Fellowship of Christian Athletes v. San. Jose Unified Sch.

82 F.4th 664

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 En Banc March 23, 2023 Pasadena, California

Filed September 13, 2023

Appeal from the United States District Court for the Northern District of California, Haywood S. Gilliam, Jr, District Judge, Presiding D.C. No. 4:20-cv-02798-PIONEER HSG

Daniel H. Blomberg (argued), Eric S. Baxter, Nicholas R. Reaves, Abigail E. Smith, James J. Kim, Becket Fund for Religious Liberty, Washington, D.C.; Kimberlee W. Colby, Christian Legal Society, Center for Law & Religious Freedom, Fairfax, 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; Richard B. Katskee and Kenneth D. Upton Jr., Americans United for Separation of Church and State, Washington, D.C.; Amy R. Levine and William Tunick, Dannis Woliver Kelley, San Francisco, California; Andrea A. Brott, Law Offices of Andrea A. Brott, Berkeley, California; for Defendants-Appellees.

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

Bradley J. Lingo, J. Alex Touchet, Robertson Center for Constitutional Law, Regent University School of Law, Virginia Beach, Virginia; Michael G. Schietzelt Jr., Wake Forest, North Carolina; for Amicus Curiae Robertson Center for Constitutional Law.

Peter M. Torstensen Jr., Assistant Solicitor General; David M.S. DeWhirst and Christian B. Corrigan, Solicitors General; Austin Knudsen, Attorney General of Montana; Montana Department of Justice, Helena, Montana; Kathleen L. Smithgall, Associate Solicitor, Consovoy McCarthy PLLC, Arlington, Virginia; for Amicus Curiae State of Montana and 22 Other States.

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

Cynthia F. Crawford and Casey Mattox, Americans for Prosperity Foundation, Arlington, Virginia, for Amicus Curiae Americans for Prosperity Foundation and Professor Luke C. Sheahan.

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

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

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

Ronald G. London, Foundation for Individual Rights and Expression, Washington, D.C.; Abigail E. Smith, Foundation for Individual Rights and Expression, Philadelphia, Pennsylvania; for Amicus Curiae Foundation for Individual Rights and Expression.

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

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

Mark Bresee, Alyssa Ruiz de Esparza, 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.

John J. Bursch and J. Caleb Dalton, Alliance Defending Freedom, Washington, D.C.; David A. Cortman, Alliance Defending Freedom, Lawrenceville, Georgia; Tyson C. Langhofer, Alliance Defending Freedom, Lansdowne, Virginia; for Amici Curiae Ratio Christi and Chi Alpha.

Before: Mary H. Murguia, Chief Judge, and Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Mark J. Bennett, Eric D. Miller, Bridget S. Bade, Daniel A. Bress, Danielle J. Forrest, Patrick J. Bumatay and Jennifer Sung, Circuit Judges.

Opinion by Judge Callahan;

Concurrence by Judge Forrest;

Partial Concurrence and Partial Dissent by Judge M. Smith;

Partial Concurrence and Partial Dissent by Judge Sung;

Dissent by Chief Judge Murguia

OPINION

CALLAHAN, Circuit Judge:

Anti-discrimination laws undeniably serve valuable interests rooted in equality, justice, and fairness. And in a pluralistic society, these laws foster worthy goals such as inclusion and belonging. The Constitution also protects the right for minorities and majorities alike to hold certain views and to associate with people who share their same values. Often, anti-discrimination laws and the protections of the Constitution work in tandem to protect minority views in the face of dominant public opinions. However, this appeal presents a situation in which the two regrettably clash.

The Fellowship of Christian Athletes (FCA or FCA National), as its name suggests, is a ministry group formed for student athletes to engage in various activities through their shared Christian faith. FCA holds certain core religious beliefs, including a belief that sexual intimacy is designed only to be expressed within the confines of a marriage between one man and one woman. In order for FCA to express these beliefs, it requires students serving in a leadership capacity to affirm a Statement of Faith and to abide by a sexual purity policy. Because of these religious beliefs, however, the San Jose Unified School District (District) revoked FCA's status as an official student club on multiple campuses for violation of the District's non-discrimination policies.

While it cannot be overstated that anti-discrimination policies certainly serve worthy causes—particularly within the context of a school setting where students are often finding themselves—those policies may not themselves be utilized in a manner that transgresses or supersedes the government's constitutional commitment to be steadfastly neutral to religion. Under the First Amendment's protection of free exercise of religion and free speech, the government may not "single out" religious groups "for special disfavor" compared to similar secular groups. Kennedy v. Bremerton Sch. Dist., — U.S. —, 142 S. Ct. 2407, 2416, 213 L.Ed.2d 755 (2022).

The District, rather than treating FCA like comparable secular student groups whose membership was limited based on criteria including sex, race, ethnicity, and gender identity, penalized it based on its religious beliefs. Because the Constitution prohibits such a double standard—even in the absence of any motive to do so—we reverse the district court's denial of FCA's motion for a preliminary injunction.

I.

Founded in 1954, FCA is an international Christian religious ministry organization with more than 7,000 student chapters (also known as "huddles") in middle schools, high schools, and colleges across the United States. FCA seeks to equip "student athletes from all backgrounds for fellowship, spiritual growth, and service on their campuses." FCA's "vision [is] 'to see the world transformed by Jesus Christ through the influence of coaches and athletes,' and its mission [is] 'to lead every coach and athlete into a growing relationship with Jesus Christ and His church.'" To further these goals, FCA clubs regularly meet to host religious discussions, service projects, prayer times, worship, and Bible studies.

FCA "welcome[s] all students to participate in the[se] events." FCA "also welcome[s] all students to join [its ranks] as members." However, FCA requires its student leaders to affirm certain core religious beliefs identified in FCA's Statement of Faith. Included in these core tenets of FCA's Statement of Faith is the belief in the authority of the Bible, the virgin birth, the death and resurrection of Jesus, the ministry of the Holy Spirit, and God's design for marriage. In particular, one portion of the Statement of Faith calls upon student leaders to affirm a belief that sexual intimacy may only be enjoyed within the context of marriage, and more specifically, between one man and one woman:

We believe God's design for sexual intimacy is to be expressed only within the context of marriage, that God created man and woman to complement and complete each other. 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.

As part of FCA's Christian Character and Mission, student leaders must also conform to FCA's Sexual Purity Statement. The 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

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