NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOOTHILL CHURCH, a California Non- No. 19-15658
Profit Corporation; et al.,
D.C. No.
Plaintiffs-Appellants, 2:15-cv-02165-KJM-EFB
v.
MEMORANDUM*
MARY WATANABE*, in her official
capacity as Director of the California
Department of Managed Health Care,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Argued and Submitted November 20, 2020
Submission Vacated November 24, 2020
Resubmitted July 19, 2021
San Francisco, California
Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge BRESS
*
Mary Watanabe is substituted for her predecessor, Michelle Rouillard,
as Director of the California Department of Managed Health Care. Fed. R. App. P.
43(c)(2).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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 (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 (1993), the
Churches have not otherwise alleged a violation under the three-prong test in
Lemon v. Kurtzman, 403 U.S. 602 (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 (1983) (quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961)).
2
AFFIRMED IN PART, VACATED AND REMANDED IN PART.1
1
We vacate and remand the Churches’ Free Exercise and Equal Protection Clause
claims in a concurrently filed order.
3
FILED
JUL 19 2021
Foothill Church v. Watanabe, No. 19-15658
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BRESS, Circuit Judge, concurring in part in the judgment and dissenting in part:
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.