analyzing chaplaincy clause of Section 11 under State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986) because “even when the court has used the *1188 Gunwall factors to analyze a provision of the state constitution and has determined that an independent [analysis is required], under a different context a new Gunwall analysis is required.”
How later courts described this case
- analyzing chaplaincy clause of Section 11 under State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986) because “even when the court has used the *1188 Gunwall factors to analyze a provision of the state constitution and has determined that an independent [analysis is required], under a different context a new Gunwall analysis is required.”
- analyzing chaplaincy clause of Section 11 under State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986
- noting that the constitutional delegates discussed the work of the Sisters of Providence in relation to tax exemption for religious property
- "[W]e conclude that the United States Supreme Court would not apply the Lemon test to a police chaplaincy.”
Written by the judges who cited it.
The opinion
Seinfeld, C.J.
I concur in the majority’s result and *491 with its analysis of section 11 of the state constitution. I write separately to express my disagreement with the majority’s first amendment analysis and its avoidance of the three-part Lemon v. Kurtzman, 403 U.S. 602, 612 , 91 S. Ct. 2105 , 29 L. Ed. 2d 745 (1971) test.
Because the United States Supreme Court, to date, has not overruled or limited the application of Lemon to the public school context, I believe that it is premature for us to do so. Further, Lemon’s focus on whether the challenged practice (1) has a secular purpose; (2) neither advances nor inhibits religion in its principal or primary effect; and (3) fosters excessive entanglement with religion appears well-suited to an analysis of the chaplaincy program before us.
For the most part, the differences between the Lemon test and the test that J. Kennedy articulates in Rosenberger v. Rector & Visitors of Univ. of Va., —U.S. —, 115 S. Ct. 2510 , 132 L. Ed. 2d 700 (1995), are not significant to the facts in this case. The first question, whether the program has a secular purpose, is identical under Lemon and Rosenberger , and I agree that the overall secular purpose of the program is not in dispute.
The second question in Lemon is very similar to Rosenberger’s second question: is the practice neutral toward and among religions? Nolta’s statement that volunteers must be "certified” pastors raises questions of neutrality both to and among religions. And evidence that Tacoma Pierce County Chaplaincy (TPCC) has solicited sheriffs’ staff for support and that volunteer chaplains have engaged in unsolicited religious encounters with crime victims raises questions regarding the County’s endorsement of religious activities.
This case is distinguishable from the three the majority cited where the United States Supreme Court applied the analysis set forth in Rosenberger and found no violations. Nor were there issues of disputed material facts in those cases. In Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 , 113 S. Ct. 2141 , 124 L. Ed. 2d 352 (1993) the only connection between the challenged *492 religious activity and the school district was that the activity occurred on school premises. Unlike the chaplaincy program, the school did not contract for the program or control it in any way. It did not encourage school children or staff to attend or participate.
In Rosenberger , the challenged religious publication was only one of many publications. There was no evidence that the religious publication received any special benefit not available to all. The disputed facts here suggest the opposite. The County contracted with TPCC, and TPCC controls who may be a volunteer and the activities of the volunteers. TPCC is not merely one of several groups available to provide counseling to those in need.
Likewise, Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 , 113 S. Ct. 2462 , 125 L. Ed. 2d 1 (1993) involved a hearing impaired student who wished to be treated like all other students; he did not seek special favors. The Supreme Court found that his enrollment in a religious school did not mean that he could not receive the same benefits available to those in nonreligious schools. Here, there is no contention that the County is preventing religiously affiliated persons from serving alongside those without such an affiliation. Rather, it is the opposite. Thus, Zobrest is inapposite.
The facts and inferences from those facts in this case appear more analogous to Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687 , 114 S. Ct. 2481 , 2486 n.2, 129 L. Ed. 2d 546 (1994). The authorities in Grumet appeared motivated by a desire to meet a unique religious group’s special needs. As here, no one complained that the challenged practice discriminated against them. 79 Nonetheless, the Grumet court held that the program endorsed religion and thus did not pass constitutional muster.
*493 The most significant distinction between the Rosenberger and Lemon tests is in question three. Rather than look for Lemon’s excessive entanglement, Rosenberger examines the challenged activity to determine if it involves government coercion or endorsement of religious practice. This, essentially, is a rephrasing of its second question regarding the government’s neutrality toward and among religions. Lemon’s excessive entanglement question demands a closer examination of the relationship in its entire context.
For example, if the County, to assure itself that TPCC volunteers do not engage in coercive practices with counseling service recipients, maintains an ongoing scrutiny of the volunteer chaplains’ religious practices, the result could be excessive entanglement.
As the majority notes, there are facts in dispute regarding the program’s religious neutrality that the trial court must find before deciding whether the program endorses or coerces religious practices. I believe there is an additional question as to whether the TPCC contract, as implemented, fosters excessive government-religion entanglement. The trial court should make the necessary findings and conclusions to resolve this question. I agree that we must remand the matter to the trial court for fact-finding and for a conclusion, based upon those facts, of the program’s constitutionality under both the state and federal constitutions.
Reconsideration denied November 3, 1995.
Review granted at 129 Wn.2d 1004 (1996).
Respondents in Grumet brought their constitutional challenge as individual taxpayers and as members/officers of the State School Board Association. The lower court held that the association lacked standing; thus, the Supreme Court reviewed the case solely on the basis of respondents’ taxpayer standing. Grumet, 114 S. Ct. 2486 n.2.