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\n(Image: Drei Kubik \/ Unsplash.com)<\/p>\n
\n(Image: Drei Kubik \/ Unsplash.com)<\/p>\n
A recent challenge to religious freedom can be found in\u00a0Foothills Christian Ministries v. Johnson<\/a>. At issue were\u00a0regulations implementing<\/a>\u00a0California\u2019s\u00a0Child Day Care Act<\/a>, which, in requiring all centers\u00a0to be licensed<\/a>, obligates their officials to\u00a0inform parents and guardians<\/a>\u00a0that their youngsters have rights, including \u201cto attend religious services<\/a>\u00a0or activities of his\/her choice.\u201d<\/p>\n After a\u00a0federal trial court<\/a>\u00a0and the\u00a0Ninth Circuit<\/a>\u00a0rejected Foothills\u2019 claims that the law and regulations violated, most notably, its\u00a0First Amendment rights<\/a>\u00a0to freedom of religion and speech, the\u00a0Supreme Court<\/a>\u00a0rejected its appeal. As such, this column reviews its facts and judicial history in Foothills Christian before offering analysis and commentary on its significance for religious freedom.<\/p>\n Background<\/p>\n Foothills Christian operates\u00a0three Protestant churches in the San Diego area<\/a>, all of which have active ministries for children. While none of the churches currently operates a daycare facility (licensed or otherwise), Foothills intends to reopen its childcare center, which closed after state officials\u00a0suspended its license in 2021<\/a>\u00a0over whether it complied with California\u2019s COVID-19 masking directive.<\/p>\n Foothills Christian objected to one of the Act\u2019s regulations granting children \u201cpersonal rights<\/a>\u201d including being \u201cfree to attend religious services or activities<\/a>\u00a0of his\/her choice and to have visits from the spiritual adviser of his\/her choice.\u201d The regulation further requires officials to \u201cinform each child\u2019s authorized representative<\/a>\u00a0of the[se] rights,\u201d via signs and written forms.<\/p>\n Because Foothills has no intention of complying with the regulation, it filed a pre-enforcement challenge to it and the Act as violating its First Amendment Free Exercise, Free Speech, Establishment Clause, and Fourteenth Amendment Due Process rights.<\/p>\n Litigation<\/p>\n In\u00a0May 2024<\/a>, a federal trial court rejected Foothills Christian\u2019s claims because it had \u201cnot sufficiently alleged<\/a>\u00a0their proposed course of conduct of the mandatory religious curriculum is proscribed by law but protected by the Constitution.\u201d The judge added that the complaint failed because it \u201cpoint[s] to no instances<\/a>\u00a0where daycare centers or preschools were punished under the Act for teaching a mandatory religious curriculum.\u201d<\/p>\n On appeal, in August 2025, a three-judge panel of the Ninth Circuit unanimously affirmed in favor of California. Echoing the trial court, the panel reiterated that although the provision has \u201cbeen on the books for over 40 years<\/a>\u2026Foothills has not identified a single instance\u2026[when it was] used to enjoin a facility\u2019s mandatory religious curriculum.\u201d The opinion remarked that \u201cfar from communicating a specific warning or threat of enforcement, the State has\u00a0explicitly disavowed enforcement of the provision<\/a>\u00a0under these circumstances.\u201d<\/p>\n Consequently, the court decreed that, absent a \u201ccredible threat that Foothills will be prosecuted<\/a>\u2026[it] lacks standing\u201d the ability to sue, because the threat of prosecution was too speculative.<\/p>\n Next, on the merits, the panel rejected Foothills\u2019 claim that the regulation violated the Free Exercise Clause because, in \u201ctreat[ing]\u00a0fifteen comparable secular<\/a>\u00a0child day care operations\u201d including the YMCA and Boy Scouts more favorably than it, the statute was not generally applicable. The court distinguished these organizations because, in offering recreational rather than child daycare, programs, the regulation survived as a neutral, generally applicable requirement rationally related to California\u2019s vital interest in protecting children.<\/p>\n The court rejected Foothills Christian\u2019s Establishment Clause charge because California said it treated the YMCA, Boy Scouts, and other groups based on the nature of their programming rather than religion. The panel then affirmed that the First Amendment compelled speech claim failed because the notice requirement only mandated the disclosure of factual, uncontroversial information about children\u2019s rights that was reasonably related to California\u2019s substantial interest in protecting youngsters in day care facilities.<\/p>\n Finally, the court affirmed the denial of the\u00a0Due Process Clause<\/a>\u00a0claim because it did not view the regulation as imposing unconstitutional conditions on Foothills Christian by having it waive various constitutional rights.<\/p>\n As discussed in more detail below, the\u00a0Supreme Court<\/a>\u00a0refused to hear an appeal on May 18, 2026.<\/p>\n Analysis and commentary<\/p>\n First, how many young children in day care centers would know or understand enough to ask to attend different religious services or activities, or request spiritual advisers of their choice? Since it is difficult to imagine that children would make such requests without some parental prompting, this regulation makes no sense. If parents disagree with the religious nature of the child care facilities where they placed their young, why would they have registered them in such centers?<\/p>\n Because the Supreme Court rejected, without comment, the\u00a0three questions<\/a> Foothills Christian\u2019s appeal raised, they serve as the framework for the remainder of this column. The questions asked are:<\/p>\n (1) Whether California\u2019s religious services provision, which requires the posting of signage and handing out of written copies to parents, compels speech in violation of the First Amendment;<\/p>\n (2) whether the religious services provision with its spiritual advisor notice interferes with the free exercise rights of a parochial school to have plenary authority over spiritual formation of children while on a church campus; and<\/p>\n (3) whether the\u00a0Child Day Care Act, with its fifteen exceptions, is generally applicable.<\/p>\n First, it is difficult to see how requiring center officials to post language notifying parents and caregivers that their children can attend religious services and seek advice from religious leaders, inconsistent with Foothills\u2019 beliefs, is not a form of impermissible compelled speech that interfered with its free exercise rights.<\/p>\n For example, the Supreme Court again banned compelled speech as recently as 2023 in 303 Creative v. Ellenis<\/a>. In 303 Creative, the Justices ruled that Colorado officials could not require a wedding planner to engage in compelled speech, on a website rather than in print or verbally, by having to offer her expressive services to a same-sex couple, because doing so would have violated her sincerely held religious beliefs that marriage is a relationship between one man and one woman.<\/p>\n Second, in rejecting Foothills\u2019 challenge to the statute\u2019s imposition on its free exercise rights, both the trial court and Ninth Circuit based their judgments on the fact that it had yet to reopen a facility and that the state has not enforced the provision. Why, then, if the disputed regulation is not enforced, has it not been repealed? Put another way, why allow a regulation that likely infringes on the free exercise and free speech rights of Foothills Christian Ministries and others to remain in place until an over-zealous prosecutor or parent files suit seeking to inflict actual harm in the form of limiting its constitutional rights to express its beliefs through its programming?<\/p>\n Albeit in a different setting, in Doe v. Santa Fe Independent School District<\/a> (2000), the Supreme Court invalidated a school board\u2019s policy of allowing students to recite a prayer before football games, rejecting its defense that litigation was premature because one had yet to be offered. Noting that the policy \u201creveal[ed] that it has an unconstitutional purpose<\/a>\u201d mandating prayer, the Justices invalidated as \u201cundermine[ing] the\u00a0essential protection of minority viewpoints<\/a>\u201d just as the disputed provision in California arguably infringes on the religious beliefs of Foothills Christian Ministries.<\/p>\n Based on Santa Fe, if statutes and\/or regulations violate constitutional rights such as freedom of religion, the courts need not wait until a party has suffered harm before intervening. Here, by mandating that children are free to attend religious services or activities of they select and\/and visit the spiritual adviser of their choice, the regulation, in particular, could undermine the goals of faith-based day care centers such as the one Foothills Christian hopes to reopen.<\/p>\n Third, the Ninth Circuit\u2019s finding that the law is neutral toward religion and generally applicable is a distinction without a difference in identifying the programming of the YMCA and Boy Scouts and other groups as recreational, rather than child day care. What the lower courts missed is that even if the programming the other groups offer is more recreational in nature, they still provide child care, even if it is not their primary concern.<\/p>\n Consistent with the Supreme Court observation in 1925\u2019s\u00a0Pierce v. Society of Sisters of the Holy Names of Jesus and Mary<\/a>, the state of California (in language applicable to child care facilities) may \u201creasonably[ ] regulate all schools<\/a>\u2026inspect, supervise, and examine them, their teachers and pupils.\u201d However, on the important question of instructional or programmatic content that faith-based institutions provide, Pierce is again instructive in reasoning that \u201c[t]he\u00a0child is not the mere creature<\/a>\u00a0of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.\u201d<\/p>\n Accordingly, California should defer to parental choices as to where their youngsters are placed by not unduly imposing laws and\/or regulations on their instructional programs, as in Foothills Christian, that, even if unenforced, threaten religious freedom by trying to control what is taught.<\/p>\n If you value the news and views Catholic World Report provides, please consider donating<\/a> to support our efforts. Your contribution will help us continue to make CWR available to all readers worldwide for free, without a subscription. Thank you for your generosity!<\/p>\n Click here<\/a> for more information on donating to CWR. Click here<\/a> to sign up for our newsletter.<\/p>\n","protected":false},"excerpt":{"rendered":"(Image: Drei Kubik \/ Unsplash.com) A recent challenge to religious freedom can be found in\u00a0Foothills Christian Ministries v.…\n","protected":false},"author":2,"featured_media":339955,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[7,9,8],"class_list":["post-339954","post","type-post","status-publish","format-standard","has-post-thumbnail","category-california","tag-california","tag-california-headlines","tag-california-news"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/posts\/339954","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/comments?post=339954"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/posts\/339954\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/media\/339955"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/media?parent=339954"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/categories?post=339954"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-ca\/wp-json\/wp\/v2\/tags?post=339954"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}