Bench Memos

Law & the Courts

Big En Banc Ninth Circuit Victory for Fellowship of Christian Athletes

In a big victory for religious freedom, the en banc Ninth Circuit ruled today (in Fellowship of Christian Athletes v. San Jose Unified School District) that the San Jose school district violated the Free Exercise Clause of the First Amendment when it revoked its recognition of the Fellowship of Christian Athletes as an approved student club.

Implementing its non-discrimination policies, the school district revoked its approval of FCA in objection to FCA’s requirement that student leaders affirm a statement of faith that includes the beliefs that marriage is the union of a man and a woman and that sexual intimacy is to be expressed only within the context of marriage. It then adopted a supposed “All Comers Policy” that it found that FCA did not satisfy.

The court ruled in FCA’s favor by a vote of 9 to 2.

1. In her majority opinion for seven judges, Judge Consuelo Callahan distilled Supreme Court decisions into “three bedrock requirements of the Free Exercise Clause that the government may not transgress, absent a showing that satisfies strict scrutiny”:

First, a purportedly neutral “generally applicable” policy may not have “a mechanism for individualized exemptions.” Fulton, 141 S. Ct. at 1877 (quoting Smith, 494 U.S. at 884). Second, the government may not “treat . . . comparable secular activity more favorably than religious exercise.” Tandon, 141 S. Ct. at 1296. Third, the government may not act in a manner “hostile to . . . religious beliefs” or inconsistent with the Free Exercise Clause’s bar on even “subtle departures from neutrality.” Masterpiece Cakeshop, 138 S. Ct. at 1731 (citation omitted); Lukumi, 508 U.S. at 534.

Among other things, Judge Callahan determined that a Ninth Circuit panel ruling in 2011 (Alpha Delta Chi v. Reed) that found no Free Exercise violation merely because a policy did not “target” religious belief or conduct was “out of step with the Supreme Court’s post-Smith Free Exercise jurisprudence” and was thus overruled.

Judge Callahan determined that the district’s implementation of its non-discrimination policies failed all three of the Supreme Court’s bedrock requirements.

First: The district’s policies are not generally applicable because the district retains discretion to grant individualized exemptions for its own programs and student programs alike. Most notably, the district allows student groups to discriminate based on sex or ethnic identity. (Pp. 41-44.)

Second: Rather than applying its policies neutrally, the district has engaged in a pattern of selective enforcement that favors secular activities that are comparable to FCA’s. For example, the district allowed the Girls’ Circle to admit only female-identifying students, and the Big Sister/Little Sister club to similarly exclude members of the opposite gender. (Pp. 44-47.)

Third: The district was hostile toward FCA. The district’s argument that there was no anti-religious animus does not pass the straight-face test. For example, one teacher and Climate Committee member disparaged FCA’s beliefs by calling them “bullshit” and deeming them without “validity.” (Pp. 47-53.)

Further, the district’s later adoption of an All-Comers Policy does not eliminate the need for forward-looking relief. Though new in name, the record evidence shows that the All-Comers Policy is little more than a rebranded version of the district’s previous non-discrimination policies. The Supreme Court’s ruling in Christian Legal Society v. Martinez (2010) does not stand for the broad proposition that an all-comers policy immunizes an institution from scrutiny of whether a law or policy is neutral and generally applicable. (Pp. 53-56.)

The district can’t pass strict scrutiny, as it has failed to offer any showing that it even considered less restrictive measures. (P. 56.)

(As usual, my summary of Judge Callahan’s opinion often borrows verbatim from it, and I have chosen not to clutter the summary with quotation marks and ellipses.)

2. In a footnote (p. 40 n. 8), Judge Callahan concluded that FCA was also likely to prevail on its Free Speech claim.

In a separate concurring opinion (pp. 59-92), Judge Danielle Forrest would rely on the Free Speech Clause of the First Amendment and the Equal Access Act to rule in favor of FCA.

In his own opinion concurring in part and dissenting in part, Judge Milan Smith agrees that FCA is entitled to a preliminary injunction because the district treats religious activities differently than secular ones. But he would decline to reach the other Free Exercise issues that the majority addresses. He also specifically disagrees with the majority’s footnote on FCA’s Free Speech claim.

3. Unlike other circuits, the Ninth Circuit decides en banc cases via a “limited en banc panel” that consists of the chief judge and ten other judges selected randomly. FCA had a very good draw, as Republican appointees accounted for nine of the ten judges selected randomly.

The court divided entirely along broad ideological lines. The six judges who joined Callahan’s opinion were Bush 43 appointee Sandra Ikuta and Trump appointees Mark Bennett, Eric Miller, Bridget Bade, Daniel Bress, and Patrick Bumatay. Forrest (then using the surname Hunsaker) was also appointed by Trump, and Smith was appointed by Bush 43. In dissent were Chief Judge Mary Murguia, appointed by Obama, and Biden appointee Jennifer Sung in dissent.

4. Today’s result was not a surprise, as the court had issued an injunction pending resolution of the appeal back in April, eleven days after oral argument.

5. Congrats to the Becket Fund for Religious Liberty and to the Christian Legal Society for their successful representation of FCA.

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