Indiana Law Review


1979] SURVEY- CONSTITUTIONAL LAW 69

IV. Constitutional Law*

A. Local Human Rights Commissions' Powers

One significant constitutional decision during the survey period
was Indiana University v. Hartwell,1 in which the Indiana Court of
Appeals held unconstitutional the Indiana law2 authorizing the crea-

tion of local human rights commissions. The 1978 General Assembly
subsequently amended the law both to meet constitutional re-
quirements and to limit the powers of the local commissions.3

Hartwell arose upon a challenge by Indiana University to a deci-

sion of the Human Rights Commission of the City of Bloomington.
Hartwell had been employed by the University's Aerospace

Research Applications Center (ARAC) from June 1, 1971, until May
1973. In June 1973, ARAC hired a man, Thor Semler, for a position
similar to Hartwell's at a salary significantly higher than that paid

to Hartwell. The Commission found that the University had
discriminated against Hartwell by underpaying her because of her

sex and granted her an award of back pay. The Monroe County Cir-
cuit Court found that the monetary award exceeded the
commission's authority, but the court affirmed the rest of the order.

The University appealed, alleging that the Commission had no
authority to consider the discrimination charges, since the Universi-

ty was an arm of the state, and that the Commission's holdings were
arbitrary and capricious. Hartwell and the Commission cross-
appealed the ruling that the Commission lacked the statutory
authority to award monetary damages.

The Indiana Court of Appeals found the Commission's findings
of facts and the application of such findings to be unclear.4 The court

For a discussion of two important due process cases decided during the survey
period, see Price, Administrative Law, 1978 Survey of Recent Developments in In-
diana Law, 12 Ind. L. Rev. 30, 38-42 (1978).

*367 N.E.2d 1090 (Ind. Ct. App. 1977). For another discussion of this case, see
Price, Administrative Law, 1978 Survey of Recent Developments in Indiana Law, 12
Ind. L. Rev. 30, 35-36 (1978).

'Ind. Code § 22-9-1-12 (1976) (repealed 1978). The court's ruling did not affect the
validity of the remainder of the Indiana Civil Rights Law, Ind. Code §§ 22-9-1-1 to 13
(1976).

3Act of Mar. 7, 1978, Pub. L. No. 123, § 2, 1978 Ind. Acts 1117 (codified at Ind.
Code § 22-9-1-12.1 (Supp. 1978)).

4
367 N.E.2d at 1091-92. The court* held that the salary paid to Semler after June

1973, had no bearing on Hartwell's claim that she was subjected to sex discrimination
by being underpaid for the period from May 1972 to May 1973. Sender's salary was
paid after the time of the alleged discrimination and, therefore, is not relevant to
whether Hartwell was underpaid during the earlier period. If the Commission had based
its finding upon Semler's pay and duties, then its ruling would have been erroneous.
Id. at 1092. The court, however did. not reach this issue:



70 INDIANA LAW REVIEW [Vol. 12:69

held the statute properly authorized the Commission to subject the
state to its jurisdiction,

5 but did not decide whether the University
is an arm of the state of Indiana.6 The crucial issue in the case was
whether the Commission had the power to award damages. The
court held that the statute was broad enough to include that power,
but that the very breadth of the statutory authority rendered the

statute unconstitutional.
7 The statute authorized units of local

government to invest their human rights agencies with "such
powers ... as may be deemed necessary or appropriate to imple-
ment its purpose and objective, whether or not such powers are
granted to the state commission . . . ." 8 Referring to the scope of

powers given to the local commissions, the court held that the law
was unconstitutional since "we cannot say with certainty that the
statute places any limitations on the powers which may be granted
to the Commission."9

The court then discussed the theory of the separation of govern-
mental powers. The court found that the Commission was granted
statutory authority which constitutionally belonged to the
legislative and judicial branches of government and that such
authority could not be delegated to an administrative agency.10

While acknowledging that the legislature may grant powers to ad-
ministrative agencies in broad and general terms,11 the court held

that the human rights commission statute failed to meet the test im-

Although we suspect the above determination was the basis for the
Commission's decision, the fact remains that we do not know how the Com-
mission reached its decision ....

To facilitate an informed judicial review, we would remand and instruct
the Commission to make clear, specific findings of fact and to state how they
were applied. However, the questions of jurisdiction and of the authority of

the Commission to award damages and our resolution of them renders un-

necessary such a remand.

Id. at 1092-93.
5
Ia\ at 1094. The court stated: "[W]e perceive nothing in the statute to preclude

state government as it exists within such a territorial jurisdiction from being sub-

jected to the jurisdiction of a local commission agency." Id.
6ta at 1094 n.7.

'Id. at 1093.
8
Ind. Code § 22-9-1-12 (1976). This broad language was followed by a list of

specific powers which could be granted to local commissions. Local commissions were

not, however, limited to the enumerated powers.
9367 N.E.2d at 1093. The significant constitutional provision, Ind. Const, art. 3, §

1, divides the powers of state government into the three departments of legislative,

executive including administrative, and judicial. It then provides: "[N]o person, charged

with official duties under one of these departments, shall exercise any of the functions

of another, except as in this Constitution expressly provided." Id.
10367 N.E.2d at 1094.

"Id. at 1094 (citing Matthews v. State, 237 Ind. 677, 681-82, 148 N.E.2d 334, 336

(1958)).



1979] SURVEY- CONSTITUTIONAL LAW 71

posed by the Indiana Supreme Court in Matthews v. State:12

"Reasonable standards must be imposed where the Legislature
delegates discretionary powers to an administrative officer." 13

The 1978 Indiana General Assembly restored the authority of
local governments to establish human rights commissions on a basis
consistent with the requirements in Hartwell.u This statute limits

the powers which can be exercised by local commissions. The local
commissions are now denied any powers over the state or any of its
agencies.

15 The power to award damages, which had not been
specifically granted under the invalid law, is now granted in a
limited fashion by the new law.16 Another change is to make the
jurisdiction of the state and local commissions exclusive. Under
prior law, the state commission could refer cases to the local com-

missions.
17 Under the new law, once a case is filed with either the

local or state agency, the complainant has no recourse to the other

agency.18

Although the authority for the creation of local commisions has

been re-established on a basis consistent with constitutional re-

quirements, a case such as that brought by Hartwell could no longer

be heard by a local human rights commission because the complaint
involves a state agency.

B. Recounts of Legislative Elections

The Indiana Supreme Court, in State ex rel Wheeler v. Shelby
Circuit Court,

19 upheld the constitutionality20 of a statute requiring a

circuit court to appoint a recount commission upon the request of

the apparent loser of an election to the Indiana General Assembly.21

Wheeler was distinguished from two prior cases, State ex rel
Beaman v. Circuit Court of Pike County, 22 and State ex rel Acker v.

12237 Ind. 677, 148 N.E.2d 334 (1958).
n
I<L at 681, 148 N.E.2d at 336.

"Act of Mar. 7, 1978, Pub. L. No. 123, § 2, 1978 Ind. Acts 1117 (codified at Ind.
Code § 22-9-1-12.1 (Supp. 1978)).

15
Ind. Code § 22-9-l-12.1(b) (Supp. 1978). The Indiana Civil Rights Commission con-

tinues to have jurisdiction over discriminatory practices by the state. Id. § 22-9-l-3(h)

(1976).

"Id. § 22-9-l-12.1(c)(8) (Supp. 1978). Payment of actual damages is allowed, but is
limited to "lost wages, salaries, commissions, or fringe benefits." Id.

ll
Id. § 22-9-1-12 (1976) (repealed 1978).

18Jd § 22-9-l-12.1(d) (Supp. 1978).
19369 N.E.2d 922 (Ind.), rev'g on rehearing 362 N.E.2d 477 (Ind. 1977).

""The issue was decided on the basis of Ind. Const, art. 4, § 10, which provides:

"Each House, when assembled, shall . . . judge the elections, qualifications, and returns
of its own members."

21
Ind. Code §§ 3-1-27-1 to 17 (1976).

^229 Ind. 190, 96 N.E.2d 671 (1951).



72 INDIANA LAW REVIEW [Vol. 12:69

Reeves, 23 which had invalidated an earlier recount law regarding

state legislative races.
24 The earlier law required the judgment of

the trial court's recount commission to be accepted by the
legislature as "prima facie evidence of the votes cast for such

office."
25 After the earlier law was voided, the Indiana General

Assembly amended the recount statute to provide that the results
of a judicially-ordered recount be delivered

to the presiding officer of the house in which the successful

candidate is to be seated ... for such action as that body
may find appropriate. . . .

The said certified statements of the clerks of the circuit
courts shall not be construed as determining the eligibility

of a candidate for office, but shall be prepared and transmit-

ted .. . for the purpose of referring the information therein

contained to the appropriate authorities.26

In Acker, the court had invalidated the recount statute as ap-

plied to a legislative race on the ground that the state constitution

excluded the courts from jurisdiction over these elections.27 In

Beaman, the court held that the recount statute was unconstitu-
tional because it purported to allow the courts "to determine the

election, qualifications and returns of the members of the legislature
"28

Writing for the majority in Wheeler, 29 Chief Justice Givan held

that the recount was merely
u
an extension of the voting process,"30

and that there was no judicial invasion of the legislative domain
since "neither the original vote nor the recount are absolutely bind-

ing on the legislative body."31 The majority found that the
legislative intent in amending the recount statute was to allow

23229 Ind. 126, 95 N.E.2d 838 (1951).

"Indiana Election Code Act of 1945, ch. 208, § 337, 1945 Ind. Acts 888.
25M
m
Ind. Code § 3-1-27-14 (1976).

"229 Ind. at 130, 95 N.E.2d at 840.

^229 Ind. at 197, 96 N.E.2d at 674.

^The initial supreme court decision in Wheeler held 3-2 that the recount violated

the state constitution. After Justice Arterburn left the court and was replaced by

Justice Pivarnik, the court reversed its earlier decision. Chief Justice Givan wrote a

dissenting opinion in the first decision and the majority opinion in the second decision.

Justice DeBruler wrote the majority decision in the first decision and the dissenting

opinion in the second. To simplify consideration of the opinions, Chief Justice Givan's
opinions will be referred to as the majority opinions, while those of Justice DeBruler

will be referred to as the minority or dissenting opinions.

^M N.E.2d at 935.
31/d



1979] SURVEY- CONSTITUTIONAL LAW 73

courts to participate in the recount process, while avoiding the con-

stitutional infirmities of the prior statute.
32

The dissent stated that the court had failed to follow past case
law,

33 and that the decision would "endanger a court's image of im-

partiality"
34 by involving the courts in political turmoil. The dissent

argued that the amendment of the recount statute, enacted after
Acker and Beaman, did not correct the unconstitutionality because,
under both old and new law, the legislature still made the final
determination of its members, and in both instances the courts were

still required to participate in a process reserved by the Indiana

Constitution to the legislative branch.35 The dissent claimed that the
crucial issue was not whether the court's actions had a binding ef-
fect upon the legislature, but whether the court had any role in the

process of legislative elections. The minority countered the
majority's position regarding the legislative intent in amending the

statute by arguing that the legislature has no right to surrender its

constitutional powers to the courts.36

C. Indianapolis Massage Parlor Ordinance

The Indianapolis massage parlor ordinance37 was upheld as con-
stitutional by the Indiana Supreme Court in City of Indianapolis v.
Wright™ The ordinance was challenged on three grounds. The first
was that the city had attempted to pass a local law where a state
law already pre-empted the area. The second was that the ordinance
violated the due process or the equal protection provisions of

federal or state law. The third was that the administrative inspec-
tion scheme authorized by the ordinance violated prohibitions in the

federal or state constitutions.

The Indiana Supreme Court found that no state statute provided
for the licensing of massage parlors and that the city ordinance did
not provide for misdemeanor penalties;39 consequently, the court
held that the ordinance did not cover the same subject matter as

32/d

"Id, (DeBruler, J., dissenting).
M
I<L at 936. (DeBruler, J., dissenting).

36362 N.E.2d at 479.
MId

"Indianapolis-Marion County, Ind. Code § 17-729 (1975). The ordinance provides
for detailed regulation of massage parlors. The persons employed by these
establishments are prohibited from giving a massage to a person of the opposite sex,

or from touching or offering to touch the genital or sexual area of any person. Those

persons giving massages must wear nontransparent clothes over their sexual or
genital areas.

M371 N.E.2d 1298 (Ind. 1978).
39/d at 1300.



74 INDIANA LAW REVIEW [Vol. 12:69

state statutes.
40 The massage parlor ordinance was thus distinguished

from an ordinance invalidated in City of Indianapolis v. Sablica.*
1

That ordinance, prohibiting the interference with police officers,

directly conflicted with Indiana constitutional provisions prohibiting

the enactment of local laws "for the punishment of crimes and

misdemeanors."42

The second claim was that the ordinance violated the due pro-
cess and equal protection clauses of the state43 and federal44 constitu-

tions. The court rejected these claims, based on the United States
Supreme Court's dismissal, for want of a substantial federal ques-
tion, of appeals from three state court decisions upholding the con-

stitutionality of similar massage parlor ordinances.45 Under the
Supreme Court's decision in Hicks v. Miranda, 46 such dismissals are
to be treated as dispositions on the merits of the issues raised.

47

Subsequent to Hicks, federal appellate courts have considered

similar massage parlor ordinances and affirmed their constitutionali-

ty based upon the summary dispositions.48

The third claim was that the inspection provisions of the or-
dinance violated the prohibitions of the state49 or federal50 constitu-

tions which protect against unreasonable search or seizure. The or-
dinance provided: "Every massage school, massage parlor, massage

therapy clinic, or bath house shall be open for inspection during all

business hours and at other reasonable times by police officers,

health and fire inspectors and duly authorized representatives of the

City Controller upon the showing of proper credentials by such per-

sons."
51

The court justified the warrantless search of a massage parlor
on the grounds that surprise is necessary to avoid concealment of

41 342 N.E.2d 853 (Ind. 1976) (invalidating Indianapolis Marion County, Ind. Code

§§ 10-1021, 10-1023 (1975)).
42
Ind. Const, art. 4, § 22. See also Ind. Const, art. 4, § 23.

"Ind. Const, art. 1, § 12.

"U.S. Const, amend. XIV.
46Smith v. Keator, 419 U.S. 1043 (1974), dismissing appeal from 285 N.C. 530, 206

S.E.2d 203 (1974); Rubenstein v. Township of Cherry Hill, 417 U.S. 963 (1974), dismis-
sing appeal from No. 10,027 (N.J. Sup. Ct. Jan. 29, 1974) (unreported); Kisley v. City of
Falls Church, 409 U.S. 907, dismissing appeal from 212 Va. 693, 187 S.E.2d 168 (1972).

49422 U.S. 332 (1975).
47d at 343-45.
"Tomlinson v. Mayor, 543 F.2d 570 (5th Cir. 1976); Hogge v. Johnson, 526 F.2d

833 (4th Cir. 1975), cert, denied, 428 U.S. 913 (1976); Colorado Springs Amusements v.
Rizzo, 524 F.2d 571 (3d Cir. 1975), cert denied, 428 U.S. 913 (1976); Cullinane v. Geisha

House, Inc., 354 A.2d 515 (D.C. App.), cert denied, 428 U.S. 923 (1976).
49
Ind. Const, art. 1, § 11.

^U.S. Const, amend. IV.

"Indianapolis-Marion County, Ind. Code § 17-729(j) (1975).



1979] SURVEY- CONSTITUTIONAL LAW 75

violations of the ordinance, that the business is one subject to an ex-

tensive history of regulation, that a regulated business impliedly

consents to searches at reasonable times and places, and that the or-

dinance does not provide for criminal penalties.
52 In the light of the

cases cited by the court and the subsequent United States Supreme
Court decision in Marshall v. Barlow's, Inc., 53 the ruling on this issue

is subject to serious challenge.

The massage parlors relied principally on the requirements for

warrants for administrative searches in Camara v. Municipal Court™
and See v. City of Seattle.

55 The former involved the right of
building inspectors to make a warrantless inspection of a personal
residence, while the latter involved a fire department inspector's

warrantless inspection of a locked warehouse. In Camara, the Court

required administrative searches to adhere to the requirements of

the fourth amendment,56 but held that the standard of probable

cause required for warrants would be less stringent for ad-

ministrative searches than that applied in criminal cases.57 In Colon-

nade Catering Corp. v. United States, 58 the Court held that Congress

had the power to authorize warrantless administrative searches
under the liquor laws, but that, absent clear authorization, the war-

rant requirements of the fourth amendment were fully applicable.59

Colonnade was limited to laws regulating the liquor industry, which
has a history of substantial and pervasive federal regulation.60 The
Court found similarly exempt from the warrant requirement
businesses engaged in selling weapons and ammunition, in United
States v. Biswell,*1 stating:

Federal regulation of the interstate traffic in firearms is not

as deeply rooted in history as is governmental control of the

liquor industry, but close scrutiny of this traffic is

52371 N.E.2d at 1302.

"96 S. Ct. 1816 (1978).
M387 U.S. 523 (1967).

^87 U.S. 541 (1967).
M387 U.S. at 534.
57/d at 538-39. The Court reached the same conclusion in See v. City of Seattle,

387 U.S. at 546.
M397 U.S. 72 (1970).
69
Ia\ at 76-77.

<°Id. at 75-76. The Court stated:
What was said in See reflects this Nation's traditions that are strongly

opposed to using force without definite authority to break down doors. We
deal here with the liquor industry long subject to close supervision and in-
spection. As respects that industry . . . Congress has broad authority to
fashion standards of reasonableness for searches and siezures.

Id. at 77 (emphasis added).
61406 U.S. 311 (1972).



76 INDIANA LAW REVIEW [Vol. 12:69

undeniably of central importance to federal efforts to pre-

vent violent crime and to assist the States in regulating the

firearms traffic within their borders.62

The Indiana court acknowledged that massage parlors have not been
as pervasively regulated as liquor or gun businesses, but argued
that under Biswell "a licensee does impliedly consent to inspections

at any and all reasonable times and places by obtaining a license."63

This pronouncement overstates the holding of Biswell which tied
such consent to a decision "to engage in this pervasively regulated

business and to accept a federal license," rather than to a decision to

engage in any business requiring a license.64

Subsequent to the Indiana decision in Wright*5 the United

States Supreme Court again addressed the issue of warrantless ad-
ministrative searches in Marshall v. Barlow's, Inc.™ a case challeng-

ing warrantless searches of business premises pursuant to the Oc-

cupational Safety and Health Act (OSHA).67 In Barlow's, the Court

indicated that "the closely regulated industry of the type involved

in Colonnade and Biswell is the exception."68 That a business is sub-

ject to minimum wages and maximum hours legislation,69 is engaged
in interstate commerce, or is subject to the National Labor Rela-

tions Act70 is not sufficient regulation to include that business in the

category of "pervasively regulated."71 While Barlow's does not clearly

indicate whether Colonnade and Biswell should be extended to

licensed massage parlors, it does suggest that the Court is hesitant

to extend the exception to the warrant requirement far beyond the

situations in those cases.

Another factor relied upon by the Indiana Supreme Court in
Wright was that a requirement of warrants before search would be
unreasonable under the fourth amendment because of "the ease with
which some violations could be concealed."72 However, the United
States Supreme Court held in Barlow's that requiring warrants for
OSHA searches would not make inspections less effective even
though the OSHA Act "regulates a myriad of safety details that
may be amenable to speedy alteration or disguise . . . ," 73

62ta at 315.
"371 N.E.2d at 1302 (construing United States v. Biswell, 406 U.S. 311 (1972)).
"406 U.S. at 316.
86
371 N.E.2d 1298 (Ind. 1978).

"98 S. Ct. 1816 (1978).
67
?9 U.S.C. § 657(a) (1976).

*°98 S. Ct. at 1821.

"41 U.S.C. § 35 (1976).
7029 U.S.C. §§ 151-269 (1976).
nSee 98 S. Ct. at 1820.
72
371 N.E.2d at 1302.

7398 S. Ct. at 1822.



1979] SURVEY- CONSTITUTIONAL LAW 77

Even if a warrant requirement were held applicable to massage
parlors, such warrants are easily obtainable. The criminal law stand-

ard of probable cause is not applicable to the issuance of warrants

for administrative searches.
74 Under Barlow's, for administrative

searches "probable cause justifying the issuance of a warrant may
be based not only on specific evidence of an existing violation but

also on a showing that 'reasonable legislative or administrative stand-

ards for conducting an . . . inspection are satisfied with respect to a

particular [establishment].'
" 75 This diluted fourth amendment war-

rant requirement allows authorities to easily obtain warrants for ad-

ministrative searches. Under this standard, the practical effect of
overruling Wright by requiring warrants before searches of

massage parlors would be minimal.

D. Freedom of Religion

In Church of Christ v. Metropolitan Board of Zoning,
76 the

Indiana Court of Appeals held that the exclusion of a church from a

residentially-zoned area is a violation of the fundamental right of

freedom of worship77 protected by the United States78 and Indiana

Constitutions.
79

The case involved the Church of Christ's purchase of property
with a residential classification of "D-5."80 Churches were clearly ex-
cluded from this classification. The Church's application, seeking
permission to construct off-street parking adjacent to their proper-

ty, was denied by the Metropolitan Board of Zoning Appeals. The
Church appealed, contending that the Board illegally denied its ap-
plication because churches could not constitutionally be excluded

from residential areas by zoning ordinances. The Board argued that,
although the zoning ordinance did prohibit the establishment of a

church in the area, this prohibition was not illegal because the zon-
ing ordinance precluded only the primary usage of the property for

church purposes. According to the Board, the Church members could
meet for religious purposes in the residential structure located on
the property, but to permit the Church to construct parking places
would transform the structure into one primarily used as a church

and, thus, would be in conflict with the ordinance.

74Jd at 1824.
15Id (quoting Camara v. Municipal Court, 387 U.S. 523, 538 (1967)).
76371 N.E.2d 1331 (Ind. Ct. App. 1977).
77/d at 1333.
78
U.S. Const, amend. I & XIV.

79
Ind. Const, art. I, § 2.

The "D-5" designation limited permitted use to primarily one- and two-family
dwellings and certain home occupations. Indianapolis-Marion County, Ind. Code app.
D., pt. 4, ch. II, §§ 2.00, 2.06 (1975).



78 INDIANA LAW REVIEW [Vol. 12:69

The majority held that the ordinance unconstitutionally in-
fringed on the Church's right of freedom of worship.81 The court
stated that since 1954 the Indiana Supreme Court has followed "the
principle that the building of a church may not be prohibited in a
residential district . . . ."

82 The court recognized "that churches are
subject to such reasonable regulations as may be necessary to pro-
mote the 'public health, safety, or general welfare,' " but concluded
that restrictions that are tantamount to exclusion are not
reasonable.83

The court characterized the city's refusal to permit the Church
to use their property for religious purposes as the "classic confron-

tation" between the exercise of the police power and a fundamental
constitutional right.

84
In holding the ordinance unconstitutional as

applied to churches, the court apparently adopted the balancing test

set forth in Board of Zoning Appeals v. Jehovah's Witnesses.
85 The

test requires a balancing of the state interest in promoting the

public welfare with the individual's right to freedom of religion.86

Under this balancing test, the Jehovah's Witnesses court held that
zoning restrictions establishing setback or front yard lines are

reasonable restrictions on the right of freedom of religion,87 but that

avoidance of the hazard of increased traffic was an insufficient
public interest to justify totally excluding churches from residential

areas.
88

Similarily, in Board of Zoning Appeals v. Schulte,
89 the court

held that prevention of depreciation in value of adjoining property is

not a sufficient public interest to justify the total exclusion of chur-

ches.
90 The Indiana Courts of Appeal have also followed this ap-

81371 N.E.2d at 1333.
*2
Ia\ at 1334 (citing Board of Zoning Appeals v. Jehovah's Witnesses, 233 Ind. 83,

117 N.E.2d 115 (1954)).
83371 N.E.2d at 1334 (citing Cantwell v. Connecticut, 310 U.S. 296 (1940)).
M371 N.E.2d at 1334. The court explained: "If the citizen fails to heed Wendell

Phillip's admonition that 'External Vigilance is the price of liberty,' encroaching

government may devour that fundamental right (and what is more fundamental than

freedom of religion, which is a vital part of freedom of thought?)." Id.
86233 Ind. 83, 117 N.E.2d 115 (1954).

The Jehovah's Witnesses court stated the balancing test as follows:
When, under the facts in this case, the welfare and safety of the people in

the neighborhood is placed in the scales of justice on one side, and the right

to freedom of worship and assembly is placed on the other, the balance

weighs heavily on the side guaranteeing the right to peaceful assembly and

to worship God according to the dictates of conscience, regardless of faith or

creed.

Id. at 92, 117 N.E.2d at 121.

"Id. at 89-90, 117 N.E.2d at 118.

»»Id. at 92, 117 N.E.2d at 121.
89241 Ind. 339, 172 N.E.2d 39 (1961).

"Id. at 351, 172 N.E.2d at 45.



1979] SURVEY- CONSTITUTIONAL LAW 79

proach. Thus, in Keeling v. Board of Zoning Appeals*
1
the court per-

mitted the Methodist Church to operate in a residential area despite

the "D-5" classification.
92 In Board of Zoning Appeals v. Wheaton,

93
a

Catholic Sisters home was allowed in a residential district.94

The court's decision is well supported in Indiana case law. In-
deed, it is consonant with the approach taken in most jurisdictions.95

While the United States Supreme Court has not spoken to the zon-
ing issue, it has established a more precise balancing test for free
exercise cases.

96 The test requires the persons claiming an exemp-
tion to show that the state regulation burdens their practice of
religion. Since the restriction impinges on a fundamental right, the

state must show that its action is justified by a compelling interest.97

That is, the state must be promoting an important interest which
can not be achieved in a less restrictive manner.98

The Court has also recognized that churches are subject to such
reasonable regulations as are necessary to promote the public

health, safety, or general welfare.99 Apparently, such regulations are

91117 Ind. App. 314, 69 N.E.2d 613 (1946).
92M at 328, 69 N.E.2d at 618. The court stated: "[T]he right to erect and use a

modern church building may in a proper case . . . include a parking lot for the use of
the members in attending church services and any meetings held by the church . . . ."

Id.

93118 Ind. App. 38, 76 N.E.2d 597 (1948).
9Vd at 48, 76 N.E.2d at 601-02.
95See Annot, 74 A.L.R.2d 377 (1960). See also cases discussed in 2 R. Anderson,

American Law of Zoning § 9.19 (1968); 3 E. Yokley, Zoning Law and Practice § 28-14
(3d ed. 1967 & Supp. 1977). Only in California and Florida have the courts upheld zon-
ing ordinances which exclude churches from residential areas. See Minney v. Azusa,

164 Cal. App. 2d 12, 330 P.2d 255 (1958); Miami Beach United Lutheran Church v. City

of Miami Beach, 82 So. 2d 880 (Fla. 1955).

"Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963);

Braunfeld v. Brown, 366 U.S. 599 (1961).
97Sherbert v. Verner, 374 U.S. at 403.
98The court explained the compelling interest test in Braunfeld as follows:

[I]f the State regulates conduct by enacting a general law within its power,

the purpose and effect of which is to advance the State's secular goals, the

statute is valid despite its indirect burden on religious observance unless the

State may accomplish its purpose by means which do not impose such a
burden.

366 U.S. at 607. The test was expressed similarly in Yoder: "The essence of all that

has been said and written on the subject is that only those interests of the highest

order and those not otherwise served can overbalance legitimate claims to the free ex-

ercise of religion." 406 U.S. at 215. The state, of course, is absolutely prohibited under

the amendment from regulating or prescribing religious belief. See West Virginia

State Bd. of Educ. v. Barnette, 319 U.S. 624, 638-39 (1943); Cantwell v. Connecticut, 310

U.S. 296, 303 (1940). Thus, the compelling interest test is applicable only when the
state, in regulating conduct by such methods as zoning ordinances, burdens the prac-

tice of religion.

"West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943); Cantwell
v. Connecticut, 310 U.S. 296, 306, 307 (1940).



80 INDIANA LAW REVIEW [Vol. 12:69

ones which pass the balancing test described above. Thus, in

Braundfeld v. Brown, 100 the Court held that Sunday closing laws
were reasonable regulations as applied to Orthodox Jews despite
the fact that they observed another day as the Sabbath.101 On the
other hand, in Wisconsin v. Yoder, 102 the Court held that reasonable

regulations did not include a state statute requiring Amish children
to attend public school after the eighth grade.103 Furthermore, the

Court, in Sherbert v. Verner, 10A held that reasonable regulations

could not include denial of unemployment benefits to a Seventh Day
Adventist because her religious beliefs required her to refuse work
on Saturday.105

If the Supreme Court test had been applied in Church of Christ,
the result, in all likelihood, would have been the same. The burden
placed on the Church is not as great as was placed on the Amish in
Yoder. The regulation in Yoder required the Amish to either violate
their religious tenets or to suffer criminal sanction.

106 The burden in
Church of Christ is less direct; the burden was not on the Church's
religious beliefs, but on the geographical areas where it was permit-
ted to practice those beliefs. It is doubtful, however, that the Zoning

Board could establish that excluding the Church from a residential

area promotes a sufficiently important state interest. To the con-
trary, most authorities express the belief that, notwithstanding the

problem incident to increased traffic, the presence of churches in

residential areas contributes to the general welfare of the com-

munity.107

According to the majority, there is a constitutionally permissible

way to exclude churches.108 The court stated that churches could be
excluded from residential areas by the use of restrictive covenants

between property owners which impose the appropriate servitudes

on land.109 The judiciary, of course, would be the vehicle for enforc-
ing the restrictive covenants.

The issue raised by this dicta is whether it conflicts with the
Supreme Court's decision in Shelley v. Kraemer. 110 Shelley involved
the attempted sale of land to a member of a racial minority. The

100366 U.S. 599 (1961).
101

IcL at 603-06.
102406 U.S. 205 (1972).
103/d at 213-14.
104374 U.S. 398 (1963).
m

Ia\ at 410.
10fl406 U.S. at 218.
i01See 2 R. Anderson, supra note 95, § 9.19; 3 E. Yokley, supra note 95, § 28-14.
108371 N.E.2d at 1334.
109M (quoting Board of Zoning Appeals v. Schulte, 241 Ind. 339, 349, 172 N.E.2d

39, 43 (1961)).
U0334 U.S. 1 (1948).



1979] SURVEY- CONTRACTS 81

land had been encumbered by a restrictive covenant which forbade

its sale to such minorities. The Supreme Court stated that, so long
as the agreements were voluntarily enforced, there was no "state

action" and, therefore, no constitutional infringment,
111 but conclud-

ed that the judicial enforcement of these restrictive agreements was

a violation of the fourteenth amendment.112

In light of Shelley, the majority's statement will not withstand

constitutional scrutiny. The use of restrictive covenants to exclude
churches from residential areas is clearly analogous to the method
attempted in Shelley. In both situations the court is requested to en-

force agreements which, except for the absence of state action, are

violative of constitutional protections. Thus, the judicial enforcement

of restrictive covenants totally excluding churches from residential

areas is an infringement of the right to religious freedom.

Alan Raphael*

V. Contracts, Commercial Law and Consumer Law

Harold Greenberg**

A. Contracts; Covenants Not To Compete.

The validity of an employment agreement containing a covenant
not to compete was sustained by the court of appeals in Advanced
Copy Products, Inc. v. Cool 1 Late in 1971, six months after the
employee had begun work as a copying machine sales and service
representative, the employer and employee executed a written
agreement which contained a covenant not to compete with the
employer for one year, the employment being terminable at will by
either party. In 1973, the parties executed a new agreement which
contained the same terms except: (1) The covenant not to compete

m
l<L at 13.

n2
Id. at 20. The court stated: "It is clear but for the active intervention of the

state courts, supported by the full panoply of state power, petitioners would have been
free to occupy the properties in question without restraint." Id. at 19. Thus, those who
seek judicial enforcement of racially restrictive covenants will be imbued with state ac-
tion so as to bring the covenants within the scrutiny of the fourteenth amendment.

The author wishes to extend appreciation to Gary Harter for his assistance in
the preparation of this discussion.

Associate Professor of Law, Indiana University School of Law— Indianapolis.
A.B., Temple University, 1959; J.D., University of Pennsylvania, 1962.

'SQS N.E.2d 1070 (Ind. Ct. App. 1977).