From today's decision by Second Circuit Judge Michael Park, joined by Judges Richard Wesley and Richard Sullivan, in Mid Vermont Christian School v. Saunders:
Mid Vermont Christian School forfeited a girls' playoff basketball game to avoid playing a team with a transgender athlete. The school believes that forcing girls to compete against biological males would affirm that those males are females, in violation of its religious beliefs. In response to the forfeit, the Vermont Principals' Association ("VPA") expelled the school from all state-sponsored extracurricular activities….
We conclude that Plaintiffs are likely to succeed in showing that the VPA's expulsion of Mid Vermont was not neutral because it displayed hostility toward the school's religious beliefs; Plaintiffs are therefore likely to prevail on their Free Exercise claim….
"At its heart, the Free Exercise Clause of the First Amendment protects the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through the performance of religious acts." It "guarantees to all Americans the right to believe and profess whatever religious doctrine they desire, even doctrines out of favor with a majority of fellow citizens."
Of course, the protections afforded under the First Amendment are not limitless. The Supreme Court has recognized that the Free Exercise Clause "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability." Nonetheless, even under a neutral law of general applicability, the government still "fails to act neutrally when it proceeds in a manner intolerant of religious beliefs." The First Amendment, in other words, guarantees not only that our laws be neutrally drafted, but that they subsequently "be applied in a manner that is neutral toward religion." … A plaintiff may therefore "prove a free exercise violation by showing that 'official expressions of hostility' to religion accompany" actions taken by the government to enforce its laws, and in such cases courts may set aside the adverse results of tainted enforcement proceedings "without further inquiry." …
