WASHINGTON (LN) — The Supreme Court may decide Thursday in Foothills Christian Ministries v. Johnson whether to consider a case that pits a California statute mandating notice of religious freedom against claims by three churches that the requirement compels speech and burdens free exercise.
The law at issue requires licensed childcare centers to provide notice via signs and written forms informing parents and guardians that their child is “free to attend religious services or activities of his/her choice” and entitled to “visits from the spiritual advisor of his/her choice” – even at religious preschools.
Petitioners argue the statute forces them to parrot the state’s message and strikes of the free speech clause by compelling them to advertise opportunities for teachings from different faiths.
The U.S. Court of Appeals for the 9th Circuit rejected the churches’ challenge, holding that the government-mandated script does not run afoul of the First Amendment because it is “commercial speech.”
Under a 1985 case called Zauderer v. Office of Disciplinary Counsel, the government can require certain disclosures if they are “factual and uncontroversial” and not “unjustified or unduly burdensome.”
The 9th Circuit concluded that California’s statute merely requires regulated entities to provide factual information about state-law requirements.
The churches, however, contend the spiritual-advisor notice is not factual because California says it won’t enforce the actual provision of spiritual advisors, and is controversial because the churches vehemently dispute having to say something that contradicts their beliefs.
The petitioners also argue the statute is not “generally applicable” because it contains more than a dozen statutory exemptions for groups like the YMCA and Boys and Girls Club.
Under Supreme Court precedent in Church of the Lukumi Babalu Aye v. City of Hialeah and Fulton v. City of Philadelphia, exemptions are evidence that a law isn’t evenhanded, which triggers strict scrutiny rather than the rational-basis review the 9th Circuit applied.
The case also raises questions about whether the religious preschools’ expression should be treated as commercial speech place.
In the 2018 case of National Institute of Family & Life Advocates v. Becerra, the court assumed without deciding that a compelled notice was a “commercial disclosure” but struck down the law because it was “controversial.”
The court’s recent decision in Chiles v. Salazar adds another wrinkle, with an 8-1 majority rejecting Colorado’s argument that it could use a licensing scheme to regulate speech in that manner.
Justice Neil Gorsuch wrote that “the First Amendment’s protections extend to licensed professionals much as they do to everyone else.”
Denise Harle, who represents the National Institute of Family and Life Advocates in an amicus brief in support of the petitioners, is counsel for NIFLA in National Institute of Family & Life Advocates v. Becerra.