On Thursday, the Supreme Court of the United States may decide whether to take up the case Foothills Christian Ministries v. Johnson, which poses a significant constitutional question: Can the government mandate religious preschools to promote other religions?
Both the State of California and the U.S. Court of Appeals for the 9th Circuit have ruled affirmatively on this issue. California law requires licensed childcare centers, including religious preschools, to notify parents that children are free to attend religious services of their choosing and have visits from their choice of spiritual advisors. This requirement has sparked concerns about potential violations of both free speech and the free exercise of religion.
The legal complexities are illustrated by three primary inquiries. First, whether California’s statute compels speech in violation of the First Amendment by requiring signage and written notifications. Second, whether the law interferes with the free exercise rights of religious schools, particularly when these institutions are instructed on religious programming obligations. Third, petitioners question whether the statute is “generally applicable,” a crucial aspect in determining the level of judicial scrutiny applied to assess its constitutionality.
The 9th Circuit upheld the statute using a rational-basis review, citing the ruling in Employment Division v. Smith, which allows neutral, generally applicable laws to stand if they are rationally related to a legitimate state interest. However, the petitioners argue that the law is not evenly applied, given exemptions for organizations like the YMCA and the Boys and Girls Club. This position echoes Supreme Court decisions in cases like Church of the Lukumi Babalu Aye v. City of Hialeah and Fulton v. City of Philadelphia, where laws with secular exemptions were subject to stricter scrutiny.
The petitioners further contend that the statute unlawfully compels their speech by obligating them to distribute materials that advertise religious services and spiritual advisement outside their doctrinal beliefs. The 9th Circuit classified this as “commercial speech,” referencing Zauderer v. Office of Disciplinary Counsel, which allows factual and uncontroversial disclosures. However, California’s insistence that the notice requirement is factual and uncontroversial is disputed by the petitioners.
This dilemma involves broader queries about the boundaries of commercial speech, a category typically associated with advertising and transactions. Past decisions, such as National Institute of Family & Life Advocates v. Becerra and Chiles v. Salazar, demonstrate the Court’s cautious approach in licensing situations where regulations appear to control speech content.
A potential path for the Supreme Court is a summary reversal, directing the 9th Circuit to reconsider the case in light of NIFLA. Such an action could strengthen protections for free speech and religious liberty, although key issues regarding compelled speech and religious autonomy may persist, necessitating further judicial clarification.