Supreme Court rejects churches’ challenge of California daycare regulation
The U.S. Supreme Court on Monday declined to hear an appeal from three California churches challenging a state daycare rule requiring children to be allowed to choose whether to attend religious activities.
In an orders list released Monday, the Supreme Court declined without comment to hear an appeal in the case of Foothills Christian Ministries v. Johnson, allowing a lower court ruling against the churches to remain in effect.
Three San Diego-area churches — Grove Church, Journey Community Church and Foothills Christian Ministries — filed suit against California Attorney General Robert Bonta and then-California Department of Social Services Director Kim Johnson in June 2022.
At issue was the California Child Day Care Facilities Act, which the plaintiffs argued was unconstitutional because it required students enrolled in the churches’ daycare programs to be allowed to choose which religious services they wanted to attend.
According to California Code Regs. Tit. 22, § 81072, daycare enrollees “have personal rights” that include being “free to attend religious services or activities of his/her choice and to have visits from the spiritual adviser of his/her choice.”
According to the churches, granting such a right to preschool children would interfere with their sincerely held belief that their daycare programs should determine which services children attend.
The churches filed a pre-enforcement challenge because they had not yet launched their respective preschools but expected the law would punish them for their religious practices.
In May 2024, U.S. District Court Judge Cynthia Bashant issued an order against the churches, concluding in part that the ministries “have not sufficiently alleged their proposed course of conduct of the mandatory religious curriculum is proscribed by law but protected by the Constitution.”
“Plaintiffs still point to no instances where daycare centers or preschools were punished under the Act for teaching a mandatory religious curriculum,” Bashant, an Obama appointee, continued.
“Plaintiffs have not alleged sufficient, or any, facts to demonstrate that the Act, as it operates today, is violative of historical practices and understandings because the Act exempts the YMCA and Boy Scouts from daycare licensure.”
In August 2025, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled against the churches, with Judge Andrew D. Hurwitz, an Obama appointee, authoring the unanimous opinion.
Hurwitz disputed the plaintiffs’ claims that their mandatory religious curriculum would lead to punishment, writing that “even assuming that the intended conduct is at least arguably within the provision’s reach, the threat of prosecution is still too speculative.”
“The challenged provision has … been on the books for over 40 years,” wrote Hurwitz. “Yet Foothills has not identified a single instance in all those decades in which the provision has been used to enjoin a facility’s mandatory religious curriculum.”
“And far from communicating a specific warning or threat of enforcement, the State has explicitly disavowed enforcement of the provision under these circumstances.”
