A veiled threat

Last August, the Ninth Circuit issued an opinion in Fellowship of Christian Athletes v. San Jose Unified School District (9th Cir. 2022) 46 F.4th 1075 (FCA) concluding that the school district discriminated against the Fellowship of Christian Athletes (FCA) in violation of the Free Exercise Clause of the First Amendment by banning this organization. FCA's leaders were required to affirm that sex must be confined to marriage and marriage was between one man and one woman. (Id. at p. 1082.) FCA is a national organization and one of its chapters had a "'Statement of Faith and Sexual Purity'" that said "'[t]he Bible is clear in teaching on sexual sin including sex outside of marriage and homosexual acts. Neither heterosexual sex outside of marriage nor any homosexual act constitute an alternative lifestyle acceptable to God.'" (Id. at p. 1083.) The Ninth Circuit correctly pronounced the case legally "straightforward" on the facts. (FCA, supra, 46 F.4th at p. 1081.) The school district permitted secular student organizations that were discriminatory while punishing FCA for its religious stance. (Ibid.) The court focused on the Senior Women of Leland High School, an organization approved by the school district that limited membership to "female-identifying students." (Id. at p. 1086.)

FCA case stands in contrast to the multiple cases where the United States Supreme Court overturned the Ninth Circuit's decisions approving Governor Gavin Newsom's COVID-19 restrictions on numbers of attendees at churches and other religious events, where, as the dissents pointed out, the religious and secular conduct involved were in no way comparable (e.g., home worship and shopping at hardware stores). (See, e.g., Tandon v. Newsom (2021) 141 S.Ct. 1294, 1298 (dis. opn. of Kagan, J.).) This time the Ninth Circuit had an easy case: the religious and secular organizations seemed comparable in limiting members based on faith or gender. But, not so fast, said the full complement of the Ninth Circuit, which recently voted to vacate the three-judge panel's decision and rehear the matter en banc. Should the Ninth Circuit do a 180 degree turn, I would not bet that the United States Supreme Court will let it go.

While the FCA decision is no more, it remains interesting as illustrative of the inability of courts and the law to recognize that faith-based student organizations differ in one important aspect: they threaten, at least implicitly, the safety of others. This issue came up obliquely in FCA but played no part in the court's decision. The controversy began when students gave a teacher a copy of the FCA purity statement, which he saw as infringing on the rights of the LGBTQ+ community to feel safe and enfranchised on campus. (FCA, supra, 45 F.4th at p. 1082-1083.) The teacher thereby invoked the concept that schools are supposed to be a "safe space" for marginalized groups. Grossly oversimplified, the concept is that no one in an academic community has the right to free expression that makes members of a minority (at least, a minority with a history of victimization) feel unsafe, i.e., threatened.

The safe space concept has come in for a lot of criticism and may be on the wane. Nonetheless, the notion that the free expression of religion of a student group like FCA may threaten others is not just a myth pushed by progressives. The threat is veiled but there. It exists in the texts that are the foundation of the Christian faith. Once while driving I saw a bumper sticker that read: "Romans 1:26-27." This turned out to be a passage in the apostle Paul's epistle to the Romans in the New Testament of the Bible, evidently targeting the notoriously libertine citizens of the city. In it, Paul condemns "women [who] did change the natural use into that which is against nature," as well as "men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly . . . ." Verse 32 is the kicker. Paul says that "they which commit such things are worthy of death, not only do the same, but have pleasure in them that do them." I have no doubt that the driver of that vehicle intended to threaten the gay community. And I have no doubt that the anti-LGBTQ+ sentiments in an FCA purity statement (" '[t]he Bible is clear . . . .' ") find their source in this text.

On the facts recited in FCA, this was a no-brainer application of the principle that under the First Amendment comparable religious and secular groups may not be treated differently by public entities and the law. But the facts consisting of FCA's relatively anodyne statements about marriage and even homosexuality do not represent the whole story when it comes to the Christian faith or almost any creed that, as most of them do, asserts that it is the one true faith proceeding from God. A little bit of digging often reveals that coupled with this belief is a threat directed at others by adherents of the faith.