined with a free exercise claim.” Sheridan Road, supra at 537.

The effect of Rule 104 is that the members of the defendant church, in their role as parents, cannot direct the education of their children. The dissent (Boyle, J.) never addresses the fact that Rule 104 will frustrate the defendants’ ability to appoint a spiritual minister of their own choosing to oversee the church’s biblically commanded evangelical function of which the church preschool is an integral part. Rule 104 is a direct interfer*417ence with the defendants’ right to determine the nature of the moral values, religious beliefs, and educational preparation that their preschool age children shall receive.

Even assuming that the state has a compelling interest in imposing minimum educational standards upon preschool teachers, Rule 104 is not the least restrictive means of accomplishing this state interest. The dss has an entirely nonintrusive alternative available to it, namely, to determine the sufficiency of a program director’s educational credentials by means other than the "accreditation associations.” In the absence of contrary evidence, we must assume that the state’s interests can be otherwise served in this manner without unnecessary expense or undue cost to the state.58

I would hold that the program director accreditation rule, R 400.5104(2)(a), is unconstitutional as applied to defendants.59 The dss either must grant defendants an exemption to Rule 104 or undertake an independent evaluation of the credentials of defendants’ program director to determine whether his qualifications satisfy the minimum educational criteria set forth in Rule 104.

IV. THE PROGRAM CONTENT RULE 106

Rule 106 prohibits the operation of any child *418day-care center that does not provide "opportunities for the developmental growth” — including "[the promotion of a] positive self-concept.” We would hold that this rule is unconstitutional under the First Amendment of the United States Constitution.

While we do not address the defendants’ claim that the program content rule violates their rights under the Free Exercise of Religion Clause of the First Amendment,60 we would find the rule to be unconstitutionally vague under each of three variations of the vagueness doctrine. I disagree with the dissent (Boyle, J.) insofar as it concludes that Rule 106 is not unconstitutionally vague in all its applications.61 The concurrence (Griffin, J.) would hold that the program content rule is unconstitutionally vague but does not analyze the rule explicitly in terms of the overbreadth doctrine.62

*419A. JUSTICIABILITY

Defendants’ challenge of Rule 106 is ripe for review since the claim was timely raised on the basis of an adequate factual record. The record indicates that the enforcement of Rule 106 has occasioned some efforts by dss officials to interfere with the teaching of religious doctrine to children by the defendant church. Moreover, because we address the vagueness of the rule on its face, the issue is ripe even though the program content rule was never actually applied to the defendant church.63

B. THE VAGUENESS DOCTRINE: INTRODUCTION

The defendants’ challenge of the facial validity of the program content rules can be decided on three analytically distinct "vagueness” grounds. There are three distinct strands of vagueness analysis that this Court recognized in Woll v Attorney General, 409 Mich 500, 533; 297 NW2d 578 (1980):

A statute may be challenged for vagueness on the grounds that it
[1] is overbroad, impinging on First Amendment freedoms, or
[2] does not provide fair notice of the conduct proscribed, or ,
[3] is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to *420determine whether an offense has been committed.[64]

We begin with the second ground.

C. RULE 106 DOES NOT PROVIDE FAIR NOTICE

If the term "positive self-concept” has no core meaning to be reasonably understood, or that can be commonly accepted as valid, the statute is vague on its face. See Blackwelder v Safnauer, 689 F Supp 106, 126 (ND NY, 1988), a state law will be found to be unconstitutionally vague on its face only when its requirements are " 'expressed in terms of such generality that "no standard of conduct is specified at all.” ’ ” Coates v Cincinnati, 402 US 611, 614; 91 S Ct 1686; 29 L Ed 2d 214 (1971). See also Village of Hoffman Estates v The Flipside, Hoffman Estates, Inc, 455 US 489; 102 S Ct 1186; 71 L Ed 2d 362 (1982).

The plaintiff’s experts testified that the term "positive self-concept” has no fixed definition. Dr. Ruopp stated that the term "positive self-concept” is incapable of any precise or objective definition:

Positive self-concept I think is the — can be defined broadly enough so that it can be used by anybody of any particular persuasion to define what they are doing with the children. I don’t think anybody will say that they want to give the children negative self-concept.[65]

*421The testimony of another state expert on child development, Dr. Elliott, confirms Dr. Ruopp’s view that the term "positive self-concept” can be defined in a potentially limitless number of ways. Dr. Elliott acknowledged that any definition of the term "positive self-concept” necessarily reflects the "different philosophical bases” of the opinions held by anyone venturing to define "positive self-concept.”66

Thus, Rule 106 requires all child day-care centers to adopt curriculum and programs that promote a feeling in children which cannot be accurately defined. This rule is void on its face because persons "of common intelligence must necessarily guess at its meaning and differ as to its application . . . .” Connally v General Construction Co, 269 US 385, 391; 46 S Ct 126; 70 L Ed 322 (1926). Moreover, the indeterminate nature of the rule is inherent in its operative language. Since the term "positive self-concept” suffers from the same species of vagueness that was also inherent in the term "mental anguish” (as defined by the Court of Appeals) in People v Petrella, 424 Mich 221, 263; 380 NW2d 11 (1985), citing 124 Mich App 745, 763; 336 NW2d 761 (1983), more exact language must be employed.67 There is also no ordinary or generally understood meaning that can be derived from this term — though there was in Pe*422trella, supra at 257—and so, there is no alternative but to strike down the rule containing this language on the grounds of vagueness.

D. OVERBREADTH OP PROQRAM CONTENT RULE 106

1 also find that Rule 106 is unconstitutionally "overbroad, impinging on First Amendment freedoms.” Woll, supra, 409 Mich 533. The over-breadth doctrine provides an independent, and wholly distinct, ground for deciding that Rule 106 is unconstitutionally vague.68 Under Broadrick v Oklahoma, 413 US 601, 615; 93 S Ct 2908; 37 L Ed 2d 830 (1973),

[the overbreadth] must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.

Rule 106 may be struck down if it too severely "chills” a day-care operator’s right to teach abstract ideas that do not pose any "harm” to children which the state may regulate.

Because the term "positive self-concept” does not "communicate its reach in words of common understanding,” Boos v Barry, 485 US 312, 332; 108 S Ct 1157; 99 L Ed 2d 333 (1988), the rule will have a chilling effect on the rights of free expression enjoyed by defendant church members.69 The rule fails to establish "minimal guidelines” to govern its enforcement and, thereby, permits the punishment of constitutionally protected free speech activities. See Kolender v Lawson, 461 US 352, 358; 103 S Ct 1855; 75 L Ed 2d 903 (1983) *423(O’Connor, J., majority). See, generally, Tribe, American Constitutional Law (2d ed), § 12-32, p 1034, n 11. Because the curriculum content rule is clearly a content-bused restriction on speech Under the reasoning in Boos, supra, this Court must apply a very exacting degree of judicial scrutiny.

Indeed, the United States Supreme Court has struck down nearly every content-based restriction on speech, outside the realm of low-value speech, that it has considered in the past thirty years.70

I find that the state has not shown a compelling interest sufficient to justify infringing upon the potentially broad range of constitutionally protected speech that Rule 106 may be interpreted to prohibit.

I decline to provide a saving construction of the program content rule by striking the term "positive self-concept” from the regulations to cure the dangers of overbreadth since there is no limiting construction that can be made to cure the constitutional defect. Bd of Airport Comm’rs of Los Angeles v Jews for Jesus, 482 US 569; 107 S Ct 2568; 96 L Ed 2d 500 (1987). Moreover, were we to attempt to cure the overbreadth problem by defining the limits of the permissible reach of state regulation of the curriculum of private day-care centers, we might risk delving illegitimately into the legislative domain.

E. RULE 106 CONFERS UNSTRUCTURED AND UNLIMITED DISCRETION ON DSS OFFICIALS

Finally, Rule 106 also delegates too much discretion to agency administrators to withdraw licensure from childcare centers because of problems in preschool curriculum content. Rule 106 fails to *424provide any minimal guidelines to notify child daycare center operators of the type of conduct that will run afoul of the rule and, therefore, subjects the exercise of free speech rights "to an unascertainable standard.” Ellis v O’Hara, 612 F Supp 379, 381 (ED Mo, 1985), citing Coates v Cincinnati, supra at 614. See also Niemotko v Maryland, 340 US 268, 271; 71 S Ct 325; 95 L Ed 267 (1951) (reversing a disorderly conduct conviction of a Jehovah’s Witness).

The broad discretion that Rule 106 confers on the dss, unconstrained by any clear standard, is accompanied by an implicit mandate to the agency to carefully scrutinize and evaluate the curriculum of day-care centers. Indeed, the rule would be unenforceable if the dss did not inject itself into the curriculum of child day-care centers to some degree.

Justice Brennan described the dangers of this type of unlimited discretion in Lakewood v Plain Dealer Publishing Co, 486 US 750; 108 S Ct 2138; 100 L Ed 2d 771 (1988). The government may not regulate expressive activity pursuant to narrowly drawn content-neutral standards "when the only standard provided is the unbridled discretion of a municipal official” — even if some more limited delegation of regulatory authority would be permissible under the constitution. Id. at 764, n 9. Moreover, the licensing scheme at issue here "pose[s] a real and substantial threat of the identified censorship risks.” Id. at 759. Thus, Rule 106 is unconstitutionally vague in a third sense.

V. FINANCIAL DISCLOSURE

The defendants have raised the further claim that the statutory provisions relating to the finances of child day-care center license applicants, *425MCL 722.112; MSA 25.358(12), violate "sensitive First Amendment rights.” The evidence indicates that the defendants at one time were required by the dss to disclose financial information pursuant to these provisions. The requirement for license applicants to submit a financial statement was discontinued by a policy memorandum issued in 1974.

A. JUSTICIABILITY

The defendants’ claims regarding the financial disclosure provisions were timely raised below and are justiciable now. Where a party voluntarily ceases an activity challenged as illegal, a court may continue to exercise jurisdiction over the controversy, so long as " 'there is [any] reasonable expectation that the wrong will be repeated.’ ” United States v WT Grant Co, 345 US 629, 633; 73 S Ct 894; 97 L Ed 1303 (1953). This exception to the mootness doctrine has been applied to address a challenge to an administrative regulation even though the regulation was withdrawn during the pendency of litigation challenging its legality, Los Angeles v Lyons, 461 US 95, 101; 103 S Ct 1660; 75 L Ed 2d 675 (1983), and to a city ordinance challenged on vagueness grounds that was also repealed during the litigation.71

I disagree with the dissent which argues that the defendants’ claims are moot, see post, p 474 (Boyle, J.). The instant claim is not moot; rather, the issue presented here remains ripe because " 'mere voluntary cessation of allegedly illegal conduct does not moot a case,’ ” Deakins v Monaghan, 484 US 193, 201, n 4; 108 S Ct 523; 98 L Ed 2d 529 (1988), and cases cited therein._

*426B. FREEDOM OF RELIGION CLAIMS

The defendants’ claims are unripe. I agree with the Court of Appeals that there is a lack of evidence in the record to show an actual infringement upon the free exercise of defendants’ religion resulting from the enforcement of this statutory provision in 1974. If the dss undertakes a complete inspection of the financial records of churches who run childcare centers, there is some risk of an entanglement between church and state. I also recognize that there is some authority for the proposition that a statute allowing the state to gather financial information from a church may violate First Amendment religious freedoms absent any showing at all that the church has already suffered actual burdens. Surinach v Pesquera de Busquets, 604 F2d 73, 75-77 (CA 1, 1979).72

I decline, however, to decide if the statutory financial disclosure provisions violate defendants’ First Amendment freedoms of religion on this limited factual record. First of all, defendants have not offered evidence or even claimed that completing a single financial form when applying for a childcare center license burdens their ability to practice their religion freely. Second, the record does not show any significant “regulatory entan*427glement” that has resulted from the minimal financial disclosure which has taken place. See Walz v Tax Comm of New York City, 397 US 664, 674; 90 S Ct 1409; 25 L Ed 2d 697 (1970). The unique circumstances justifying the opposite conclusion in Surinach and NLRB v Catholic Bishop of Chicago, 440 US 490; 99 S Ct 1313; 59 L Ed 2d 533 (1979), are not present here.73

If the dss should rely on its statutory authority to require childcare organizations to prove they are financially stable74 and compel extensive disclosure of financial information, such requirements may interfere too greatly with the defendants’ freedom of religion and for that reason be unconstitutional as applied.

C. FREEDOM OF ASSOCIATION CLAIMS

I do not reach or decide defendants’ freedom of association claims because it is impossible to discern the breadth of financial information that the dss will actually require to be disclosed. The defendants’ claim, which relates to the mere existence of the statutory authority relating to financial disclosure, is unripe._

*428The defendants claim that these statutory provisions compel financial disclosure in violation of the First Amendment by infringing upon associational freedoms. The First and Fourteenth Amendments protect the church members’ "freedom to engage in association for the advancement of beliefs and ideas,” and disclosure of the identities of a group’s members or contributors may have the practical effect of discouraging the exercise of these constitutionally protected rights. NAACP v Alabama ex rel Patterson, 357 US 449, 460; 78 S Ct 1163; 2 L Ed 2d 1488 (1958).

The statutory provisions at issue give the dss the authority to compel disclosure of a broad range of information relating to the defendants’ "general financial ability.” This information is intended to show the dss that operators have a capability of adequately funding their childcare center.

If we were to decide the merits, this statute would be subjected to strict judicial scrutiny.75 Strict scrutiny would apply even in the absence of *429a factual record of past harassment.76 If the dss at some future date compels a broad range of financial information, including the identity of donors to the defendant church, this could exert a "chilling” effect on the associational rights that the church may assert on behalf of its members. See Shelton v Tucker, 364 US 479; 81 S Ct 247; 5 L Ed 2d 231 (1960).77

The control which dss exerts over the defendant church by periodic licensing of its childcare "ministry” is no less pervasive than the control the Arkansas School Board exercised over the public school teacher in Shelton. Also, like the disclosure requirement in Shelton, the childcare organization act "does not provide that the information it requires be kept confidential.” Shelton, supra at 486. Thus, if the members’ contributions were required to be disclosed, the church might legitimately fear that the identity of its contributors "might displease those who control [its] . . . destiny [i.e., dss officials],” which "would simply operate to widen and aggravate the impairment of constitutional liberty.” Id. at 486-487. I leave this issue to be decided later upon an adequate record.

VI. THE CORPORAL PUNISHMENT RULE

I agree with a unanimous Court that Rule 107 does not violate the Free Exercise Clause of the First Amendment. The rule clearly serves a compelling state interest in guaranteeing the health and safety of children at day-care facilities. No alternative regulation exists that would burden the defendants’ religious belief to a lesser extent.

The defendants are Emmanuel Baptist Bible Church and its preschool. For convenience, the entities are sometimes hereinafter referred to as the "defendant” or the "church.”

All references to "concurrence” and "concurring” opinion are to the opinion of Justice Griffin. I recognize that this opinion is in the "dissent” on certain issues; (1) whether defendants can be required to be licensed, (2) whether the Court should decide if the financial disclosure regulations infringe upon the free exercise of religion, and (3) whether the program content rule, R 4Q0.5104(2)(a), violates defendants’ free exercise of religion.

I agree in principle with the concurrence about the proper application of the standard of review. We differ only on the result in this case, that is, whether, on this record, registration is an alternative, less drastic means of accomplishing the state’s interests. Our disagreement on this issue is limited to whether the state has produced sufficient evidence to justify refusing to exempt the defendants from the license requirement.

While I agree with the concurrence that (1) the application of Rule 104 is unconstitutional, and (2) that the challenged portions of Rule 106 are unconstitutional, my reasoning differs in many respects from that of the concurrence. Also, I agree with the concurrence that the statutory financial disclosure requirements ppse a risk of "chilling” the defendant church’s First Amendment rights, but I do not decide the merits of that claim.

All references to "dissent” and "dissenting” opinion are to the opinion of Justice Boyle. I recognize that this opinion is in the majority on certain issues.

I agree with the dissenting opinion (Boyle, J.) on this issue, however, only with respect to the result.

The First Amendment of the United States Constitution in pertinent part provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ....

Our cases have established that "[t]he free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.” Hernandez v Comm’r [of Internal Revenue], 490 US —, *394—; 109 S Ct 2136 [2148]; 104 L Ed 2d 766 [786] (1989) (citations omitted). [Id. at 107 L Ed 2d 806.]

The claimant in Hernandez also argued that the effect of the denial of a tax deduction was to make the practice of religion more expensive, but that is not a direct burden on religious beliefs and was deemed insufficient to require the application of strict scrutiny.

See also Sheridan Road Baptist Church v Dep’t of Ed, supra at 519-521, 540-544, 554-558, 566-579 (Riley, J.) (stating the standard of review and discussing how it must be applied); Yoder, supra at 215; Thomas, supra at 718; Bowen v Roy, 476 US 693, 728-732; 106 S Ct 2147; 90 L Ed 2d 735 (1986) (O’Connor, J.).

Accord New Life Baptist Church Academy v East Longmeadow, 666 F Supp 293, 313 (D Mass, 1987), rev’d 885 F2d 940 (CA 1, 1989), cert den 494 US —; 110 S Ct 1782; 108 L Ed 2d 784 (1990). The District Court for Massachusetts stated:

Balancing necessarily entails particularly subjective judgments [which] [s]trict scrutiny [avoids by] makfing] the decisive question the more objective issue of whether the state is employing the least restrictive means of satisfying its interest . . . [and, so] the court is not authorized to balance its perception of the burden on the exercise of plaintiffs’ religious beliefs against its assessment of the importance of the state’s competing interest to determine who should prevail in this case. [Emphasis added.]

See also id. at 885 F2d 945-946 (affirming the trial court’s finding that the state approval process burdened the plaintiff’s sincerely held religious beliefs, making strict scrutiny applicable).

The decision of the United States Court of Appeals for the First Circuit in New Life Baptist Church held that the state-approval regulations for private schools were valid becaúse they were the least restrictive form of regulation to accomplish a "compelling” state interest, see 885 F2d 944-945, 947-952.

See also Sheridan Road, supra at 519, n 5, 561-564, and 580 (Riley, J.) where, on facts similar to New Life Baptist Church, three mem*396bers of this Court would have mandated an exemption from the state certification requirements.

See, generally, Pepper, The conundrum of the Free Exercise Clause — Some reñections on recent cases, 9 N Ky L R 265 (1982).

Pepper, n 12 supra at 284-285 (Lee avoided holding that the Amish were not sufficiently “burdened” to benefit from strict scrutiny).

I cun aware that the above commentator acknowledges that Yoder can be read more narrowly.

See id. at 476 US 712-716 (Blackmun, J., concurring in part); 476 US 724-732 (O’Connor, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part). Justice White dissented in Bowen, 476 US 733, ostensibly on the ground that the claimants were entitled to an exemption from the social security number requirement under the holdings of Thomas and Sherbert, supra.

See, generally, 3 Nowak, Rotunda & Young, Constitutional Law (Supp 1989, pp 72-75).

Since the burden imposed here on defendants is analogous to the burden imposed in Bowen, the dissent’s reliance upon that case is inapposite, see post, pp 461-462 (Boyle, J.).

The burden imposed by licensure is also at least as great, if not greater, than the burden imposed by the compulsory reading program analyzed in Mozert v Hawkins Co Bd of Ed, 827 F2d 1058 (CA 6, 1987), cert den 484 US 1066; 108 S Ct 1029; 98 L Ed 2d 993 (1988). I cite the Mozert decision only as authority on the issue whether the law burdened religious activity, and do not express an opinion on the Court’s application of strict scrutiny.

Strict scrutiny was not applied in Lyng because the claimants had no claim to undisturbed and exclusive access to federal lands containing sacred sites, see id. at 448-450, 453-454 (O’Connor, J.). Thus, the destruction Of those sites did not coerce or compel them to act contrary to their religious beliefs. See further discussion below at 399.

[A] law prohibiting the Indian respondents from visiting the *398Chimney Rock area would raise a different set of constitutional questions.

For a statement of the proper allocation of the burden of proof, see Hobbie, supra at 141-142 (Brennan majority).

In Sheridan Road, supra at 574-576 (Riley, J.), we rejected the dissent’s unduly narrow reading of the standard of strict scrutiny articulated in Yoder and Lee, supra. The strict scrutiny test applied by the dissent in this case is flawed for the same reasons.

Post, p 463 (Boyle, J.).

Post, pp 458-463 (Boyle, J.).

Applying Lyng to this case is inappropriate because the burdens involved in the two cases are clearly distinguishable, see discussion supra at 397-398, and n 17.

See Lyng, supra at 450 ("this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibition, are subject to scrutiny under the First Amendment”), and id. at 451 ("[we refuse to draw the] exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs”).

See also Yonkers Racing Corp v City of Yonkers, 858 F2d 855, 871 (CA 2, 1988), and North Dakota v Anderson, 427 NW2d 316, 325-327 (ND, 1988) (Meschke, J., dissenting) (discussing the limits of the Lyng decision).

The coercion that results from the license requirement is explicitly set forth in the statute, see MCL 722.125; MSA 25.358(25). The defendants may be subjected to criminal prosecution for failure to obtain a license, or the failure to comply with the dss regulations may result in license revocation or misdemeanor penalties including "a fine of not less than $100.00 nor more than $1,000.00, or imprisonment for not more than 90 days, or both [eff. July 20, 1980].” (On April 29, 1980, when the dss filed its complaint, the maximum punishment for violations of the act were "fine[s] not less than $25.00 nor more than $100.00, or imprison[ment] for not less than 30 days nor more than 90 days, or both.”)

These penalties are designed to coerce compliance with the act’s licensing and other requirements.

The defendants only other alternative would be to leave the state, but that kind of forced migration would offend the constitution unless justified by a compelling state interest that has passed the demands of strict scrutiny. See Sheridan Road, supra at 553-554, and n 47.

Indeed, there is substantial testimony in the record documenting the historical and scriptural basis of the defendants’ religious view of licensure as a form of submission to a secular authority that amounts to "Moloch worship” and which their reading of the Bible proscribes. See testimony of Dr. Rushdoony. The fundamentalist Christian aversion to such submission has its origins in biblical times, but also stems from the experience of Baptists in colonial America who faced religious repression for failing to submit to the licensing of their religious ministers. Id.

When asked by defense counsel whether licensing violates church doctrine, Dr. Rushdoony testified that it did:

Q. You mentioned in your previous testimony about how one of the sins during the great abomination was worship of the sovereign or worship of the king. From the standpoint of your church theology, is it a matter of religious doctrine historically that acceptance of licensing of an aspect of the ministry is a commission of the sin, the abomination, worshiping of the king?
A. It is a form of Moloch or Baal worship, yes, and this has been the historic position of the church.

Pastor Asiré testified, in answer to the question whether God has commanded the church to operate a childcare center or preschool, that it is a biblical mandate to teach the word of God to children. Further, he testified that the preschool ministry was an integral part of the whole ministry of the church, and that a day-care center license was inherently incompatible with fulfilling a duty to God. Finally, he testified that it violates the religious convictions of church members to submit to such licensing because "[w]e have this directive from the Lord of teaching.”

The term "licensure,” for purposes of this discussion, includes both (1) the requirement of a license, and (2) certain preconditions which must be complied with to obtain a license. See post, pp 404-405.

The dissent concludes that the defendants’ objection to licensure is based solely on the fact that the license requirement gives the state the "power to withdraw approval,” post, p 466 (Boyle, J.). See also pp 460-461, 462-463 (Boyle, J.).

Admittedly, a " 'grave and immediate’ danger” has not been demonstrated as presently existing at any specific group of day-care centers. See post, p 439 (Griffin, J.). Yet, no such harm must be shown since it is reasonable to assume the existence of these conditions will give rise to legitimate state concern in the future.

According to the DSS Director of the Bureau of Regulatory Services, Dr. Gazan, registration does not involve prior on-site inspections before a "family day-care home” (involving supervision of one to six children) may begin to operate. During the ninety-day period after "registered” day-care operators receive their certificate, the dss has discovered that fifty percent of all family day-care homes are not in compliance with dss rules.

The state’s expert, Dr. Richard Ruopp, contended that the risk of harm to children in family day-care homes (which are registered instead of being licensed) is greater than the risks present in licensed day-care centers. Dr. Ruopp explained that licensing of such "registered” "family day-care homes” has not been implemented by the dss only because the agency lacks the budgetary resources to regulate these smaller day-care facilities more intensively.

Dr. Ruopp testified on behalf of the state that registration is an inadequate substitute for licensing for two reasons. First, inspections need to be made on a periodic and random basis both before a daycare center opens and throughout its operation. The registration program as implemented by dss for "family day-care homes,” does not require prior on-site inspections, requires no further routine inspection during the three-year period-of the registration certificate, and the dss can only randomly inspect ten percent of all registered daycare homes. Second, the risk of harm to children is present in all daycare centers, including those operated by churches.

See Lyng, supra at 458 (O’Connor, J.) (courts may not hold that a claimant misunderstands its own religious beliefs).

While the dissent correctly states that defendants did not allege registration to be a burden, post, p 466, n 21 (Boyle, J.), the opinion fails to state that the defendants also never stated explicitly that registration does not burden their beliefs.

Although not controlling, several decisions, with varying analyses, from other jurisdictions support this conclusion. See Roloff Evangelistic Enterprises, Inc v State, 556 SW2d 856 (Tex Civ App, 1977), app dis 439 US 803 (1978), reh den 439 US 998 (1978); Texas v Corpus Christi People’s Baptist Church, Inc, 683 SW2d 692 (Tex, 1984); State ex rel Pringle v Heritage Baptist Temple, Inc, 236 Kan 544; 693 P2d 1163 (1985); Kansas v Heart Ministries, Inc, 227 Kan 244; 607 P2d 1102 (1980), app dis for want of a substantial federal question 449 US 802 (1980). A decision by a state supreme court which is summarily affirmed by the United States Supreme Court is an affirmance of the judgment, but the rationale given by the lower court may not be controlling. See Metromedia, Inc v San Diego, 453 US 490, 498-500; 101 S Ct 2882; 69 L Ed 2d 800 (1981).

Pastor Asiré did not object to the sixty credit requirement or the rule that a certain number of a program director’s credits must be in early childhood education. Thus, I do not address the separate issue whether the state may impose minimum educational qualifications on staff directors at private preschools. There are not adequate facts on this record to decide that issue even if it were in dispute.

The parties have stipulated to the following facts. When the defendants were issued their first provisional license by plaintiff in 1974, the day-care center was in violation of the administrative rule regarding the qualifications of the program director. The second and third provisional licenses were issued pending compliance with this requirement. After a regular license was issued, the defendants notified plaintiff of their intent to discontinue the license, and the license was soon thereafter revoked by plaintiff in 1979.

The dissent has ignored the prior agency enforcement efforts in concluding that there is no factual basis that the dss sought to enjoin operation of the defendants’ day-care facility due to noncompliance with Rule 104, post, p 468 (Boyle, J.).

The record of agency enforcement of the predecessor regulation, R 400.121(3), clearly shows that the dss interpreted the accreditation aspects of Rule 104 in conformity with its past practice of interpreting R 400.121(3).

As early as August 27, 1975, the agency cited defendants for violations of Rule 400.121(3). For instance, the defendants were cited to be in violation of the rule because they employed a program director from Grand Rapids School of the Bible and Music, an unaccredited college in Michigan. The agency also sought to condition the granting of a final license to defendants upon their compliance with the accreditation requirement of R 400.121(3). Furthermore, the state’s complaint mentions violations of R 400.121(3).

*409Given the pattern of agency enforcement of the rule, and the mention of the predecessor rule in the state’s complaint seeking to enforce Rule 104 (which contains an explicit accreditation limitation), it is clear that the state sought to enjoin the operation of day-care centers with unaccredited program directors.

After entry of a judgment for declaratory relief, the court can immediately order other relief, such as damages or an injunction, against any adverse party whose rights were determined by declaratory judgment. See, generally, Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), MCR 2.605, p 428, and cases cited therein.

In Detroit Base Coalition for the Human Rights of the Handicapped v DSS, 431 Mich 172, 191; 428 NW2d 335 (1988), Justice Boyle, writing for a unanimous court, granted declaratory relief to a plaintiff who challenged the validity of an agency policy because it was not promulgated in conformity with "the notice and public-hearing requirements of §§41 and 42 of the [Administrative Procedures Act] .... The challenged agency action was the issuance of a directive mandating a new telephone hearing policy to go into effect at a future time. The Court reached the merits of this claim, nevertheless, over the objection that the challenge was speculative and without an adequate factual basis. See Detroit Base Coalition for the Human Rights of the Handicapped v DSS, 158 Mich App 613, 621-622; 405 NW2d 136 (1987) (Swallow, J., concurring); the addition of more facts would not have sharpened the issues in a way making the legal issue any more lit for judicial resolution, 431 Mich 191-193. A similar analysis applies here.

Where the statute is challenged by someone to whom it has not yet been applied, but who has declared an intent to engage in the very acts that would trigger enforcement of a statute or constitutional provision — or to forego the exercise of those rights because of that law —the harm to those rights cannot be called speculative or hypothetical. See Clements v Fashing, 457 US 957, 962; 102 S Ct 2836; 73 L Ed 2d 508 (1982), and cases cited therein. As the dissent points out, post, p 468, n 25 (Boyle, J.), in Clements the degree of threatened harm was even more nonspeculative than the harm that defendants allege from the repeated enforcement efforts of the dss. Nevertheless, the reasoning of that decision, and the authority it cites, are supportive of our finding of ripeness here.

Babbitt v United Farm Workers Nat’l Union, 442 US 289, 302; 99 S Ct 2301; 60 L Ed 2d 895 (1979), citing Steffel v Thompson, 415 US 452, 459; 94 S Ct 1209; 39 L Ed 2d 505 (1974). See also Doran v Salem Inn, Inc, 422 US 922, 933; 95 S Ct 2561; 45 L Ed 2d 648 (1975).

The defendants in this case have also "engaged in appeals now arguably prohibited by the statute and allege an intent to continue to do the same.” Babbitt, supra at 302. Therefore, they cannot be sure whether "criminal sanctions will be visited upon them for pursuing . . . conduct, much of which is allegedly constitutionally protected.” Id. at 302-303.

Cf. Babbitt, supra at 303-304 (discussing access and arbitration provisions).

Id., quoting Steffel v Thompson, n 44 supra at 460, and Maryland Casualty Co v Pacific Coal & Oil Co, 312 US 270, 273; 61 S Ct 510; 85 L Ed 826 (1941); see also Floyd, The justiciability decisions of the *412Burger court, 60 Notre Dame L R 862, 931-935 (1985), and cases cited therein.

I am aware that the Court in Ellis disposed of the case by remand, while expressing reservations regarding whether a live case or controversy still existed, id. at 434-435. Yet, the case contains a useful discussion of the principles of ripeness that apply here and cites the relevant authority.

See Adler v New York City Bd of Ed, 342 US 485; 72 S Ct 380; 96 L Ed 517 (1952); Epperson v Arkansas, 393 US 97; 89 S Ct 266; 21 L Ed 2d 228 (1968); Civil Service Comm v Nat’l Ass’n of Letter Carriers, 413 US 548; 93 S Ct 2880; 37 L Ed 2d 796 (1973); Thornburgh v American College of Obstetricians & Gynecologists, 476 US 747; 106 S Ct 2169; 90 L Ed 2d 779 (1986). The dissent fails to discuss these cases.

The dissent maintains that there is not a sufficient threat of prosecution to satisfy the requirements of Article III, see, e.g., post, pp 467-470, especially n 27 (Boyle, J.). The dissent does not, however, distinguish clearly between the standing and ripeness doctrines and their relation to Article Id.

The ripeness doctrine has both a constitutionally mandated and a discretionary component. The basis for ripeness in Article III is closely linked to the doctrine of "standing.” Both ripeness and standing, in the Article III sense, address "whether the harm asserted has matured sufficiently to warrant judicial intervention,” Warth v Seldin, 422 US 490, 499, n 10; 95 S Ct 2197; 45 L Ed 2d 343 (1975). The defendants have Article III standing to raise their constitutional claims regarding the regulations, see supra pp 410-411. So, the only ripeness concerns presented here are prudential in nature, and judicial review is not necessarily precluded by Article III.

See Abbott Laboratories v Gardner, 387 US 136, 148-149; 87 S Ct 1507; 18 L Ed 2d 681 (1967).

See, generally, Craig v Detroit Police Dep’t, 397 Mich 185, 199-201; 243 NW2d 236 (1976) (Coleman, J., dissenting) (citing authority for the proposition that the Court’s reluctance to interfere with administrative procedures is properly overcome where public officials are proceeding under an invalid or unconstitutional law).

The evidence indicates that program directors with graduate degrees from unaccredited schools can expect to have problems in transferring their degree credits — even if they had no religious objection to such a transfer of credits to a secular institution.

The provost of Bob Jones University, Dr. Phillip D. Smith, testified during deposition that his institution is not accredited because it is religiously opposed to submitting to "membership in one of the six regional associations” which is a requirement of the accreditation process. Since Bob Jones University does not conform to the accreditation rules of the Southern Association of Colleges and Secondary Schools, it has remained unaccredited.

The "accreditation” aspects of Rule 104 are in conflict with defendants’ sincerely held religious beliefs, making it unlikely that a Rule 118 exemption would have been granted. Also, a Rule 118 exemption must comply with the "intent” of Rule 104, so it is necessarily an inadequate administrative accommodation of defendants’ Free Exercise Clause claim.

There is no evidence suggesting that the dss sought to communicate the existence of Rule 118 exemption procedures so that it would be known to religiously oriented day-care centers that they might obtain administrative accommodation of their Free Exercise Clause objection to Rule 104.

The Court must look to established agency practice and policy to determine the grounds under which an exemption to Rule 104 might be provided under the procedures set forth in Rule 118.

Mr. Harold Gazan, Director of the Bureau of Regulatory Services of DSS, testified in his deposition that the dss has a policy or practice of relying solely upon the willingness of state "accredited” colleges to accept transfer credits from unaccredited institutions when it determines compliance with Rule 104. Mr. Gazan also stated that if "a particular applicant [for a child day-care license] had a . . . program director who had 60 semester hours of credit from a college with which we were not familiar ... we would attempt to see if it was accredited .... But if no other accredited college or association accepts [a program director applicant holding a degree from an unaccredited college], then we would not [accept the credits].” (Emphasis added.) Mr. Gazan’s testimony further indicates that the dss has no established policy or practice of undertaking its own independent evaluation of the quality of unaccredited educational programs from which program directors have obtained their degrees.

The dss has evinced a willingness to enforce Rule 104 against at least one other religious day-care center. There are potentially a large number of others among the approximately 460 church-run childcare centers in this state, that might be affected by enforcement of this rule.

Sheridan Road, supra at 536-540, discussing, inter alia, Yoder, supra at 233, and Pierce v Society of Sisters, 268 US 510; 45 S Ct 571; 69 L Ed 1070 (1925).

The Yoder Court read Pierce to mean that the state may not unnecessarily interfere with a parent’s right to prepare a child for "additional obligations” which (as referred to in Pierce) " 'must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship ....’” Sheridan Road, 426 Mich 539 (Riley, J., plurality), citing Yoder, 406 US 233.

Mere speculation by the government as to the probable or possible injury to the state from granting a Free Exercise Clause exemption, is not enough to justify infringing upon the free exercise of religion. See Pepper, Taking the Free Exercise Clause seriously, 1986 BYU LR 299, 316-323, ns 70-101, 334-335, citing Jensen v Quaring, 472 US 478; 105 S Ct 3492; 86 L Ed 2d 383 (1985), Sherbert v Verner, Yoder, and Bowen, supra.

I express no opinion whatsoever on the question whether the state’s legitimate interests extend to the regulation of curriculum and of the educational qualifications of staff at private preschools. The state may, in fact, have no compelling interest in regulating this area of private activity where a burden on the free exercise of religion is the result of such regulation. My holding is limited to the "accreditation” aspect of Rule 104.

The defendants claim that the term "positive self-concept” embodies a secular humanist belief structure that stands in conflict with the teachings of defendant Emmanuel Baptist Church. I decline to address whether the term "positive self-concept” actually constitutes the enactment of "secular humanism” or whether that is a religious belief, since it is unnecessary to reach that issue.

The dissent, post, pp 474-477, especially ns 38-40 (Boyle, J.), limits its discussion of the program content rule to the defendants’ overbreadth challenge to Rule 106. Such a narrow approach is not justified by First Amendment jurisprudence. I have reached and decided both the defendants’ vagueness and overbreadth claims. Contrary to the dissent’s statement, post, p 476, n 43 (Boyle, J.), the defendants did raise the issue of the vagueness of Rule 106 in all its applications. Thus, I have reached and decided both the defendants’ overbreadth and vagueness claims, and join the result of the concurrence in finding Rule 106 to be vague in all its applications, post, pp 446-449 (Gkiffin, J.). I do not reach the defendants’ claim that Rule 106 violates rights of freedom of religion, see below.

While there is a potential burden imposed by Rule 106 on the free exercise of defendants’ religion, no actual burden can be established because the dss did not seek any injunctive relief relating specifically to the program content rules and no violations of these rules were found to have been committed by defendants.

See post, pp 446-449 (Griffin, J.).

As stated by the Supreme Court in Keyishian v Bd of Regents of the State Univ of New York, 385 US 589, 599; 87 S Ct 675; 17 L Ed 2d 629 (1967), "[i]t is no answer [to an allegation of unconstitutional vagueness] to say that the statute would not be applied in such a case.” See also Int’l Society for Krishna Consciousness v Eaves, 601 F2d 809, 832 (CA 5, 1979) (the facial invalidation of excessively broad grants of discretion indicates that the vagueness problem in some statutes is not potential abuse but the very existence of broad censorial power).

See also People v Howell, 396 Mich 16, 20; 238 NW2d 148 (1976); People v Petrella, 424 Mich 221, 253; 380 NW2d 11 (1985); People v Hayes, 421 Mich 271, 283; 364 NW2d 635 (1984).

Dr. Ruopp described the term as a "sign post rather than as a prescription,” encompassing such vastly different world views as "secular humanism” and "the most rigorous kind of religious training.” He did add that "a trained observer like myself would recognize those [criteria, such as intellectual development, physical development, social development, emotional development, and spiritual development,] as being appropriate program elements,” but, he concluded *421that the measurement of any of these objective indicators of "how children feel about themselves, in whatever value the [child day-care] center has” is entirely "dependent on how you interpret positive self-concept.”

Even though Dr. Elliott stated that any person trained in early childhood education would understand what the term encompasses, she could provide no more precise definition of the concept than to say that it includes "some good feelings about yourself.”

Just as there is no type of "mental anguish” that is the normal response to being raped, see Petrella, supra, 424 Mich 267, there is also no particular state of mind which the term "positive self-concept” describes.

For a summary of the relevant legal standard, see Blackwelder, supra, 689 F Supp 126, n 19, and cases cited therein.

I also note the chilling effect is not cured by the dss’ duty to specify reasons for the denial of a license prior to its revocation, nor the availability of judicial review of any licensing revocation.

See Stone, Content-neutral restrictions, 54 U Chi LR 46, 47-48 (1987), and cases cited therein.

City of Mesquite v Aladdin’s Castle, Inc, 455 US 283, 289; 102 S Ct 1070; 71 L Ed 2d 152 (1982). See also Tribe, supra, § 3-11, p 89, n 50.

The Court in Surinach construed the financial-disclosure regulations implemented by the Puerto Rico Department of Consumer Affairs to investigate possible inflationary trends in the cost of private school education. The United States Court of Appeals for the First Circuit held that the burden is on the state "to show that implementation of a regulatory scheme will not ultimately infringe upon and entangle it in the affairs of a religion to an extent which the Constitution will not countenance.” 604 F2d 75-76.

To raise a First Amendment claim, the effect of a disclosure requirement must at least be to create "a palpable threat of state interference with the internal policies and beliefs of these church related schools.” Id. at 76-77, citing Serbian Eastern Orthodox Diocese for the United States of America and Canada v Milivojevich, 426 US 696, 713; 96 S Ct 2372; 49 L Ed 2d 151 (1976).

Justice Griffin relies on both cases to conclude defendant is exempt from the financial disclosure conditions, see post at 450.

In Surinach, the interests of the defendant and the interests of the agency and the church with respect to how much ought to be spent were opposed and potentially irreconcilable, whereas here the dss and defendants have congruent interests (i.e., both parties wish to provide facilities that are minimally adequate for the care of children).

In Catholic Bishop, supra at 504, the state application of the labor laws to the "church-teacher relationship in a church-operated school” was viewed by the Court in no uncertain terms: "We see no escape from conflicts flowing from the board’s exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow.”

The dss has authority to promulgate rules relating to financial ability pursuant to MCL 722.112(3)(c); MSA 25.358(12)(3)(c) and to make compliance with them a condition of licensure. MCL 722.115(1); MSA 25.358(15X1).

The United States Court of Appeals for the Second Circuit, in Local 1814, Int’l Longshoremen’s Ass’n v Waterfront Comm of New York Harbor, 667 F2d 267, 270-271 (CA 2, 1981), has summarized the relevant authority for applying strict scrutiny here:

[G]ovemmental attempts to compel such disclosures have been subjected to exacting scrutiny. Buckley v Valeo, 424 US [1, 64-74; 96 S Ct 612; 46 L Ed 2d 659 (1976)]; Gibson v Florida Legislative Investigation Committee, 372 US 539; 83 S Ct 889; 9 L Ed 2d 929 (1963); Shelton v Tucker, 364 US 479; 81 S Ct 247; 5 L Ed 2d 231 (1960); Bates v City of Little Rock [361 US 516; 80 S Ct 412; 4 L Ed 2d 480 (1960)]; NAACP v Alabama, supra; Pollard v Roberts [283 F Supp 248 (ED Ark, 1968) (three judge court), aff’d per curiam 393 US 14; 89 S Ct 47; 21 L Ed 2d 14 (1968)]; cf. Talley v California, 362 US 60; 80 S Ct 536; 4 L Ed 2d 559 (1960) (disclosure of identities of anonymous pamphleteers). Compelled disclosure is not permitted unless it is substantially related to a compelling governmental interest. Buckley v Valeo, supra, 424 US at 64; 96 S Ct at 656; Communist Party of the United States v Subversive Activities Control Board, 367 US 1, 92-103; 81 S Ct 1357, 1408-1414; 6 L Ed 2d 625 (1961).

Local 1814, Int’l Longshoremen’s Ass’n, n 75 supra, 667 F2d 271-272.

In Shelton, the plaintiff’s annual teaching contract was not renewed because he failed to file an afiidavit "listing all of his organizational connections over the previous five years.” Id. at 483.