Metropolitan News-Enterprise


Thursday, September 14, 2023


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Ninth Circuit:

School District Improperly Stripped Group of Recognition

Majority Says Free Exercise Clause Was Violated in Revoking Christian Group’s Official Standing at High School Because Its Leaders Must Affirm Disapproval of Sex Outside of a Marriage Between Man and Woman


By a MetNews Staff Writer


A school district impermissibly revoked the status of a Christian faith group as an official student organization based on the group’s requirement that its leaders affirm a belief that sexual relations should take place only within the confines of a marriage between a man and a woman, the Ninth U.S. Circuit Court of Appeals held yesterday in an en banc opinion, declaring that the district’s action violated the Free Exercise Clause of the First Amendment.

The action was brought by the Fellowship of Christian Athletes (“FCA”) against the San Jose Unified School District. District Court Judge Haywood S. Gilliam of the Northern District of California had denied the FCA’s motion for a preliminary injunction and the Ninth Circuit’s majority yesterday reversed that decision and directed the District Court to enter an order restoring the FCA’s standing as an Associated Student Body (“ASB”) approved club.

Judge Consuelo M. Callahan wrote the majority opinion, joined by Judges Sandra S. Ikuta, Mark J. Bennett, Eric D. Miller, Bridget S. Bade, Daniel A. Bress, and Patrick J. Bumatay. Judge Danielle J. Forrest authored a concurring opinion; Judge Milan D. Smith Jr. concurred, except as to a comment in a footnote; and Chief Judge Mary H. Murguia dissented, with Judge Jennifer Sung joining in portions of her dissent and penning a brief concurring and dissenting opinion of her own.

It was a 9-2 decision, with the nine favoring a reversal being appointees of Republican presidents and the two dissenting from a reversal—Murguia and Sung—having been named to the court by Democratic presidents.

FCA’s Beliefs

The FCA “Statement of Faith” reads:

“We believe God’s design for sexual intimacy is to be expressed only within the context of marriage, that God created man and woman to complement and complete each other. God instituted marriage between one man and one woman as the foundation of the family and the basic structure of human society. For this reason, we believe that marriage is exclusively the union of one man and one woman.”

Its “Statement of Purity” says:

“God desires His children to lead pure lives of holiness. The Bible teaches that the appropriate place for sexual expression is in the context of a marriage relationship. The biblical description of marriage is one man and one woman in a lifelong commitment. While upholding God’s standard of holiness. FCA strongly affirms God’s love and redemptive power in the individual who chooses to follow Him. FCA’s desire is to encourage individuals to trust in Jesus and turn away from any impure lifestyle.”

By requiring its leaders to affirm their belief in those precepts, the school district determined in 2019, the FCA chapter at Pioneer High School ran afoul of the district’s non-discrimination policy.

Callahan’s Opinion

Callahan observed:

“Anti-discrimination laws undeniably serve valuable interests rooted in equality, justice, and fairness. And in a pluralistic society, these laws foster worthy goals such as inclusion and belonging. The Constitution also protects the right for minorities and majorities alike to hold certain views and to associate with people who share their same values. Often, anti-discrimination laws and the protections of the Constitution work in tandem to protect minority views in the face of dominant public opinions. However, this appeal presents a situation in which the two regrettably clash.”

Anti-discrimination policies, she said, may not “be utilized in a manner that transgresses or supersedes the government’s constitutional commitment to be steadfastly neutral to religion.” The jurist went on to note:

“To avoid strict scrutiny, laws that burden religious exercise must be both neutral and generally applicable.”

She declared:

“The District, rather than treating FCA like comparable secular student groups whose membership was limited based on criteria including sex. race, ethnicity, and gender identity, penalized it based on its religious beliefs. Because the Constitution prohibits such a double standard—even in the absence of any motive to do so—we reverse the district court’s denial of FCA’s motion for a preliminary injunction.”

‘Bedrock Requirements’

Callahan said the U.S. Supreme Court has articulated “three bedrock requirements of the Free Exercise Clause that the government may not transgress, absent a showing that satisfies strict scrutiny”: that policies be “generally applicable” without “a mechanism for individualized exemptions”; that secular activities “more favorably than religious exercise”; and that there must not be even “subtle departures from neutrality.” She remarked:

“The failure to meet any one of these requirements subjects a governmental regulation to review under strict scrutiny. On the record before us, the District’s implementation of its non-discrimination policies fails all three.”

The district insisted that there was not even “any whiff of antireligious animus” on its part. Callahan said this “does not pass the straight-face test,” borrowing the phrase from an opinion by Ikuta.

She noted instances of discrimination including ASB recognition being accorded the “Satanic Temple Club” which was set up to mock the FCA.

“Plaintiffs are likely to succeed on their Free Exercise claims because the District’s policies are not neutral and generally applicable and religious animus infects the District’s decision making,” Callahan wrote.

In a footnote, she expressed the view that “Plaintiffs are likely to prevail on their Free Speech claim as well.”

Concurring Opinion

Forrest said in her concurring opinion that while she agrees that the school district’s action “is shocking and fundamentally at odds with bedrock principles that have guided our Republic since the beginning,” she would analyze the affront under the First Amendment’s Free Speech Clause and under the federal Equal Access Act, rather than the Free Exercise Clause.

Smith said he agrees that the FCA is entitled to a preliminary injunction based on religious discrimination but disagrees “as to the majority’s holding” in the footnote “that plaintiffs would be likely to succeed on a facial challenge to the District’s all-comers policy under the Free Speech Clause.” Murguia and Sung joined in the portion in which Smith dissented.

Sung wrote that she agrees with the majority that the FCA chapter at Pioneer High School has representational standing, disagrees that the national organization does. “On the merits,” she said, “I conclude that the district court did not abuse its discretion in refusing to enjoin the San José Unified School District from uniformly applying its nondiscrimination policy to student groups in the then-upcoming school year, for the reasons stated by Chief Judge Murguia in her dissent.”

Murguia’s Dissent

Murguia said she would dismiss for lack of standing because the plaintiff failed to show in 2021 that any student had applied for recognition of FCA as a student organization for the 2021-22 school year or had an intention to apply for recognition for the following year, and disagreed with the majority’s resolution of the merits. She commented:

“From top to bottom, the majority bypasses the ‘limited and deferential’ review we must give a district court’s denial of a preliminary injunction….The result is an expansive opinion focused on past harms and based only in one party’s telling of a complex, disputed, and underdeveloped record. And the majority sets forth no limiting principle to the permission it gives to school clubs to exclude students based on any number of protected classes. Under the majority’s decision, for example, are all religious student clubs exempt from a uniformly applied nondiscrimination policy? Would a public secondary school be forced to officially recognize a religious student club that required its members or leaders to adhere to racist, sexist, or xenophobic beliefs, or excluded students based on then* race or gender?.... The majority goes out of its way to open doors without any consideration to or discussion of what is behind them.”

The case is Fellowship of Christian Athletes v. San Jose Unified School District Board of Education, 22-15827.


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