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Ending “religious gerrymanders”

The 9th Circuit defends the rights of religious students


The James R. Browning United States Courthouse building, a courthouse for the U.S. Court of Appeals for the Ninth Circuit, in San Francisco Associated Press/Photo by Jeff Chiu

Ending “religious gerrymanders”
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Starting in 2019, a school in California discriminated against a Christian student organization. Last week, a federal appellate court called out the school’s double standards as inconsistent with the First Amendment. The decision is a welcome development for advocates of religious freedom.

The high school in question is in a large public school district in San Jose, Calif. The district’s schools are home to a diverse set of student organizations: Bachelor Nation, Big Sister/Little Sister, Chess Club, Communism Club, Gender and Sexuality Alliance, Girls Who Code, K-Pop Club, Mock Trial, National Honor Society, and Ping Pong Club, to name a few. There was also a student chapter of the Fellowship of Christian Athletes, a group that allowed student athletes to gather for fellowship, prayer, and Bible study. The FCA had a statement of faith and students had to subscribe to the statement in order to hold leadership positions in the organization.

The San Jose high schools had FCA chapters for years without problems. But in 2019, one teacher in one high school decided to publicly criticize the FCA’s position on sexuality. Soon the issue was the talk of the school. School administrators decided that the FCA’s view that sex should be expressed in marriage, and marriage limited to the union of a man and a woman, conflicted with the school’s “core values” of inclusion and nondiscrimination. They revoked FCA’s status as a school-recognized student organization. And when FCA member students continued meeting as an (unofficial, unaffiliated) gathering, they faced verbal harassment, as teachers and administrators criticized the FCA as intolerant and hateful, and encouraged other students to protest the group.

The students, along with the national FCA, brought a suit against the school district. They argued that the school discriminated against them on the basis of their religious beliefs. The school won the first round in the district court. But on appeal, the 9th U.S. Circuit Court of Appeals reversed, ordering the lower court to issue a preliminary injunction requiring the school to recognize the FCA student groups.

There was yet another round. Normally, federal appellate cases are decided by three-judge panels. After their decision, a losing party has only two other options: ask the entire Circuit Court to rehear the case with a larger group of judges (rehearing en banc) or else ask the U.S. Supreme Court to take the case. This time, the school asked the 9th Circuit to rehear the case, and the court agreed. As it turned out, after eleven judges reheard the case, the court again sided with the students. The majority opinion rests on First Amendment principles that the Supreme Court has developed.

What the court recognized was that the school could not treat the Christian student group differently.

There are two key issues in the law of religious free exercise, according to the Supreme Court. First, the court is to consider if government action that impinges on religious exercise is “generally applicable.” That is, does it treat everyone alike, or does it single out religious conduct for regulation? Second, the court should consider whether the government action is “neutral” toward religion. Or in other words, does this reflect unique hostility toward religion? In this case, the 9th Circuit found that the school failed on both issues.

First, the school’s purported reasons for unrecognizing the FCA weren’t applied evenhandedly to all student groups. The school said that it was kicking the FCA out because the FCA had discriminatory standards for its leaders. But the school permitted other student organizations to adopt “discriminatory” criteria for membership or leadership. For example, the “Girls Circle” was permitted to “admit only female-identifying students.” The school was perfectly happy to allow multiple student groups to use race or gender as the basis for their membership, apparently because it served needs for the particular student group. What the court recognized was that the school could not treat the Christian student group differently. “At bottom,” the 9th Circuit explained, the Constitution tells the government that it “may not create ‘religious gerrymanders.’”

Second, the school was not neutral toward the Christian group. Instead, the record of the case suggested that several teachers and administrators were hostile toward the Christian student group and its beliefs. One teacher charged the FCA with “choos[ing] darkness,” “perpetuat[ing] ignorance,” and “twisting the truth.” The school principal publicly criticized the FCA’s views as “discriminatory.” This evidence of hostility or “animus” against religion appropriately triggers strict scrutiny from the court.

The 9th Circuit’s en banc majority correctly reads the Supreme Court’s recent cases to provide a rigorous legal framework for protecting religious exercise. When the Supreme Court began speaking to the issue two years ago, some observers (myself included) argued that this would open a new season of religious liberty litigation. Some wondered if this expectation was reading too much into the Supreme Court’s cases. Indeed, the dissenters in the 9th Circuit tried to read the Supreme Court’s precedents extremely narrowly. But the 9th Circuit majority has the better of the argument: The controlling precedent is quite protective of religious liberty and the rights of this student organization.

In the process, the 9th Circuit did right by the students at the school. No longer may school administrators make student-athletes second-class members of their school community because of their Christian beliefs.


Lael Weinberger

Lael Weinberger is a lawyer and historian. He is a fellow of the Constitutional Law Center at Stanford Law School.


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