FOOTHILL CHURCH v. WATANABE (2021)

United States Court of Appeals, Ninth Circuit.

FOOTHILL CHURCH, a California Non-Profit Corporation; et al., Plaintiffs-Appellants, v. Mary WATANABE *, in her official capacity as Director of the California Department of Managed Health Care, Defendant-Appellee.

No. 19-15658

Decided: July 19, 2021

Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges. Partial Concurrence and Partial Dissent by Judge BRESS

Jeremiah Galus, Kevin Theriot, Alliance Defending Freedom, Scottsdale, AZ, Alexander Miles Medina, Esquire, Medina McKelvey LLP, Roseville, CA, for Plaintiffs-Appellants. Karli A. Eisenberg, Deputy Assistant Attorney General, AGCA-Office of the California Attorney General, Sacramento, CA, Joshua Sondheimer, Hadara Rachel Stanton, Esquire, Deputy Attorney General, AGCA - Office of the California Attorney General, San Francisco, CA, for Defendant-Appellee.

MEMORANDUM **

Foothill Church, Calvary Chapel Chino Hills, and Shepherd of the Hills Church (the “Churches”) appeal the dismissal of their second amended complaint (“SAC”) seeking relief against the Director of the California Department of Managed Health Care (the “Director). We have jurisdiction under 28 U.S.C. § 1291, and we review de novo the district court's dismissal for failure to state a claim. Wilson v. Lynch, 835 F.3d 1083, 1090 (9th Cir. 2016). We affirm in part and vacate in part.

1. We affirm the dismissal of the Churches’ Establishment Clause claim. The Knox-Keene Act and the Director's 2014 Letters do not create a “facial preference” among religions. Hernandez v. Comm'r, 490 U.S. 680, 695, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989). On the face of the SAC, all religious organizations can obtain the same limitation on abortion coverage, and no organization can obtain the more extensive limitation the Churches seek. And although facial neutrality “is not determinative,” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), the Churches have not otherwise alleged a violation under the three-prong test in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). A rule does not violate the Establishment Clause “merely because it ‘happens to coincide or harmonize with the tenets of some or all religions.’ ” Bob Jones Univ. v. United States, 461 U.S. 574, 604 n.30, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983) (quoting McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961)).

AFFIRMED IN PART, VACATED AND REMANDED IN PART.1

For the reasons set forth in my dissent from the court's order vacating and remanding the churches’ Free Exercise Clause and Equal Protection Clause claims, I agree that the district court properly dismissed the churches’ Establishment Clause claim.

FOOTNOTES

1. We vacate and remand the Churches’ Free Exercise and Equal Protection Clause claims in a concurrently filed order.

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