Petition for Writ of Certiorari — Foothills Christian Ministries, et al., Petitioners v. Kim Johnson, in Her Official Capacity as Director of the California Department of Social Services, et al.

Supreme Court briefJan 5, 2026

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No. __________

In the Supreme Court of the United States

FOOTHILLS CHRISTIAN MINISTRIES, JOURNEY

COMMUNITY CHURCH, GROVE CHURCH,

PETITIONERS,

KIM JOHNSON, IN HER OFFICIAL CAPACITY AS

DIRECTOR OF THE CALIFORNIA DEPARTMENT OF

SOCIAL SERVICES; ROB BONTA, IN HIS OFFICIAL

CAPACITY AS ATTORNEY GENERAL OF THE STATE OF

CALIFORNIA,

RESPONDENTS.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Kevin T. Snider

Counsel of Record

Matthew B. McReynolds

Pacific Justice Institute

P.O. Box 276600

Sacramento, CA 95827

(916) 857-6900

ksnider@pji.org

Katherine I. Hartley

Pacific Justice Institute

P.O. Box 2131

Coeur d’Alene, ID 83816

Sorin A. Leahu

Pacific Justice Institute

310 Busse Highway #364

Park Ridge, IL 60068

Counsel for Petitioners

QUESTIONS PRESENTED

Three churches in San Diego County,

California, seek to open preschools on their campuses

as extensions of their ministries. Under the Child Day

Care Act, California requires a license to operate a

preschool. The churches object to licensure because it

is conditioned on the waiver of certain constitutional

rights. Central to their claim is the “religious services

provision,” which is a regulation mandating that a

“licensee shall ensure that each child is accorded the

following personal right[]: . . . To be free to attend

religious services or activities of his/her choice.” The

decision whether to opt-in or out of religious services

and activities is made by the parents of the

preschoolers. Preschools must also post signage of the

religious services provision in a publicly accessible

place and hand out a paper copy to parents for

signature and filing. The signs and notice also inform

parents of the right to have visits to the school by a

spiritual advisor of the child’s choice.

Though the Act enumerates fifteen exemptions to

licensure, religious institutions do not make the

preferred list. One exception is that a church can run

a Sunday school on Sunday but cannot engage in

materially the same program through a preschool on

Monday through Friday. The questions presented are

as follows:

1. Does California’s religious services provision,

requiring the posting of signage and handing out

of written copies to parents, compel speech in

violation of the First Amendment?

2. Does the religious services provision with its

spiritual advisor notice interfere with the free

exercise rights of a parochial school to have

plenary authority over spiritual formation of

children while on a church campus?

3. Is the Child Day Care Act, with its fifteen

exceptions, generally applicable?

iii

CORPORATE DISCLOSURE STATEMENT

In accordance with Supreme Court Rule 29.6,

Petitioners make the following disclosures:

Petitioners Foothills Christian Ministries, Journey

Community Church, and Grove Church are nonprofit

corporations. None of them issue stock and none of

them have parent corporations.

STATEMENT OF RELATED CASES

Foothills Christian Ministries, et al. v.

Johnson, et al., No. 3:22-cv-00950-BAS-DDL, U.S.

District Court for the Southern District of California.

Judgment entered June 18, 2024.

Foothills Christian Ministries, et al. v.

Johnson, et al., No. 24-4049, U.S. Court of Appeals for

the Ninth Circuit. Judgment entered August 14,

2025.

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................i

CORPORATE DISCLOSURE STATEMENT ........ iii

STATEMENT OF RELATED CASES ................... iii

TABLE OF AUTHORITIES .................................. vii

OPINIONS BELOW ................................................. 1

JURISDICTION........................................................ 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS ............................................................ 1

INTRODUCTION ..................................................... 2

STATEMENT OF THE CASE .................................. 6

Statutory Background.................................... 6

II.

Factual Background ..................................... 10

A. Petitioners’ religious ministries .............. 10

B. The proceedings below............................. 15

REASONS FOR GRANTING THE PETITION ..... 17

The decision deepens a circuit and state

high court conflict over what triggers

Zauderer review in compelled

commercial speech ....................................... 17

A. The circuits split 7–5 between (1) courts

that limit Zauderer review to mandated

commercial speech disclosures to prevent

false or misleading advertising, and (2)

courts that reach beyond the prevention

of deception to include health and safety

warnings, or anything informational for

consumers ..................................................... 17

B. The highest state courts are split 4–3 on

Zauderer review and in some cases are in

conflict with the federal circuits where

they are located ............................................ 23

II.

The decision below conflicts with this

Court’s free exercise jurisprudence on

government comparators for general

applicability review and also creates a

conflict with the Sixth Circuit and the

Louisiana Supreme Court ............................ 27

A. The Act is not generally applicable due

to the numerous exceptions to licensure ..... 27

III. The religious services provision interferes

with the free exercise of church-run

preschools and cannot be reconciled with

established precedent of this Court ............. 35

CONCLUSION........................................................ 40

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED AUGUST 14, 2025 .... 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA,

FILED MAY 20, 2024 ....................................... 22a

APPENDIX C — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA,

FILED JUNE 15, 2023 ..................................... 66a

APPENDIX D — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED OCTOBER 6, 2025 ............................. 122a

APPENDIX E — RELEVANT STATUTORY

PROVISIONS INVOLVED ............................ 123a

APPENDIX F — REQUEST IN THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA,

FILED NOVEMBER 14, 2023 ....................... 135a

vii

TABLE OF AUTHORITIES

CASES

1-800-411-Pain Referral Serv., LLC v. Otto,

744 F.3d 1045 (8th Cir. 2014) ............................ 19

Am. Meat Inst. v. U.S. Dep’t of Agric.,

760 F.3d 18 (D.C. Cir. 2014) .............................. 22

American Tradition P’ship, Inc. v. Bullock,

567 U.S. 516 (2012) ............................................ 27

Barry v. Arrow Pontiac, Inc.,

100 N.J. 57 (1985) .............................................. 25

Beeman v. Anthem Prescription Mgmt., LLC,

58 Cal. 4th 329 (2013) ........................................ 24

Bellsouth Advert. v. Tenn. Regulatory Auth.,

79 S.W.3d 506 (Tenn. 2002)............................... 25

Bulldog Inv’rs Gen. P’ship v. Sec’y of Commonwealth,

460 Mass. 647 (2011) ......................................... 25

Carson v. Makin,

596 U.S. 767 (2022) ............................................ 40

Cath. Charities Bureau, Inc. v. Wis. Lab. & Indus.

Review Comm’n, 605 U.S. 238 (2025)................ 37

viii

Cent. Hudson Gas & Elec. v. Pub. Serv. Comm’n,

447 U.S. 557 (1980) ............................................ 20

Chong Yim v. City of Seattle,

194 Wash. 2d 651 (2019).................................... 24

Church of the Lukumi Babalu Aye v. City of Hialeah,

508 U.S. 520 (1993) ................................ 33, 35, 38

Commodity Trend Serv. v. CFTC,

233 F.3d 981 (7th Cir. 2000) .............................. 19

CTIA - The Wireless Ass’n v. City of Berkeley,

928 F.3d 832 (9th Cir. 2019) .............................. 21

CTIA - The Wireless Ass’n v. City of Berkeley,

873 F.3d 774 (9th Cir. 2017) .............................. 21

Disc. Tobacco City & Lottery, Inc. v. United States,

674 F.3d 509 (6th Cir. 2012) ........................ 21, 25

Dwyer v. Cappell,

762 F.3d 275 (3d Cir. 2014) ......................... 18, 25

Emp’t Div. v. Smith,

494 U.S. 872 (1990) ............................................ 33

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020) ............................................ 38

Fla. Star v. B. J. F.,

491 U.S. 524 (1989) ............................................ 35

Foothills Christian Ministry v. Johnson,

148 F.4th 1040 (9th Cir. 2025) ............................ 1

Foothills Christian Ministry v. Johnson,

No. 22-cv-0950-BAS-DLL, 2024 U.S. Dist.

LEXIS 91131 (S.D. Cal. May 20, 2024) ............... 1

Foothills Christian Ministry v. Johnson,

No. 22-cv-0950-BAS-DLL, 2023 U.S. Dist.

LEXIS 104692 (S.D. Cal. June 15, 2023) ............ 1

Fulton v. City of Phila.,

593 U.S. 522 (2021) ................................ 28, 33, 39

Gateway City Church v. Newsom,

141 S. Ct. 1460 (2021) ........................................ 30

Gateway City Church v. Newsom,

516 F. Supp. 3d 1004 (N.D. Cal. 2021) .............. 30

Gonzales v. O Centro Espirita Beneficente Uniao

do Vegetal, 546 U.S. 418 (2006) ......................... 35

Harmon v. Dreher,

17 S.C. Eq. 87 (S.C. Ct. App. 1843) ................... 36

Hosanna-Tabor Evangelical Lutheran Church &

Sch. v. EEOC, 565 U.S. 171 (2012) ....... 36, 37, 39

In re Zang,

154 Ariz. 134 (1987) ........................................... 23

Kedroff v. St. Nicholas Cathedral of Russian

Orthodox Church, 344 U.S. 94 (1952) ......... 38, 39

Md. Shall Issue, Inc. v. Anne Arundel Cty.,

91 F.4th 238 (4th Cir. 2024) .........................20-21

Mountain States Tel. & Tel. Co. v. Denver Dist. Ct.,

778 P.2d 667 (Colo. 1989) .................................. 24

Nat’l Ass’n of Mfrs. v. SEC,

800 F.3d 518 (D.C. Cir. 2015) ............................ 22

Nat’l Ass’n of Mfrs. v. SEC,

748 F.3d 359 (2014)...................................... 21, 22

Nat’l Elec. Mfrs. Ass’n v. Sorrell,

272 F.3d 104 (2d Cir. 2000) ......................... 20, 21

Nat’l Inst. of Family & Life Advocates v. Becerra,

585 U.S. 755 (2018) ................................ 26, 27, 39

Ocheesee Creamery LLC v. Putnam,

851 F.3d 1228 (11th Cir. 2017) .......................... 20

Our Lady of Guadalupe Sch. v. Morrissey-Berru,

591 U.S. 732 (2020) ................................ 36, 37, 39

Pharm. Care Mgmt. Ass’n v. Rowe,

429 F.3d 294 (1st Cir. 2005) ........................ 20, 25

R J Reynolds Tobacco Co. v. FDA,

96 F.4th 863 (5th Cir. 2024) .............................. 21

Riley v. National Federation of Blind, Inc.,

487 U.S. 781 (1988) ............................................ 23

Roberts v. Neace,

958 F.3d 409 (6th Cir. 2020) ........................ 31, 32

Roman Catholic Diocese v. Cuomo,

592 U.S. 14 (2020) .....................................5, 28-33

S. Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021) .............................. 29, 31, 32

Safelite Grp., Inc. v. Jepsen,

764 F.3d 258 (2d Cir. 2014) ......................... 20, 21

Serbian E. Orthodox Diocese v. Milivojevich,

426 U.S. 696 (1976) ...................................... 38, 39

Sherbert v. Verner,

374 U.S. 398 (1962) ...................................... 33, 38

State v. Spell,

2021-00876, 339 So. 3d 1125 (La. 2022) ........... 33

Tandon v. Newsom,

593 U.S. 61 (2021) .....................................5, 28-33

Tandon v. Newsom,

517 F. Supp. 3d 922 (N.D. Cal. 2021)................ 30

xii

Trinity Lutheran Church of Columbia, Inc. v. Comer,

582 U.S. 449 (2017) ............................................ 38

United States v. Wenger,

427 F.3d 840 (10th Cir. 2005) ...................... 19, 24

Watson v. Jones,

80 U.S. 679 (1871) ........................................ 36, 39

Zauderer v. Office of Disciplinary Counsel,

471 U.S. 626 (1985) ...............................4, 5, 16-25

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ... 1, 8, 20, 22, 26, 36, 38, 39, 40

U.S. Const. amend. IV ........................................ 3, 13

U.S. Const. amend. V .......................................... 3, 13

U.S. Const. amend. XIV ............................................ 2

STATUTES, RULES, AND REGULATIONS

28 U.S.C. §1254(1) .................................................... 1

22 Cal. Code of Regulations § 101200(b).................. 8

22 Cal. Code of Regulations § 101223 .................... 37

xiii

22 Cal. Code of Regulations § 101223(a)(5) ......... 8, 9

22 Cal. Code of Regulations § 101223(b)(1) ............. 8

22 Cal. Code of Regulations § 101223(b)(2) ......... 8, 9

22 Cal. Code of Regulations § 101223(c) .................. 9

27 CFR Ch. I, Subch. A, Pt. 1 ................................. 30

Cal. Bus. & Prof. Code, § 5000 ............................... 30

Cal. Bus. & Prof. Code, § 7300 ............................... 30

Cal. Bus. & Prof. Code § 23000 .............................. 30

Cal. Health & Safety Code § 1596.72(a)-(b) ........... 34

Cal. Health & Safety Code § 1596.76 ....................... 6

Cal. Health & Safety Code § 1596.80 ................. 6, 27

Cal. Health & Safety Code § 1596.81 ....................... 7

Cal. Health & Safety Code § 1596.81(a)-(b) ............. 6

Cal. Health & Safety Code § 1596.95(a) .............. 7, 8

Cal. Health & Safety Code § 1596.97 ....................... 6

Cal. Health & Safety Code § 1596.792(a) .... 7, 15, 35

xiv

Cal. Health & Safety Code § 1596.792(b) ................ 7

Cal. Health & Safety Code § 1596.792(c) ................. 7

Cal. Health & Safety Code § 1596.792(d)-(f) ........... 7

Cal. Health & Safety Code § 1596.792(g)(1) ............ 7

Cal. Health & Safety Code § 1596.792(g)(3) ............ 7

Cal. Health & Safety Code § 1596.792(h) ................ 7

Cal. Health & Safety Code § 1596.792(i) ................. 7

Cal. Health & Safety Code § 1596.792(j) ..... 8, 15, 34

Cal. Health & Safety Code § 1596.792(k) ................ 8

Cal. Health & Safety Code § 1596.792(l) ................. 8

Cal. Health & Safety Code § 1596.792(m) ............... 8

Cal. Health & Safety Code § 1596.792(n) ................ 8

Cal. Health & Safety Code § 1596.792(o)................. 8

Cal. Health & Safety Code § 1596.852 ..................... 7

Cal. Health & Safety Code § 1596.852(b) ................ 7

Cal. Health & Safety Code § 1596.856 ................. 6, 7

Cal. Health & Safety Code § 1596.878 ..................... 6

Cal. Health & Safety Code § 1596.885 ................... 12

Cal. Health & Safety Code § 1596.885(a) ................ 6

Cal. Health & Safety Code § 1596.890(a) ................ 7

Cal. Health & Safety Code § 1597.09 ....................... 7

Cal. Health & Safety Code § 1597.09(a) .................. 8

Cal. Public Utilities Code § 21001.................... 30, 31

Fed. R. Civ. Proc., Rule 12(b)(1) ............................. 15

Fed. R. Civ. Proc., Rule 12(b)(6) ............................. 15

Ky. Rev. Stat. § 183.132 ......................................... 31

Ky. Rev. Stat. § 183.133 ......................................... 31

La. Rev. Stat. Ann. § 2:131 ..................................... 33

N.Y. Art. 27 § 403 ................................................... 30

N.Y. Art. 149 § 7403 ............................................... 30

N.Y. Art. 149 § 7405 ............................................... 30

N.Y. CLS Al. Bev. Control Law, Arts. 1–11 ........... 30

xvi

N.Y. Gen. Mun. Law § 350 ..................................... 29

N.Y. Pub. Auth. Law § 1260 ................................... 31

S. Ct. Rule 10(c) ...................................................... 36

OTHER SOURCES

Alexis Mason, Compelled Commercial Disclosures

Zauderer’ s Application to Non-Misleading

Commercial Speech, 72 U. Mia. L. Rev. 1193

(2018) .................................................................. 19

OPINIONS BELOW

The Ninth Circuit’s opinion is reported at 148

F.4th 1040 and reproduced at App.1-21a. The district

court’s order dismissing the amended complaint is

reported at No. 22-cv-0950-BAS-DLL, 2024 U.S. Dist.

LEXIS 91131 (S.D. Cal. May 20, 2024) and

reproduced at App.22-65b. The district court’s order

dismissing the complaint is reported at No. 22-cv0950-BAS-DLL, 2023 U.S. Dist. LEXIS 104692 (S.D.

Cal. June 15, 2023) and reproduced at App.66-121c.

The Ninth Circuit’s order denying rehearing and

rehearing en banc appears at App.122d.

JURISDICTION

The Ninth Circuit’s judgment was entered on

August 14, 2025. The order denying rehearing and

rehearing en banc was entered on October 6, 2025.

This Court’s jurisdiction is invoked under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

U.S. Constitution, Amendment I

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech[.]” U.S. Const. amend. I.

U.S. Constitution, Amendment XIV

“No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws[.]” U.S. Const. amend.

XIV, § 1.

Relevant statutes, regulations and related

materials are reprinted in Appendix E at 123-134.

Plaintiffs’ Request for Judicial Notice, Exhibit

1 (Nov. 14, 2023) is reprinted in Appendix F at 135139.

INTRODUCTION

Three Churches provide extensive ministries to

infants, children, and youth. In so doing, they exercise

the commands of their religion and thereby maintain

a two-millennia-old tradition that has been followed

at all times and in all places by those practicing the

Christian faith. These Churches seek to expand their

ministries to children from their current Sunday

schools to Monday through Friday preschools. Under

California’s Child Day Care Act, to do so the Churches

must obtain a license issued at the pleasure of the

State. Per criminally enforced statutes and

regulations, parochial preschools are required to

waive core constitutional rights under the First,

Fourth, and Fifth Amendments and be encumbered

by a burdensome regulatory scheme.

One church, Foothills Christian Ministries,

operated a thriving licensed preschool for six years.

That did not end well; the California Department of

Social Services shut down the preschool over a

pandemic-era masking dispute. A vast majority of the

parents—eighty percent—had directed preschool

employees not to mask their two to four-year-old

preschoolers. Foothills leadership could not assuage

both the Department and the parents. After

numerous unannounced, warrantless searches by

Department investigators, the preschool was forced to

close its doors. In view of that past closure and the

required waiver of fundamental rights, Foothills has

sought redress in the courts.

Central to the Churches’ claim is a personal

rights regulation—called by the circuit court the

“religious services provision.” On its face, the

regulation requires that parochial preschools give

parents an opt-out of their preschoolers from religious

activities and services in the school. Moreover,

churches must affirmatively notify parents of the optout right by posting signage in a publicly accessible

location on a church wall. Church preschools must

also hand out a printed copy of the notice and obtain

a signature from the parent, to be placed in the child’s

file. Beyond the text of the personal rights regulation,

the State also inserted language on the signage and

forms that the preschool must allow visits from

outside spiritual advisors of

ostensibly the parent’s—choice.

the

child’s—and

The Churches protest that, under a line of

church autonomy decisions by this Court stretching

back three centuries, church-run preschools retain

plenary authority over spiritual formation of children

while those children voluntarily participate in

ministry programs on church campuses. The State

cannot force the promulgation of spiritual rights to

the public to be maintained as against a religious

institution on its own campus.

Nor can the State compel church-run

preschools to communicate to the public the content

of a regulation which requires the religious

institutions to relinquish their exclusive authority on

the dissemination of faith on their own property. The

panel’s decision below relied on Zauderer v. Office of

Disciplinary Counsel, 471 U.S. 626 (1985), under the

rationale that the mandated disclosure of the

religious services provision is simply compelled

commercial speech which requires no more than the

disclosure of factual and uncontroversial information,

i.e., merely communicating what the regulation

states. The Ninth Circuit is one of a group of seven

other circuits—joining the First, Second, Fourth,

Fifth, Sixth, and District of Columbia—which have an

expansive reading of Zauderer so that required

disclosures go beyond the prevention of deceptive and

misleading advertising, but also includes health and

safety warnings or anything informational for

consumers. A group of five circuits (the Third,

Seventh, Eighth, Tenth, and Eleventh) has not

expanded Zauderer beyond the prevention of

deception or curing consumer confusion.

Not every preschool or child day care facility is

required to be burdened by this tangled web of

statutes and regulations under the Act, such as the

mandated disclosures for which the State co-opts

unwilling speakers. The State has carved out fifteen

exceptions for entities that are freed from licensure.

The Churches desire the unrestricted enjoyment of

their constitutional rights by also being free from

licensure like the fifteen other entities that are

statutorily exempted. The Churches instead find

themselves excluded from the list of favored entities.

The Petitioners seek review because the Act is

in conflict with this Court’s precedents in Tandon v.

Newsom, 593 U.S. 61 (2021), and Roman Catholic

Diocese v. Cuomo, 592 U.S. 14 (2020), on general

applicability. The Ninth Circuit reasoned that

government entities—such as State-run preschools—

are not proper comparators because they fall under

different regulatory schemes and the state exerts

substantial control over them. This rationale is not

only inconsistent with Tandon and Roman Catholic

Diocese—both of which accepted government

comparators—but further created a conflict with the

Sixth Circuit and Louisiana Supreme Court which

considered government-owned and operated entities

as proper comparators. Review should be granted.

STATEMENT OF THE CASE

Statutory Background

The State of California has enacted the Child

Day Care Act along with implementing an extensive

and expanding regulatory scheme in which churches

run their schools conditioned on applying for and

maintaining a license with the State’s Department of

Social Services. Cal. Health & Safety Code § 1596.80.

The Act establishes a licensing regime for “child day

care facilities,” defined as any facility that “provide[s]

non-medical care to children under 18 years of age in

need of personal services, supervision, or assistance

essential to sustaining the activities of daily living or

for the protection of the individual on less than a 24hour basis.” Id. at § 1596.76.

To obtain a license to operate a child daycare

facility, such as a preschool, an applicant must certify

to the Department that it is able to comply with the

requirements of the Act and its regulations

promulgated thereunder by the Department. Id. at §§

1596.856, 1596.97, 1596.81(a)-(b). The Department

may revoke a license for noncompliance. Id. at §

1596.885(a). App.3a.

The Department acts as a monitoring and

enforcement agency, ensuring continued compliance

with the Act once providers have obtained their

licenses. Id. at § 1596.878. This monitoring and

enforcement power includes the power to “enter and

inspect any [child daycare facility] at any time, with

or without advance notice, to secure compliance with,

or to prevent a violation of,” the Act and its rules and

regulations. Id. at § 1596.852. Onsite inspections may

be either prompted by a third-party complaint that

alleges a reasonable basis to believe a violation exists,

id. at § 1596.852(b), or undertaken on the

Department’s own accord, id. at § 1597.09. Violations

of statutes and regulations carry criminal liability, id.

at § 1596.890(a); this includes “a $1,000 fine and 180

days in prison.” A licensed facility must “comply with”

the Act and relevant Department regulations. Id. at

§§ 1596.95(a), 1596.81, 1596.856. App.6a.

Not every child care arrangement comes within

the grip of the Department; fifteen statutory

exemptions from licensure are provided in the Act.

Exempt institutions include childcare programs

operated by State-regulated healthcare facilities, id.

at § 1596.792(a); clinics granted a “special permit” by

the State, id. at § 1596.792(b); community care

facilities, id. at § 1596.792(c); part-time parent

cooperatives and childcare provided by relatives or

shared between two families or relatives, id. at §

1596.792(d)-(f); programs operated by specified public

entities when public schools are not in session, id. at

§ 1596.792(g)(1); programs that run twelve hours or

less per week for no more than twelve weeks, id. at §

1596.792(g)(3); extended daycare programs at private

or public schools, id. at § 1596.792(h); school

parenting or adult education childcare programs

operated by school districts, id. at § 1596.792(i);

temporary childcare once per week or when a parent

is onsite, id. at § 1596.792(j); child day care program

providing temporary services if parents on premises

except for ski resorts, malls, department stores or any

other site identified by Department regulation, id. at

§ 1596.792(k); a school parenting program or adult

education childcare program, id. at § 1596.792(l);

childcare provided by crisis nurseries and drug

treatment facilities that house women and their

children, id. at § 1596.792(m); a crisis nursery, id. at

§ 1596.792(n); and a preschool operated by a public

school contracting with the California Department of

Education, id. at § 1596.792(o).

Licensure requires the waiver of fundamental

liberties enumerated in the Bill of Rights as a

precondition and continual condition to operate. For

instance, churches and other licensees must submit to

warrantless searches, id. at § 1597.09(a), and

questioning of staff without Miranda warnings, 22

Cal. Code of Regulations § 101200(b), even though

regulatory violations identified through such

searches or interrogations carry criminal penalties

(Cal. Health & Safety Code § 1596.95(a)). With that

backdrop, the Churches’ primary concern in this

Petition is the infringement of First Amendment

rights. Church preschools cannot require attendance

at religious services. 22 Cal. Code of Regulations §

101223(a)(5). This opt-out regulation also compels

speech by requiring signage posted in a publicly

accessible prominent place, id. at § 101223(b)(2),

delivery of a written notice, and a signed and dated

form from parents acknowledging receipt of these optout rights. This form must be kept in school files. Id.

at § 101223(b)(1). Departmental regulations state

that the preschool “shall ensure that each child is

accorded the personal rights.” Id. at § 101223(c).

The regulation containing the religious services

provision states, in pertinent part:

(a) The licensee shall ensure that each

child is accorded the following personal

rights: . . .

(5) To be free to attend religious

services or activities of his/her choice.

(A) Attendance at religious services in

or outside of the center shall be

voluntary. The child’s authorized

representative shall make decisions

about the child’s attendance at

religious services.

22 Cal. Code of Regulations § 101223(a)(5).

In addition to the text of the regulation, the

Department has added another personal right to the

signage and notice handed to parents for their

signature. Namely the right “[t]o be free to attend

religious services or activities of his/her choice and to

have visits from the spiritual advisor of his/her

choice.” Appendix F at 139 (emphasis added). This

form has been required by the Department since June

2006. Three days before oral argument in the Ninth

Circuit (June 2, 2025), the Department submitted a

letter to the panel with a new form (dated May 30,

2025) in which the language regarding a spiritual

advisor of the child’s choice did not appear. The State

otherwise continues to defend its signage and notice

requirements of the religious services provision.

II.

Factual Background

A. Petitioners’ religious ministries

Three churches in the greater San Diego area

seek to provide a preschool for children as part of their

ministries. Ministry to children is an integral part of

the free exercise of these Churches’ religion which has

an unbroken tradition reaching back to the

beginnings of the Christian faith. The Churches all

have Sunday schools during their weekend services

which include preschool-age children. In the Sunday

school programs, the services provided to the children

are materially the same as what would occur in the

preschools on Monday through Friday.

1. Foothills Christian Ministries is a church with

approximately 5,000 members. A core branch of its

religious exercise centers on its ministry to children

and youth, summarized here.

Foothills has thousands of weekly contacts

with children and youth through midweek services

and small groups. This includes dozens of after-school

Bible clubs on public school campuses, along with five

youth centers called Youth Venture serving at-risk

and economically depressed neighborhoods with

hundreds of children ministered to weekly. Foothills

organizes winter and summer camps and is active in

foster care and adoption services.

Foothills provides spiritual ministry to children

primarily through Sunday school. The Foothills

campus has a building set aside for its ministry to

children. There, Foothills holds classes on Friday and

Saturday evenings and twice on Sunday mornings.

Included within the Sunday school is a program for

children with special needs named “Miracle Buddy

Ministry.” Miracle Buddy Ministry “encourages kids

to:

• Do things as independently as possible

• Participate in worship, crafts, and a Bible lesson

with other children

• Know that they too were made in the image of God

and can learn to love and obey Him.”

Care for these children is rooted in over 2,000 years of

tradition. Within 100 years of the resurrection of

Jesus Christ and the establishment of the Christian

faith, the Church has ministered to the most

vulnerable children in society. This includes rescuing

orphans, children born with “defects,” infants that are

sick, and those children that are otherwise unwanted.

Miracle Buddy is a modern expression of this core

exercise of the Christian faith that has been carried

out at all times and all places wherever Christianity

has been practiced.

Foothills operated its preschool through a state

license since 2015. That ministry ended when the

Department revoked Foothills’ licenses pursuant to

Cal. Health & Safety Code § 1596.885. The California

Department of Public Health issued an order

requiring masking of children in preschools. An

overwhelming majority of the parents advised the

Foothills preschool employees and administrators

that they did not want their children to be masked

and forbade teachers to use force or otherwise compel

the children to be masked. The Foothills preschool

administrators were caught on the horns of a

dilemma between following the directives of parents

or public health officials. Based on an anonymous tip,

in September 2021 the Department appeared

unannounced and without a warrant at Foothills

Christian Preschool, staying up to nine hours at a

time and interrogating children without parental

knowledge or consent. Persons employed by the

Department issued numerous fines against the

preschool.

December

10,

2021,

Department

investigators once again suddenly knocked at the

preschool’s doors and closed down the preschool based

on “evidence that Foothills . . . was not complying with

the department’s masking directive” during the

COVID-19 pandemic. App.7a. The Department also

closed down the Foothills Christian Infant Program

which had never been cited for any violation. The

licenses for infant care and the preschool were

revoked. Foothills declined to seek further remedies

to restore its licenses with the State because even a

victory would place the church preschool ministry

under the continued control of the Department

through licensing under the Act and regulatory

scheme. Such control includes interference with the

plenary church authority over spiritual formation of

children while on the Foothill’s campus, as well as the

loss of Fourth and Fifth Amendment rights. These

include protection against unreasonable searches and

self-incrimination.

Foothills seeks to re-start its ministry during

the weekday in the same manner that it provides

Sunday school.

2. The Grove Church had its first service on

Easter in 2010 and now has a congregation that

approximates 800 parishioners on any given Sunday,

150 of whom are children. On Sundays, the children

at The Grove have their own classrooms and classes

with curriculum and activities designed specifically

for them. The Grove Church also has a meeting for

children on Friday evening. The Grove Church

believes that children’s years should include fun

events. At The Grove Church, this recreation includes

conducting summer and winter camps for junior high

and high school children, and trunk-or-treat for the

younger children. The Grove Church intends to start

a preschool. A preschool would serve as an extension

of The Grove Church’s current ministry to its

children.

3. Journey Community Church was founded on

February 19, 1994. Prior to the COVID-19 outbreak,

Journey had three services on Friday and Sunday

averaging

1,200

1,500

attendance.

Approximately twenty percent of those in attendance

are children. Journey seeks to have the Word of God

presented to children at as early an age as possible.

Journey’s stated mission is “helping ordinary people

disconnected from God access the depth of life ‘with

God’ through Jesus.” To carry out that mission,

Journey provides Sunday Kids Church, various

midweek events for different age groups, Summer

Fun Camp, and yearly events like trunk-or-treat,

Cookies with Santa, and a Bunny Hop Trail. Also, on

Wednesdays, mothers bring their preschool children

to Journey for activities. Without Children’s Ministry,

Journey would not be able to carry out its mission as

effectively as it is called to do.

Journey sees throughout Scripture an

emphasis on coming alongside children to help raise

up generations that put God first in every area of

their lives (Matthew 6:33, Proverbs 22:6). Jesus

Christ

placed

emphasis

children and

ministering to them (Luke 18:16, Mark 9:37,

Matthew 18:14). In light of this biblical teaching,

Journey would like to start a preschool. A preschool

would serve as an extension of Journey’s current

ministry to its children.

In sum, the three Church-Petitioners seek to

extend their ministries to children via a Monday

through Friday preschool without a corresponding

waiver of constitutional rights.

B. The proceedings below

This case involves a pre-enforcement challenge

by three California churches to the Act and its

implementing regulations. The district court

dismissed the Churches’ operative complaint under

Rule 12(b)(1) and (6), concluding that Foothills lacked

standing to raise some claims and that the others

failed to state a claim upon which relief could be

granted.

On appeal, the Ninth Circuit affirmed the

judgment albeit for different reasons. First, the panel

determined that the Churches had standing under

the Free Exercise Clause to challenge the Act based

on the list of fifteen statutory exemptions (Cal. Health

& Safety Code § 1596.792(a)-(o)) and the likelihood of

the Department’s enforcement of the Act. App.9a.

However, the Ninth Circuit ruled that the Act was

generally applicable because the government’s

interest was the health and safety of children. The

Churches brought to the panel’s attention the

exception for a “child daycare program that operates

only one day per week for no more than four hours on

that one day.” App.12a (citing § 1596.792(j)). The

Churches argued—and the Ninth Circuit agreed—

that this applies to Sunday schools. However, the

panel asserted 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.”

App.12a. Despite this assertion, the Ninth Circuit did

not identify any preschool or other facility that

actually operates up to twenty-four hours a day.

The exceptions for preschools or day care

programs run by the government were also not

deemed close enough comparators because “the State

already exerts substantial control over these

facilities.” App.12a. Stated otherwise, a government

exemption cannot be deemed a comparator.

The Ninth Circuit also found standing to

challenge the Free Speech claim under the religious

services regulation. Here the Circuit deemed the

signage and notice to be compelled commercial speech

that falls under the lower Zauderer standard of

review. The panel considered the posting and written

notice as “purely factual and uncontroversial

information” because it is “literally true” that under

California law “children in day care facilities enjoy

the panoply of rights described by the required form

and posting.” App.17a. The panel opined that the

compelled speech was “‘reasonably related’ to a

substantial government interest and not ‘unjustified

or unduly burdensome.’” App.16a (citing Zauderer,

471 U.S. at 651).

Despite it being literally true that children

enjoy these personal rights, the Ninth Circuit found

no standing to challenge the right enumerated in the

religious services provision under the Free Exercise

Clause. Taking a leap of faith, the panel embraced the

State’s representation “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.” App.12a. The panel showed no interest in

the text of the regulation itself.

REASONS FOR GRANTING THE PETITION

The decision deepens a circuit and state

high court conflict over what triggers Zauderer

review in compelled commercial speech.

The circuits split 7–5 between (1)

courts that limit Zauderer review to

mandated commercial speech disclosures

prevent

false

misleading

advertising, and (2) courts that reach

beyond the prevention of deception to

include health and safety warnings, or

anything informational for consumers.

This Court held in Zauderer that within the

context of commercial speech, compelled disclosures

addressing communications that are deceptive or

misleading are subject to a “more permissive

standard of review.” Id. at 651. The disclosure must

be reasonably related to a substantial government

interest, not be unjustified or unduly burdensome,

and describe purely factual and uncontroversial

information. Id. This sounds in rational basis. The

Third, Seventh, Eighth, Tenth, and Eleventh Circuits

have not expanded Zauderer beyond curing deception

or consumer confusion. On the other hand, like the

Ninth Circuit in this case (App.16a), the First,

Second, Fourth, Fifth, Sixth, Ninth, and District of

Columbia Circuits assert that the rule in Zauderer

reaches beyond the prevention of deceptive and

misleading communications. The circuits—and as

discussed below, the highest state courts—all cite the

rule in Zauderer. The fundamental problem is that

the two groups do not agree on what the rule means,

to the detriment of plaintiffs like Petitioners. This

warrants a grant of this Petition.

1. Beginning with the first group of circuits, the

Third, Seventh, Eighth, Tenth, and Eleventh Circuits

give Zauderer a narrow reading. In a case involving

an attorney-conduct guideline that banned

advertising

with

quotations

from

judicial

opinions, the Third Circuit ruled that the government

“may prohibit potentially misleading ads, but only if

the information cannot be presented in a way that is

not deceptive (such as through adding a disclosure

requirement).” Dwyer v. Cappell, 762 F.3d 275, 280

(3d Cir. 2014). The Seventh Circuit has also not

expanded Zauderer, finding the government can

impose affirmative disclosures in commercial

advertising “if these are reasonably related to

preventing the public from being deceived or misled .

. . Such a disclosure must be no broader than

necessary to prevent the deceptive or misleading

advertising engaged in by the party.” Commodity

Trend Serv. v. CFTC, 233 F.3d 981, 994 (7th Cir.

2000) (cleaned up).

In a case from the Eighth Circuit, a medical

and legal referral business for car accident victims

challenged a Minnesota law requiring the

communication of advertisements to come from, or at

the direction of, medical providers. The Eighth Circuit

reviewed disclosure requirements under the less

exacting scrutiny described in Zauderer if directed at

misleading commercial speech and which must not

consist of an affirmative limitation on speech. 1-800411-Pain Referral Serv., LLC v. Otto, 744 F.3d 1045,

1061 (8th Cir. 2014).

The Tenth Circuit reviewed a conviction of a

radio personality who promoted the sale of certain

stocks. Adhering closely to this Court’s language in

Zauderer,

the

circuit

determined

that

Zauderer presumes a substantial governmental

interest in preventing consumer deception. United

States v. Wenger, 427 F.3d 840, 849 (10th Cir. 2005).1

The Eleventh Circuit also held tightly to Zauderer’s

language, when Florida officials attempted to prohibit

a creamery from the truthful use of the term “skim

1 One commentator views the language in Wenger as falling in

line with the circuits having an expansive reading of Zauderer.

Alexis Mason, Compelled Commercial Disclosures: Zauderer’ s

Application to Non-Misleading Commercial Speech, 72 U. Mia.

L. Rev. 1193, 1218 (2018). The undersigned reads the tenor of

Wenger as a narrow rather than expansive understanding of

Zauderer.

milk” in an advertisement. That circuit ruled that

commercial speech cannot be banned under the First

Amendment unless the speech concerns unlawful

activity or the speech is false or inherently

misleading. Therefore, Central Hudson intermediate

scrutiny applied rather than Zauderer review.

Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228,

1235 (11th Cir. 2017).

2. On the flipside, the First Circuit is lenient

towards state-mandated disclosures, finding them not

limited to potentially deceptive advertising. Pharm.

Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 310 n. 4 (1st

Cir. 2005). The Second Circuit came to the same

conclusion that preventing consumer confusion or

deception was not necessary in an informational

disclosure law. All that is necessary is that the

mandated speech “[b]etter inform customers.” Nat’l

Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104 (2d Cir.

2000). That Circuit has not quite found its sea legs on

this issue. In another informational disclosure case

involving car owners of repair options that includes

other providers, the Second Circuit ruled that

Zauderer rational review was not applicable and

instead used Central Hudson intermediate scrutiny.

Safelite Grp., Inc. v. Jepsen, 764 F.3d 258, 263-64 (2d

Cir. 2014).

By contrast, the Fourth Circuit is quite certain

that Zauderer reaches to health and safety warnings,

rather than merely curing deception of consumers.

Md. Shall Issue, Inc. v. Anne Arundel Cty., 91 F.4th

238, 243 (4th Cir. 2024). Equally confident, the Fifth

Circuit opines that “Zauderer does not require the

state to assert an anti-deception interest.” R J

Reynolds Tobacco Co. v. FDA, 96 F.4th 863, 882 (5th

Cir. 2024). In like manner, the Sixth Circuit reads

Zauderer expansively, “Zauderer’s framework can

apply even if the required disclosure’s purpose is

something other than or in addition to preventing

consumer deception.” Disc. Tobacco City & Lottery,

Inc. v. United States, 674 F.3d 509, 556 (6th Cir.

2012).

On the west coast, the Ninth Circuit does not

confine compelled disclosures to the prevention of

consumer deception writing, “the governmental

interest in furthering public health and safety is

sufficient under Zauderer so long as it is substantial.

In so holding, we do not foreclose that other

substantial interests in other cases may suffice as

well.” CTIA - The Wireless Ass’n v. City of Berkeley,

928 F.3d 832, 844 (9th Cir. 2019). But citing two

decisions from the Second Circuit and two more from

the D.C. Circuit, Judge Wardlaw noted in a dissent to

a denial of en banc review, that “my reading of our

sister circuits’ opinions simply acknowledges that the

law remains unsettled.” CTIA - The Wireless Ass’n v.

City of Berkeley, 873 F.3d 774, 777 n. 1 (9th Cir. 2017)

(Wardlaw, J., dissenting) (citing the Second Circuit

decisions of Nat’l Elec. Mfrs. Ass’n v. Sorrell, Safelite

Grp., Inc. v. Jepsen, and the D.C. Circuit decisions of

Nat’l Ass’n of Mfrs. v. SEC, 748 F.3d 359, 371 (2014),

and Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d

18, 20 (D.C. Cir. 2014) (en banc)).

The D.C. Circuit originally declined to depart

from the language of Zauderer, finding that a

prohibition on speech must be “reasonably related to

the State’s interest in preventing deception of

consumers.” Nat’l Ass’n of Mfrs., 748 F.3d at 371.

Shortly thereafter, an en banc panel later overruled

the former position, writing, “We now hold that

Zauderer in fact does reach beyond problems of

deception.” Am. Meat Inst., 760 F.3d at 20. But the

next year a three-judge panel corralled Zauderer to

advertising, ruling that “the Supreme Court’s opinion

in Zauderer is confined to advertising, emphatically

and, one may infer, intentionally.” Nat’l Ass’n of Mfrs.

v. SEC, 800 F.3d 518, 522 (D.C. Cir. 2015). The panel

also made note of “a flux and uncertainty of the First

Amendment doctrine of commercial speech, and the

conflict in the circuits regarding the reach of

Zauderer.” Id. at 524.

The Ninth Circuit’s expansion of Zauderer’s

reach in this case has little to offer in terms of a

limiting principle. Here, the religious services

provision compels speech and adversely impacts the

free exercise of the Churches’ religion. The interests

in free speech and free exercise of religion cannot be

untangled as it pertains to the mandated religious

services notification. This Court has explained that

“our lodestars in deciding what level of scrutiny to

apply to a compelled statement must be the nature of

the speech taken as a whole and the effect of the

compelled statement thereon.” Riley v. National

Federation of Blind, Inc., 487 U.S. 781, 796 (1988).

In view of the circuit split, the Churches’

position is that this is an area of great importance.

Indeed, if State-mandated disclosures reach beyond

deception, advertisements, or even health warnings

to include “useful consumer information,” then there

is little left that the government cannot compel of a

business—or a religious ministry—to speak the

State’s message. What is more, save for the D.C.

Circuit, federal and state courts across the country

extend mandated disclosures beyond advertisements.

If compelled commercial speech should extend beyond

advertisements, that extension of Zauderer review

should properly come from this Court.

The highest state courts are split 4–

3 on Zauderer review and in some cases

are in conflict with the federal circuits

where they are located.

1. The highest state courts fare no better than the

federal circuits in achieving uniformity in the

interpretation of Zauderer. Some state high courts

differ from their federal circuit counterparts where

they are located. For example, the Arizona Supreme

Court holds a narrow interpretation of Zauderer. (The

State may “prevent the dissemination of commercial

speech that is false, deceptive, or misleading.” In re

Zang, 154 Ariz. 134, 141 (1987)). Thus, the outcome of

a compelled disclosure challenge in Arizona may turn

on whether it is brought in state or federal court. By

contrast, like the Ninth Circuit the California and

Washington Supreme Courts broadly interpret

Zauderer. (Laws requiring a commercial speaker to

make purely factual disclosures related to its

business affairs, whether to prevent deception or

simply to promote informational transparency, have

a “purpose . . . consistent with the reasons for

according constitutional protection to commercial

speech.” Beeman v. Anthem Prescription Mgmt., LLC,

58 Cal. 4th 329, 356 (2013); “if the law merely

requires factual disclosures by commercial speakers,

review is deferential,” Chong Yim v. City of Seattle,

194 Wash. 2d 651, 678 (2019)).

The Colorado Supreme Court has ruled that

the government may place restrictions on commercial

speech, including requirements dealing with the

amount and quality of information which a business

entity must make available to consumers, as long as

such restrictions are reasonably related to a

substantial governmental interest. Mountain States

Tel. & Tel. Co. v. Dist. Court, Denver, 778 P.2d 667,

674 (Colo. 1989). This is broader than the Tenth

Circuit’s holding in Wenger, 427 F.3d at 849.

Shortly after this Court’s decision in Zauderer,

the New Jersey Supreme Court ruled on the State’s

Consumer Fraud Act, writing, “[W]e are dealing with

whether the ad itself is misleading to the average

consumer, not whether it can later be explained to the

more knowledgeable, inquisitive consumer.” Barry v.

Arrow Pontiac, Inc., 100 N.J. 57, 69 (1985) (citing

Zauderer). Almost thirty years later the Third Circuit

had an opportunity to wrestle with Zauderer where it

used the same narrow interpretation as the New

Jersey Supreme Court. Dwyer, 762 F.3d at 280.

Citing the First Circuit’s decision in Pharm.

Care Mgmt. Ass’n v. Rowe, the Massachusetts

Supreme Court aligned itself with its federal sister

court opining, “[W]e do not agree that the more

deferential

review for required commercial

disclosures applies only to disclosures designed to

prevent deception and not to disclosures designed to

ensure

that consumers have

full

and

fair

information.” Bulldog Inv’rs Gen. P’ship v. Sec’y of the

Commonwealth, 460 Mass. 647, 667 (2011).

In contrast, Tennessee’s high court found that

“an advertiser’s rights are adequately protected as

long as disclosure requirements are reasonably

related to the state’s interest in preventing deception

of consumers.” Bellsouth Advert. & Publ’g Corp. v.

Tenn. Regulatory Auth., 79 S.W.3d 506, 519-20 (Tenn.

2002) (quoting Zauderer, 471 U.S. at 65). The

Tennessee Supreme Court is not consistent with the

Sixth Circuit which views Zauderer expansively. Disc.

Tobacco City & Lottery, 674 F.3d at 556.

The split here spans virtually every circuit, and

the confusion runs so deep that some circuits have

split internally. As noted above, the D.C. Circuit

reversed itself. Constitutional rights should not mean

one thing in California and something different in

New Jersey and Tennessee. This jumbled

jurisprudence on compelled commercial speech

speaks to the need for this Court to provide clarity.

This Petition comes to the Court as an ideal vehicle to

resolve the division that has settled over the circuits

and state high courts.

2. The government-drafted script presents an

idea which the Churches do not wish to communicate.

Similarly, in reviewing a California statute aimed at

crisis pregnancy centers, this Court found a

“government-drafted script about the availability of

state-sponsored services, as well as contact

information for how to obtain them,” in no way relates

to the services that licensed clinics provide.” Nat’l

Inst. of Family & Life Advocates v. Becerra, 585 U.S.

755, 766 (2018). The compelled speech that churchrun preschools must utter is more intrusive to First

Amendment rights than in NIFLA. Instead of telling

persons entering clinics that they can go to a given

place for an abortion—which is at odds with the

mission of a prolife clinic—here the church-run

preschools must tell persons entering their campus

that they can bring someone else into the school to

counter church teaching and offer alternative

spiritual formation. This does not relate to the

services that these parochial preschools provide.

Further, giving parents a regulatory opt-out for their

children from religious services and activities also

directly conflicts with the Churches’ mission of

spiritual formation of children.

In view of the settled precedent in NIFLA,

either through plenary review or summary reversal,

American Tradition P’ship, Inc. v. Bullock, 567 U.S.

516, 516 (2012) (per curiam) (summarily reversing

lower court ruling contradicting precedent), this

Petition should be granted on this issue.

II.

The decision below conflicts with this

Court’s free exercise jurisprudence on

government

comparators

for

general

applicability review and also creates a conflict

with the Sixth Circuit and the Louisiana

Supreme Court.

The Act is not generally applicable

due to the numerous exceptions to

licensure.

The lynchpin of the Act is licensure for day

care. App.103a. “No firm, partnership, association, or

corporation shall operate, establish, manage, conduct,

or maintain a child day care facility in this state

without a current valid license[.]” Cal. Health &

Safety Code § 1596.80. Despite fifteen different

exceptions to licensure, the Ninth Circuit ruled that

the Act is generally applicable and thus subject to

rational basis review. App.10a-14a. The Churches

disagree and submit that the Ninth Circuit’s analysis

contradicts this Court’s precedent and creates a

conflict with the Sixth Circuit and the Louisiana

Supreme Court on the validity of government

comparators.

This Court has identified two scenarios in

which a regulation falls short of general applicability.

One involves “[t]he creation of a formal mechanism

for granting exceptions.” Fulton v. City of Phila., 593

U.S. 522, 537 (2021). The second occurs when the

government “treat[s] any comparable secular activity

more favorably than religious exercise.” Tandon v.

Newsom, 593 U.S. 61, 62 (2021) (per curiam)

(emphasis in original) (citing Roman Catholic Diocese

v. Cuomo, 592 U.S. 14 (2020) (per curiam)). This

Petition concerns comparators.

1. The reason that the Ninth Circuit found the

Act generally applicable comes down to the question

of what constitutes a comparator for purposes of

exceptions. This Court stated that “whether two

activities are comparable for purposes of the Free

Exercise Clause must be judged against the asserted

government interest that justifies the regulation at

issue . . . Comparability is concerned with the risks

various activities pose, not the reasons why people

gather.” Tandon, 593 U.S. at 62. To paraphrase the

rule from the pandemic assembly context to

preschools, it would read, “Comparability is

concerned with the risks various forms of children’s

day care pose, not the reasons why children are

gathered at any given venue.”

The court below determined that State entities

and services cannot be used as comparators under

Tandon because the State “already exerts substantial

control” over child care facilities “operated by a public

entity or connected to a public entity.” App.12a. The

panel also reasoned that these other preschools are

“covered by separate regulatory schemes, the risk to

children’s health and safety is diminished compared

to a private facility over which the State, without the

licensing requirement, would have little control.”

App.12-13a. That rationale of exclusion of

government entities as comparators is at odds with

the precedent of this Court and also creates a split

with the Sixth Circuit and the Louisiana Supreme

Court.

As an initial matter, this Court has never

excluded government entities or activities as

comparators under Tandon analysis. For example,

during the pandemic closures of 2020-2021 there were

two government venues (airports and bus stations) on

the list of comparators that the Supreme Court

reviewed in the challenge brought by houses of

worship. Roman Catholic Diocese, 592 U.S. at 22

(Gorsuch, J., concurring).2 In S. Bay Pentecostal,

members of this Court observed that passengers were

allowed to linger in bus terminals and sit next to each

other on buses. S. Bay United Pentecostal Church v.

Newsom, 141 S. Ct. 716, 718-19 (2021) (statement of

Gorsuch, J.). Similarly, state and county pandemic

Airports in New York are generally owned by counties or

municipalities. N.Y. Gen. Mun. Law §§ 350 et seq.

health and safety restrictions permitted gatherings at

airports. Tandon v. Newsom, 517 F. Supp. 3d 922, 963

(N.D. Cal. 2021); see also, Gateway City Church v.

Newsom, 516 F. Supp. 3d 1004, 1010 (N.D. Cal. 2021)

(allowing airports to remain open as “critical

infrastructure” while closing houses of worship)

(reversed, Gateway City Church v. Newsom, 141 S. Ct.

1460 (2021)).3

Turning to regulatory schemes, the lower court

here found that a government or private secular

entity falls under different agency oversight and

regulations than an excluded religious entity and

hence may not serve as a comparator. App. 12-13a.

The Ninth Circuit’s position cannot be reconciled with

the pandemic line of cases (Roman Catholic Diocese,

S. Bay Pentecostal, and Tandon). Consider the types

of entities that were permitted to remain open by New

York and California. These included liquor stores,

accounting firms, hair salons, airports, and bus

stations. Not surprisingly, different agencies with

separate regulatory regimes govern each of these

entities.4

3 Most of the major airports in California are owned by counties

or municipalities. See, Cal. Public Utilities Code §§ 21001 et seq.

4 N.Y. Liquor Authority (N.Y. CLS Al. Bev. Control Law, Arts.

1–11); Cal. Dept. of Alcohol Beverage Control (Cal. Bus. & Prof.

Code §§ 23000, et seq.); U.S. Alcohol and Tobacco Tax and Trade

Bureau (27 CFR Ch. I, Subch. A, Pt. 1); N.Y. State Board for

Public Accountancy (N.Y. Article 149 §§ 7403, 7405); Cal. Board

of Accountancy (Cal. Bus. & Prof. Code §§ 5000, et seq.); New

York Dept. of State (N.Y. Article 27 § 403); Cal. State Board of

Barbering and Cosmetology (Cal. Bus. & Prof. Code §§ 7300, et

Under the second prong of the test, the State

must show how religious preschools are different in

terms of the stated government interest (Tandon, 593

U.S. at 62) in comparison to the fifteen exempted

entities enumerated in the Child Day Care Act. The

comparable activities comprise young children

receiving care during the day which primarily

includes education and recreation. The State has not

articulated its specific health and safety interest met

by the exempted entities which churches could also

not meet.

Moreover, the Ninth Circuit’s exclusion of state

entities or activities as comparators in the decision

below not only is inconsistent with this Court’s

decisions in S. Bay United Pentecostal, Roman

Catholic, and Tandon, but also creates a split with the

Sixth Circuit. The Sixth Circuit reviewed an order by

the Governor of Kentucky who banned “mass

gatherings”—including worship services—due to the

recent pandemic. But Governor Beshear’s orders

exempted “normal operations at airports, bus and

train stations.” Roberts v. Neace, 958 F.3d 409, 411

(6th Cir. 2020).5 The Sixth Circuit’s reviewing panel

rejected a defense from the Kentucky Governor who

seq.); N.Y. Pub. Auth. Law §§ 1260, et seq.; Cal. Dept. of

Transportation, Div. of Aeronautics (Cal. Pub. Util. Code §§

21001, et seq.).

5 Two major airports in Kentucky (Blue Grass Airport and

Louisville Muhammad Ali International Airport) are owned by

local government boards pursuant to Ky. Rev. Stat. §§ 183.132133.

“suggest[ed] that the explanation for [excluding] . . .

groups of [worshipers]” is that religious congregants

“create[] greater risks of contagion than groups of

people . . . in . . . an airport.”). Id. at 416. The panel

did not agree.

Although the Sixth Circuit did not have the

advantage of this Court’s guidance in S. Bay United

Pentecostal, Roman Catholic Diocese, and Tandon, it

nonetheless came to the same conclusions. It ruled

that the government cannot assume the best of people

when they go to work and the worst of them when

they worship. Roberts, at 414. Importantly to this

Petition for certiorari is that both the Ninth Circuit

and the Sixth Circuit were presented with

government comparators within the context of health

and safety goals. Unlike the Ninth Circuit, the Sixth

Circuit determined that “restrictions inexplicably

applied to one group and exempted from another do

little to further these goals and do much to burden

religious freedom.” Id. Thus, due to the comparators,

the Kentucky mass gathering prohibition inclusive of

houses of worship did not use the least restrictive

means. Id. at 415.

Besides the Sixth Circuit, the Ninth Circuit’s

position stands at odds with the Louisiana Supreme

Court. A pastor was charged with six misdemeanors

for holding religious services in violation of two

gubernatorial COVID-19 pandemic public health

orders. The first order limited gatherings of fifty or

more persons yet imposed “no limitations whatsoever

on ‘normal operations at locations like airports.’”6

State v. Spell, 2021-00876, 339 So. 3d 1125, 1135 (La.

2022). The second order prohibited gatherings of ten

or more persons. Unlike the Sixth Circuit, the

Louisiana Supreme Court had the advantage of the

recently decided free exercise cases of Roman

Catholic Diocese, Tandon, and Fulton. In a thorough

overview of this Court’s decisions in Sherbert v.

Verner, 374 U.S. 398 (1962); Emp’t Div. v. Smith, 494

U.S. 872 (1990); Church of the Lukumi Babalu Aye v.

City of Hialeah, 508 U.S. 520 (1993); Roman Catholic

Diocese; Tandon; and Fulton, Louisiana’s high court

quashed the bills of information finding they failed

strict scrutiny. State v. Spell, 339 So. 3d at 1129.

Because “[t]he Governor tightened the restrictions on

gatherings by prohibiting 10 or more people from

being in a single space, but again allowed exceptions

for normal operations of airports,” the order was not

generally applicable, failing strict scrutiny review for

not using the least restrictive means to achieve the

State’s interest.

This Petition is particularly well-suited to

decide the issue of whether government entities and

activities qualify as comparators when determining if

a law is generally applicable.

The major airports (Baton Rouge Metropolitan Airport and

Louis Armstrong New Orleans International Airport) in

Louisiana are owned by the local municipalities. La. Rev. Stat.

Ann. §§ 2:131, et seq.

2. There is one exception under the Act to

licensure which ironically the Churches fall under,

namely Sunday schools. App.12a. Licensure does not

apply to “[a]ny child daycare program that operates

only one day per week for no more than four hours on

that one day.” Cal. Health & Safety Code § l596.792(j).

The Churches each have Sunday schools during their

weekend services. The Sunday schools functionally

provide identical programs as preschools. The verified

amended complaint states that “[t]he Sunday

activities during Sunday School and Children’s

Church are materially the same as the preschool

programs. By way of comparison, there is religious

education, singing of songs, recreational activities,

crafts, and snacks.”

Why licensure is statutorily required for the

same activities on Monday through Friday but not on

weekends is not addressed by the district court and

not explained by the State. In light of this exception,

the Petition should be granted to review whether the

Act is a generally applicable law.

3. Sunday schools aside, as to the other

exceptions to licensure, the State has failed to

demonstrate that the risks at parochial preschools are

always present but always absent at the exempted

secular preschools and child care. Nor can it. Save for

expressive content (lessons, play, music, and crafts)

these are materially the same in church-run

preschools as government or private exempted

facilities.

The Ninth Circuit identifies California’s

asserted interest “in protecting the health and safety

of children,” and noted that the State adopted the

licensing statute because “child daycare facilities can

contribute positively to a child’s emotional, cognitive,

and educational development.” App.13a (quoting Cal.

Health & Safety Code § 1596.72(a)-(b)). Then the

panel states without explanation that “[n]o provision

of the Act exempts entities ‘comparable,’ in this sense,

to child day care facilities.” Id. Quite to the contrary,

a review of the fifteen statutory exceptions show that

they would generally contribute to “emotional,

cognitive, and educational development.” See, §

1596.792 (a)-(o). If the Act’s licensure requirement is

aimed at protecting an interest “of the highest order,”

the Act “leaves appreciable damage to that

supposedly vital interest unprohibited” when it

exempts the fifteen exceptions to licensure. Gonzales

v. O Centro Espirita Beneficente Uniao do Vegetal, 546

U.S. 418, 434 (2006) (quoting Lukumi, 508 U.S. at

547, and Fla. Star v. B. J. F., 491 U.S. 524, 541-42

(1989) (Scalia, J., concurring in part and concurring

in judgment)).

III. The

religious

services

provision

interferes with the free exercise of church-run

preschools and cannot be reconciled with

established precedent of this Court.

The religious services provision and spiritual

advisor notice not only compels speech, but also by

extension the regulation implicates the free exercise

of religion. This Court has articulated that for

historical reasons the structure of our government

preserves civil liberties by “rescu[ing] the temporal

institutions from religious interference” on the one

hand and “secur[ing] religious liberty from the

invasion of the civil authority” on the other. Watson v.

Jones, 80 U.S. 679, 730 (1871) (citing Harmon v.

Dreher, 17 S.C. Eq. 87 (S.C. Ct. App. 1843)). That is

not all. Religious organizations enjoy a greater right

to control their own affairs than that enjoyed by other

groups due to the prohibitions placed on the

government by the First Amendment’s religion

clauses. Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC, 565 U.S. 171, 189 (2012). But

using parents as a proxy for the State, California has

devised a licensing regulation as a key to unlock the

doors of churches. This breach into religious

sanctuaries undermines the separate jurisdictions of

the church and the state which have served the

country so well for more than two centuries. Because

this penetration conflicts with relevant decisions of

this Court, the Churches submit this section of the

Petition pursuant to Rule 10(c).

Spiritual formation of children is at the heart

of church preschools. Our Lady of Guadalupe Sch. v.

Morrissey-Berru, 591 U.S. 732, 754 (2020). Consider

that the Churches have their own dogma; they select

the individuals who teach that dogma, and within the

confines of their own property, conduct services and

other religious activities consistent with their faith

and traditions. At the time that a parochial school

seeks to dissuade families from spiritual exploration

external to the sponsoring church, per California law

a preschool representative must inform parents that

they can pull in someone from outside the church to

visit the child—in school—as a spiritual advisor and

forego the school’s religious services. 22 Cal. Code of

Regs. § 101223. In connection with that, the

regulation mandating spiritual autonomy via an optout poses a direct challenge to the Churches’

objectives, and it constitutes State intrusion into

what the Constitution reserves to houses of worship

as their “legitimate and distinct sphere of authority.”

Cath. Charities Bureau, Inc. v. Wis. Lab. & Indus.

Review Comm’n, 605 U.S. 238, 258 (2025) (Thomas,

J., concurring).

Moreover, the regulation permitting a parent

to bring in an outside minister to provide spiritual

formation to a preschooler ultimately serves to

“deprive the church of control over the selection of

those who will personify its beliefs” on its own

property. Hosanna-Tabor

Evangelical

Lutheran

Church & Sch., 565 U.S. at 188. There is a “close

connection that religious institutions draw between

their central purpose and educating the young in the

faith.” Our Lady of Guadalupe Sch, 591 U.S. at 756.

The notion that a church’s selection of persons who

represent the institution in spiritual matters is

merely an affirmative defense in church-employment

disputes under the ministerial exception (App.15a)

misapprehends the overall constitutional structure of

separate jurisdictions regarding church and state. If

a religious organization can lawfully remove a

minister in the face of anti-discrimination laws, it

follows that the State cannot use a parent-proxy to

force an unauthorized minister onto church property

to provide spiritual counsel. Constitutional principles

of church autonomy require exclusive ecclesiastical

authority in such matters.

This Court has been clear that the Free

Exercise Clause is violated when, sans a compelling

interest, a religious person or entity must choose

“between following the precepts of her religion and

forfeiting benefits.” Sherbert, 374 U.S. at 404; see also,

Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 478

(2020) (“Placing such a condition on benefits or

privileges ‘inevitably deters or discourages the

exercise of First Amendment rights.’”). Church

preschools in California must choose between the

requirements of state licensure and their convictions

regarding the spiritual formation of children. The law

at issue “imposes a penalty on the free exercise of

religion that must be subjected to the most rigorous

scrutiny.” Trinity Lutheran Church of Columbia, Inc.

v. Comer, 582 U.S. 449, 466 (2017) (quoting Church of

the Lukumi Babalu Aye, 508 U.S. at 546.

In connection with church autonomy, in

Kedroff v. St. Nicholas Cathedral of Russian Orthodox

Church, 344 U.S. 94 (1952), and Serbian E. Orthodox

Diocese v. Milivojevich, 426 U.S. 696 (1976), this

Court considered the appointment of bishops,

ultimately determining that this was an area that the

religion clauses walled off against government

intervention—whether by a legislative body or the

judiciary. In the same manner, the spiritual advisor

notice which serves to force a church to allow access

to an outside minister is foreclosed by not only Kedroff

and Serbian Orthodox, but also more recently

Hosanna-Tabor and Our Lady of Guadalupe.

The First Amendment’s religion clauses

guarantee the “right to organize voluntary religious

associations,” Watson, 80 U.S. at 728, and to allow

these associations to determine church governance

and faith without interference by the State. Kedroff,

344 U.S. at 116. A law “that regulates church

administration, the operation of the churches, [or] the

appointment of clergy,” id. at 107, violates the religion

clauses. It stands to reason that if it is unlawful for

lawmakers to transfer control of church property from

one religious entity to another, id. at 110, so too is a

regulation allowing the introduction of unwanted

clergy into a parochial preschool. It is no answer that

a state’s interest in the well-being of children justifies

its control through licensure of church-run

preschools. “A government cannot ‘reduce a group’s

First Amendment rights by simply imposing a

licensing requirement.’” Fulton, 593 U.S. at 617

(Alito, J., concurring) (quoting NIFLA, 585 U.S. at

773).

California’s religious services provision is

emblematic of the reason why the American

constitutional structure places churches and the state

in separate spheres. Giving parents either an opt-out

from activities related to spiritual formation—or

allowing them to bring in a countervailing view

through their own spiritual advisor—serves as a form

of “indirect coercion . . . on the free exercise of religion”

for which the First Amendment erects a barrier

against the State. Carson v. Makin, 596 U.S. 767, 778

(2022). If a church cannot control its own property

and who comes on it to provide spiritual counsel to the

children in its care, then there is little that a church

can control. Thus, in light of the long line of cases from

this Court on church autonomy, this Petition should

be granted either through plenary review or summary

reversal.

CONCLUSION

This

Petition.

Court

should

grant

the

Churches’

Respectfully submitted this 5th day of January

2026,

Kevin T. Snider

Counsel of Record

Matthew B. McReynolds

PACIFIC JUSTICE INSTITUTE

P.O. Box 276600

Sacramento, CA 95827

(916) 857-6900

ksnider@pji.org

Sorin A. Leahu

PACIFIC JUSTICE INSTITUTE

310 Busse Highway #364

Park Ridge, IL 60068

Katherine I. Hartley

PACIFIC JUSTICE INSTITUTE

P.O. Box 2131

Coeur d’Alene, ID 83816

Counsel for Petitioners

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED AUGUST 14, 2025 . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA,

FILED MAY 20, 2024 . . . . . . . . . . . . . . . . . . . . . . . . 22a

APPENDIX C — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA,

FILED JUNE 15, 2023 . . . . . . . . . . . . . . . . . . . . . . 66a

APPENDIX D — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED OCTOBER 6, 2025 . . . . . . . . . . . . . . . . . . 122a

APPENDIX E — RELEVANT STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . 123a

APPENDIX F — REQUEST IN THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA,

FILED NOVEMBER 14, 2023 . . . . . . . . . . . . . . . 135a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT,

FILED AUGUST 14, 2025

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-4049

D.C. No. 3:22-cv-00950-BAS-DDL

FOOTHILLS CHRISTIAN MINISTRIES;

JOURNEY COMMUNITY CHURCH;

GROVE CHURCH,

Plaintiffs-Appellants,

KIM JOHNSON, IN HER OFFICIAL CAPACITY AS

DIRECTOR OF THE CALIFORNIA DEPARTMENT

OF SOCIAL SERVICES; ROB BONTA, IN HIS

OFFICIAL CAPACITY AS ATTORNEY GENERAL

OF THE STATE OF CALIFORNIA,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of California

Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted June 5, 2025

Pasadena, California

Filed August 14, 2025

Appendix A

Before: Andrew D. Hurwitz, Eric D. Miller,

and Jennifer Sung, Circuit Judges.

Opinion by Judge Hurwitz.

OPINION

HURWITZ, Circuit Judge:

The California Child Day Care Facilities Act (the

“Act”) requires child day care facilities to be licensed

by the Department of Social Services (“DSS”). See Cal.

Health & Safety Code § 1596.80. This case involves a

pre-enforcement challenge by three California churches

(collectively “Foothills”)1 to the Act and its implementing

regulations. The district court dismissed Foothills’

operative complaint, concluding that Foothills lacked

standing to raise some claims and that others failed to

state a claim upon which relief could be granted. We affirm

the judgment of the district court.

BACKGROUND

One seeking to “operate, establish, manage, conduct,

or maintain a child day care facility” 2 in California must

1. The plaintiffs are Foothills Christian Ministry, the Grove

Church, and Journey Community Church. The latter two plaintiffs

make no arguments different than Foothills.

2. The Act defines a “[c]hild day care facility” as “a facility that

provides nonmedical care to children under 18 years of age in need of

Appendix A

obtain a license from DSS. Id. § 1596.80. A licensed facility

must “comply with” the Act and relevant DSS regulations.

Id. §§ 1596.95(a), 1596.856; see also id. § 1596.81

(authorizing DSS to establish “rules and regulations”).

DSS may revoke a license for noncompliance. See id.

§ 1596.885(a). In granting or revoking a license, however,

DSS may not consider “the content of any educational or

training program of the facility.” Id. § 1597.05(a).

DSS is responsible for ensuring compliance with the

Act, see id. § 1596.878, and its officials are authorized

to “enter and inspect” a child day care facility “at any

time, with or without advance notice,” id. § 1596.852.

DSS can issue citations and impose civil penalties for

noncompliance. See id. §§ 1596.893b(b), 1596.98(a),

1596.99. “[W]illfully or repeatedly” violating the Act is

a misdemeanor punishable by up to a $1,000 fine and

180 days in prison. Id. § 1596.890(a). The Act “do[es] not

apply to recreation programs” operated by the “YMCA,

Girl Scouts of the USA, Boy Scouts of America, Boys and

Girls Clubs, Camp Fire USA, organized camps, or similar

organizations.” Id. § 1596.793. But these organizations,

like all others, must obtain a license to operate a child

day care facility. See id.

II.

Foothills obtained a license to operate a child day care

center in 2015. DSS suspended the license in 2021 based

personal services, supervision, or assistance essential for sustaining

the activities of daily living or for the protection of the individual on

less than a 24-hour basis.” Cal. Health & Safety Code § 1596.750.

Appendix A

on “evidence that Foothills . . . was not complying with the

department’s masking directive” during the COVID-19

pandemic. After a hearing, a state administrative law

judge revoked Foothills’ license. Foothills did not seek

judicial review of the administrative law judge’s order.

Foothills’ operative complaint alleges that it intends

to reopen its child day care facility, but does “not want a

preschool that operates at the pleasure of [DSS] through

the State’s licensing scheme.” 3 Seeking declaratory

and injunctive relief, Foothills claims that the Act and

its regulations violate the (1) Free Exercise Clause of

the First Amendment, (2) Establishment Clause of the

First Amendment, (3) Free Speech Clause of the First

Amendment, and (4) Due Process Clause of the Fourteenth

Amendment. The district court dismissed the Free Speech

and Free Exercise claims for lack of standing and the

Establishment Clause and Due Process claims for failure

to state a claim. After Foothills declined to amend its

operative complaint, the district court entered a final

judgment in favor of the state defendants, and Foothills

timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 and

review dismissals for failure to state a claim and lack of

standing de novo. See N. Cnty. Cmty. All., Inc., v. Salazar,

573 F.3d 738, 741 (9th Cir. 2009). A plaintiff must have

3. Grove and Journey have never applied for a license but allege

an intention to do so.

Appendix A

standing for each claim raised. See Town of Chester, N.Y.

v. Laroe Ests., Inc., 581 U.S. 433, 439, 137 S. Ct. 1645,

198 L. Ed. 2d 64 (2017). We may affirm on any ground

supported by the record. See Canyon Cnty. v. Syngenta

Seeds, Inc., 519 F.3d 969, 975 (9th Cir. 2008).

DISCUSSION

The DSS regulation at the center of this litigation,

the religious services provision, requires licensed

facilities to “ensure” the right of a child to “be free to

attend religious services or activities of his/her choice,”

and provides that the “child’s authorized representative

shall make decisions about the child’s attendance at

religious services.” Cal. Code Regs. tit. 22, § 101223(a).

The provision requires licensed facilities to “inform each

child’s authorized representative” of this right and post

notice of it “in a prominent, publicly accessible area.” Id.

§ 101223(b). Foothills alleges that this regulation violates

the Free Exercise Clause of the First Amendment because

its religious beliefs do not allow it to “provide personal

religious autonomy for children who have been enrolled

in the preschool.”

To have Article III standing to raise this claim,

Foothills must “have suffered an injury in fact, caused

by the defendant’s conduct, that can be redressed by a

favorable result.” Tingley v. Ferguson, 47 F.4th 1055,

1066 (9th Cir. 2022). While the injury-in-fact requirement

does not require Foothills to “await the consummation

Appendix A

of threatened injury” before seeking relief, LSO, Ltd. v.

Stroh, 205 F.3d 1146, 1154 (9th Cir. 2000) (cleaned up), in

a pre-enforcement challenge such as this, Foothills must

plausibly allege that it “intends to engage in a course of

conduct arguably affected with a constitutional interest”

and that “there is a credible threat that the challenged

provision will be invoked against” it, Libertarian Party

of L.A. Cnty. v. Bowen, 709 F.3d 867, 870 (9th Cir. 2013)

(cleaned up). At the motion to dismiss stage, “general

factual allegations of injury suffice.” Tingley, 47 F.4th at

1066 (cleaned up). In determining whether Foothills faces

a credible threat of enforcement, we generally consider

whether it has “articulated a concrete plan to violate the

law,” whether the State has “communicated a specific

warning or threat to initiate proceedings,” and “the history

of past prosecution or enforcement under the challenged

statute.” Thomas v. Anchorage Equal Rts. Comm’n, 220

F.3d 1134, 1139 (9th Cir. 2000) (en banc) (cleaned up);

see also Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d

1088, 1094 (9th Cir. 2003) (applying Thomas to determine

standing and explaining that Thomas did not overrule

long-standing precedent “recognizing the validity of

pre-enforcement challenges to statutes infringing upon

constitutional rights”).

Where, as here, the government has not actually

threatened prosecution of any plaintiff, to determine

whether the threat of prosecution is nonetheless credible,

we must first consider whether the plaintiff’s intended

conduct is at least arguably proscribed by the challenged

law. See Cal. Pro-Life Council, 328 F.3d at 1095 (“In the

free speech context, . . . a [credible] fear of prosecution

Appendix A

will only inure if the plaintiff’s intended speech arguably

falls within the statute’s reach.”). Additionally, we consider

how long the challenged law has been effective and the

history of enforcement. When a plaintiff “challeng[es] a

new law whose history of enforcement is negligible or

nonexistent, either a general warning of enforcement or a

failure to disavow enforcement is sufficient to establish a

credible threat of prosecution.” Matsumoto v. Labrador,

122 F.4th 787, 797-98 (9th Cir. 2024) (cleaned up). Cf.

Thomas, 220 F.3d at 1140 (concluding no credible threat

of enforcement in part because, “[i]n the twenty-five years

that [the challenged laws had] been on the books,” there

had not been “a single criminal prosecution, and of the two

reported instances of civil enforcement, only one raised

the freedom of religion issue presented”).

Foothills contends that it is “self-evident that” under

the religious services provision “a religious institution

cannot require attendance at services or participation

in faith-based activities of a pupil enrolled in its school.”

The State, however, 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 Foothills’

proposed “religious services and activities.” See Cal. Code

Regs. tit. 22, § 101218.1(a) (requiring a child day care

facility to “develop, implement and maintain an admission

procedure that enables” it to “[d]etermine that” children

meet its “admission criteria”). Thus, it is unclear whether

Appendix A

Foothills’ intended conduct is even “arguably” proscribed

by the challenged religious services provision. Getman,

328 F.3d at 1095.

But even assuming that the intended conduct is

at least arguably within the provision’s reach, the

threat of prosecution is still too speculative. California

enacted the Act in 1984, see 1984 Cal. Stat. 5738-50, and

promulgated the religious services provision in 1985, see

27 Cal. Regulatory Notice Reg. 3100 (July 6, 1985). The

challenged provision has therefore been on the books for

over 40 years. 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. See Lopez v. Candaele, 630 F.3d 775, 788

(9th Cir. 2010) (“Likewise, we have held that plaintiffs did

not demonstrate the necessary injury in fact where the

enforcing authority expressly interpreted the challenged

law as not applying to the plaintiffs’ activities.”); Johnson

v. Stuart, 702 F.2d 193, 195 (9th Cir. 1983) (finding no

standing to challenge a statute when the state’s attorney

general “disavowed any interpretation of [the statute] that

would make it applicable in any way to” the plaintiffs).

Because there is no credible threat that Foothills will

be prosecuted for engaging in its intended conduct under

the religious services provision, Foothills lacks standing

to challenge it. There is thus no case or controversy for us

to decide. See U.S. Const. art. III, § 2, cl. 1; see also Coal.

Appendix A

for a Healthy Cal. v. F.C.C., 87 F.3d 383, 384 (9th Cir. 1996)

(“We dismiss the Coalition’s petition because it does not

arise from a cognizable dispute and thus seeks relief that

we are not empowered to render: an advisory opinion.”).4

II.

Foothills also attacks the Act’s general requirement

that it obtain a license in order to run a child day care

facility, under the Free Exercise and Establishment

clauses. We conclude that it has standing to raise these

claims, but that each fails on the merits.

Foothills alleges the licensure requirement violates

the Free Exercise Clause because the Act “treats fifteen

comparable secular child day care operations more

favorably” than religious institutions by exempting them

from the licensure requirement, and so “is not a generally

applicable law.” See Kumar v. Koester, 131 F.4th 746, 753

(9th Cir. 2025). The district court dismissed this claim for

lack of standing.

We disagree as to standing. Foothills has alleged

a religious “commitment to minister to children” and

4. The district court, although finding that Foothills lacked

standing to challenge the religious services provision, dismissed

this claim with prejudice. Because a “dismissal for lack of subject

matter jurisdiction is without prejudice,” Missouri ex rel. Koster v.

Harris, 847 F.3d 646, 656 (9th Cir. 2017), the judgment should be

amended accordingly on remand.

10a

Appendix A

views operating a child day care facility “as an extension

of” its “current ministry to its children.” Foothills thus

intends to engage in constitutionally protected activity.

See Kumar, 131 F.4th at 754 (“[P]racticing . . . religion

is a constitutionally protected activity.”). And Foothills

claims that its religious beliefs are in conflict with the

licensure requirement because, as a matter of faith, it

“does not believe that the State can override the decisions

of fit parents.” Foothills’ proposed conduct—operating

without a license—is proscribed by statute. See Cal.

Health & Safety Code § 1596.80; Tingley, 47 F.4th at

1067. Finally, it is likely that California will enforce the

general licensure requirement as it is the linchpin of the

Act; indeed, California has already once revoked Foothills’

license for failure to comply with the Act and implementing

regulations.

This claim, however, fails on the merits. The Free

Exercise Clause generally “does not relieve an individual

of the obligation to comply with a valid and neutral law.”

Tingley, 47 F.4th at 1084 (cleaned up). Rather, it “prohibits

government entities from burdening a plaintiff’s sincere

religious practice pursuant to a policy that is not neutral or

generally applicable.” Kumar, 131 F.4th at 753 (cleaned up).

A state “fails to act neutrally when it proceeds in a manner

intolerant of religious beliefs or restricts practices because

of their religious nature.” Fulton v. City of Phila., 593 U.S.

522, 533, 141 S. Ct. 1868, 210 L. Ed. 2d 137 (2021). “A law

is not generally applicable if it invites the government to

consider the particular reasons for a person’s conduct by

providing a mechanism for individualized exemptions.”

Id. (cleaned up).

11a

Appendix A

Foothills contends that the Act’s exemption of

“recreation programs conducted for children by” the

YMCA “or similar organizations,” Cal. Health & Safety

Code § 1596.793, “provides a mechanism for individualized

exceptions to licensure.” 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. Id. And to the extent the Act does allow

for some minimal discretion in determining whether an

organization operates a recreation program, it is a far cry

from the “unfettered discretion that could lead to religious

discrimination.” Stormans, Inc. v. Wiesman, 794 F.3d

1064, 1081-82 (9th Cir. 2015).

“A law also lacks general applicability if it prohibits

religious conduct while permitting secular conduct that

undermines the government’s asserted interests in a

similar way.” Fulton, 593 U.S. at 534. Foothills contends

that because the “Act provides more than a dozen licensure

exemptions,” it is underinclusive and so not generally

applicable. See Cal. Health & Safety Code § 1596.792

(listing exemptions). But these exemptions only matter

if they are “comparable” to regulated religious conduct.

Tandon v. Newsom, 593 U.S. 61, 62, 141 S. Ct. 1294, 209 L.

Ed. 2d 355 (2021) (per curiam). Comparability is “judged

against the asserted government interest that justifies

the regulation at issue.” Id.

California’s asserted interest is “in protecting the

health and safety of children.” It adopted the licensing

12a

Appendix A

statute because “child daycare facilities can contribute

positively to a child’s emotional, cognitive, and educational

development,” Cal. Health & Safety Code § 1596.72(a),

and a licensing regime would “ensure a quality childcare

environment,” id. § 1596.72(b). No provision of the Act

exempts entities “comparable,” in this sense, to child

day care 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.”

Id. § 1596.792(j). 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. See id.

§ 1596.750 (defining a “[c]hild day care facility” as a facility

that provides care “on less than a 24-hour basis”).

Foothills also contends that the exemptions for “public

recreation program[s],” 5 programs “administered by

the Department of Corrections and Rehabilitation,” and

programs “operated by a local educational agency under

contract with the State Department of Education and that

operates in a school building,” are comparable to a child

day care facility. Cal. Health & Safety Code § 1596.792(g),

(m), (o). But because the State already exerts substantial

control over these facilities, which are operated by a public

entity or connected to a public entity and covered by

separate regulatory schemes, the risk to children’s health

5. A “public recreation program” is “a program operated by the

state, city, county, special district, school district, community college

district, chartered city, or chartered city and county” that meets

certain requirements. Cal. Health & Safety Code § 1596.792(g).

13a

Appendix A

and safety is diminished compared to a private facility

over which the State, without the licensing requirement,

would have little control.

Because the licensure requirement is neutral and

generally applicable, rational basis review applies.

Tingley, 47 F.4th at 1084. The requirement easily satisfies

that forgiving standard. As Foothills concedes, “the State

has a generalized compelling interest in the welfare of

children.” Indeed, the State has a “vital governmental

interest in the protection of children.” Rush v. Obledo,

756 F.2d 713, 714 (9th Cir. 1985). And the licensing

requirement is rationally related to this interest. See

Merrifield v. Lockyer, 547 F.3d 978, 988 (9th Cir. 2008).6

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

6. Foothills also argues that DSS’s authority to remove a

preschool director violates the ministerial exception doctrine. But the

ministerial exception applies only to “employment disputes”; it “does

not mean that religious institutions enjoy a general immunity from

secular laws.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591

U.S. 732, 746, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020); see Markel

v. Union of Orthodox Jewish Congregations of Am., 124 F.4th 796,

803 (9th Cir. 2024) (“The ministerial exception encompasses all

adverse personnel or tangible employment actions between religious

institutions and their employees . . . .”). Where, as here, a State

imposes a sanction for the violation of a valid secular law that is

unrelated to employment, the ministerial exception does not apply.

14a

Appendix A

Establishment Clause. “The clearest command of the

Establishment Clause is that the government may not

officially prefer one religious denomination over another.”

Cath. Charities Bureau, Inc. v. Wis. Labor & Indus. Rev.

Comm’n, 605 U.S. 238, 247, 145 S. Ct. 1583, 221 L. Ed.

2d 881 (2025) (cleaned up); see also Kumar, 131 F.4th at

754. Government action that expresses hostility towards

a plaintiff’s religion, coupled with a sufficient connection

between the plaintiff and that action, inflicts an injury that

can satisfy Article III, so Foothills has standing to raise

this claim. See Kumar, 131 F.4th at 755; see also Cath.

League for Religious & C.R. v. City & Cnty. of S.F., 624

F.3d 1043, 1052 (9th Cir. 2010) (en banc).

The claim, however, fails on the merits. As we have

explained, the provision in question—Cal. Health &

Safety Code § 1596.793—provides that the licensing

requirement and attendant regulations “do not apply

to recreation programs conducted for children” by

various organizations, but that “child day care programs

conducted by these organizations” are subject to the Act.

It also contains a nonexclusive list of organizations that

typically operate recreation programs, including the

ostensibly sectarian YMCA and Boy Scouts. Id. Contrary

to Foothills’ allegations, this exception “establishes” no

“denominational preference.” Cath. Charities Bureau,

Inc., 605 U.S. at 248. Instead, it exempts a certain type

of programming from the licensure requirement. 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.

See Kumar, 131 F.4th at 754.

15a

Appendix A

III.

Foothills contends that the religious services provision

violates the Free Speech Clause because it requires

Foothills to inform parents that a child is “[t]o be free to

attend religious services or activities of his/her choice”

through a form given to the parent and signage posted “in

a prominent, publicly accessible area.” Cal. Code Regs.

tit. 22, § 101223. Foothills does not want to communicate

this message.

The State contends that Foothills’ intended conduct is

not “affected with a constitutional interest,” Libertarian

Party, 709 F.3d at 870, “because basic requirements

that the public be made aware of duly enacted laws and

regulations—such as this one—do not implicate the First

Amendment.” See S.F. Apartment Ass’n v. City & Cnty.

of S.F., 881 F.3d 1169, 1177-78 (9th Cir. 2018). But the

required posting of government-drafted notices can raise

First Amendment issues. See Nat’l Inst. of Fam. & Life

Advocs. v. Becerra (“NIFLA”), 585 U.S. 755, 766, 138 S.

Ct. 2361, 201 L. Ed. 2d 835 (2018). Refusing to provide this

notice is proscribed by regulation. See Cal. Code Regs.

tit. 22, § 101223(b). Although Foothills has not identified

a history of past prosecution or enforcement, this “factor

alone is not dispositive.” Libertarian Party, 709 F.3d at

872. And while the State emphasizes that Foothills has not

alleged “that enforcement authorities have communicated

any specific warning or threat of enforcement,” it does not

disavow enforcement of the provision. Foothills therefore

has standing to bring this claim.

16a

Appendix A

This claim, however, fails on the merits. Foothills

contends that requiring it to inform parents of their rights

and those of their children impermissibly compels speech.

Two levels of constitutional scrutiny potentially apply to

claims based on compelled commercial speech. See Nat’l

Ass’n of Wheat Growers v. Bonta, 85 F.4th 1263, 1275 (9th

Cir. 2023). Typically, we apply “intermediate scrutiny,

which requires the government to ‘directly advance’ a

‘substantial’ governmental interest, and the means chosen

must not be ‘more extensive than necessary.’” Id. (quoting

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n

of N.Y., 447 U.S. 557, 564, 566, 100 S. Ct. 2343, 65 L. Ed.

2d 341 (1980)). When the compelled speech requires only

the disclosure of “purely factual and uncontroversial

information,” however, the “lower standard applied

in Zauderer, which requires the compelled speech be

‘reasonably related’ to a substantial government interest

and not be ‘unjustified or unduly burdensome,’” applies.

Id. (quoting Zauderer v. Off. of Disciplinary Couns. of

Sup. Ct. of Ohio, 471 U.S. 626, 651, 105 S. Ct. 2265, 85 L.

Ed. 2d 652, 17 Ohio B. 315 (1985)).

Zauderer scrutiny applies here. The compelled

speech is purely factual—it is “literally true” that, under

California law, children in day care facilities enjoy the

panoply of rights described by the required form and

posting. CTIA — The Wireless Ass’n v. City of Berkeley,

928 F.3d 832, 846 (9th Cir. 2019). And although the parents

of children enrolled in Foothills’ facility have agreed that

their children will attend Foothills’ religious services,

they indisputably retain the right under both California

law and their agreements with Foothills to withdraw their

17a

Appendix A

children from Foothills if they decide that their religious

needs are better met elsewhere.

While the disclosure’s topic is relevant to determining

whether the disclosure is controversial, see NIFLA, 585

U.S. at 769 (concluding that compelled speech “about

state-sponsored services—including abortion,” was

controversial because abortion is “anything but an

uncontroversial topic” (cleaned up)), a purely factual

statement does not become controversial simply because

it “can be tied in some way to a controversial issue,”

CTIA, 928 F.3d at 845. Rather, a compelled statement

is controversial when it takes “sides in a heated political

controversy,” and forces the speaker “to convey a message

fundamentally at odds with its mission.” Id.

Foothills, citing NIFLA, contends that the disclosure

is controversial because the right to religious autonomy

is at odds with its stated mission. But the law at issue in

NIFLA did not merely require the disclosure of statutory

rights. As the Second Circuit has noted, requiring “a

notice informing employees of their available rights and

remedies under a valid statute is not akin to requiring a

crisis pregnancy center to distribute a notice about statesponsored reproductive health services at the same time the

centers try to dissuade women from choosing that option.”

CompassCare v. Hochul, 125 F.4th 49, 66 (2d Cir. 2025)

(cleaned up).7 While “the policy judgment that motivated

7. The challenged statute in that case required employers to

inform employees of their rights to be free from “discrimination

based on an employee’s or a dependent’s reproductive health decision

making.” CompassCare, 125 F.4th at 54 (cleaned up).

18a

Appendix A

the Act may be controversial,” the mere “existence and

contents of the Act” is “not itself controversial.” Id. at 65

(cleaned up). 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.

CTIA, 928 F.3d at 845.

The notice requirement “is reasonably related to”

the State’s “substantial governmental interest,” id., in

protecting children in day care facilities, see Rush, 756

F.2d at 720. And it is not unjustified or unduly burdensome.

It is “satisfied by a single 8.5 x 11” posted notice”

and handout. CTIA, 928 F.3d at 849. Such a “minimal

requirement does not interfere with,” nor “threaten to

drown out,” Foothills’ other speech. Id.

IV.

Foothills alleges that the Act violates the Due

Process Clause by imposing unconstitutional conditions

“as a precondition and continual condition for licensure.”

“A plaintiff suffers a constitutionally cognizable injury

whenever the government succeeds in pressuring the

plaintiff into forfeiting a constitutional right in exchange

for a benefit or the government withholds a benefit based

on the plaintiff’s refusal to surrender a constitutional

right.” Stavrianoudakis v. U.S. Fish & Wildlife Serv.,

108 F.4th 1128, 1137 (9th Cir. 2024) (cleaned up). Because

Foothills alleges it faces “the forced choice” of either

retaining its constitutional rights or obtaining a license to

operate a child day care facility, it has Article III standing

to raise this claim. Id. at 1138; see also Koontz v. St. Johns

19a

Appendix A

River Water Mgmt. Dist., 570 U.S. 595, 606-07, 133 S. Ct.

2586, 186 L. Ed. 2d 697 (2013).

“Under the well-settled doctrine of unconstitutional

conditions, the government may not require a person

to give up a constitutional right in exchange for a

discretionary benefit.” Stavrianoudakis, 108 F.4th at

1136 (cleaned up). The doctrine applies to state licensing

schemes. See generally, e.g., Frost v. R.R. Comm’n of

State of Cal., 271 U.S. 583, 46 S. Ct. 605, 70 L. Ed. 1101

(1926). Foothills asserts that to receive a license to operate

a child day care facility, it must waive the (1) Fourth

Amendment’s protection against unreasonable searches, 8

(2) Fifth Amendment right against self-incrimination,9

(3) Sixth Amendment right to confront one’s accuser,10

(4) Seventh Amendment right to a jury trial,11 and (5)

First Amendment’s protection of free speech.12 To state a

8. See Cal. Health & Safety Code § 1597.09(a) (“Each licensed

child day care center shall be subject to unannounced inspections

by the department.”).

9. See Cal. Code Regs. tit. 22, § 101200(b) (“The Department has

the authority to interview children or staff without prior consent.”).

10. See Cal. Health & Safety Code § 1596.853(b) (“Unless the

complainant specifically requests otherwise,” no “record published,

released, or otherwise made available to the licensee shall disclose

the name of any person mentioned in the complaint.”).

11. See Cal. Gov. Code § 11517(a) (“A contested case [involving

the revocation or suspension of a license] may be originally heard by

the agency itself” or by “an administrative law judge.”).

12. See Cal. Code Regs. tit. 22, § 101223(a)(5) (religious services

provision). There is no unconstitutional condition based on the Free

Speech Clause. See supra Part III.

20a

Appendix A

claim, Foothills must plausibly allege that the conditions

imposed are unconstitutional. See Hotop v. City of San

Jose, 982 F.3d 710, 718 (9th Cir. 2020) (per curiam). It has

not done so.

“[A] statute authorizing warrantless searches which

applies only to a single pervasively regulated industry,

where urgent governmental interests are furthered by

such regulatory inspections, does not violate the Fourth

Amendment.” Rush, 756 F.2d at 719. We have previously

upheld the warrantless searches the Act authorized of

family day care centers13 so long as they are limited to

reasonable times and places. Id. at 720-22. The same

result obtains here because child day care facilities

are also “pervasively regulated” and the same “urgent

governmental interest” is “furthered by warrantless

inspections.” Id. at 722.

Because “corporations and other collective entities”

like Foothills “do not enjoy the privilege” against selfincrimination, In re Twelve Grand Jury Subpoenas, 908

F.3d 525, 528 (9th Cir. 2018) (per curiam) (cleaned up),

the act does not violate the Fifth Amendment. The Sixth

Amendment’s “Confrontation Clause does not come into

play until the initiation of criminal proceedings.” S.E.C. v.

Jerry T. O’Brien, Inc., 467 U.S. 735, 742, 104 S. Ct. 2720,

81 L. Ed. 2d 615 (1984). And while the regulations allow

13. A “family daycare home” is “a facility that regularly

provides care, protection, and supervision for 14 or fewer children,

in the provider’s own home, for periods of less than 24 hours per

day, while the parents or guardians are away.” Cal. Health & Safety

Code § 1596.78(a).

21a

Appendix A

for the assessment of civil penalties, see Cal. Code Reg. tit.

22 § 101195(a), the complaint only conclusorily states that

Foothills “must waive” its “Seventh Amendment rights to

a trial by jury,” and Foothills makes no argument before

this court that it has been denied such a right, see Alvarez

v. Chevron Corp., 656 F.3d 925, 930 (9th Cir. 2011) (when

deciding a 12(b)(6) motion, courts “disregard threadbare

recitals of the elements of a cause of action, supported by

mere conclusory statements” (cleaned up)).14

The judgment of the district court is AFFIRMED,

and the case is REMANDED with instructions to amend

the judgment to provide for dismissal of Foothills’ Free

Exercise Clause challenge to the religious services

provision without prejudice. Costs shall be taxed in favor

of the appellees.

14. Foothills’ original complaint alleged a violation of the

Privileges or Immunities Clause. The district court dismissed that

claim without prejudice, and it was not renewed in the operative

complaint. The claim fails because Foothills does not allege

interference with its right to interstate travel. See Merrifield, 547

F.3d at 984. Any challenge to California’s prior mask mandates is

moot. See Brach v. Newsom, 38 F.4th 6, 9 (9th Cir. 2022) (en banc).

22a

Appendix

B UNITED STATES

APPENDIX B — ORDER

OF THE

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF CALIFORNIA, FILED MAY 20, 2024

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

Case No. 22-cv-0950-BAS-DLL

FOOTHILLS CHRISTIAN MINISTRIES;

THE GROVE CHURCH; and JOURNEY

COMMUNITY CHURCH,

Plaintiffs,

KIM JOHNSON, IN HER OFFICIAL CAPACITY

AS THE DIRECTOR OF THE CALIFORNIA

DEPARTMENT OF SOCIAL SERVICES; AND

ROBERT ANDRES BONTA, IN HIS OFFICIAL

CAPACITY AS THE ATTORNEY GENERAL OF

THE STATE OF CALIFORNIA,

Defendants.

ORDER GRANTING DEFENDANTS’ MOTION

TO DISMISS PLAINTIFFS’ FIRST AMENDED

COMPLAINT (ECF NO. 24)

The California Child Day Care Facilities Act (the

“Act”), Cal. Health & Safety Code §§ 1596.70 et seq., enables

private persons, firms, associations, partnerships, and

corporations to open and operate preschools in California,

so long as they attain a license to do so first. To this end,

the Act establishes a comprehensive licensing scheme,

23a

Appendix B

regulated, overseen, and monitored by the California

Department of Social Services (“DSS”). The Act and

the DSS regulations and rules promulgated thereunder

enumerate requirements and set benchmarks concerning

health and safety. To obtain a license, applicants must

verify they can comply with these requirements. The DSS

both assesses whether an applicant qualifies for a license

and monitors licensees’ continued compliance to determine

whether they remain in good standing. The DSS may levy

fines against, suspend and/or revoke the licenses of, and

enjoin violations committed by unlicensed and licensed but

noncompliant child daycare facilities. The Act also makes

“willful” or “repeated” violations a misdemeanor offense.

Cal. Health & Safety Code § 1596.890.

Plaintiffs The Grove Church (“Grove”), Journey

Community Church (“Journey”), and Foothills Christian

Ministries (“Foothills,” together with Grove and Journey,

“Plaintiffs”) are churches located in San Diego County

that maintain active child ministries. (See generally

First Am. Compl. (“FAC”), ECF No. 20.) As an extension

of those ministries, Plaintiffs seek to open or reopen

preschools. But Plaintiffs wish to operate preschools

outside the confines of the Act, and they bring the instant

lawsuit to strike down as unconstitutional the Act and its

implementing regulations in their entirety.

This case principally sounds in the Free Exercise

Clause of the First Amendment. Plaintiffs claim the Act

interferes with their religious conviction: to administer

to the enrollees of their preschools a curriculum in

which attendance at religious events and participation in

religious activities is mandatory. Plaintiffs additionally

24a

Appendix B

allege the Act violates the Free Speech Clause and the

Establishment Clause of the First Amendment and assert

a legal theory that the Act violates the Due Process Clause

of the Fourteenth Amendment. As redress for these

alleged harms, Plaintiffs seek injunctive and declaratory

relief invalidating the Act, thereby permitting them to

open and operate parochial preschools without licensure

under the Act.

Defendants Kim Johnson, Director of the DSS,

and Robert Bonta, the Attorney General of the State of

California, now move to dismiss the FAC pursuant to both

Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and Rule

12(b)(6). (ECF No. 24 (“Motion”).) Defendants also request

judicial notice of certain information and materials. (ECF

No. 24-1.) Plaintiffs oppose the Motion (ECF No. 25

(“Resp.”)) and submit their own accompanying request for

judicial notice (ECF No. 25-1). Defendants reply. (ECF

No. 26 (“Reply”).)

The Court finds the Motion suitable for determination

on the papers submitted and without oral argument. See

Fed. R. Civ. P. 78(b); CivLR 7.1(d)(1). For the reasons

stated below, the Court GRANTS Defendants’ Motion to

Dismiss the FAC.

BACKGROUND

The California Child Day Care Facilities Act

The Court gave an overview of the Act in a prior

order on a motion to dismiss. (See ECF No. 19 at 3:9-7:21.)

Therefore, the Court will summarize it only briefly here.

25a

Appendix B

The Act in its current incarnation has existed

since 1984, see Cal. Health & Safety Code § 1596.72,

but California has regulated organized childcare in

some form or another since 1913.1 The Act establishes

a comprehensive licensing regime for daycare facilities

and preschools. See Cal. Health & Safety Code § 1596.76;

see also N. Valley Baptist Church v. McMahon, 696 F.

Supp. 518, 520 (E.D. Cal. 1988), aff’d, 893 F.2d 1139 (9th

Cir. 1990). To obtain a license to operate a child daycare

facility, such as a preschool, an applicant must certify to

the DSS that it is able to comply with the requirements

of the Act and its regulations promulgated thereunder by

the DSS. See, e.g., Cal. Health & Safety Code §§ 1596.856,

1596.97, 1596.81(a)—(b). The Act and the implementing

regulations “address a wide variety of matters potentially

affecting the health and safety of children” enrolled at

child daycare centers, including, inter alia: immunization

of children and staff, see id. § 1596.7995; background

checks for staff and volunteers, see id. §§ 1596.871,

1596.877; medical training for staff, see id. §§ 1596.866,

1596.8661; and the physical integrity and safety of the

daycare’s premises, see id. §§ 1596.95, 1596.954, 1597.16.

1. For a brief history concerning the roles government and

private philanthropic organizations—namely religious ministries

and charities—have played in administering social services in the

United States, and the varying extent to which government has

sought to regulate those private endeavors, see Carl H. Esbeck,

Government Regulation of Religiously Based Social Services: The

First Amendment Considerations, 19 Hast. Const. L. Q. 343, 350

(1992). In that scholarly work, Esbeck explains that governments

“undertook a more affirmative role” in the provision of social services

“[f]ollowing the Civil War, and increasingly during the first quarter

of [the Twentieth Century].” Id. California’s 1913 licensing measure

roughly aligns with this timeline.

26a

Appendix B

The DSS acts as a monitoring and enforcement

agency, ensuring continued compliance with the Act once

providers have obtained their licenses. Cal. Health &

Safety Code § 1596.878. This monitoring and enforcement

power includes the power to “enter and inspect any

[child daycare facility] at any time, with or without

advance notice, to secure compliance with, or to prevent a

violation of,” the Act and its rules and regulations. See id.

§ 1596.852. Onsite inspections may be either prompted by

a third-party complaint that alleges a reasonable basis to

believe a violation exists, id. § 1596.853(a), or undertaken

on the DSS’ own accord, see id. § 1597.09. Several

circumstances may instigate the DSS to conduct an onsite

visit or inspection, including, but not limited to, when a

license explicitly calls for an annual inspection, when a

provider is on probation, when an employee or volunteer

previously has been ordered out of a facility by the DSS, or

when a provider’s name is drawn by “a random sampling

methodology” pursuant to the DSS’ obligation to inspect

30 percent of facilities each year. See id. § 1597.09(b), (c)(1).

The DSS must inspect all licensed facilities at least once

within a three-year period. Id. § 1597.09(d).

In addition to monitor ing, DSS also reta ins

responsibility for enforcement of the Act. The DSS may

issue citations to, and levy fines upon, unlicensed and

noncompliant licensed facilities. See Cal. Health & Safety

Code §§ 1596.98(a), 1596.99. The DSS also has authority

to file an administrative action to suspend or revoke a

provider’s license. See id. § 1596.99(j)(3). To do so, the DSS

generally must institute an administrative proceeding.

See id. The Act also provides for criminal remedies, up

to a misdemeanor or $1,000 fine, against a person “who

27a

Appendix B

willfully or repeatedly violates any provision of this [Act],

or any rule or regulation promulgated under this [Act].”

Id. § 1596.890(a).

In determining whether an applicant qualifies for a

license under the Act, and whether it remains in good

standing once licensed, the DSS may not consider “the

content of any educational or training program of the

facility.” Id. § 1597.05(a). The Act explicitly limits the

DSS’ review “to health and safety considerations” only.

Id. Hence, the DSS may not deny, suspend, or revoke

a license based on a facility’s curriculum, so long as it

does not otherwise violate the Act’s health and safety

requirements. “In short, under the licensing scheme a

day care center remains free to teach, or to not teach, on

any subject and in any manner it deems fit.” McMahon,

696 F. Supp. at 521.

There are limited statutory exemptions from licensure

under the Act. Those exemptions are based upon the type

of activities and programs administered by the facility at

issue. See Cal. Health & Safety Code §§ 1596.792, 1596.793.

Whether the institution is religiously affiliated or not has

no bearing on whether it qualifies for an exemption. Exempt

institutions include childcare programs operated by stateregulated healthcare facilities, see id. § 1596.792(a)—(c);

part-time parent cooperatives and childcare provided

by relatives or shared between two families, see id.

§ 1596.792(d)—(f); programs operated by specified public

entities when public schools are not in session, see id.

§ 1596.792(g)(1); extended daycare programs at private

or public schools, see id. § 1596.792(h); school parenting

or adult education childcare programs operated by school

28a

Appendix B

districts, see id. § 1596.792(i); temporary childcare once per

week or when a parent is onsite, see id. § 1596.792(j)—(k);

childcare provided by crisis nurseries and drug treatment

facilities that house women and their children, see id.

§ 1596.792(m)—(n); and recreation programs operated by

camp organizations, see id. § 1596.793. Additionally, state

preschools, regulated by the California Department of

Education, are exempt under the Act. See id. § 1596.792(o).

B. The Complaint’s Allegations and Legal Claims2

Plaintiffs are three churches located in San Diego

County with active ministries for children. (See, e.g., FAC

¶¶ 1, 7-9, 17, 49, 52, 57-58.) None of the Plaintiffs currently

are licensed to operate a child daycare facility, nor do any

of the Plaintiffs currently operate an unlicensed facility.

(See id. ¶¶ 25, 37, 53, 62.) As best the Court can tell,

neither Grove nor Journey have ever sought or obtained

a license from the DSS. And while Foothills previously

operated a licensed infant care center and preschool, it

ceased doing so in March 2022 after the DSS unearthed

repeated violations of the California Department of Public

Health (“DPH”)’s indoor masking orders for childcare

settings, and instituted administrative proceedings to

revoke Foothills’ license. 3 (See id. ¶¶ 25-37.)

2. These facts are taken from the allegations in the Complaint.

The presumption of truth attaches to the Complaint’s factual

allegations, and the Court construes those allegations, and all

reasonable inferences arising therefrom, in a light most favorable to

Plaintiffs. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039

(9th Cir. 2004).

3. Foothills alleges the DSS conducted an unannounced

inspection of its preschool in September 2021 after an anonymous

29a

Appendix B

Each Plaintiff is now prepared to open a preschool,

which Plaintiffs view as an “extension” of their “current

ministry to [their] children.” (FAC ¶¶ 46, 53, 62.) Plaintiffs

also allege that part of their religious beliefs regarding

ministry to children require that only the children of

parents who “want to work cooperatively with the ChurchPlaintiffs on religious services and activities” may attend

Plaintiffs’ prospective preschools. (Id. ¶ 76.) That is,

Plaintiffs do not intend “to grant autonomy to children

with regard to religious activities and services” (see id.

¶ 4); the religious component of Plaintiffs’ programs will

be mandatory (see e.g., id. ¶¶ 72-77).

Plaintiffs allege the Act requires them to attain a

license to open and operate the preschools they envision.

(See, e.g., id. ¶ 1.) But Plaintiffs “do[] not want [] preschool[s]

that operate[] at the pleasure of the [DSS] through the

complaint was lodged against it. (FAC ¶¶ 29-30.) Investigators

remained onsite for hours and interviewed children without

parental consent, presumably pursuant to Cal. Health & Safety

Code § 1596.852. (Id.) The investigation disclosed violations of the

DPH’s indoor masking orders concerning COVID-19. (Id. ¶ 30)

Plaintiffs allege the DSS “issued numerous fines against” Foothills’

preschool for these violations. (Id.) Investigators from the DSS

returned unannounced, again, in December 2021, at which time they

“suspended the preschool’s license, and closed down the preschool.

DSS also closed down the Foothills Christian Infant Program which

had never been cited for any violation.” (Id. ¶ 34.) Then, Foothills

appealed the decision in a proceeding before an administrative law

judge but did not prevail; its licenses for infant care and the preschool

were thereby revoked. (Id. ¶¶ 35, 37.) Foothills declined to appeal the

administrative law judge’s decision or undertake any other endeavor

to restore its license because, in its view, “even a victory would place

the church preschool ministry under the continued control of DSS

through licensing under the Act and regulatory scheme.” (Id. ¶ 37)

30a

Appendix B

State’s licensing scheme.” (Id. ¶ 97.) Therefore, Plaintiffs

have not sought licensure from the DSS. Instead, on June

28, 2022, Plaintiffs commenced the instant action against

Defendants Kim Johnson, the DSS Director, and Robert

Bonta, the California Attorney General, both of whom are

named in their official capacities, seeking to invalidate the

Act and its regulations in their entirety. (Id. ¶¶ 1, 10-11.)

Plaintiffs press four claims: a Free Exercise claim (see

id. ¶¶ 98-123), an Establishment of Religion claim (see id.

¶¶ 124-31), a Due Process claim (see id. ¶¶ 132-43), and a

Free Speech claim (see id. ¶¶ 144-54). As relief, they seek

a “declaration that application of [the Act] to houses of

worship violates the First and Fourteenth Amendments,”

and an “injunction permanently enjoining” Defendants

from enforcing the Act. (Id. at 34 ¶¶ 1-2.)

The Free Exercise Claim. Plaintiffs hold the sincere

religious belief that they “are mandated to spread the

Gospel and make disciples, which of necessity requires

teaching children.” (FAC ¶ 73.) That belief compels

Plaintiffs to establish preschools as extensions to their

existing ministries for children, and to administer

a uniform, mandatory religious curriculum to their

students. (See id. ¶¶ 70-71, 76.) Accordingly, Plaintiffs

aver they cannot provide “personal religious autonomy” to

the children enrolled at their preschools while remaining

true to their religious convictions. (Id. ¶ 117.) However,

Plaintiffs argue that the Act’s “implementing regulations”

will “forc[e] these Church-Plaintiffs to grant autonomy to

children with regards to religious activities and services.”

(Id. ¶ 4.) Plaintiffs allege the Act interferes with their free

exercise of these religious beliefs.

31a

Appendix B

But Plaintiffs do not identify a single provision of the

Act that conflicts with their “faith-based commitment”

to administer uniform, religious education at their

preschools. Rather, they allege a single DSS regulation

infringes upon this sincerely held belief: Cal. Code Regs.

tit. 22, § 101223(a)(5), or, as one of this Court’s sister

tribunals once referred to it, the “religious services

provision.” See McMahon, 696 F. Supp. at 520.

The religious services provision states, in pertinent

part:

(a) The licensee shall ensure that each child is

accorded the following personal rights:

****

(5) To be free to attend religious

services or activities of his/her

choice.

(A) Attendance at relig ious

services in or outside of the

center shall be voluntary.

T he ch i ld’s aut hor i z ed

representative shall make

decisions about the child’s

attendance at relig ious

services.

Cal. Code Regs. tit. 22, § 101223(a)(5). The regulation

in which the religious services provision is nestled also

32a

Appendix B

confers several other “personal rights” to children

enrolled in licensed child daycare facilities.4 Id. § 101223(a)

(1)–(5). The DSS requires providers to ensure each child

is afforded these personal rights, see id. § 101223(c), and

to inform each child’s authorized representative of these

rights, see id. § 101223(b).

Plaintiffs interpret the religious services provision

as requiring preschools operated by houses of worship

to provide all children autonomy with respect to religious

education and training. (FAC ¶ 116.) They, therefore,

read the religious services provision to implicitly prohibit

parochial preschools from instituting compulsory

attendance at religious events and participation in

religious activities. (Id. ¶¶ 117-18) Accordingly, Plaintiffs

allege this DSS regulation “imposes a substantial burden

on the free exercise of [their] religion.” (Id. ¶ 118.)

Plaintiffs also allege the ministerial exception forbids

the state government from removing their preschool

director, temporarily or permanently, from their post. (See

id. ¶¶ 38-41, 107-115.) Foothills claims injury where it was

not allowed to retain the preschool director of its choice,

whom it claims occupied a ministerial position in the

church. (Id.) Foothills claims the director was unlawfully

removed from her post because she acted in accordance

4. Those other “personal rights” include, inter alia: (1) “dignity

in . . . personal relationships with staff”; (2) “safe, healthful and

comfortable accommodations”; and (3) freedom “from corporal or

unusual punishment, infliction of pain, humiliation, intimidation,

ridicule, coercion, threat, [and] mental abuse.” Cal. Code Regs. tit.

22, § 101223(a)(1)—(5).

33a

Appendix B

with the church’s sincerely held religious beliefs regarding

parental authority when it comes to the health of children.

(Id. ¶¶ 111-14.) Plaintiffs claim that Foothills’ free exercise

of religion demands Foothills be allowed to select “persons

serving in a ministerial capacity,” such as its preschool

director. (Id. ¶ 111.) Plaintiffs provide no legal basis for

extending the ministerial exception, which the Ninth

Circuit has held is an affirmative defense, as its own

independent claim. Puri v. Khalsa, 844 F.3d 1152, 1158

(9th Cir. 2017).

Plaintiffs also assert DSS violated their free exercise

rights when, under the authority of the Act, the agency

inspected Foothills for violation of the state’s masking

requirement in place at the time. Plaintiffs allege that

DSS’ subsequent revocation of Foothills’ license and

removal of its preschool director infringed upon Foothills’

sincerely held belief that fit parents hold the power to

make health decisions when it comes to their children.

(FAC ¶ 26.) Therefore, when parents instructed their

children not to wear masks at preschool, and indeed

the children refused to wear masks at their parents’

direction, it was not in Foothills’ religious belief system

to contravene that. (Id. ¶¶ 26-30.) The FAC goes on to

allege that because of Foothills’ staff’s adherence to this

belief and thus allowance for children not to mask at the

preschool, the DSS penalized Foothills through fines

and, eventually, through shutting the preschool down and

removing its director. (Id. ¶ 34, 36.) Plaintiffs assert that

this course of events contravened Foothills’ right to free

exercise of religion in violation of the First Amendment.

34a

Appendix B

The Establishment of Religion Claim. Plaintiffs

claim that the Act violates the Establishment Clause by

creating “a carve out for two sectarian organizations which

enjoy exemption privileges under the Act.” (FAC ¶ 6; see

also id. ¶¶ 82-83, 125, 127.) Plaintiffs assert this claim

because the Act enumerates five entities as exempted from

licensure when they are claimed as recreation programs,

and two of the entities, the Boy Scouts and the YMCA, are

religious organizations. (Id. ¶¶ 103, 125, 127.)

Plaintiffs also contend the Act violates the ministerial

exception under the Establishment Clause. (See id. ¶¶ 12831.) Still, as regarding Plaintiffs’ free exercise claim,

Plaintiffs cite to no caselaw demonstrating a ministerial

exception in the Establishment Clause, and generally

repeat the same ministerial exception arguments already

made under their free exercise claim. (Compare id. ¶¶ 10715, with id. ¶¶ 128-31.)

Due Process Claim. Plaintiffs allege the Act imposes

unconstitutional conditions as a requirement of licensure

under the Act. (FAC ¶¶ 132-43.) To acquire and maintain

a license, Plaintiffs aver they must waive constitutional

rights guaranteed to them by the Fourth, Fifth, Sixth, and

Seventh Amendments. (See id. ¶¶ 132-37.) For example,

Plaintiffs claim that by submitting themselves to:

• Cal. Health & Safety Code § 1596.852,

which permits the DSS to enter and inspect

facilities unannounced, and Cal. Code Regs.

tit. 22, § 101200(c), which permits the DSS

to review and remove files, Plaintiffs are

35a

Appendix B

relinquishing rights secured by the Fourth

Amendment. (See id. ¶ 134.)

• Cal. Code Regs. tit. 22, § 101200(b), which

permits the DSS to interview staff without

notice of their right to remain silent, in

combination with Cal. Health & Safety

Code § 1596.890, which exposes those who

violate the Act to criminal repercussions,

Plaintiffs are relinquishing rights secured

by the Fifth Amendment. (See id. ¶ 135.)

• Cal. Health & Safety Code § 1596.99(j)(3),

which relegates license-suspension and

revocation proceedings to an administrative

tribunal as opposed to a civil one with the

option of a jury, Plaintiffs are relinquishing

rights secured by the Sixth and Seventh

Amendments. (See id. ¶¶ 136-37.)

Plaintiffs style this “unconstitutional-conditions”

theory of the Act’s invalidity as a claim arising under

the Due Process Clause of the Fourteenth Amendment.

(Id. ¶ 142 “The rights listed above are enumerated in the

Bill of Rights and made applicable to the States via the

Fourteenth Amendment.”)

Free Speech Claim. Plaintiffs make a claim under

the First Amendment Free Speech clause, alleging the

implementing regulations of the Act that require daycares

to notify parents that attendance at religious services

should be on a completely voluntary basis, constitute

36a

Appendix B

unconstitutional compelled speech. (See, e.g., id. ¶ 4

(“What is more, implementing regulations . . . compel

speech via a notification to parents of this right to spiritual

autonomy while in the preschool.”).) Plaintiffs allege that

in complying with Cal. Code Regs. tit. 22, § 101223(b),

which provides for daycares to post signs and have parents

sign forms acknowledging receipt of this information,

Plaintiffs are relinquishing their rights secured by the

First Amendment because the regulation compels speech.

(See FAC ¶ 140.)

Plaintiffs assert that this mandatory notification

contains a “message [that] is not something which the

Church-Plaintiffs wish to communicate to the public.

Instead, the Church-Plaintiffs wish to communicate

to parents and the public that the school requires that

pupils enrolled in the preschool attend religious services

and engage in full participation in religious activities

consistent with the faith and practices of the respective

church.” (Id. ¶ 148.)

Plaintiffs also appear to allege a compelled speech claim

regarding past DSS actions where “DSS investigators

sent pro-mask-wearing curriculum to Foothills preschool

to communicate to the children.” (Id. ¶ 32.) This occurred

during the period where Foothills operated its daycare and

Plaintiffs claim such curriculum “was not the message that

the preschool wanted to communicate,” but the daycare

communicated it to avoid DSS citations and fines. (Id.)

37a

Appendix B

II. Request for Judicial Notice

Under Federal Rule of Evidence 201(b), a court

may judicially notice a fact that “can be accurately

and readily determined from sources whose accuracy

cannot reasonably be questioned.” Fed. R. Evid. 201(b).

Where a party seeks judicial notice of a document, the

Rule 201(b) inquiry is two-fold. First, the court must

consider whether the document is from “a source whose

accuracy cannot reasonably be questioned.” Khoja v.

Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th

Cir. 2018) (citation omitted). Second, the court must

“consider—and identify—which fact or facts it is noticing

from the document.” Id. “Just because the document

itself is susceptible to judicial notice does not mean that

every assertion of fact within that document is judicially

noticeable for its truth.” Id. Facts subject to judicial notice

may be considered on a motion to dismiss, see Maiman

v. Talbott, No. SACV 09-0012 AG (ANx), 2011 U.S. Dist.

LEXIS 98243, 2011 WL 13065750, at *2 (C.D. Cal. Aug.

29, 2011), as well as on a facial challenge to subject-matter

jurisdiction, Chaudry v. Cnty. of San Diego, No. 21cv1847GPC (AHG), 2022 U.S. Dist. LEXIS 224761, 2022 WL

17652794, at *3 (S.D. Cal. Dec. 13, 2022). However, the

court may deny a request for judicial notice of facts that

are not relevant to the question at issue. See Santa Monica

Food Not Bombs v. City of Santa Monica, 450 F.3d 1022,

1025 n.2 (9th Cir. 2006); see also Flick v. Liberty Mut. Fire

Ins. Co., 205 F.3d 386, 393 n.7 (9th Cir. 2000).

38a

Appendix B

In connection with their briefing on this motion,

Plaintiffs seek to have the Court judicially notice the

DSS form entitled “PERSONAL RIGHTS — Child

Care Centers.” (ECF No. 25-1, Ex. 1.) The DSS form is

subject to judicial notice as an agency form available on

the agency’s website. Dotson v. Price, 399 F. Supp. 3d

617, 622 n.41 (E.D. La. 2019). Defendants do not oppose or

otherwise question the authenticity of the document. Here,

the Court takes judicial notice that the form is one that

DSS mandates child daycare centers give to all parents.

The Court does not take judicial notice as to the truth

of its contents, merely that it is the form DSS requires

child daycare centers to give to all parents. Accordingly,

Plaintiffs’ request for judicial notice of the DSS form is

GRANTED IN PART. (ECF No. 25-1, Ex. 1.)

Both Plaintiffs and Defendants seek judicial notice for

records related to the state administrative proceeding that

led to the revocation of Foothills’ license and the removal

of its preschool director. (ECF No. 24-1, Exs. A—B; ECF

No. 25-1, Ex. 2.) However, as discussed below, the details

of the proceedings are irrelevant to the case at hand and

therefore both of the parties’ requests for judicial notice

of these documents are DENIED IN PART. (ECF No.

24-1, Exs. A—B; ECF No. 25-1, Ex. 2.)

Defendants also seek judicial notice of various official

agency documents related to the COVID-19 pandemic and

posted online. (ECF No. 24-1, Exs. C—E.) Although such

documents are subject to judicial notice, they are largely

not relevant to the issues at hand. The Court shall only

take judicial notice of the fact, in Exhibit E, that “after

39a

Appendix B

March 11, 2022, the universal masking requirement for

K-12 and Childcare settings terminated.” (ECF No. 241, Ex. E at 1/4.) As noted in this Court’s prior order, the

Masking Guidance is an official state-agency document,

posted online by the DPH to its official website. (ECF No.

19 at 12:23-13:8. Plaintiffs do not contest otherwise. As

such, it is a judicially noticeable public record. See, e.g.,

Transmission Agency of N. Cal. v. Sierra Pac. Power Co.,

295 F.3d 918, 924 n.3 (9th Cir. 2002) (instructing judicial

notice of agency documents is appropriate where there

is no dispute as to authenticity). And the fact of which

this Court takes judicial notice—that DPH lifted indoor

masking requirements for childcare settings in March

2022—not only is uncontroverted but also is precisely

the sort of fact that is judicially noticeable. See Metroflex

Oceanside LLC v. Newsom, 532 F. Supp. 3d 976, 980 (S.D.

Cal. 2021) (taking judicial notice of “information about

the COVID-19 virus, government orders related to the

COVID-19 pandemic, and rulings of other federal courts”).

Therefore, Defendant’s request for judicial notice as

to Exhibits C and D is hereby DENIED IN PART without

prejudice. (ECF No. 24-1.) Defendant’s request for judicial

notice as to the termination of the masking requirement,

noted in Exhibit E, is hereby GRANTED IN PART. (Id.)

III. LEGAL STANDARDS

Federal Rule of Civil Procedure 12(b)(1)

Under Rule 12(b)(1), a party may move to dismiss

a claim based upon the court’s lack of subject-matter

40a

Appendix B

jurisdiction. Fed. R. Civ. P. 12(b)(1). “A federal court is

presumed to lack jurisdiction in a particular case unless

the contrary affirmatively appears.” Stock W., Inc. v.

Confederated Tribes of the Colville Rsrv., 873 F.2d 1221,

1225 (9th Cir. 1989). A jurisdictional attack under Rule

12(b)(1) can be either facial or factual. White v. Lee, 227

F.3d 1214, 1242 (9th Cir. 2000).

In a facial attack, the challenger asserts that the

allegations in the complaint are insufficient to invoke

federal jurisdiction, and the court is limited in its review

to the allegations in the complaint. Safe Air for Everyone v.

Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When a movant

presses a facial attack, the court assumes the truth of the

allegations in the complaint. Lee, 227 F.3d at 1242.

By contrast, in a factual attack, the challenger provides

evidence an alleged fact in the complaint is false, thereby

resulting in a lack of subject-matter jurisdiction. Meyer,

373 F.3d at 1039. Therefore, under a factual attack, the

allegations in the complaint are not presumed to be true,

and the “district court is not restricted to the face of the

pleadings, but may review any evidence, such as affidavits

and testimony, to resolve factual disputes concerning the

existence of jurisdiction.” McCarthy v. United States, 850

F.2d 558, 560 (9th Cir. 1988).

Where, as here, a Rule 12(b)(1) motion is brought

alongside a Rule 12(b)(6) motion, it is appropriate for

the court to first consider and address the disputed

jurisdictional issues under the former before analyzing

the merits of a claim under the latter. See Maya v.

41a

Appendix B

Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (“The

jurisdictional question of standing precedes, and does

not require, analysis of the merits.” (citation omitted)).

If, upon analysis of the Rule 12(b)(1) motion, the court

finds it lacks subject-matter jurisdiction over the action

or a claim pressed therein, it need not address the merits

issues raised in the collateral Rule 12(b)(6) motion.

Toyota Landscaping Co., Inc. v. S. Cal. Dist. Council

of Laborers, 11 F.3d 114, 119 (9th Cir. 1993); Prather v.

AT&T Inc., 996 F. Supp. 2d 861, 871 n.8 (N.D. Cal. 2013),

aff’d sub nom. Prather v. AT&T, Inc., 847 F.3d 1097

(9th Cir. 2017) (“Having concluded that it lacks subject

matter jurisdiction over [plaintiff’s] claim, the Court need

not—and indeed cannot—address [d]efendants’ alternate

grounds for dismissal under [Rules] 12(b)(6) and 9(b).”).

B. Federal Rule of Civil Procedure 12(b)(6)

A Rule 12(b)(6) motion tests the legal sufficiency of

the allegations underlying the claims in a complaint. See

Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The

procedural posture on a Rule 12(b)(6) motion requires

the court to accept all factual allegations pleaded in the

complaint as true and to construe those allegations, and

draw all reasonable inferences therefrom, in favor of the

plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,

337-38 (9th Cir. 1996). To avoid Rule 12(b)(6) dismissal,

a complaint must plead sufficient factual allegations

to “state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.

Ed. 2d 868 (2008) (citations omitted). “A claim has facial

plausibility when the plaintiff pleads factual content that

42a

Appendix B

allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id.

“A Rule 12(b)(6) dismissal may be based on either a ‘lack

of a cognizable legal theory’ or ‘the absence of sufficient

facts alleged under a cognizable legal theory.’” Johnson

v. Riverside Healthcare Sys. LP, 534 F.3d 1116, 1121 (9th

Cir. 2008) (quoting Balistreri v. Pacifica Police Dep’t, 901

F.2d 696, 699 (9th Cir. 1988)).

Dismissal With or Without Prejudice

When a court dismisses a complaint, it must then decide

whether to grant leave to amend. Under Rule 15(a)(2),

granting leave to amend rests within the trial court’s

sound discretion. Swanson v. U.S. Forest Serv., 87 F.3d

339, 343 (9th Cir. 1996). The Ninth Circuit has held that

leave to amend should be freely granted. See Morongo

Band of Mission Indians v. Rose, 893 F.2d 1074, 1079

(9th Cir. 1990).

However, the court may deny leave to amend for

reasons of “repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment,

[or] futility of amendment.” Foman v. Davis, 371 U.S. 178,

182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). For instance,

when a complaint is dismissed for failure to state a claim,

a court should not grant leave to amend if the “court

determines that allegation of other facts consistent

with the challenged pleading could not possibly cure the

deficiency.” Abagninin v. AMVAC Chem. Corp., 545 F.3d

733, 742 (9th Cir. 2008) (citations omitted). In particular,

if the plaintiff has previously amended his complaint, the

43a

Appendix B

court’s “discretion to deny leave to amend is particularly

broad.” Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133

(9th Cir. 2013) (citation omitted). This is because, when

granted leave to amend, the plaintiff must amend his

complaint to comply with the district court’s instructions.

If he fails to do so, the district court is well within its

discretion to dismiss his case with prejudice. Vibe Micro,

Inc. v. Shabanets, 878 F.3d 1291, 1296 (11th Cir. 2018).

IV. ANALYSIS

Defendants move for dismissal of the FAC on several

grounds. (See generally ECF No. 24.) First, Defendants

assert Plaintiffs have again failed to establish Article

III standing to challenge the Act because they fail to

demonstrate a sufficient injury to bring a pre-enforcement

action and seek inappropriate relief for past harms.

Second, Defendants contend Plaintiffs have failed to state

a claim regarding the Free Exercise Clause because the

Ninth Circuit’s precedent forecloses the claim and, even

if it did not, the law would survive constitutional scrutiny.

And third, Defendants argue the remaining three claims

of the FAC are simply non-cognizable.

Standing

Defendants mount a facial attack against Plaintiffs’

case by asserting that the allegations in Plaintiffs’ FAC

are insufficient to invoke federal jurisdiction. Meyer, 373

F.3d at 1039. For the purposes of this analysis, therefore,

the Court shall assume the allegations in the FAC are

true. Lee, 227 F.3d at 1242.

44a

Appendix B

It is neither the role of federal courts “to issue

advisory opinions nor to declare rights in hypothetical

cases.” Thomas v. Anchorage Equal Rts. Comm’n, 220

F.3d 1134, 1138 (9th Cir. 2000) (en banc). Article III,

Section 2 of the Constitution grants the federal judiciary

power to adjudicate only “live ‘cases or controversies.’”

Id. “The doctrine of standing gives meaning to these

constitutional limits by ‘identify[ing] those disputes which

are appropriately resolved through the judicial process[.]’”

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157,

134 S. Ct. 2334, 189 L. Ed. 2d 246 (2014) (quoting Lujan

v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119

L. Ed. 2d 351 (1992)).

To establish standing, a plaintiff must demonstrate

the irreducible constitutional minimum of: (1) an injuryin-fact vis à vis “an invasion of a legally protected interest

which is (a) concrete and particularized, and (b) actual or

imminent, not conjectural or hypothetical”; (2) causation—

that the injury is “fairly traceable to the challenged action

of the defendant”; and (3) redressability—that it is “likely,

as opposed to merely speculative, that the injury will be

redressed by a favorable decision.” Lujan, 504 U.S. at

560-61 (citations omitted).

“Each element of standing ‘must be supported . . .

with the manner and degree of evidence required at the

successive stages of the litigation.” Maya, 658 F.3d at 1068.

To survive a facial Rule 12(b)(1) challenge to standing, a

plaintiff “must ‘clearly . . . allege facts demonstrating’ each

element.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.

Ct. 1540, 194 L. Ed. 2d 635 (2016) (quoting Warth v Seldin,

422 U.S. 490, 518, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)).

45a

Appendix B

At this stage, the Court presumes to be true the factual

allegations in the pleadings, and construes in favor of the

plaintiff all reasonable inferences that emanate therefrom.

See Lujan, 504 U.S. at 561 (instructing district courts

to “presum[e] that general allegations embrace those

specific facts that are necessary to support the claim” on

a Rule 12(b)(1) facial challenge); see also Bazile v. Fin.

Sys. of Green Bay, Inc., 983 F.3d 274, 279 (7th Cir. 2020)

(“A facial attack tests whether the allegations, taken as

true, support an inference that the elements of standing

exist.” (citation omitted)); see also John v. Whole Foods

Mkt. Grp., Inc., 858 F.3d 732, 737 (2d Cir. 2017) (“When

the defendant asserts a ‘facial’ challenge to standing . . . it

remains the case that courts should continue to draw from

the pleadings all reasonable inferences in the plaintiff’s

favor[.]”).

Standing presents particularly unique issues where,

as here, the plaintiff brings an action challenging the

constitutionality of an act before the act has been enforced

against it. See Tingley v. Ferguson, 47 F.4th 1055, 1067

(9th Cir. 2022), cert. denied, 144 S. Ct. 33, 217 L. Ed.

2d 251 (2023) (“A ‘recurring issue’ for federal courts is

determining when the threat of enforcement creates a

sufficient injury for a party to have standing to bring

a pre-enforcement challenge to a law [on constitutional

grounds.]”). To bring a pre-enforcement challenge, a

plaintiff must demonstrate: (1) it intends “to engage in a

course of conduct arguably affected with a constitutional

interest”; (2) that such course of conduct is “proscribed

by a statute”; and (3) “there exists a credible threat of

prosecution thereunder.” Babbitt v. United Farm Workers

Nat’l Union, 442 U.S. 289, 298, 99 S. Ct. 2301, 60 L. Ed. 2d

46a

Appendix B

895 (1979); see also Driehaus, 573 U.S. at 158-59 (same).

This iteration of Lujan’s standing analysis “is derived

from the well-recognized principle that a person need not

suffer prosecution or other enforcement action in order

to raise a constitutional objection to a statute.” Vermont

All. for Ethical Healthcare, Inc. v. Hoser, 274 F. Supp. 3d

227, 238 (D. Vt. 2017) (citations omitted). The absence of

any one of the elements required for a pre-enforcement

challenge dooms the plaintiff’s standing.

Standing is a claim-by-claim analysis. See California

v. Azar, 911 F.3d 558, 570 (9th Cir. 2018). “[A] plaintiff

must demonstrate standing for each claim [it] seeks to

press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352,

126 S. Ct. 1854, 164 L. Ed. 2d 589 (2006). “Suffering one

species of injury does not confer standing on a plaintiff

to press claims based on another species of injury, even

if the injuries share a common genus.” Hochendoner v.

Genzyme Corp., 823 F.3d 724, 733 (1st Cir. 2016); see also

Blum v. Yaretsky, 457 U.S. 991, 999, 102 S. Ct. 2777, 73

L. Ed. 2d 534 (1982) (“Nor does a plaintiff who has been

subject to injurious conduct of one kind possess by virtue

of that injury the necessary stake in litigating conduct of

another kind, although similar, to which [it] has not been

subject.”).

Standing in the Context of the Free

Exercise Clause

The Free Exercise Clause of the First Amendment

provides, “Congress shall make no law . . . prohibiting

the free exercise” of religion. U.S. Const. Amend. I. The

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Free Exercise Clause is applicable to the States under

the terms of the Fourteenth Amendment. See Cantwell

v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L.

Ed. 1213 (1940). “The Clause protects not only the right

to harbor religious beliefs inwardly and secretly. It does

perhaps its most important work by protecting the ability

of those who hold religious beliefs of all kinds to live out

their faiths in daily life through ‘the performance of (or

abstention from) physical acts.’” Kennedy v. Bremerton

Sch. Dist., 597 U.S. 507, 524, 142 S. Ct. 2407, 213 L. Ed.

2d 755 (2022) (quoting Emp. Div., Dep’t of Human Res.

of Ore. v. Smith, 494 U.S. 872, 877, 110 S. Ct. 1595, 108 L.

Ed. 2d 876 (1990)).

Modern Supreme Court jurisprudence “has dispensed

with rigid standing requirements” for First Amendment

free speech and free exercise claims. Tingley, 47 F.4th

at 1066-67 (quoting California Pro-Life Council, Inc.

v. Getman, 328 F.3d 1088, 1094 (9th Cir. 2003)). But

to acquire standing to pursue a Free Exercise claim,

a plaintiff still must, at a minimum, show there exists

some conflict between one of its religious convictions and

a challenged governmental action. See, e.g., McGowan v.

Maryland, 366 U.S. 420, 429, 81 S. Ct. 1101, 6 L. Ed. 2d 393

(1961) (holding appellants had “no standing to raise” a free

exercise claim where they “allege only economic injury to

themselves; they do not allege any infringement of their

own religious freedoms”); Sch. Dist. of Abington Twp., Pa.

v. Schempp, 374 U.S. 203, 224 n.9, 83 S. Ct. 1560, 10 L. Ed.

2d 844 (1963) (holding “the requirements for standing to

challenge state action under . . . the Free Exercise Clause

. . . include proof that particular religious freedoms are

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infringed”); United States v. Top Sky, 547 F.2d 483, 485

(9th Cir. 1976) (finding a criminal defendant, who had

been convicted of selling bald eagle feathers in violation

of the Bald Eagle Protection Act, lacked standing to

raise a free exercise challenge aimed at that Act because

he did not aver the conduct for which he was prosecuted

was religiously, as opposed to commercially, motivated).

Without these sorts of allegations, the plaintiff fails to

allege it suffered an injury-in-fact. Indeed, “[t]he [Supreme]

Court has held[] a free exercise plaintiff generally must

‘show that his good-faith religious beliefs are hampered

before he acquires standing to attack a statute under the

Free-Exercise Clause.’” Am. Legion v. Am. Humanist

Ass’n, 588 U.S. 29, 82, 139 S. Ct. 2067, 204 L. Ed. 2d

452 (2019) (Gorsuch, J., concurring) (quoting Braunfeld

v. Brown, 366 U.S. 599, 615, 81 S. Ct. 1144, 6 L. Ed. 2d

563 (1961) (Brennan, J., concurring and dissenting)); see

Harris v. McRae, 448 U.S. 297, 321, 100 S. Ct. 2671, 65

L. Ed. 2d 784 (1980) (“[I]t is necessary in a free exercise

case for one to show the coercive effect of the enactment

as it operates against him in the practice of his religion.”

(citation omitted)).

Licensure Requirement

As noted by Defendants (ECF No. 24 at 7:17-8:8), and

in this Court’s prior order on the first motion to dismiss

(ECF No. 19 at 28:11), indignation is not injury and

Plaintiffs have provided no further grounds for standing

to challenge the licensure requirement itself beyond that

they do not want a preschool that operates at the pleasure

of DSS through the State’s licensing scheme (FAC ¶ 97).

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Having already analyzed this in its prior order, given

Plaintiffs the opportunity to allege additional facts in

support of their claim that the licensing requirement itself

is unconstitutional, and seeing Plaintiffs have alleged no

further facts in support of this claim, the Court holds once

again that Plaintiffs do not have standing to challenge the

licensing requirement of the Act.

ii.

Ministerial Exception

Foothills raises a free exercise claim under the

ministerial exception, claiming injury where it was not

allowed to retain the preschool director of its choice, who

it alleges occupied a ministerial position in the church.

Foothills claims she was unlawfully removed from her

post because she acted in accordance with the church’s

sincerely held religious beliefs regarding parental

authority when it comes to the health of children. (FAC

¶¶ 111-14.)

The ministerial exception exists as protection

from state interference in the governance of religious

institutions where it comes to ministers. § 4:34. Religious

exemptions to employment discrimination law, 1 Religious

Organizations and the Law § 4:34 (2d). As far as this

Court has found and the parties have cited, the ministerial

exception has by and large been used by religious

institutions to shield their employment preferences from

employment discrimination claims.

Therefore, courts have not conducted a standing

analysis as it relates to the ministerial exception because

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Appendix B

the ministerial exception is an affirmative defense, as

declared by the Ninth Circuit. Puri v. Khalsa, 844 F.3d

1152, 1158 (9th Cir. 2017). Thus, it must be raised as a

shield against claims brought against the church, rather

than as sword, or claim by the church against the state.

See Fed. R. Civ. P. 8(c)(1). The appropriate time and place

to raise such an affirmative defense in this case was

when Foothills initially responded to the state’s action in

removing Foothills’ preschool director, when it may have

shielded Foothills’ employment decisions, and not now as

its own affirmative claim.

Plaintiffs recognize the argument that “choice of

clergy by a religious institution is solely an affirmative

defense.” (Resp. at 17:2-3.) However, they cite to no case

refuting this argument. The two cases they cite are

both instances of the ministerial exception applied as

affirmative defense. See Our Lady of Guadalupe Sch. v.

Morrissey-Berru, 591 U.S. 732, 140 S. Ct. 2049, 2064, 207

L. Ed. 2d 870 (2020) (where the ministerial exception was

raised to shield a religious institution from an employment

discrimination claim); see also Kedroff v. St. Nicholas

Cathedral of Russian Orthodox Church in N. Am., 344

U.S. 94, 116, 73 S. Ct. 143, 97 L. Ed. 120 (1952) (where

the ministerial exception was raised to shield a religious

institution from a transfer of power from one sect to

another). Neither party cites to any case where a religious

institution wielded the ministerial exception as a sword,

not a shield. This Court shall not create such a doctrine.

Recognizing that any further amendment with respect

to this claim would be futile because this claim fails as

a matter of law and thus any additional facts could not

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make the claim plausible, any claim raised on the basis of

the ministerial exception must necessarily be dismissed

with prejudice.

iii. Pa rent a l Author it y R eg a rd i ng

Healthcare for Children.

Plaintiffs allege that DSS’ actions against Foothills

when it did not comply with the mask mandate abrogated

Plaintiffs’ free exercise rights under the First Amendment

because Foothills holds a sincerely held religious belief

that parents have total autonomy to make decisions

related to the health of their children. (See, e.g., FAC ¶ 26.)

Plaintiffs argue Foothills’ preschool director was making

decisions in accordance with that belief when she did not

enforce the mask mandate at Foothills’ preschool because

several students’ parents did not wish for their child to

mask at preschool. Such action was in contravention of

DPH orders in place at the time. (Id. ¶¶ 26-30.) Plaintiffs

argue Foothills’ free exercise rights were thus harmed

when DSS revoked its license and removed its preschool

director as a consequence for non-compliance with

provisions of the Act. (Id. ¶ 30; Resp. at 19:3-6.)

For these alleged injuries, Plaintiffs seek declaratory

and injunctive relief. (FAC at 34 ¶¶ 1-2.) Therefore, they

run into the same redressability issue already discussed

by this Court in its last Order dismissing Plaintiffs’

original Complaint. (See ECF No. 19 at 36:11-27.) That

DSS imposed financial penalties on Foothills, closed the

preschool, and removed the preschool director, cannot be

redressed by declaratory and injunctive relief because

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Appendix B

“[n]either injunctive nor declaratory relief may be premised

on past injury.” Schumacher v. Inslee, 474 F. Supp. 3d

1172, 1175 (W.D. Wash. 2020) (citing, inter alia, O’Shea

v. Littleton, 414 U.S. 488, 495-96, 94 S. Ct. 669, 38 L. Ed.

2d 674 (1974)); see also City of Los Angeles v. Lyons, 461

U.S. 95, 105, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). An

exception to this general proscription exists only where

the plaintiff alleges “a sufficient likelihood that [it] will

again be wronged in a similar way.” Lyons, 461 U.S. at 111.

Foothills has not alleged any facts plausibly stating

that there is a sufficient likelihood it will endure a similar

injury in the foreseeable future: enforcement action for

failure to abide by the DPH’s COVID-19 masking orders

applicable to child healthcare centers. Like the original

Complaint, the FAC does not allege circumstances

suggesting the DPH will reinstate these orders. For

this reason, Foothills fails to show the injunctive and

declaratory relief it seeks will redress its alleged injuries

and, therefore, Foothills again falls short of establishing

standing. Having already granted Plaintiffs leave to

amend, this Court shall now dismiss the claim with

prejudice.

iv.

Religious Services Provision

Plaintiffs allege in the FAC that the Act requires

licensed preschools to allow children to attend religious

services of their own choosing. (FAC ¶ 116.) It further

asserts that if Plaintiffs were to allow this, it would be

“irreconcilable with the thousands of years of Christian

practice,” which mandates that children not be allowed

“personal religious autonomy.” (Id. ¶ 117.) Plaintiffs claim

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Appendix B

these requirements “impose[] a substantial burden on the

free exercise” of Plaintiffs’ religion. (Id. ¶ 118.)

Plaintiffs’ allegations in the FAC do not add to the ones

already made in their original Complaint. In evaluating

these allegations in its original Dismissal Order, the

Court held that Plaintiffs do not have standing because

the facts listed in the Complaint, and now again in the

FAC, do not amount to the required injury-in-fact for

a pre-enforcement challenge. (See ECF No. 19 at 29:335:13.) Because Plaintiffs have not provided additional

factual allegations in their FAC, the Court shall not now

reverse itself and find standing where before it found

none. Plaintiffs have not sufficiently alleged their proposed

course of conduct of the mandatory religious curriculum is

proscribed by law but protected by the Constitution, and

have further failed to plausibly allege that the proposed

conduct risks a credible threat of enforcement against

them. For example, Plaintiffs still point to no instances

where daycare centers or preschools were punished under

the Act for teaching a mandatory religious curriculum.

(See generally FAC.) Therefore, having before dismissed

this particular claim with leave to amend, and amendment

now proving futile in plausibly asserting the claim, the

Court dismisses with prejudice Plaintiffs’ free exercise

claim regarding the religious services provision of the Act.

Standing in the Context of Establishment

of Religion

The Establishment Clause of the First Amendment

prohibits the government from making any law “respecting

an establishment of religion.” U.S. Const. Amend. I.

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It is extended to the states through the Fourteenth

Amendment. Freedom from Religion Found. v. Hanover

Sch. Dist., 626 F.3d 1 (1st Cir. 2010).

Plaintiffs’ challenge to the Act on the grounds it violates

the Establishment Clause of the First Amendment is also

a pre-enforcement challenge because their argument lies

in the Act exempting two religious institutions from the

licensure requirement but requiring each of the Plaintiffs

to be licensed under the Act. However, Foothills has

not attempted to regain its license, and both Grove and

Journey have not attempted to obtain daycare licenses in

the first place. (See generally FAC.) Defendants argue that

Plaintiffs’ Establishment Clause claim “fails to identify

any religious-based harm” and therefore Plaintiffs lack

standing to bring the claim. (Mot. at 13:6-8.)

Standing analysis under the Establishment Clause

is uniquely “elusive” where it comes to identifying a

concrete injury “because the Establishment Clause is

primarily aimed at protecting non-economic interests of

a spiritual, as opposed to a physical or pecuniary, nature.”

Cath. League for Religious & C.R. v. City & Cnty. of

San Francisco, 624 F.3d 1043, 1049 (9th Cir. 2010). In

sum

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