Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not reflect the official opinions of SCOTUSblog.
On Thursday, the court may decide, in Foothills Christian Ministries v. Johnson, whether to consider an important question: Can the government force religious preschools to promote other religions? California and the U.S. Court of Appeals for the 9th Circuit say yes. But three California churches argue that this burdens both their free exercise of religion and free speech.
The law at issue is a California statute requiring 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.
These interconnected free-speech and free-exercise issues lead to three questions presented in the Foothills cert petition. First, petitioners ask whether “California’s religious services provision, requiring the posting of signage and handing out of written copies to parents, compel[s] speech in violation of the First Amendment.” That is, can the state compel such speech in the first place? Second, the petition asks whether “the religious services provision with its spiritual advisor notice interfere with the free exercise rights of a parochial school” – a question that underscores the church-autonomy issues at stake when the government instructs religious organizations about what sort of religious programming they must offer. And third, petitioners ask whether the statute, which contains several exemptions, is “generally applicable” – a key question that can determine the level of scrutiny the court applies (that is, what burden must be met to show the law is unconstitutional) and may make the difference in whether the law survives.
Let’s begin with the religious-freedom aspect of the case. Under the free exercise clause, which generally prohibits government interference with religious exercise, it might seem obvious that a state can’t mandate that petitioner Foothills Christian Church suggest, provide, or otherwise accommodate a Muslim imam, Buddhist lama, or Jewish rabbi to spiritually advise its schoolchildren. Nor would the free exercise clause permit the state to make the church say it’s going to do so. Either one infringes religious liberty by forcing a faith-based organization to point people to conflicting religious doctrines.
But the 9th Circuit saw the issue differently. Specifically, the panel accepted California’s argument that the statute is neutral and generally applicable, and therefore subject only to rational-basis scrutiny (the easiest showing to make). That legal test comes from the (increasingly disfavored) precedent Employment Division v. Smith, which gives a pass to neutral and generally applicable laws regardless of how much they burden the free exercise of one’s religion. In other words, because the statute applies evenhandedly and without reference to or hostility toward a particular religion, it need only be rationally related to a legitimate state interest (such as children’s health and safety) in order to stand.
The churches, on the other hand, question the premise that the law is evenly applied, pointing to more than a dozen statutory exemptions for groups like the YMCA, Boys and Girls Club, and similar organizations. And that aligns with the Supreme Court’s decisions in key free-exercise cases like Church of the Lukumi Babalu Aye v. City of Hialeah and Fulton v. City of Philadelphia, both of which demanded a showing of strict scrutiny to laws that allowed secular exemptions while forcing religious adherents to comply. In Church of the Lukumi, a city ordinance prohibiting animal sacrifice was not generally applicable when it targeted certain religious rituals while allowing animal slaughter for other purposes, like hunting, fishing, or commercial food processing. Similarly, in Fulton, the city policy required adoption agencies to place children with same-sex couples, but allowed the presiding government official discretion to waive that requirement. Bottom line: exemptions are evidence that a law isn’t evenhanded; and a law’s evenhandedness is the touchstone for whether a religious burden is protected strictly or weakly under the First Amendment.
But the Foothills petitioners argue that California’s statute burdens more than the church preschools’ free exercise; they say it impermissibly compels their speech, too. As noted, to operate as preschools, the churches must agree to prominently post signs advertising that children are “free to attend religious services or activities of his/her choice.” The churches must also provide printed handouts with the same information and obtain parent or guardian signatures acknowledging the advertised opportunity for teachings from different faiths. Petitioners challenge these requirements as forcing them to parrot the state’s message and striking at the heart of the free speech clause.
Again, the 9th Circuit disagreed. It held that this government-mandated script doesn’t 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.” According to the 9th Circuit, California’s statute merely requires regulated entities to provide factual information about state-law requirements.
Of course, one might say – and the church petitioners argue – that the spiritual-advisor notice is not factual (California says it won’t enforce the actual provision of spiritual advisors) and is controversial (the churches vehemently dispute having to say something that contradicts their beliefs). What’s more, the churches contend that it is both unjustified and burdensome to be forced to redirect enrolled children and their families to other denominations or faiths.
But this raises a larger point: Should the religious preschools’ expression be treated as commercial speech in the first place? A form of the “commercial speech” doctrine was first recognized as a category of less-protected speech in 1942, in a challenge to a city ordinance banning public distribution of handbills. Since then, the court has defined commercial speech as speech that does “no more than propose a commercial transaction,” or confined it to commercial advertising or solicitations, like the labeling of products for sale. Government regulations on such speech are viewed more leniently than “private” speech.
In practice, though, the court has extended the commercial-speech standard to speakers who were not selling or commercially soliciting anything. In the 2018 case of National Institute of Family & Life Advocates v. Becerra, for example, a California law required licensed pro-life pregnancy centers to post signs and distribute notices telling women how to obtain free abortions. California justified the law largely on the grounds that the pregnancy centers were licensed by the state and could, in the state’s view, therefore be required to post certain information. The court assumed without deciding that the compelled notice was a “commercial disclosure.” (Because the majority found the compelled notice “controversial,” it nevertheless declined to apply Zauderer and instead concluded that the law likely failed a higher level of scrutiny, reversing the 9th Circuit’s approval of the law.)
In this way, NIFLA blurred the line between commercial and private speech. Is a message “commercial” when it is not soliciting a transaction or advertising? Is speech by nonprofit entities “commercial”? The court has not said. And that could matter for the Foothills petitioners. The religious preschools’ speech is neither proposing a commercial transaction nor advertising – they are categorically required to post signs and distribute written notices about religious services and spiritual advisors regardless of when, what, or whether they are saying anything.
The court’s decision this term in Chiles v. Salazar adds another interesting wrinkle. In that case, Colorado had prohibited licensed mental health counselors from engaging in talk therapy aimed at aiding clients who wanted to resist their same-sex attractions or transgender identity. The 8-1 majority rejected Colorado’s argument that it could use a licensing scheme to regulate speech in that manner. Harkening back to NIFLA, the Chiles majority explained that while there are a few categorical exceptions to strict scrutiny for speech regulations, not one “‘turn[s] on the fact’ that a licensed professional happens to be speaking.”
California makes an argument similar to that of Colorado, namely that the state can condition licensure – here of preschool facilities – on adhering to certain related speech requirements. That argument has not fared well at the court in recent years. As in NIFLA and Chiles, the state is using the licensing of facilities as a hook to control licensees’ speech through its “religious services” statute. Because the Chiles decision emphasized that licensing itself does not diminish the licensee’s First Amendment rights, the court should analyze the Foothills case as involving fully protected speech. As Justice Neil Gorsuch put it, “the First Amendment’s protections extend to licensed professionals much as they do to everyone else.”
All that said, perhaps the cleanest path – one petitioners and a few amici urge – is summary reversal (deciding the case without full briefing or oral argument) based on NIFLA. The court could grant the petition, vacate the 9th Circuit’s decision, and send the case back to the lower court in light of NIFLA, signaling that the 9th Circuit should have followed the reasoning in that case and struck down the compelled notice under heightened scrutiny because it was not “factual and uncontroversial.” That result would protect free speech and religious liberty. But the doctrinal questions raised in Foothills, especially those regarding commercial speech and religious institutions, would remain – and are likely to arise again sooner rather than later.
Disclosure: Denise Harle represents the National Institute of Family and Life Advocates D/B/A NIFLA in an amicus brief that the organization filed in support of the petitioners and was counsel for NIFLA in National Institute of Family & Life Advocates v. Becerra.