(RNS) — Thanks to a June ruling by the U.S. Supreme Court, parents are guaranteed the right have their children excused from public school classes where LGBTQ+ issues are discussed in an inclusive way. As it happens, the state of California has long had a comparable rule, under its Title 22 regulations, safeguarding parental rights when it comes to child care centers; namely, that “[a]ttendance at religious services in or outside of the center shall be voluntary” and that “[t]he child’s authorized representative shall make decisions about the child’s attendance at religious services.”
Three years ago, three evangelical churches in San Diego seeking to reopen a day care center filed Foothills Christian Ministries v. Johnson, a federal lawsuit against Title 22. The churches claimed that the state’s rule means that a child enrolled in a religious institution’s school cannot be required to attend services or participate in faith-based activities. That, according to the complaint, constitutes a violation of its First Amendment right to religious free exercise.
In response, a federal district court dismissed the suit. Last week, the 9th Circuit Court of Appeals confirmed the district court’s finding that the churches’ free exercise claim is meritless.
Another example of blatantly anti-religious behavior on the part of the federal judiciary? Not hardly.
As the unanimous decision by the 9th Circuit’s three-judge panel put it:
The State … 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.” And that is precisely what Foothills plans to do. It intends to admit only children whose parents agree with Foothill’s proposed “religious services and activities.”
Under California’s licensing rules, child care centers must provide the child’s parent or authorized representative with “information about the child care center that shall at least include the child care center’s admission policies and procedures … ”
In other words, by informing parents that its religious activities are mandatory, the churches’ day care center becomes exempt from the rule.
Are you wondering why the churches felt compelled to sue the state in the first place?
The answer seems to be that they, or at least the conservative Pacific Justice Institute that is representing them pro bono, want to challenge California’s requirement that church child care centers be licensed by the state. Perhaps because their center was shut down in 2021 for not complying with the state’s masking directive during the COVID-19 pandemic, the churches say they do “not want a preschool that operates at the pleasure of [the Department of Social Services] through the state’s licensing scheme” — not that the state couldn’t have shut it down during the pandemic even if unlicensed.
PJI Chief Counsel Kevin Snider told the Courthouse News Service, “Churches nurture and teach children each weekend in their Sunday schools without the need for a license from California. 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.”
It did, however, make sense to the appeals court, which pointed out that “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.”
Snider indicated that the churches would be appealing to the entire 9th Circuit and, one presumes, will seek Supreme Court review if that fails. These days, all bets are off when it comes to expanding the scope of religious exemptions from rules that apply to secular institutions.
Whether it’s a good idea to exempt faith-based child care centers from state supervision is another question. Not to put too fine a point on it, but exempting faith-based day care centers from state supervision is a really bad idea.
Sixteen states provide one or another kind of regulatory exception for faith-based child care centers, and six — Alabama, Florida, Indiana, Missouri, North Carolina and Virginia — require no state licensing. Evidence suggests that having little or no state oversight has resulted in harm to children through inadequate staff ratios and training as well as outright physical and mental abuse.
After abuse and neglect were discovered in a series of faith-based boarding schools in Alabama, the state passed the Youth Residential Abuse Prevention Act, which mandates facility registration, criminal background checks on all employees, and licensed therapists, and prohibits abusive means of punishment in a wide range of child care facilities, faith-based as well as secular. Will California be forced to do what Alabama found it necessary to remedy?
In short, hope and pray that subsequent court review upholds the 9th Circuit decision in Foothills Christian Ministries v. Johnson.
