Ninth Circuit says California churches still need licenses to operate preschools

(CN) — The Ninth Circuit Court of Appeals affirmed Thursday that churches wishing to open preschools still need to obtain a license to do so, upholding a lower court’s dismissal of a lawsuit brought by three Southern California churches.

Foothills Christian Ministries began operating a child day care center in 2015, for which it obtained a license. But the San Diego church had its license revoked in 2021 for not complying with the state’s masking directive during the Covid-19 pandemic. The church now wants to reopen its day care, but claims it does “not want a preschool that operates at the pleasure of [the Department of Social Services] through the state’s licensing scheme.”

Foothills joined with two other churches — Journey Community Church and Grove Church — to sue the state in 2022, arguing that certain requirements in the California Child Day Care Facilities Act violate their First Amendment right to freely practice religion.

Namely, the law provides an exemption for organized camps and recreation programs, like ones run by the YMCA or the Boy Scouts of America. The law includes a religious services provision, which allows day cares to hold religious services as long as parents give their consent. The churches argued that they should be allowed to hold mandatory religious services.

In 2024, a federal judge dismissed the lawsuit, finding that the churches lacked standing to sue over the religious services provision. A Ninth Circuit panel, finding that the churches are perfectly free to hold religious services at their child care centers without fear of prosecution.

“Foothills contends that it is ‘self-evident that’ under the religious services provision ‘a religious institution cannot require attendance at services or participation in faith-based activities of a pupil enrolled in its school,’” wrote U.S. Circuit Judge Andrew Hurwitz, a Barack Obama appointee, in the opinion. “The state, however, has repeatedly represented both in this court and below ’that operating a day care center with a mandatory religious curriculum, where made known to prospective parents in advance of enrollment, would not violate the religious services provision.”

Hurwitz went on to note that the provision has been on the books for more than 40 years, yet “Foothills has not identified a single instance in all those decades in which the provision has been used to enjoin a facility’s mandatory religious curriculum.”

The three-judge panel also found that the requirement to obtain a license was not a violation of the First Amendment’s free exercise and establishment clauses, since the regulation is “neutral” — that is, it treats religious institutions and non-religious institutions the same. Though the law might exempt recreation programs at the YMCA, the law very much does not exempt the YMCA’s day care program from needing a license.

“And to the extent the act does allow for some minimal discretion in determining whether an organization operates a recreation program, it is a far cry from the ‘unfettered discretion that could lead to religious discrimination,’” Hurwitz wrote. “If Foothills sought to operate a recreation program, it would not be subject to the act. And if the YMCA or the Boy Scouts sought to operate a child day care facility, they would. This exemption draws no lines based on religion.”

U.S. Circuit Judges Eric Miller, a Donald Trump appointee, and Jennifer Sung, a Joe Biden appointee, concurred with the opinion.

Kevin Snider, an attorney with the nonprofit Pacific Justice Institute, which represented the churches in their appeal, said in an email that his clients are “seeking further review of the case in the Ninth Circuit.”

“Churches nurture and teach children each weekend in their Sunday schools without the need for a license from California,” Snider said. “It makes little sense that the same activities on Monday through Friday require the consent of the State merely because the pages of the calendar are flipped. These churches remain committed to vindicating First Amendment rights.”

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