[00:00:01] Speaker 02: Mr. Snyder. [00:00:04] Speaker 02: Good morning. [00:00:06] Speaker 01: Disappointing to find out that not all these people were here to listen to you. [00:00:18] Speaker 02: May I proceed? [00:00:19] Speaker 02: Yes, please. [00:00:20] Speaker 02: Good morning, Kevin Snyder for Foothills Christian Ministries et al. [00:00:26] Speaker 02: May it please the court, I will attempt to reserve a few minutes of my time [00:00:30] Speaker 02: for rebuttal. [00:00:32] Speaker 02: There are a number of points raised by the by the parties briefs and each deserves this court's attention but unless the court directs otherwise I would like to focus on two issues first on standing and the second on general applicability. [00:00:52] Speaker 02: As to standing there is article 3 injury [00:00:57] Speaker 02: from the act and its regulations in three ways. [00:01:02] Speaker 02: First is the personal rights regulation and form, and that interferes with the church's spiritual formation of children. [00:01:15] Speaker 02: The second is the warrantless searches, the statute that allows for warrantless searches with access to files that could contain clergy penitent notes [00:01:26] Speaker 02: And the third is removal of a minister. [00:01:30] Speaker 01: Can I ask you to focus on the religious services provision with respect to standing? [00:01:37] Speaker 01: In other words, the provision, the part of the regulation that you attack that says children may seek religious services outside. [00:01:48] Speaker 02: Thank you. [00:01:48] Speaker 02: And that's 22CCR 101-223. [00:01:52] Speaker 02: Yeah. [00:01:53] Speaker 01: Let me focus on standing for a moment. [00:01:57] Speaker 01: I'm right in thinking this is a pre-enforcement challenge. [00:02:00] Speaker 01: Am I correct? [00:02:01] Speaker 02: You are correct. [00:02:01] Speaker 01: Nobody's ever tried to enforce this against you. [00:02:04] Speaker 02: Correct, Your Honor. [00:02:05] Speaker 01: And the state says, gee, we read this as giving you the right to require parents to have their children attend religious services at your institution. [00:02:18] Speaker 01: There's no problem with that as far as we're concerned. [00:02:21] Speaker 01: And so we've got no quarrel with you. [00:02:24] Speaker 01: If that is, and that's what they say, [00:02:27] Speaker 01: and they never tried to enforce it against you. [00:02:30] Speaker 01: Why in the context of a pre-enforcement challenge then do you have standing to challenge the constitutionality of that provision? [00:02:38] Speaker 02: Yes. [00:02:38] Speaker 02: That's an excellent question. [00:02:41] Speaker 02: Thank you. [00:02:43] Speaker 02: Give me an excellent answer. [00:02:44] Speaker 02: Yes. [00:02:44] Speaker 02: I'd like to focus, draw the court's attention to Libertarian Party of Los Angeles County versus Bowen. [00:02:52] Speaker 02: And in that case, that was a pre-enforcement challenge. [00:02:56] Speaker 02: In that case, one of the things that occurred was the state published on its website the challenge provision. [00:03:09] Speaker 02: And on its website, it said, [00:03:14] Speaker 02: that violators should be reported to appropriate authorities. [00:03:21] Speaker 01: But isn't this different? [00:03:22] Speaker 01: The state has said, in as clear a terms as they can in its briefing and otherwise, you're not a violator. [00:03:29] Speaker 01: We're not after you. [00:03:30] Speaker 01: We don't think you've done anything wrong. [00:03:32] Speaker 01: The policy you have is fine with us. [00:03:35] Speaker 01: And that's a little different than saying, go out and find us violators and we'll punish them. [00:03:41] Speaker 01: They've told you what you're doing is okay. [00:03:45] Speaker 02: If I can direct the court's attention to this document that was filed with the court on Monday by the state. [00:03:54] Speaker 02: This is the personal rights notice. [00:04:00] Speaker 02: And how this relates to the libertarian case is this. [00:04:05] Speaker 01: Put aside your First Amendment free speech claim for a moment. [00:04:07] Speaker 01: Just focusing on your free exercise claim. [00:04:09] Speaker 02: Absolutely. [00:04:11] Speaker 02: On this form, you'll notice there's some blanks right here. [00:04:16] Speaker 02: It says that with regards to the personal rights information that if you have a complaint, [00:04:28] Speaker 02: you could file with the licensing agency. [00:04:32] Speaker 02: That language parallels the libertarian case where it says violators should be, can be sent. [00:04:40] Speaker 01: But isn't the difference between this case and the libertarian case is that the state has informed us and informed you that what you're doing is okay? [00:04:50] Speaker 02: The state had, we would respectfully disagree with that representation. [00:04:55] Speaker 02: The reason is there is no representation. [00:04:57] Speaker 02: In both Thomas v. Anchorage and in Tingley and in Libertarian, one of the things that this court has said is important is whether or not the state has disavowed enforcement. [00:05:15] Speaker 02: There has been no disavowal here. [00:05:18] Speaker 03: But they said in their brief, [00:05:21] Speaker 03: Operating a daycare center is a page 22 operating a daycare center with a mandatory religious curriculum We're made known to perspective parents in advance of enrollment would not violate the religious services provision That's what you're doing right is operating a daycare center with a mandatory religious curriculum, and you're making it known to parents, so How is that not a disavowal of an intent to take any action against you? [00:05:46] Speaker 03: They've said Exactly what you're doing doesn't violate the rule [00:05:51] Speaker 02: The problem is that under the regulation, a preschool, parochial school, cannot require attendance at a religious service. [00:06:05] Speaker 01: Well, but that's not what they say. [00:06:07] Speaker 01: They say, as long as you get the parents to sign off on this, the school can require the attendance of the children. [00:06:18] Speaker 01: And they say it in their brief. [00:06:20] Speaker 01: if we were to publish a disposition that said the state stipulates that this is what the law is in California, would you have a quarrel with them? [00:06:31] Speaker 01: We would because... Right, because you'd just like us to tell them that although they're right, you're right too? [00:06:39] Speaker 01: I don't understand what we're fighting about. [00:06:42] Speaker 02: We're fighting about this, is that the parochial school has these religious services and activities [00:06:49] Speaker 02: They have a handbook that they interview parents and they give them that. [00:06:53] Speaker 02: But they have to give a conflicting message. [00:06:57] Speaker 01: That's your First Amendment claim. [00:06:59] Speaker 01: Free speech claim. [00:07:00] Speaker 01: I want to turn to that later. [00:07:02] Speaker 01: It's a separate claim. [00:07:03] Speaker 01: But I just want to focus for a moment on how [00:07:06] Speaker 01: Your claim here is that the free exercise clause is being violated because we are not allowed to force compel, force is the wrong word, to require these children to attend religious services because state law has what I think you think is a contrary provision. [00:07:25] Speaker 01: And the state says that's not a contrary provision. [00:07:28] Speaker 01: As long as the parents sign off, you can compel them to attend services. [00:07:32] Speaker 01: So why aren't you putting your hands around your friend's shoulder and saying kumbaya? [00:07:37] Speaker 02: Because there's, let me give you two reasons for it. [00:07:40] Speaker 02: One is that states, our position is that parochial schools have plenary authority over the dissemination of doctrine. [00:07:50] Speaker 02: and spiritual formation, this on its face, and that's my second point, on its face it says that they can't require that. [00:07:59] Speaker 02: And so we think that is the violation of the free exercise clause. [00:08:04] Speaker 01: So your point is that if the state were ever to change its position and enforce this provision in some way against you, you'd have a quarrel with them. [00:08:15] Speaker 01: And they're saying, we don't ever intend to. [00:08:18] Speaker 01: We think what you're doing is fine. [00:08:20] Speaker 01: And in the context of a pre-enforcement challenge, I'm just not sure why we have a real controversy about. [00:08:26] Speaker 01: You have a controversy about other things. [00:08:28] Speaker 01: I want to let you get to them. [00:08:29] Speaker 01: But as to this one, it seems to me both sides have joined hands and said, do what you want to do, Scott. [00:08:37] Speaker 02: Let me, before I move to the next one, if I could just put a cap on this one. [00:08:43] Speaker 02: And that is the district court in both of its opinions cited a statute, it's 1596.792. [00:08:50] Speaker 02: And it says that as a condition for licensure, [00:09:02] Speaker 02: Every single statute, rule, and regulation must be followed. [00:09:08] Speaker 02: And here the churches will not provide this notice because it interferes with their... That's your free speech claim. [00:09:21] Speaker 02: That is also our First Amendment, I'm sorry, our free exercise. [00:09:26] Speaker 02: They're over the first. [00:09:28] Speaker 02: And speech and free exercise are intertwined, of course. [00:09:32] Speaker 02: And when you go to church, the pastor speaks, the priest speaks, that's speech. [00:09:39] Speaker 02: But it's also free exercise of religion. [00:09:41] Speaker 02: So we don't believe you could neatly bifurcate them. [00:09:45] Speaker 01: I want to let you get to your other claims, because I'm not sure I understand your free exercise. [00:09:53] Speaker 01: Let's assume for a moment the state didn't have this religious services provision. [00:09:57] Speaker 01: It wasn't in the rank. [00:09:59] Speaker 01: Would you have a free exercise claim as to the mere requirement of licensure? [00:10:04] Speaker 02: Yes. [00:10:05] Speaker 02: And if I can move to that, that actually goes to general applicability. [00:10:10] Speaker 02: ties directly to free exercise. [00:10:13] Speaker 02: So if I may... Yeah, please. [00:10:15] Speaker 01: I'd like to know, because I'm having trouble, if you take that, the religious services provision out of it. [00:10:22] Speaker 01: It seems to me you're saying that you can't require us to be licensed because we're a religious institution. [00:10:28] Speaker 01: And I'm having trouble understanding that claim, so help me with it. [00:10:30] Speaker 02: So the Supreme Court has said in two cases, Roman Catholic Archdiocese of Brooklyn and Tandon versus Newsom, [00:10:39] Speaker 02: that laws are not generally applicable if they have exceptions. [00:10:46] Speaker 02: In fact, they use the adjective any exception. [00:10:51] Speaker 02: And here we have approximately 19 exceptions. [00:10:55] Speaker 02: And some of those are specifically secular exceptions. [00:11:02] Speaker 02: They don't apply to both secular and sacred. [00:11:07] Speaker 02: Because there are exceptions, the Supreme Court has said that the law is not generally applicable and therefore it is the court's duty to review it under strict scrutiny. [00:11:19] Speaker 01: Don't the exceptions have to be for similarly situated? [00:11:23] Speaker 01: Yes. [00:11:24] Speaker 01: The exceptions here for recreation programs and you're running a daycare center, isn't that a sufficient distinction? [00:11:31] Speaker 02: So the term of art that the Supreme Court is using is comparable, a comparator. [00:11:38] Speaker 02: It's a very similar language. [00:11:42] Speaker 02: One of the exceptions specifically is a preschool, a state-run preschool. [00:11:48] Speaker 02: So that has got to be apples to apples. [00:11:50] Speaker 03: Well, but a state-run facility is subject, sort of separately subject to [00:11:58] Speaker 03: State regulation, right? [00:11:59] Speaker 03: Much more intrusive state regulation than yours. [00:12:02] Speaker 03: So doesn't that make them differently situated in terms of the state interest in this particular form of regulation? [00:12:09] Speaker 02: We would disagree with that for two reasons. [00:12:13] Speaker 02: One is that it's not in the record what their other regulations are under that other, it would be the Department of Education or the Department of Corrections. [00:12:27] Speaker 02: is that under Tandon, you don't look to the corporate structure of the entity, whether it's private or government or public. [00:12:43] Speaker 02: You look at the activities inside, in this instance, outside of the schoolhouse gates. [00:12:50] Speaker 02: And so with that in mind, we believe they are proper comparators. [00:12:55] Speaker 01: Even if some of them are subject to more extensive regulation than you? [00:13:00] Speaker 02: We don't see that in the record. [00:13:03] Speaker 03: And indeed, it's not in the record. [00:13:05] Speaker 03: Well, but I mean, just by its nature, a state-run institution, everything it does is subject to state regulation, because it's the state that's... I mean, I'm not even sure what sense it would make for the state to say, like, it has to give itself a license. [00:13:22] Speaker 02: Let me point you back to Roman Catholic Archdiocese of Brooklyn. [00:13:28] Speaker 02: There you had liquor stores, you had accounting offices, [00:13:32] Speaker 02: You had airports and you had places of worship. [00:13:36] Speaker 02: All of those are under different regulatory schemes, some of which are even government run. [00:13:43] Speaker 02: And so because the Supreme Court is far broader than the state would have us be, they would have us be extremely narrow. [00:13:54] Speaker 02: We see in this situation that there are classrooms, [00:13:59] Speaker 02: Children have recreation. [00:14:01] Speaker 02: They have crafts, games, music. [00:14:04] Speaker 02: That's the same essential things that are happening in the other programs. [00:14:09] Speaker 02: But they don't require a licensure. [00:14:12] Speaker 02: They are exempt. [00:14:13] Speaker 01: Let me understand your clemeness, because it has two components. [00:14:17] Speaker 01: One component, at least in your brief, is we're religious. [00:14:20] Speaker 01: You can't license us at all. [00:14:23] Speaker 01: The second one is, you can license us, but you've got to treat us the same as similarly situated people. [00:14:29] Speaker 01: It's really only the second claim you're making, right? [00:14:32] Speaker 01: You're not really claiming that the state can't license all daycare centers. [00:14:38] Speaker 02: They don't license all daycare centers. [00:14:39] Speaker 01: That's not what I'm asking you. [00:14:41] Speaker 01: I'm asking you whether or not you are making a claim that the state lacks the ability to license all daycare centers, religious or not. [00:14:49] Speaker 02: They don't lack the ability. [00:14:51] Speaker 01: Okay, so your claim is therefore based on this supposed discrimination or exemption, right? [00:14:56] Speaker 02: Yes. [00:14:57] Speaker 01: Okay. [00:14:57] Speaker 01: I just want to understand it. [00:14:59] Speaker 01: So you're not making a general claim that because we are a religious institution, the First Amendment protects us from licensure. [00:15:07] Speaker 02: No, we're not making that universal claim. [00:15:10] Speaker 02: We're talking about this act. [00:15:11] Speaker 01: I couldn't tell from your brief. [00:15:13] Speaker 01: I want to give you time to get to your free speech claim. [00:15:17] Speaker 01: I'm sorry. [00:15:18] Speaker 02: One very brief thought in that is that the church has already run [00:15:28] Speaker 02: Sunday schools on the weekend doing essentially the same thing without licensure, so If they could do that if they could protect children there they could protect children here going to the free speech claim It is really I take it a compelled speech. [00:15:47] Speaker 02: It is a compelled speech claim I [00:15:49] Speaker 02: And again, both the state and the lower court unfortunately ran away from the text. [00:15:56] Speaker 02: And you start with the text, and if it's clear, you end the inquiry. [00:16:01] Speaker 02: The state is requiring the churches to put forward a view that they disagree with. [00:16:10] Speaker 02: They believe that churches have plenary authority on dissemination of doctrine and spiritual formation within their campuses. [00:16:19] Speaker 02: And this requires them to change the conversation. [00:16:25] Speaker 02: They could tell the parents about their positions, about the church's programs, but then they have to give a contrary message by the state. [00:16:37] Speaker 01: Haven't each of the parents that you deal with already agreed that they will have their children [00:16:46] Speaker 02: taught religious subjects at your school and nowhere else? [00:16:58] Speaker 02: Parents could fall into apostasy. [00:17:00] Speaker 01: They start with agreeing, but then later... But you're not claiming that parents lack the ability to say, okay, we agreed to this, we hate the school, we're pulling our kids and we're going to take them somewhere else. [00:17:11] Speaker 02: Not pulling our kids. [00:17:12] Speaker 02: We're saying we don't want them to get engaged. [00:17:14] Speaker 01: Doesn't your contract with the parents require that if their kids attend, [00:17:20] Speaker 01: your daycare center, they also attend your services. [00:17:24] Speaker 02: That's true, but the contract would be inconsistent with the regulation, and if you violate the regulation, you lose a licensure. [00:17:33] Speaker 01: Don't you also lose the parent at that point? [00:17:35] Speaker 01: I mean, what you say is, sorry, you're not sending your kid to these services, you're out of our daycare center. [00:17:43] Speaker 02: If the school did that, then the school could lose its license and would be unqualified. [00:17:48] Speaker 01: Now I'm back to the beginning because the state says, you want to do that, that's fine with us. [00:17:53] Speaker 01: We don't have a problem with it. [00:17:54] Speaker 02: The statute doesn't say that. [00:17:56] Speaker 02: The state and the district, this is the fundamental problem with the district court and the state's position is they don't want to deal with the language that the legislature and the regulatory body has given them. [00:18:09] Speaker 02: We think that that is an error. [00:18:10] Speaker 02: If I may reserve the last two minutes. [00:18:13] Speaker 02: You may. [00:18:13] Speaker 02: Thank you. [00:18:24] Speaker 03: Mr. Grabarsky. [00:18:30] Speaker 04: Good morning and may it please the court, Supervising Deputy Attorney General Todd Grabarsky for the State of California on behalf of Appellees. [00:18:37] Speaker 04: I'd like to start with [00:18:38] Speaker 04: Judge Hurwitz's question, whether there actually is a harm from the licensure requirement or the religious services provision. [00:18:46] Speaker 04: We agree with the colloquy that you are engaging in that plaintiffs can operate their desired preschools and daycare centers with a mandatory religious curriculum. [00:19:00] Speaker 04: That engages in requiring children to attend religious services. [00:19:05] Speaker 04: to receive religious teachings or spiritual advice. [00:19:09] Speaker 04: Essentially, we have no quarrel with that. [00:19:12] Speaker 03: Just to clarify the very last issue that came up. [00:19:18] Speaker 03: When your friend was up there, so if the you know the parent agrees in advance like but this When the my child attends this daycare center there is a mandatory religious service should the parent had some later time decide you know I don't want my child to go to these services anymore the daycare center on your view would be within its rights to say like if that's your view we're kicking you out and [00:19:41] Speaker 04: Correct that's Yes, your honor that's consistent that's DSS position that's consistent with the law and that The state is comfortable being held to that position Yes, we've represented that in our briefs before this court before the district court as well. [00:20:06] Speaker 01: Let me ask you about [00:20:10] Speaker 01: the free speech claim. [00:20:15] Speaker 01: You're requiring them to post a notice. [00:20:18] Speaker 01: There's some case law out there about this topic. [00:20:22] Speaker 01: And the notice says, essentially, the kids are free to go to other religious services, which is not exactly matches up with the facts on the ground, given the contract between the parents. [00:20:40] Speaker 01: Tell me why this doesn't violate the free speech clause. [00:20:44] Speaker 01: The requirement of posting of a notice that really is inapplicable because parents have now contracted their way out of this right. [00:20:57] Speaker 04: The notice is not inapplicable. [00:21:00] Speaker 04: So first, it's consistent with the free speech clause because the notice is [00:21:05] Speaker 04: Provide, you know, requiring the preschools and daycares to provide notice of duly enacted laws and regulations similar to, you know, wage and hour or labor laws that restaurants or other places of employment are required to provide notice of. [00:21:18] Speaker 01: Is it your position that as long as the notice is an accurate refraction of state law, there's no free exercise, no free speech claim? [00:21:26] Speaker 04: Partially, and in addition to that, what the notice is requiring the preschools to provide [00:21:32] Speaker 04: is consistent with the way that at least the plaintiffs in this case contend that they want to operate their preschools. [00:21:38] Speaker 04: So the notice does not say that children have the right for themselves to opt out of mandatory religious services. [00:21:47] Speaker 04: Rather, it's the parents are the ones that get to decide. [00:21:50] Speaker 04: So it's just like when a parent is deciding whether to enroll their child at a preschool, [00:21:56] Speaker 04: They go through the enrollment process, the preschool notifies them and say, look, it's a religious preschool. [00:22:01] Speaker 04: Part of that is mandatory religious services that children cannot opt out of. [00:22:06] Speaker 04: Do you agree to abide by this requirement of the preschool? [00:22:10] Speaker 04: If the parent says yes. [00:22:12] Speaker 04: They'll sign their kid up, you know, enter a contract with the preschool, and that child will have to attend religious services. [00:22:22] Speaker 01: If the parent... Does the notice imply, contracts aside, that as a parent, I could say, I want to keep my kid into school, but I want to send him to Buddhist religious services? [00:22:35] Speaker 01: I mean, it does say you have a right to seek independent religious services, if you will. [00:22:42] Speaker 01: We know these parents really don't because they've contracted it away. [00:22:46] Speaker 01: Isn't this notice, in effect, requiring them to say something that's not true at their school? [00:22:54] Speaker 04: No, Your Honor. [00:22:55] Speaker 04: The notice could apply in a situation where a preschool does not [00:23:00] Speaker 01: Warn parents or give notice to parents upon enrollment that they are going to engage in religious This is a claim brought by this preschool So I'm not worried about whether or not this notice might be okay with respect to other schools that don't have its beliefs or requirements of mandatory service Mandatory attendance what they're saying is we have a requirement of mandatory attendance You signed up for it, but this notice tells you you have a right to [00:23:30] Speaker 01: go seek services elsewhere, and it doesn't remind you that that ain't true here. [00:23:36] Speaker 04: It's not merely the contract, the agreement between the parents and the preschool that parents agree to send, you know, to abide by the mandatory conditions of enrollment, that there are statutes and regulations that allow for preschools [00:23:50] Speaker 04: to create a curriculum and impose mandatory conditions of enrollment. [00:23:56] Speaker 04: Are they citing you briefly? [00:23:58] Speaker 04: Yes, and I can repeat them, 22 code of regs, 101218 and 101219. [00:24:05] Speaker 04: And in addition to that, health and safety code 1597.01, subsection A, [00:24:12] Speaker 04: provides that when licensing, when undergoing the licensing review process, DSS, the Department of Social Services, cannot engage in a review of the educational content of a preschool's curriculum. [00:24:27] Speaker 04: So kind of these statutes all working together, kind of as the district court had put it, strike this delicate balance between respecting the religious rights of the preschool [00:24:39] Speaker 04: and also the religious rights of the families and children. [00:24:42] Speaker 04: Again, I know that this preschool is saying that we do have a mandatory religious curriculum, but I think explaining in part what the purpose of the religious services provision, it provides that if there were a preschool that did not say up front, okay, we're going to have mandatory religious services, the parent family signs their kid up, and later on, [00:25:04] Speaker 04: a teacher or the preschool director says, okay, you know what, we're actually now going to start imposing our religion and teaching the children our religion. [00:25:14] Speaker 04: At that point, a parent can cite to the religious services provision and say, look, our religion is different. [00:25:20] Speaker 04: We didn't sign up. [00:25:21] Speaker 01: This is not a facial challenge for all circumstances. [00:25:25] Speaker 01: This is a challenge, a pre-enforcement challenge, as applied to them. [00:25:29] Speaker 01: So I'm not sure what difference it makes that this provision would make perfect sense in a different [00:25:35] Speaker 04: Circumstance I understand that I'm trying to provide color to the rationale behind why the religious service provision exists And I think in council can correct me if I'm wrong, but I think they are bringing a face of the facial challenge So do you think they would be complying with? [00:25:50] Speaker 03: requirement if they they put up a notice that said you know the state requires us to tell you that state law provides you know the required disclosure and [00:25:58] Speaker 03: But you should be aware that given what you agreed to in your enrollment contract, that right does not apply to you. [00:26:06] Speaker 04: I think that would be allowed because it's not, sorry, it's not that that provision doesn't apply at all. [00:26:14] Speaker 04: It's rather citing to other provisions and regulations. [00:26:18] Speaker 04: This preschool can impose a mandatory religious curriculum. [00:26:22] Speaker 04: We've notified parents and families that this is part of our preschool. [00:26:28] Speaker 04: So the religious services provision provides and it comports with our practice of having a mandatory religious curriculum. [00:26:37] Speaker 03: But then what in the context, I mean, what is the state's interest in making this school post a notice that seems to [00:26:48] Speaker 03: If you read the whole thing, as I just described, the notice with the addendum, if you read it and understand all of it, you will decide that it conveys no useful information to you. [00:27:01] Speaker 03: So what is the point? [00:27:04] Speaker 04: Well, I respectfully disagree that it conveys no useful information. [00:27:09] Speaker 04: It reminds parents that ultimately they are the decision makers about their children's attendance at religious services, and that includes when they made that decision by signing their children up to the preschool that contains a mandatory religious curriculum. [00:27:25] Speaker 04: perhaps later on the church, maybe when they sign up. [00:27:29] Speaker 04: And again, I'm thinking about hypotheticals that aren't ripe and aren't part of this case. [00:27:34] Speaker 04: But I could imagine a situation where preschool of one religion says, OK, we're going to have this mandatory religious curriculum, and then alters that curriculum. [00:27:42] Speaker 04: And then the parents have the notice that, OK, we didn't sign up for this religious education. [00:27:48] Speaker 04: We signed it up for the first one. [00:27:49] Speaker 04: So we still retain our rights under the religious services provision. [00:27:54] Speaker 04: Again, that's not what's going on here. [00:27:55] Speaker 04: But how the plaintiffs describe what they want to do, how they want to operate their preschools, that's fine. [00:28:05] Speaker 04: We have no quarrel with that. [00:28:07] Speaker 04: And providing the notice, it doesn't infringe on their free speech rights because it notifies a duly enacted regulation that, again, we think comports with, and we've represented many times, comports with what the plaintiff preschools are trying to accomplish here. [00:28:26] Speaker 01: Can you address their licensing claim and tell me why the in your view the exemptions don't? [00:28:36] Speaker 04: In effect make this a discriminatory As an initial matter they don't have standing to bring that claim there doesn't appear to be any conflict between the requirement that they be licensed with any stated or religious belief that they've [00:28:51] Speaker 04: stated in their complaint. [00:28:52] Speaker 04: They don't raise any religious objections to the fact of licensure. [00:28:57] Speaker 04: They don't say, here's our religious practices. [00:29:00] Speaker 04: The mere act of applying for a license and obtaining a license would conflict with our religion. [00:29:06] Speaker 01: Well, I think there's an establishment clause claim that sort of goes like this, not the facts in this case. [00:29:15] Speaker 01: All religious schools are required to be licensed. [00:29:19] Speaker 01: Many non-religious daycare centers are not required to be licensed. [00:29:23] Speaker 01: They're similarly situated and therefore require licensure of the religious ones. [00:29:30] Speaker 01: It violates the First Amendment. [00:29:34] Speaker 01: I think that's the claim they're trying to make. [00:29:36] Speaker 01: So tell me why that fails. [00:29:39] Speaker 04: It's not true, Your Honor, that all religious programs... Daycare centers run by religious organizations must be licensed. [00:29:49] Speaker 01: Many other daycare centers run by non-religious organizations have to be licensed. [00:29:54] Speaker 01: But they say things that are effectively daycare centers that are all secular are not required to be licensed. [00:30:03] Speaker 01: Therefore, we have a claim. [00:30:05] Speaker 01: Why don't they have a claim? [00:30:08] Speaker 04: So I don't think that they've framed their establishment clause claim in that way. [00:30:12] Speaker 04: I know, I'm trying to defend. [00:30:14] Speaker 04: That's not how they characterize their establishment clause claim. [00:30:16] Speaker 04: So that's why that, I suppose, wouldn't work for these firms. [00:30:20] Speaker 01: Or could I read it that way? [00:30:21] Speaker 01: I think I could. [00:30:21] Speaker 01: So tell me if I read it that way why it wouldn't be a good claim. [00:30:25] Speaker 04: They would have to show, again, when we're talking about free exercise, they have to show, first of all, they have to demonstrate Article III standing, that they are harmed, suffer an injury, in fact, that's caused by the statute. [00:30:39] Speaker 00: Well, their discrimination on the basis of religion is an injury. [00:30:44] Speaker 00: So their allegation is that the exemption discriminates against religious daycare programs. [00:30:53] Speaker 00: We can move on from, let's just assume standing injury for the moment and address the merits of the claim. [00:31:00] Speaker 04: Yes, Your Honor, so assuming but not conceding. [00:31:02] Speaker 00: The question is whether the exemption here is discriminatory, right, takes it out of the neutral and generally applicable law. [00:31:12] Speaker 04: I understand. [00:31:13] Speaker 04: So assuming injury, not conceding, none of the exemptions described in that plaintiffs identify or that are listed in the statute undermine California's interest in protecting the health, safety, and welfare of young children and uniquely vulnerable. [00:31:32] Speaker 04: We're talking about babies and almost newborns. [00:31:35] Speaker 04: None of the exemptions undermine California's interest in protecting those people. [00:31:39] Speaker 04: in a similar or greater degree than having an unlicensed private preschool or daycare center that plaintiffs wish to operate. [00:31:47] Speaker 04: So take state preschools, for example, as Judge Miller had identified. [00:31:52] Speaker 04: Those preschools are subject to an entirely different, though no less stringent, regulatory regime. [00:31:59] Speaker 00: We have, I think- In code, you know, statutes, regulations. [00:32:05] Speaker 04: Yes, so we've cited those on page 39 of our answering brief. [00:32:10] Speaker 04: You know, I can walk, health and safety code 1596.79. [00:32:13] Speaker 04: They're in the brief, okay. [00:32:17] Speaker 04: Yes, Your Honor. [00:32:18] Speaker 04: And in addition to that, the state preschools only serve, the state preschools that are exempt from licensure by DSS only serve children aged four and up. [00:32:31] Speaker 04: So that, [00:32:33] Speaker 04: You know, children age four and up, I'm not saying that there aren't risks to them, but the risks of children under four and the risks to children, especially under two, are, you know, vastly different and just of a different nature that, you know, babies have virtually no independence. [00:32:49] Speaker 04: no ability to care for themselves. [00:32:51] Speaker 04: There need to be constant vigilance when caring for children that young. [00:32:56] Speaker 04: In addition, care and supervision that's required by daycare centers and preschools require, in addition to just... [00:33:05] Speaker 04: making sure that the babies remain alive and remain safe requires diapering, toilet training, grooming, administration of medication that's certainly not as comprehensive as caring for a child age four and up. [00:33:22] Speaker 01: Can I return to the free speech claim for a moment? [00:33:26] Speaker 01: It strikes me in this case that what their claim really is on the free speech side is this notice [00:33:35] Speaker 01: is misleading, because what we'd like to say in addition is, but by the way, parents, if you want to exercise this right, you're going to have to pull your kid out of this school. [00:33:48] Speaker 01: It's a little different than most free speech claims in that sense. [00:33:52] Speaker 01: Would they be violating state law if they put up a parallel notice next to it that said, after you read this, we want you to know [00:34:01] Speaker 01: You've contracted with us and you really don't have the right to keep your kid in this school and have services, receive religious instruction elsewhere. [00:34:11] Speaker 01: Would that be compliant with state law? [00:34:13] Speaker 04: Again, I think this is similar to Judge Miller's question. [00:34:16] Speaker 04: I think stating, look, you actually, we actually don't need to comply with a duly enacted law regulation. [00:34:22] Speaker 04: Maybe that would cross the line. [00:34:25] Speaker 01: No, no, that's not what I'm saying. [00:34:27] Speaker 01: There's a duly enacted law, but you've waived your way, you know, you've in effect, if you want to take advantage of that law, that's terrific. [00:34:35] Speaker 01: the penalty will be that you have to take your kid out of the school. [00:34:39] Speaker 01: Could they put a parallel sign up right next to that sign that said that without violating state law? [00:34:45] Speaker 04: I think so, Your Honor, that if they remind the parents, you know, whether alongside the notice in the form or somehow otherwise, [00:34:55] Speaker 04: In addition to the religious services provision, there are other laws and regulations that permit. [00:35:01] Speaker 01: No, I'm not talking about laws and regulations. [00:35:02] Speaker 01: I'm saying you have agreed with us that your child will attend mandatory services here or instruction. [00:35:13] Speaker 01: And if you don't want that, you've got to leave the school. [00:35:17] Speaker 04: I think that would be fine referencing the other laws and regulations that permit such a scheme. [00:35:22] Speaker 03: What if they just put the transcript of like the first minute of our colloquy? [00:35:28] Speaker 03: at this argument where you said that they can require parents to do that and print that and put it on a sign and put it next to the mandatory sign. [00:35:39] Speaker 03: Would that be okay? [00:35:40] Speaker 04: Again, I think that would be okay. [00:35:43] Speaker 04: This is not an issue because that's not what plaintiffs are claiming. [00:35:46] Speaker 01: Well, see what they're claiming is you're requiring us to say something we don't want to say because it is misleading. [00:35:54] Speaker 01: We're telling parents, we're posting a notice as if [00:35:57] Speaker 01: people attending this school had the right to send their children elsewhere for religious instruction, but that's not the case. [00:36:04] Speaker 01: And we don't want to have to say something misleading to our patrons. [00:36:09] Speaker 01: We would like to be, either not to say anything, or, I'm making this up, maybe your friend doesn't like it, we'd like to be able to say, but this doesn't apply to you. [00:36:20] Speaker 01: So I'm asking if they said that, would they be violating state law? [00:36:25] Speaker 04: With respect, I don't think it's misleading. [00:36:27] Speaker 04: I don't think the religious services provision in the context of the other laws, in the context of the contract that the parents enter into with the family, you know, with the preschoolers. [00:36:37] Speaker 04: Except my premise, but it answered my question. [00:36:40] Speaker 04: Again, I think that would be okay because the state has no quarrel, again, with a preschool imposing mandatory religious curriculum and [00:36:52] Speaker 04: I suppose kicking a child out if later on the parents apostatize or, I don't mean to be harsh, but reminding the parents that this is part of the curriculum, this is what they signed up for. [00:37:04] Speaker 04: And if that continues to be a problem, then they can ask the child to leave. [00:37:10] Speaker 04: So in that sense, the notice of the religious services provision and if they wanted to remind the families of the contract and that there is a mandatory religious curriculum, [00:37:22] Speaker 04: I think that would be okay because we have no quarrel, again, with this setup that requiring children, notifying parents in advance, requiring children to attend, and if parents later on decide they don't want to attend, [00:37:39] Speaker 04: the preschool can ask them to leave. [00:37:41] Speaker 04: Again, I think the notice is it's not entirely useless information and it's not entirely inapplicable. [00:37:48] Speaker 04: I could imagine a situation where again a preschool changes their curriculum or changes to a different religion. [00:37:56] Speaker 04: And it kind of exceeds what was written in the contract. [00:37:59] Speaker 04: So it is important for the parents to continue to be notified that if that's the situation, they can say, like, look, this isn't what we signed up for. [00:38:08] Speaker 04: We don't want our children to attend this new religious services of this new religion that we hadn't signed up for. [00:38:20] Speaker 04: Planners had referenced their Sunday schools that said and I think in the brief they contend that the Sunday schools provide identical services as preschools and daycares. [00:38:29] Speaker 04: It's simply not true or at least that's not it's not plausibly alleged in the complaint. [00:38:34] Speaker 04: Sunday schools are limited, at least all they've said is that at Sunday schools there is engage in activities, religious instruction. [00:38:41] Speaker 04: They don't say that the Sunday schools engage in the comprehensive care and supervision, diapering, toilet training, health and safety monitoring, medication administration that preschools and daycares are required to provide. [00:38:57] Speaker 04: All right, I see my time is up if there's no other questions. [00:38:59] Speaker 04: Looks like there are not. [00:39:00] Speaker 04: Thank you. [00:39:01] Speaker 04: Thank you. [00:39:06] Speaker 03: Your bottle. [00:39:08] Speaker 02: Just briefly, beginning with speech, the state says it's merely the regulation, and we're talking about the personal rights regulation posting, is merely putting forward duly enacted laws. [00:39:26] Speaker 02: Under the National Institute of Family Advocates versus Becerra, that's the Supreme Court case known as NIFLA, [00:39:35] Speaker 02: It says it has to be non-controversial. [00:39:37] Speaker 02: And here, this is not non-controversial. [00:39:41] Speaker 03: What do you think, I mean, in any compelled, I mean, by definition, in any compelled speech case, there's somebody who doesn't want to say the thing that they're being compelled to say. [00:39:54] Speaker 03: I mean, that's why we have a case about it. [00:39:56] Speaker 03: So surely by controversial, they meant something more than just somebody doesn't want to make the disclosure. [00:40:03] Speaker 03: So what do you think is the test for whether something's controversial? [00:40:07] Speaker 02: I think it has to be a common sense test. [00:40:10] Speaker 02: In NIFLA, the court said this is, we're talking about abortion. [00:40:14] Speaker 02: Abortion is controversial and they didn't say there's a specific three-pronged test for that. [00:40:21] Speaker 02: Here we're talking about religion. [00:40:23] Speaker 01: Religion is... We're not talking about, see, it's not controversial in this case. [00:40:29] Speaker 01: They're saying there is a state law that provides this. [00:40:32] Speaker 01: Luckily for you folks at your school, you don't have this right because you're going to have to take your kid out of the school if you do it. [00:40:43] Speaker 01: Everybody understands that. [00:40:44] Speaker 01: Why is it controversial? [00:40:45] Speaker 02: It's controversial because the churches have complete authority over the dissemination of doctrine and spiritual formation. [00:40:55] Speaker 02: This regulation says parents can veto that. [00:41:00] Speaker 02: We think that's controversial. [00:41:02] Speaker 02: I think you had a couple other points if you can briefly. [00:41:09] Speaker 02: As far as the exemptions, [00:41:13] Speaker 02: The council said it was only applied to children four and over. [00:41:19] Speaker 02: That's not correct. [00:41:20] Speaker 02: I would point the court to the way to remember it is GMO. [00:41:25] Speaker 02: Subsections GM and O are the secular provisions and those do apply to children under four. [00:41:34] Speaker 02: And as far as Sunday schools, the complaint says that what they do in Sunday school is materially the same. [00:41:42] Speaker 02: as what's done in their preschools Monday through Friday. [00:41:46] Speaker 02: The court under a 12b6 standard has to accept the allegations in the complaint as gospel truth and with that... So is your argument that the state under regulates? [00:41:56] Speaker 01: That it should be... that if we're regulating Sunday school it would be okay? [00:42:00] Speaker 02: No. [00:42:01] Speaker 01: And the reason I think... I mean I think there's good reasons why they don't want to regulate Sunday school. [00:42:06] Speaker 02: I think there are great reasons. [00:42:07] Speaker 02: One is warrantless searches. [00:42:09] Speaker 02: The other is they don't mirandize people. [00:42:12] Speaker 02: The other is you would have to post a regulation that said, by the way, you could veto the church's rights on dissemination of doctrine and spiritual formation. [00:42:27] Speaker 02: Unless there are other questions, I'll submit. [00:42:30] Speaker 03: Thank you. [00:42:30] Speaker 03: Thank you. [00:42:30] Speaker 03: We thank both counsel for their helpful arguments. [00:42:33] Speaker 03: The case is submitted and we are adjourned. [00:42:47] Speaker 00: This court for this session stands adjourned.