Forest Hills Early Learning Center and several other nonsectarian operators of child care centers1 appeal a judgment of the district court upholding the constitutionality of Virginia's statutory exemption of religiously affiliated child care centers from the general licensing requirements imposed upon the operation of such centers by the Commonwealth. 540 F. Supp. 1046. The nonsectarian centers brought this action against the responsible state official, challenging the constitutionality of the exemption on the basis that it violated the establishment clause of the first amendment and also denied the nonsectarian centers the equal protection of law.2 On the parties' cross-motions for summary judgment, the district court granted summary judgment in favor of the state defendant, holding that the exemption had both a secular purpose and primary secular effect and involved a permissible effort by the state to comply with its constitutional obligation to avoid infringement of the sectarian sponsors' rights under the religion clauses.

We conclude that, under the establishment clause, the challenged exemption is facially overbroad as a permissible accommodation to any free exercise rights of the sectarian operators of child care centers. On this basis, we hold that summary judgment was improperly granted to the defendant. On the same basis, we hold that summary judgment might properly be granted to the nonsectarian plaintiffs on the present record. But we conclude that because of critical inadequacies in that record and the absence as parties of the sectarian center operators, such a disposition would be inconclusive of the underlying, conflicting constitutional claims of the sectarian and nonsectarian operators in respect of the state's regulatory scheme. For this reason, we vacate and remand to allow the sectarian operators, if so disposed, to intervene to press in further proceedings their free exercise claims against the establishment clause claims of plaintiffs. Failing intervention by the sectarian operators under the conditions we express, we direct entry of summary judgment in favor of plaintiffs.

* The Commonwealth of Virginia has regulated all child care centers since at least 1948 by requiring these centers to meet certain licensing standards. From 1968 to 1979, all persons who operated child care centers, without regard to sectarian or nonsectarian affiliation, were required to comply with the licensing requirements of Va.Code Secs. 63.1-195 through 63.1-219 and the regulations promulgated thereunder. An applicant for a license under these provisions was required to submit an application to the Commissioner of the Department of Welfare containing an outline of the center's proposed activities, facilities and services, Sec. 63.1-197; the Commissioner was then required to investigate the applicant's proposal and to inquire into the character, reputation and financial responsibility of the applicant, Sec. 63.1-198. The applicant was required to grant the Commissioner reasonable opportunity to inspect its facilities, books and records and to interview its employees and agents. Id.

If the Commissioner found that the applicant's operation was reasonably conducive to the welfare of the children it might serve and that the applicant's financial responsibility gave reasonable assurance of continued maintenance of its operation, the Commissioner was to issue a license, Sec. 63.1-199. The Commissioner retained the right to inspect the center and to interview any employee or customer of the center at reasonable times, Sec. 63.1-210. In addition to complying with these statutory requirements, a person seeking a license for operating a center had to comply with regulations drawn up by the State Board of Welfare that prescribe general standards and policies for the operation of child care centers. See Sec. 63.1-202.

During the early 1970's, the number of child care centers in Virginia increased significantly to meet the rising demand for outside-the-home child day care. As the number of centers increased, the Virginia Department of Welfare received numerous complaints that many of the centers were providing inadequate facilities, meals and supervision. Based upon an investigation, the Department determined that many centers were sacrificing the best interests of the children in order to maintain financial stability and to offer competitive prices. The Department further determined that many parents never visited a center before they enrolled their children there and that decisions concerning the choice of a center were often made without any parental knowledge or information about the centers.

The Department thereupon concluded that the regulations concerning licensing and operation should be upgraded to insure that the pressures of a competitive marketplace did not intrude upon the well-being of children utilizing the service of a center. In 1976, the State Board promulgated new and more stringent regulations, which are summarized in the margin.3 These regulations imposed substantial requirements on all child care centers in many areas, including space, health, safety, and nutritional standards, child/staff ratios, administrative structure, staff applications, parental participation, recordkeeping, program requirements, financial disclosure, disciplinary practices and others.

These standards were adopted in 1976 and applied to all child care centers, as had been the practice with prior regulations in the area. After the regulations were implemented a number of churches that operated child care centers opined to the Commissioner of the Virginia Department of Welfare, William L. Lukhard, that the new licensing requirements infringed their right freely to exercise their religious beliefs. In response to these complaints the Virginia legislature enacted Va.Code Sec. 63.1-196.3, which exempts all "[c]hild care center[s] operated or conducted under the auspices of ... religious institution[s]" from compliance with the licensing requirements of Sec. 63.1-196. Those requirements remain fully applicable to all nonsectarian child care centers, and, by express statutory provision, to any sectarian centers whose sponsors nevertheless elect to be covered. Sec. 63.1-196.3D.

Section 63.1-196.3, set out in the margin,4 does require the sectarian centers to meet several requirements but, as appears from its text, these requirements are minimal and consist mainly of compliance with generally applicable health and safety standards related to human occupancy and use of physical facilities. In lieu of applying for and securing a license, the sectarian institutions have merely to file with the Commissioner of Welfare an initial and thereafter annual statement of intent to operate a child care center; certify that they have disclosed to all parents or guardians of enrolled children the qualifications of the staff personnel; present documentation of their tax-exempt status and of their compliance with local health and fire ordinances and with certain staff ratio requirements; and make public disclosure of certain aspects of their operations. If an exempt center fails to file the required statement of intent, the Commissioner of Welfare may take "such action as he determines appropriate," including a suit to enjoin its operation. Sec. 63.1-196.3B. If a parent or guardian lodges a complaint with any local welfare, health, or fire department related to an exempt center's failure to comply with generally applicable health and safety regulations, those local agencies may inspect the center's facilities and take "appropriate action as provided by law, including a suit to enjoin the operation of the child-care center." Sec. 63.1-196.3C. These are the only official inspection and enforcement mechanisms provided for the exempt centers. In contrast to the nonsectarian centers, no state level inspection or enforcement mechanisms beyond that related to the filing statement requirement are provided for operation of the exempt centers.

The net effect of the exemption in its new differentiation between sectarian and nonsectarian child care centers can therefore be summarized as follows.

In the critical areas of licensing itself, and of program, insurance, financial resources and management, staff qualification, and internal administration following licensure, the sectarian centers are wholly relieved of official state regulation, while the nonsectarian centers remain subject in all these areas to extensive regulation under standards enforceable by state agency inspection and legal sanctions. In place of the extensive state inspection and enforcement mechanisms which remain available to enforce compliance by the nonsectarian centers with these standards, there has been substituted for the sectarian centers only limited disclosure and certification requirements respecting the qualifications (unspecified) of its staff personnel, its tax-exempt status, its liability insurance coverage, its current compliance with applicable health and safety laws, and a written description of its physical facilities, enrollment capacity, food service and staff health requirements. Although the disclosure and certification requirement is itself enforceable, no sanctions with respect to the matters required to be disclosed or certified remain for the sectarian centers, as they do with respect to the nonsectarian.

In the general areas of child health and safety, the sectarian centers are relieved of a wide range of special regulatory standards related to nutrition, space, heat, light, ventilation, and physical safety which still apply to the nonsectarian centers and are enforceable against those centers by state level inspection and sanctions. In place of these special standards related to child health and safety there has been substituted for the sectarian centers only those health and safety standards already applicable to the general population through local and state fire, safety, and sanitation codes. In place of the state level inspection and enforcement mechanisms available to enforce compliance by the nonsectarian centers with applicable general and special health and safety standards, there has been substituted for the sectarian centers only the inspection and enforcement powers (presumably already available under general law) of local health, welfare and fire departments, acting on complaints of parents or guardians of affected children.

Reacting to this substantial new differentiation in licensing requirements, standards and enforcement mechanisms, the nonsectarian center plaintiffs brought this action, challenging on constitutional grounds the state's statutory exemption of sectarian sponsored centers. Plaintiffs contended that the exemption violated the establishment clauses of the federal and state constitutions, and the equal protection clause of the federal constitution. On the parties' cross-motions for summary judgment, the district court upheld the exemption against the establishment clause and equal protection challenges, essentially on the same general ground: that the state's obligation to avoid infringing the free exercise rights of the sectarian center sponsors provided a sufficient "secular purpose" and "primary secular effect" to withstand the establishment clause challenge and a sufficiently "compelling state interest" to withstand the equal protection challenge.

Critical to the district court's decision was its express conclusion that it was irrelevant whether free exercise rights of the sectarian center operators were actually being burdened by the pre-exemption licensing requirements and if so, to what extent. In the court's view, "such is not the question before the Court." J.A. 187. In assessing whether the exemption reflected a justifying "secular legislative purpose," or a "compelling state interest," it sufficed for the court that by means of the exemption "the State hoped to prevent possible litigation of any free exercise claims against the licensing requirements and at the same time to assure the welfare of children in church centers by means which intrude as little as possible upon the activities of the church." J.A. 189. For the district court, "[l]ogic supports the conclusion that if regulations arguably violate the free exercise clause it is justifiable for the State to employ a less intrusive means of regulating the church-run centers." Id.

From the district court's resulting grant of summary judgment to defendant and denial of summary judgment to plaintiffs, plaintiffs took this appeal.

This case presents a unique litigation clash between the religion clauses of the first amendment.5 Though direct clashes between the two are understandably avoided by the courts whenever possible, see Widmar v. Vincent, 454 U.S. 263, 273 & n. 13, 102 S. Ct. 269, 276 & n. 13, 70 L. Ed. 2d 440 (1981), they are, of course not unprecedented, see Sherbert v. Verner, 374 U.S. 398, 413-17, 83 S. Ct. 1790, 1798-01, 10 L. Ed. 2d 965 (1963) (Stewart, J., concurring). The uniqueness here has to do with the procedural setting in which this clash--an unavoidable one--occurs. Because the resulting adjudicative difficulty heavily influences the decision we reach, we commence by analyzing the way in which free exercise and establishment clause rights are here brought into conflict.

The essence of the matter is simply stated. The "religious institutions" exemption is challenged on the basis that it violates the establishment clause: that in its sphere of operation the exemption impermissibly favors "religion over nonreligion." See Walz v. Tax Commission, 397 U.S. 664, 694, 90 S. Ct. 1409, 1424, 25 L. Ed. 2d 697 (1969) (Harlan, J., concurring). As the parties and the district court properly saw, the appropriate standard for assessing this establishment clause challenge is the three-part guideline test of Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). Under that analytical test, the challenged legislation fails constitutionally unless it is found to have a secular legislative purpose, to have a primary effect that does not advance or inhibit religion, and to have no potential for fostering excessive governmental entanglement with religion. Id. at 612-13, 91 S.Ct. at 2111. Seeking to justify the statutory exemption under this test, the state has advanced as the "secular purpose" of the exemption the constitutionally compelled or permitted accommodation it makes to the free exercise rights of the exempted institutions.6

By this process, constitutional compliance with one of the religion clauses has been advanced in litigation as a justifying "secular purpose" for legislation challenged under the other. An awkwardness results that is both conceptual and practical. Because it bears directly upon the court's ability fairly to adjudicate the conflicting religion clause claims on the summary judgment record we review, we pause to point up the special nature of the difficulty.

In the setting of this case the persons whose free exercise rights are centrally in issue are not parties to the litigation and those rights have not been authoritatively established in any other constitutional adjudication. Rather, the rights of those persons are being indirectly asserted in this litigation by the state, which more commonly in free exercise litigation finds itself on the other side, defending or seeking to enforce legislation challenged by such persons as violative of free exercise rights.7 The result of a successful defense by the state in this case would therefore be a confirmation by judicial review of a prior legislative accommodation of free exercise rights of persons whose entitlement thereto will never have been put to test in an adversarial adjudicative process in which they were parties with the normal burdens of production and persuasion on disputed factual and legal issues.

To point out this awkwardness is not of course to suggest that persons claiming free exercise rights (or others of constitutional origin) may only have them officially recognized and vindicated by judicial challenges to prior legislative (or executive) action alleged to have violated them. The right to petition government for redress of grievances obviously is not so circumscribed. Neither is it to suggest, in corollary, that only the courts and not the legislative (or executive) branches of government may recognize and extend first instance protection to constitutional rights, including those secured by the religion clauses. Of course the other branches--both federal and state--may and do so. But the action of these other branches is of course then subject to judicial review if the governmental action is later put in constitutional issue in a judicial case or controversy, see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), and therein lies the rub here.

Here, the state's legislative determination that it was constitutionally compelled or, at least, permitted to accommodate free exercise rights, has been put directly in issue by the state's litigation assertion that this provided the "secular legislative purpose" for the challenged exemption.8 This presents a difficult problem concerning the proper scope and standard of judicial review of the resulting legislative action. For although the issue directly posed is whether under the Lemon v. Kurtzman test constitutional compulsion or authority constituted a justifying "secular purpose" for the challenged exemption, the dispositive issue must be the underlying one, indirectly raised, whether and to what extent the free exercise rights accommodated by the exemption did in fact exist. It does not seem possible--without wholly abdicating the judicial review function--to hold the accommodation a valid secular legislative purpose for the exemption except on the basis of an independent judicial determination that free exercise rights justifying the accommodation did in fact exist.

Certainly it cannot be the case that merely by asserting such a legislative purpose in litigation the state is entitled to have its legislature's accommodation to assumed free exercise rights confirmed by the courts without any judicial inquiry into the validity of the assumption. The requirements of judicial deference to legislative recognition of constitutional rights cannot be thought to run that far. See, e.g., Stone v. Graham, 449 U.S. 39, 41, 101 S. Ct. 192, 193, 66 L. Ed. 2d 199 (1980) (judicial inquiry must go back of state's testimonial avowal of secular purpose); Abington School District v. Schempp, 374 U.S. 203, 223, 83 S. Ct. 1560, 1572, 10 L. Ed. 2d 844 (1963) (same); Karen B. v. Treen, 653 F.2d 897, 900 (5th Cir.1981), aff'd, 455 U.S. 913, 102 S. Ct. 1267, 71 L. Ed. 2d 455 (1982) (same). On such a view of things, any persons successful in pressing free exercise (or establishment clause) claims upon a legislature would have the legislature's action yielding to their claims--no matter how unfounded--effectively immunized from constitutional challenge by persons pressing conflicting judicial claims under the other religion clause (or other constitutional provisions).

Because we cannot accept this, we disagree with the district court in its expressed view--critical to its decision--that whether the pre-exemption regulations violated the free exercise clause was not in issue in this case. We think it was inescapably put in issue by the state's deliberate reliance upon the actuality or possibility of free exercise violation as the justifying secular purpose for the legislative exemption.

Because it is inescapably in issue, and because its resolution is, we believe, dispositive, we must address it.9 But when we turn to that issue, we face--as did the district court--a disturbingly meager record upon which to apply free exercise doctrine as shaped by authoritative Supreme Court interpretations (or "noninterpretations") of the clause.

To point up the record deficiencies it is necessary briefly to summarize the relevant free exercise doctrine that would have determined, in a head-on adversarial clash between sectarian centers and the state, whether and to what extent free exercise rights were actually burdened, or even threatened with burden, by the state's pre-exemption regulatory scheme.

We start with the fundamental proposition that the freedom to act upon religious beliefs--to engage in religious activity--is not absolute, as is the right to hold those beliefs; activity may be curtailed in some circumstances for the protection of sufficiently compelling societal interests. Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940). Whether state law impinges at all upon free exercise rights first depends upon whether "the purpose or effect of [the] law is to impede the observance of ... religion[ ]." Sherbert v. Verner, 374 U.S. 398, 404, 83 S. Ct. 1790, 1794, 10 L. Ed. 2d 965 (1963). Whether, in turn, the holding or active expression of particular beliefs involves the observance of "religion" depends upon the sincerity of the beliefs held and the centrality of those beliefs to an identifiable religious faith or commitment; only those laws that impede the holding or active expression of sufficiently sincere and central religious beliefs impinge upon free exercise rights. See Wisconsin v. Yoder, 406 U.S. 205, 215-19, 92 S. Ct. 1526, 1533-35, 32 L. Ed. 2d 15 (1972). If, under these tests, a particular law does impede "religious" activity, even indirectly, it violates the free exercise clause, unless the impediment is justified by a compelling state interest arising from some substantial threat to public health, safety, peace, or order, see Yoder, 406 U.S. at 221-29, 92 S.Ct. at 1536-40; Sherbert, 374 U.S. at 403, 83 S.Ct. at 1793, and is the least restrictive means for protecting the compelling state interest, id. at 406, 83 S.Ct. at 1795.

Where free exercise rights, as measured by these tests, exist, the state is constitutionally obligated to accommodate them, even if this entails some degree of disparate treatment of religious activity; by definition, constitutionally compelled accommodation of free exercise rights cannot abridge the establishment clause. Yoder, 406 U.S. 235 n. 22, 92 S. Ct. at 1543 n. 22; Sherbert, 374 U.S. at 409, 83 S.Ct. at 1796. And, indeed, to provide the necessary "play in the joints productive of a benevolent neutrality," Walz v. Tax Commission, 397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1969), the range of permissible state accommodation to free exercise rights runs beyond that constitutionally compelled--out to limits ultimately imposed by the establishment clause. Id. at 673, 90 S.Ct. at 1413. Where those limits of permissible accommodation lie in a particular case involves a "value judgment" guided only by historical inquiry and prior authoritative judicial decisions. Id. at 669, 90 S.Ct. at 1411.

All this being so, we cannot question the appropriateness of the state's seeking to defend the challenged exemption here on the basis that the accommodation it makes to the activities of "religious institutions" was constitutionally compelled or at least constitutionally permitted by reason of the existence of free exercise rights in those institutions, and that this provided a saving "secular purpose" for the exemption under establishment clause challenge. Protection of constitutional rights can properly be advanced by government as justification for governmental action that is under challenge for violation of other constitutional rights. See Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981) (protection of establishment clause rights recognized, though rejected on merits, as cognizable "compelling state interest" defense to free speech challenge). We do not suppose that a court in which such a justification issue is raised is without power to adjudicate it notwithstanding the absence as parties of those persons in behalf of whose free exercise rights the legislative accommodation was allegedly made. See Fed.R.Civ.P. 19(b) (criteria for "indispensability" of parties). It is obvious, on the other hand, that fair and complete disposition of the difficult religion clause issues raised in this case would have been greatly aided by the presence of those persons as parties. See Fed.R.Civ.P. 19(a) (criteria for "conditionally necessary" parties). A moment's reflection and a summary review of the evidence marshaled for the court by the parties on their cross-motions for summary judgment will make this plain.

The plaintiffs had to do no more than hold up the challenged exemption for judicial scrutiny to demonstrate its palpable facial non-neutrality in respect of religion; the exempted activities are, by definition, only those of "religious institutions" and the substantiality of the degree of favor conferred upon religion in relation to nonreligion is equally palpable.10 This clearly distinguished the challenge in this case from those in cases such as Mueller v. Allen, --- U.S. ----, 103 S. Ct. 3062, 77 L. Ed. 2d 721 (1983), and Walz, 397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1969), where the establishment clause challenges were to legislation that on its face equally favored both nonsectarian and sectarian interests, the claim being that it was nevertheless impermissible under the Establishment Clause so to favor the sectarian interests. Importantly, in each of those cases the secular purpose advanced as justification for the legislation applied broadly and equally to nonsectarian as well as sectarian interests and had to do with the intrinsic value, from society's viewpoint, of the religiously neutral conduct being encouraged, aided, or relieved of burden by the legislation. See Mueller, --- U.S. at ----, 103 S. Ct. at 3066 (aid to elementary and secondary education); Walz, 397 U.S. at 672, 90 S.Ct. at 1413 ("moral or mental improvement of community at large"). It is this very breadth of coverage and focus upon societal values not peculiarly the domain of religion that has allowed the Supreme Court in those cases to find the animating purpose of the legislation to be "secular," and the legislation to be "benevolently neutral" both in purpose and in nonentangling primary effect. See Mueller, --- U.S. at ----, 103 S. Ct. at 3067, (upholding tax deduction "assuring the continued financial health of private schools, both sectarian and non-sectarian"); Walz, 397 U.S. at 673, 90 S. Ct. at 1413 (upholding tax exemption to all "houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations").

By contrast, the challenged exemption here is expressly designed only to benefit "religious institutions," and the legislative purpose avowed for it has expressly to do only with religious values. It is for this reason, of course, that the state has perforce here rested its claim of justification--of secular purpose--solely on the existence of free exercise rights, identifying the protection of those indisputably religious interests as the "secular" purpose of the exemption.

On the parties' cross-motions for summary judgment, we therefore hold that the state had the burden of demonstrating the existence, as a matter of law, of free exercise rights justifying the exemption on this basis. If it failed to carry that burden, it could not properly be awarded summary judgment, see Fed.R.Civ.P. 56(c), though its failure to do so need not on the other hand compel judgment for the plaintiffs on their cross-motion--a matter to which we will return.

This burden could only be carried by a demonstration beyond factual dispute that the previously regulated but now exempted activities expressed sufficiently central and sincerely held religious beliefs to permit the full sweep of free exercise protections provided by the exemption. While, as noted, evidence to this effect might best have come from persons directly claiming the free exercise rights--as in free exercise litigation it typically has come--it of course lay with the state as defendant to marshal the requisite evidence from whatever sources it chose, including the testimony of exempted institutions or any favorable evidence marshaled by plaintiffs, or indeed to contend that free exercise rights were manifest as a matter of law in the very nature of the exempted activities.

But when we look to the totality of the evidence marshaled and to the activities exempted from former regulation, it simply cannot be held that this burden was carried. In the first place it could not be thought carried on the basis that all activities, or at least all "good works" activities, of concededly religious institutions, are per se "religious," hence entitled to free exercise protections. This simply is not the law.11 See Walz, 397 U.S. at 674, 90 S.Ct. at 1414. The rule instead is that some activities of undoubtedly "religious" institutions may fall completely outside the realm of protected "religion," notwithstanding their undoubted legitimacy or manifest social virtue, see, e.g., De La Salle Institute v. United States, 195 F. Supp. 891 (N.D.Cal.1961) (operation of winery). Neither, obviously, does the whole sweep of exempt activities here lie so manifestly at the core of religious practices--such as prayer, worship, and ritual--as to be entitled per se to protection.

These possibilities aside, the existence of free exercise rights justifying the full sweep of legislative protection afforded by the exemption here could only have been demonstrated by evidence--historical, ecclesiastical, and other--that sufficiently related the particular activities exempted to sincerely and centrally held religious beliefs of the sectarian sponsors of child care centers.

The record is simply devoid of evidence from which any such specific relationship between beliefs and conduct could have been found to exist across the range of the now-exempted activities.12 Indeed, the state was content to present evidence that tended merely to demonstrate the impetus for the legislature's action upon an avowed secular purpose to accommodate.13 That evidence simply did not go at all to the underlying issue respecting the existence of protectible free exercise rights, except to the extent of showing that some persons had asserted their existence.14

Not only was the evidence insufficient to demonstrate the existence of free exercise rights across the entire range of exempted activities, it actually demonstrated the converse--that some at least of the exempted activities were not entitled as a matter of law to free exercise protections. For purposes of our review it suffices to identify only the most obvious. On no possible view could the requirement that child care centers contain a minimum area of space per child, that they provide suitably spaced and covered cots and cribs, and that they provide nutritious meals, be held to impinge upon any currently known or practiced religious beliefs under free exercise protection. At least these areas of conduct (and arguably many of the other areas formerly subject to general regulation but now exempted from regulation in the sectarian center operations) are manifestly and properly concerned only with the health, safety and welfare of the children in the child care centers.

This being so, it is not necessary to decide whether some of the exempted operations may have been entitled to free exercise protection. On the summary judgment ruling we review, it suffices to hold that the defendant has failed to demonstrate beyond factual dispute that the entire range of exempted operations were so entitled. The exemption, on its face, and as a matter of law was overbroad in relation to the secular legislative purpose claimed for it.15 See King's Garden v. FCC, 498 F.2d 51, 54-55 (D.C.Cir.), cert. denied, 419 U.S. 996, 95 S. Ct. 309, 42 L. Ed. 2d 269 (1974). The defendant was therefore not entitled to summary judgment. Fed.R.Civ.P. 56(c).

The question then arises whether, as plaintiffs assert, they were entitled to summary judgment on their cross-motion. More precisely, the question is whether upon a summary judgment record demonstrating some degree of overbreadth of the challenged exemption in relation to its avowed secular purpose of accommodating free exercise rights, the plaintiffs are entitled to a summary judgment that, as written, the exemption is unconstitutional.

We believe that such a declaration would technically be warranted here without any necessity on the plaintiffs' part to demonstrate, or on the court's part to determine, the precise extent of overbreadth. That is to say, we do not believe it is incumbent either upon a party challenging such legislation or upon a court entertaining such a challenge to "blue pencil" the legislation in order to square it with the constitutional provision invoked to challenge it. The judicial function in such cases may best be served by a simple declaration that, as they stand, the two do not perfectly square, so that the legislation as it stands must perforce fall. See United States v. Butler, 297 U.S. 1, 62, 56 S. Ct. 312, 317, 80 L. Ed. 477 (1936); see also W. Van Alstyne, Interpreting This Constitution: The Unhelpful Contributions of Special Theories of Judicial Review, 35 Fla.L.Rev. 209 (1983) (extolling virtues of limited, procedurally constrained constitutional review). By this means any revision thought needed to square the two is left to the legislature so far as the statute is concerned, or to the people so far as the Constitution is concerned. And that, in the ordinary case, is arguably where--in faithfulness to separation of powers concerns--the squaring functions should be left or at least first exercised.

But this general principle--even if it be accepted as ordinarily the wise one--has its exceptions. In some situations it may of course be necessary or at least prudent for the courts to do the necessary squaring of statute with Constitution by excising only the unconstitutional portions of legislation not wholly unconstitutional.16

That course is indicated as the proper one here. If we were to declare the exemption unconstitutionally overbroad as written, the likelihood that effective legislative revision without further judicial involvement would occur seems rather remote. The greater--or at least equal--likelihood would seem a belated free exercise challenge by at least some of the exempted "religious institutions"--either to the wholly restored legislative regulatory scheme or to any later revised version that did not make an approximately equal accommodation to that of the exemption successfully challenged here.

As we have indicated at several points, such a direct free exercise challenge by the sectarian institutions would provide a much surer basis than does the present lawsuit for judicial determination of the constitutionally permissible extent of state accommodation. But this would mean two (or more) lawsuits to force a final squaring of the legislative regulatory scheme with the difficult cross-demands of the religion clauses. With the fat already so far in the judicial fire, a better solution to a problem that almost certainly will not go away short of ultimate judicial resolution would be to encourage that resolution in the present lawsuit.

This may be done here if the summary adjudication of unconstitutionality for overbreadth that we find justified on the present record is nevertheless conditionally denied, and if the persons whose free exercise rights are centrally in issue in this action are now added as parties to further proceedings in it. Both of these may properly be done under traditional procedures.

Even where summary judgment is appropriate on the record so far made in a case, a court may properly decline, for a variety of reasons, to grant it. See generally 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil Sec. 2728 (1983). We think this is such a case, for reasons earlier suggested.

A declaration of unconstitutionality for overbreadth would not finally conclude the underlying, conflicting claims of the primary parties in interest in this litigation. Such a declaration would not by its terms, nor could it, preclude subsequent challenges by any of the presently exempted "religious institutions"--nonparties to this litigation--to all or any portions of the restored general regulatory scheme, or any legislatively revised version. Nor could such a declaration prevent a series of piecemeal challenges and counter-challenges by the affected sectarian and nonsectarian institutions to successive legislative attempts to accommodate their conflicting religion clause claims. In other words, summary adjudication on so limited a basis of issue and party preclusion and on so inadequate a factual record, see Williams v. Howard Johnson's Inc., 323 F.2d 102, 105 (4th Cir.1963), is likely to be inconclusive of the underlying rights in issue, including those of the prevailing plaintiffs.

If, on the other hand, the action is remanded for further evidentiary proceedings with all the most directly affected parties in interest--the nonsectarian and sectarian child care center operators along with the state--those parties can fully develop their opposing legal and factual positions and a definitive resolution of their conflicting religion clause claims and defenses can be achieved in this litigation. We think the sectarian operators who claim entitlement to free exercise protection should be parties to this action--for reasons already adequately explained. Indeed, they appear, on our analysis of the issues in this case, to be "conditionally necessary" parties under the criteria of Fed.R.Civ.P. 19(a).

Under the circumstances that have developed, however, the decision whether the sectarian operators should at this late stage be made parties should be left to them. If they desire to intervene as a class17 under Fed.R.Civ.P. 23(b)(3) and if the numerosity and other requirements of the class action rule can be met, they should be permitted to intervene as of right. Fed.R.Civ.P. 24(a)(2). A fair opportunity to intervene can be provided them upon remand. If they decline then to intervene, or if intervention as a class is found infeasible, summary judgment for the plaintiffs should follow, on the basis that the exemption as now written is unconstitutionally overbroad under the establishment clause.

Upon intervention of the sectarian operators as a class, further evidentiary proceedings may be devoted to developing--under applicable substantive doctrine and appropriately allocated burdens of proof, see Part II, supra --the extent of any free exercise rights had by the sectarian institutions in the exempted activities, and the nature and extent of any compelling state interest in nevertheless regulating those activities. This will provide a basis--not now provided--for a properly informed "value judgment" by the court of the constitutionally permissible extent, under establishment clause constraints, of the accommodation to free exercise rights made in the challenged exemption.18

In developing such a record, the initial burden of production should be upon the sectarian institution intervenors to establish the extent, if any, of their free exercise rights in the exempted activities. If they should fail, under relevant constitutional doctrine, to establish the existence of any such rights, the exemption should be declared wholly unconstitutional. If, however, the intervenors establish the existence of free exercise rights in any of the exempted activities, it should then lie with the plaintiffs to establish the existence of a compelling state interest that nevertheless justified regulation of those free exercise activities.19 The court may then proceed to exercise an informed "value judgment" in defining the line of permissible state accommodation--allowing sufficient "free play in the joints"--to any free exercise rights found to have existed.III

The district court's grant of summary judgment to defendants is vacated. The district court's denial of plaintiffs' cross-motion for summary judgment is affirmed, subject to the condition hereafter expressed. The action is remanded to the district court for further proceedings in accordance with this opinion and the following specific directions.

The district court shall give notice by any practicable means to those religious institutions whose operation of child care centers is exempted from regulation by Sec. 63.1-196.3 of their right to intervene as a class in this action if so disposed. The notice shall state the general basis for and conditions of the intervention as expressed in this opinion; shall give a reasonable period for exercise of the right to intervene; shall provide that any religious institution notified may file a specific refusal to be included in any class certified; and shall indicate that if intervention is declined, summary judgment for the plaintiffs will forthwith be entered declaring the exemption provided by Sec. 63.1-196.3 unconstitutional and of no effect.

Upon request of the court, the defendant shall provide the names and addresses of those institutions considered by the state to be exempted from regulation by Sec. 63.1-196.3. The expense of preparing and delivering the intervention-right notices shall be borne by the defendant as a cost of this litigation.

If class intervention is permitted under the conditions here expressed, the intervenors shall be aligned as additional parties-defendant. So far as practicable, the class shall be defined expressly to exclude any sectarian institution which specifically has declined to be included within the class proposed for intervention.

If, for any reason, class intervention as herein authorized is not consummated, the district court shall forthwith enter judgment declaring Va.Code Sec. 63.1-196.3 unconstitutional, for reasons expressed in the opinion of this court, under the first amendment to the Constitution of the United States.20

The costs of this appeal shall be borne by defendants.

SO ORDERED.