From Fellowship of Christian Athletes v. San Jose Unified School Dist., decided yesterday by the Ninth Circuit, in an opinion by Judge Kenneth Lee joined by Judge Danielle Forrest (it's on a preliminary injunction, so this is technically based on a finding of likelihood of success on the merits, but the panel majority seems pretty firm on the subject):
The Fellowship of Christian Athletes (FCA) requires students serving in leadership roles to abide by a Statement of Faith, which includes the belief that sexual relations should be limited within the context of a marriage between a man and a woman. The San Jose Unified School District … revoked FCA's status as an official student club at its high schools, claiming that FCA's religious pledge requirement violates the School District's non-discrimination policy….
The School District engaged in selective enforcement of its own non-discrimination policy, penalizing FCA while looking the other way with other student groups. For example, the School District blessed student clubs whose constitutions limited membership based on gender identity or ethnicity, despite the school's policies barring such restricted membership. The government cannot set double standards to the detriment of religious groups only….
We apply strict scrutiny to government regulations that burden religious exercise unless those laws are neutral and generally applicable. A law is not neutral and generally applicable if it is selectively enforced against religious entities but not comparable secular entities. "[W]hether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue." … Finally, the "Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature."
Under strict scrutiny, the government can prevail only if it shows that its restrictions on religion "are justified by a compelling interest and [are] narrowly tailored to advance that interest." Given that high bar, the defendants do not argue that their policies can pass muster under strict scrutiny; rather, they contend that strict scrutiny does not apply at all because their policies are neutral and generally applicable.
But the record before us shows that the School District's non-discrimination policies have been, and continue to be, selectively enforced against FCA. Other secular student groups maintain facially discriminatory membership criteria but enjoy ASB recognition. In short, the School District targeted FCA because of its religious-based views about marriage and sexuality, and not merely because of its alleged violation of non-discrimination policies….
