In Foothills Christian Ministries v. Johnson, (9th Cir., Aug. 14, 2025), Foothills, a Christian day care center, challenged a California licensing provision requiring that day care centers ensure that children are free to attend religious services or activities of their parents' choice. The U.S. 9th Circuit Court of Appeals held that plaintiff lacks standing to challenge the regulation on free exercise grounds because the state has repeatedly taken the position that the regulation does not prohibit operating a day care center with a mandatory religious curriculum, where parents are made aware of this in advance of enrollment.
However, the court held that Foothills does have standing to challenge the general licensing requirement on the ground that some secular child day care centers are exempt from licensing. But the court rejected that claim on the merits, saying in part:
Foothills contends that the Act’s exemption of “recreation programs conducted for children by” the YMCA “or similar organizations,”... But this provision only exempts recreation programs from the licensure requirement; it explicitly does not exempt “child day care programs conducted by” the same organizations and so creates no mechanism for granting individualized exemptions for such facilities....
Foothills points to the exception for any “child daycare program that operates only one day per week for no more than four hours on that one day.”... This exemption applies to, among other things, Sunday schools. But a program that oversees children for only four hours a week does not present a threat to children’s health and safety comparable to that of a facility that can operate up to 24 hours a day....
Foothills alleges that the Act’s exemption of certain sectarian organizations—such as the YMCA and Boy Scouts of America—from licensing gives preferential treatment to certain religions in violation of the Establishment Clause....
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....
The court also held that the required disclosure to parents of the right for their child to attend religious activities of their choice does not infringe Foothills' free speech rights, distinguishing the Supreme Court case of Nat’l Inst. of Fam. & Life Advocs. v. Becerra , saying in part:
Because the Act merely requires Foothills to inform parents of their children’s rights and does not “convey a message fundamentally at odds with its mission,” the required disclosure is not controversial....
