The 9th Circuit opens its opinion with this:
This case pits two competing values that we cherish as a nation: the principle of non-discrimination on the one hand, and the First Amendment’s protection of free exercise of religion and free speech on the other hand.
The court ruled that the school district’s non-discrimination policy had been selectively enforced to the detriment of a religious group—the Fellowship of Christian Athletes. The school de-recognized the FCA after a social studies teacher complained that the group’s criteria for leadership positions discriminated against gay and lesbian students.
FCA did not overtly prohibit gay or lesbian students from membership, or from leadership. However, to be a leader, the student would have to affirm a belief that “God instituted marriage between one man and one woman as the foundation of the family” and “For this reason we believe that marriage is exclusively the union of one man and one woman.” FCA leaders were also required to profess the belief that “Neither heterosexual sex outside of marriage nor any homosexual act constitute an alternative lifestyle acceptable to God.”
The problem for the school district in this case was that there were other student groups fully recognized by the school that blatantly discriminated against certain students. There was The Senior Women Club, for example. The court noted that “there may be very good reasons for the Senior Women’s Club to have restricted membership. A female-only group may enhance membership, camaraderie, and networking for its members.” But the school district cannot choose which types of discrimination it favors, and which it disfavors.”
It didn’t help the school’s case that key leaders in the school expressed hostility toward the FCA. One of the judges wrote a concurring opinion to emphasize this factor. One teacher called the FCA’s beliefs “bullshit” and another described evangelical Christians as “charlatans” who perpetuate “darkness” and “ignorance.” The judge noted that:
This is not, to put it mildly, neutral treatment of religion. More than a whiff, a stench of animus against the students’ religious beliefs pervades the Pioneer High School Campus.
This is another in a string of recent cases in which courts have cited “selective enforcement” of policies that have the effect of infringing on the free exercise of religion. And as the court points out in its opening line, this is a value that we cherish as a nation.
It’s Fellowship of Christian Athletes v. San Jose USD, decided by the 9th Circuit on August 29, 2022. The decision was 2-1. The dissenting judge did not address the merits of the case, but concluded that the plaintiff organization did not have standing to pursue the case.
DAWG BONE: NON-DISCRIMINATION POLICIES MUST NOT BE SELECTIVELY ENFORCED.
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