Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ.

• Decision Date: 29 August 2022
• Docket Number: 22-15827
• Citation: 46 F.4th 1075
• Parties: FELLOWSHIP OF CHRISTIAN ATHLETES, an Oklahoma corporation; Fellowship of Christian Athletes of Pioneer High School, an unincorporated association; Charlotte Klarke; Elizabeth Sinclair, Plaintiffs-Appellants, v. SAN JOSE UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION; Nancy Albarran, in her official and personal capacity; Herb Espiritu, in his official and personal capacity; Peter Glasser, in his official and personal capacity; Stephen McMahon, in his official and personal capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

46 F.4th 1075

FELLOWSHIP OF CHRISTIAN ATHLETES, an Oklahoma corporation; Fellowship of Christian Athletes of Pioneer High School, an unincorporated association; Charlotte Klarke; Elizabeth Sinclair, Plaintiffs-Appellants,

v.SAN JOSE UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION; Nancy Albarran, in her official and personal capacity; Herb Espiritu, in his official and personal capacity; Peter Glasser, in his official and personal capacity; Stephen McMahon, in his official and personal capacity, Defendants-Appellees.

No. 22-15827

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 9, 2022 Seattle, Washington

Filed August 29, 2022

Daniel H. Blomberg (argued), Eric S. Baxter, Nicholas R. Reaves, Abigail E. Smith, and James J. Kim, Becket Fund for Religious Liberty, Washington, D.C.; Kimberlee Wood Colby, Center for Law & Religious Freedom, Springfield, Virginia; Christopher J. Schweickert, Seto Wood & Schweickert LLP, Pleasant Hill, California; for Plaintiffs-Appellants.

Stacey M. Leyton (argued) and Stephen Berzon, Altshuler Berzon LLP, San Francisco, California; Amy R. Levine, Dannis Woliver Kelley, San Francisco, California; Richard B. Katskee and Kenneth D. Upton Jr., Americans United for Separation of Church and State, Washington, D.C.; for Defendants-Appellees.

Christopher E. Mills, Spero Law LLC, Charleston, South Carolina, for Amici Curiae Campus Crusade for Christ Inc., Intervarsity Christian Fellowship/USA, Young Life, Ratio Christi, and The Navigators.

Eduardo E. Santacana, Wilkie Farr & Gallagher LLP, San Francisco, California; Kathryn Joseph, Director of Policy & Advocacy, Interfaith Alliance Foundation; for Amicus Curiae Interfaith Alliance Foundation.

Michael G. Schietzelt Jr., Robertson Center for Constitutional Law, Regent University School of Law, Virginia Beach, Virginia, for Amicus Curiae Robertson Center for Constitutional Law.

Cynthia Fleming Crawford and Casey Mattox, Americans for Prosperity Foundation, Arlington, Virginia, for Amicus Curiae Americans for Prosperity Foundation.

Howard Slugh, Jewish Coalition for Religious Liberty, Washington, D.C., for Amicus Curiae Jewish Coalition for Religious Liberty.

Keisha T. Russell, Kelly J. Shackleford, Jeffrety C. Mateer, and David J. Hacker, First Liberty Institute, Plano, Texas; Kayla A. Toney, First Liberty Institute, Washington, D.C.; for Amici Curiae D.B., Hannah Thompson, and Jacob Estell.

Kathleen L. Smithgall, Assistant Solicitor General; David M.S. Dewhirst, Solicitor General; Austin Knudsen, Attorney General of Montana; Montana Department of Justice, Helena, Montana; Steve Marshall, Alabama Attorney General; Leslie Rutledge, Arkansas Attorney General; Mark Brnovich, Arizona Attorney General; Ashley Moody, Florida Attorney General; Christopher M. Carr, Georgia Attorney General; Todd E. Rokita, Indiana Attorney General; Derek Schmidt, Kansas Attorney General; Daniel Cameron, Kentucky Attorney General; Jeff Landry, Louisiana Attorney General; Eric S. Schmitt, Missouri Attorney General; Lynn Fitch, Mississippi Attorney General; Doug Peterson, Nebraska Attorney General; John M. O'Connor, Oklahoma Attorney General; Alan Wilson, South Carolina Attorney General; Ken Paxton, Texas Attorney General; Sean D. Reyes, Utah Attorney General; Jason S. Miyares, Virginia Attorney General; Patrick Morrisey, West Virginia Attorney General; for Amici Curiae State of Montana and 18 Other States.

Anthony J. Dick and Harry S. Graver, Jones Day, Washington, D.C., for Amicus Curiae Professor Michael W. McConnell.

Ronald G. London, Foundation for Individual Rights and Expression, Washington, D.C., for Amicus Curiae Foundation for Individual Rights and Expression.

Blaine H. Evanson, Gibson Dunn & Crutcher LLP, Irvine, California; Joseph R. Rose, Gibson Dunn & Crutcher LLP, San Francisco, California; Jun Nam, Gibson Dunn & Crutcher LLP, Palo Alto, California; for Amici Curiae Cardinal Newman Society and Christian Medical & Dental Associations.

Courtney M. Dankworth, Harold W. Williford, Joshua N. Cohen, and Isabelle M. Canaan, Debevoise & Plimpton LLP, New York, New York; Emily Martin, Sunu Chandy, Phoebe Wolfe, Auden Perino, and Hunter Iannucci, National Women's Law Center, Washington, D.C.; for Amici Curiae National Women's Law Center and Twenty-One Additional Organizations.

Mark Bresee, Alyssa Ruiz de Esparza, and Juliana Duran, Atkinson Andelson Loya Ruud & Romo, La Jolla, California; Keith Bray, Kristin Lindgren, and Dana Scott, California School Boards Association, West Sacramento, California; for Amicus Curiae California School Boards Association and its Education Legal Alliance.

Before: Morgan Christen, Kenneth K. Lee, and Danielle J. Forrest, Circuit Judges.

Opinion by Judge Lee ;

Concurrence by Judge Lee ;

Dissent by Judge Christen

LEE, Circuit Judge:

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 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 (the "School District" or "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.

While this clash of values may pose a difficult policy choice, the legal outcome is much more straightforward based on the record before us. Under the First Amendment, our government must be scrupulously neutral when it comes to religion: It cannot treat religious groups worse than comparable secular ones. But the School District did just that.

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 thus reverse the district court's denial of FCA's motion for preliminary injunction and direct the district court to enter an order reinstating FCA as an official student club.

BACKGROUND

I. FCA requires its student leaders to follow its religious beliefs.

Founded in 1954, FCA is a Christian religious ministry with more than 7,000 student chapters at colleges, high schools, and middle schools across the United States. FCA's mission is "to lead every coach and athlete into a growing relationship with Jesus Christ and His church" by fostering a "steadfast commitment to Jesus Christ and His Word through Integrity, Serving, Teamwork and Excellence." FCA chapters routinely host religious discussions, service projects, prayer and worship, and Bible studies.

All students—regardless of religion or any other characteristic—are welcome to become members of FCA and participate in FCA events. But members who want to serve as leaders of FCA must personally affirm FCA's Statement of Faith and abide by FCA's Sexual Purity Statement. According to FCA, this leadership requirement "is necessary because leaders fill an important spiritual role for [the] FCA chapters," as the "vast majority of what student leaders do ... consists of religious ministry and leadership" and "the student leaders' beliefs and conduct are vitally important to the credibility and effectiveness of each FCA chapter's ministry." One provision of the Statement of Faith requires student leaders to affirm their belief that sexual intimacy is only to be enjoyed within the confines of biblical marriage:

We believe God's design for sexual intimacy is to be expressed only within the context of marriage. God instituted marriage between one man and one woman as the foundation of the family and the basic structure of human society. For this reason, we believe that marriage is exclusively the union of one man and one woman.

FCA's Sexual Purity Statement reads:

God desires His children to lead pure lives of holiness. The Bible teaches that the appropriate place for sexual expression is in the context of a marriage relationship. The biblical description of marriage is one man and one woman in a lifelong commitment.

While upholding God's standard of holiness, FCA strongly affirms God's love and redemptive power in the individual who chooses to follow Him. FCA's desire is to encourage individuals to trust in Jesus and turn away from any impure lifestyle.

No student is explicitly excluded from leadership because of their sexuality. For example, a student who is attracted to members of the same sex would still be eligible for leadership if they agree to abide by the Statement of Faith.

II. The School District revokes FCA's recognition as an official club.

The School District officially recognizes and supports student organizations through its Associated Student Body (ASB) program. The ASB program provides students with "practice in self-governance"; offers "social and recreational activities"; "honor[s] outstanding student achievement"; and "enhance[s] school spirit and student sense of belonging." Each fall, student-run clubs must apply for ASB recognition at their local school. ASB recognition provides several important benefits. Only ASB-approved clubs are (1) included on their school's official club lists and yearbook, which are key recruitment tools; (2) allowed to conduct fundraisers both on and off campus and deposit and withdraw these funds within ASB-provided bank accounts; (3) provided an official faculty advisor; and (4) given priority access to on-campus meeting space. A wide range of student clubs have been approved by the ASB program, including Bachelor Nation, Communism Club, Girls...