The California Child Day Care Facilities Act (“Act”) requires child day care facilities to be licensed by the Department of Social Services (“DSS”) and to comply with the Act and relevant regulations. Noncompliance can result in DSS issuing citations and imposing civil penalties.
Three California churches, including Foothills Christian Ministries, brought a pre-enforcement challenge to this law, alleging that the Act and its implementing regulations violated their constitutional rights. The churches objected to the requirement that child care providers be licensed by DSS and to a regulation requiring child care facilities to inform parents that children may attend religious services of their own choosing. Their complaint asserted claims under the Free Exercise, Free Speech, and Establishment Clauses of the First Amendment, as well as under the Fourteenth Amendment’s Due Process Clause.
The plaintiffs operated or intended to operate preschool programs as extensions of their religious ministries. Foothills, which previously held a license revoked during the COVID-19 pandemic for noncompliance with masking directives, alleged that it no longer wished to operate “at the pleasure” of the state and objected to various regulatory conditions for licensure. The churches argued that these requirements violated their religious autonomy and compelled speech rights. The trial court dismissed the suit, holding that the plaintiffs lacked standing for some claims and failed to state a claim on others. The Ninth Circuit affirmed in full.
Foothills first challenged a DSS regulation requiring that children in licensed child care facilities be free to attend religious services of their choice, as decided by their parents or legal guardians. The Court found that the plaintiffs lacked standing to challenge this provision because the state had never enforced it against religious providers offering only faith-based programming with parental consent. Indeed, California explicitly disavowed any intent to apply the regulation to prohibit such programs. Because Foothills failed to show a credible threat of enforcement, the Court dismissed the Free Exercise claim related to this provision for lack of jurisdiction.
The plaintiffs separately challenged the Act’s requirement that it must have a license in order to run a child day care facility, arguing that it imposed an unconstitutional burden on religious providers and lacked general applicability. Foothills argued that its religious beliefs are in conflict with the Act because, as a matter of faith, it does not believe that the state can override the decisions of parents.
The Ninth Circuit disagreed. It found that the licensing law was facially neutral and generally applicable. Although the statute contains exemptions for recreational programs like those operated by the YMCA or Boy Scouts, the Court concluded that these were not comparable to full-day child care programs in terms of the state’s interest in regulating health and safety. The Court applied rational basis review and upheld the licensing requirement as reasonably related to the state’s compelling interest in protecting children.
The plaintiffs also argued that the licensing law favored certain religious organizations, such as the YMCA, by exempting their recreation programs, thus violating the Establishment Clause. The Court rejected this claim, explaining that the exemption was based on the type of program, not the religious identity of the provider. If Foothills operated a qualifying recreation program, it too would be exempt. The Court concluded that the law did not prefer one religion over another and drew permissible distinctions based on program structure, not religious affiliation.
Foothills next challenged the requirement that child care providers inform parents of their right to choose their child’s religious participation, arguing that it compelled speech contrary to the School’s beliefs. The Court found that the compelled notice was factual, uncontroversial, and minimally burdensome. The Court held that the requirement served a substantial government interest in informing parents and protecting children and did not interfere with the School’s religious messaging. Because the law required only a one-page notice and a posted sign, the Court concluded that the regulation was neither unjustified nor unduly burdensome.
Finally, the Court rejected the plaintiffs’ argument that the licensing scheme imposed unconstitutional conditions by requiring providers to waive various constitutional rights, such as protection against warrantless searches and the right to a jury trial. The Court explained that licensed day care providers operate in a heavily regulated industry, and the limited search and inspection authority granted to DSS was constitutionally permissible under long-standing precedent. The Court found no plausible allegations that the regulations forced the plaintiffs to relinquish core constitutional rights, and thus dismissed the due process claim.
Foothills Christian Ministries v. Johnson (9th Cir. 2025) 2025 U.S. App. LEXIS 23189
Note: For licensed religious child care providers in California, this case confirms that participation in the state’s licensing system does not, in itself, violate constitutional rights, even when religious beliefs inform a program’s structure and curriculum.