California imposes on religious instruction in child care facilities

A recent challenge to religious freedom can be found in Foothills Christian Ministries v. Johnson. At issue were regulations implementing California’s Child Day Care Act, which, in requiring all centers to be licensed, obligates their officials to inform parents and guardians that their youngsters have rights, including “to attend religious services or activities of his/her choice.”

After a federal trial court and the Ninth Circuit rejected Foothills’ claims that the law and regulations violated, most notably, its First Amendment rights to freedom of religion and speech, the Supreme Court rejected 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.

Background

Foothills Christian operates three Protestant churches in the San Diego area, 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 suspended its license in 2021 over whether it complied with California’s COVID-19 masking directive.

Foothills Christian objected to one of the Act’s regulations granting children “personal rights” including being “free to attend religious services or activities of his/her choice and to have visits from the spiritual adviser of his/her choice.” The regulation further requires officials to “inform each child’s authorized representative of the[se] rights,” via signs and written forms.

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.

Litigation

In May 2024, a federal trial court rejected Foothills Christian’s claims because it had “not sufficiently alleged their proposed course of conduct of the mandatory religious curriculum is proscribed by law but protected by the Constitution.” The judge added that the complaint failed because it “point[s] to no instances where daycare centers or preschools were punished under the Act for teaching a mandatory religious curriculum.”

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 “been on the books for over 40 years…Foothills has not identified a single instance…[when it was] used to enjoin a facility’s mandatory religious curriculum.” The opinion remarked that “far from communicating a specific warning or threat of enforcement, the State has explicitly disavowed enforcement of the provision under these circumstances.”

Consequently, the court decreed that, absent a “credible threat that Foothills will be prosecuted…[it] lacks standing” the ability to sue, because the threat of prosecution was too speculative.

Next, on the merits, the panel rejected Foothills’ claim that the regulation violated the Free Exercise Clause because, in “treat[ing] fifteen comparable secular child day care operations” 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’s vital interest in protecting children.

The court rejected Foothills Christian’s 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’s rights that was reasonably related to California’s substantial interest in protecting youngsters in day care facilities.

Finally, the court affirmed the denial of the Due Process Clause claim because it did not view the regulation as imposing unconstitutional conditions on Foothills Christian by having it waive various constitutional rights.

As discussed in more detail below, the Supreme Court refused to hear an appeal on May 18, 2026.

Analysis and commentary

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?

Because the Supreme Court rejected, without comment, the three questions Foothills Christian’s appeal raised, they serve as the framework for the remainder of this column. The questions asked are:

(1) Whether California’s 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;

(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

(3) whether the Child Day Care Act, with its fifteen exceptions, is generally applicable.

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’ beliefs, is not a form of impermissible compelled speech that interfered with its free exercise rights.

For example, the Supreme Court again banned compelled speech as recently as 2023 in 303 Creative v. Ellenis. 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.

Second, in rejecting Foothills’ challenge to the statute’s 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?

Albeit in a different setting, in Doe v. Santa Fe Independent School District (2000), the Supreme Court invalidated a school board’s 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 “reveal[ed] that it has an unconstitutional purpose” mandating prayer, the Justices invalidated as “undermine[ing] the essential protection of minority viewpoints” just as the disputed provision in California arguably infringes on the religious beliefs of Foothills Christian Ministries.

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.

Third, the Ninth Circuit’s 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.

Consistent with the Supreme Court observation in 1925’s Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, the state of California (in language applicable to child care facilities) may “reasonably[ ] regulate all schools…inspect, supervise, and examine them, their teachers and pupils.” However, on the important question of instructional or programmatic content that faith-based institutions provide, Pierce is again instructive in reasoning that “[t]he child is not the mere creature of 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.”

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.