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 Belief-based student groups won an important victory last week in Fellowship of Christian Athletes v. San Jose Unified School District, which restored the ability of many such groups to meet on public campuses and in public schools in the many western states covered by the U.S. Court of Appeals for the Ninth Circuit.

Religious and other belief-based groups often limit candidates for leadership — and sometimes membership — to those who agree to a statement of principles. After all, it makes little sense to force a Muslim group, for example, to allow Christians or atheists to be its leaders, or for the College Republicans to allow Democrats to hold club office. 

That’s why FIRE submitted an amicus curiae — “friend of the court” — brief in support of such groups’ rights to have such requirements. But until last week’s en banc decision, the right to do so in the Ninth Circuit was tenuous at best.

The Fellowship of Christian Athletes gets derecognized

In April 2019, controversy erupted at the San Jose Unified School District’s Pioneer High School in California over a Fellowship of Christian Athletes requirement that student leaders comply with the group’s Statement of Faith and its Sexual Purity Statement. The former requires student leaders of the group to hew to the tenets of traditional Christian theology and the belief that “marriage is exclusively the union of one man and one woman,” while the latter affirms that “the appropriate place for sexual expression is in the context of a marriage relationship.”

After a teacher complained about FCA’s faith requirements to the school principal and later presented his concerns to a school leadership “Climate Committee” composed of several school department chairs and administrators, the school revoked FCA’s official recognition as a school student club.

For the 2019-20 school year, FCA applied for recognition again and, predictably, was denied. Yet as the Ninth Circuit notes, the Satanic Temple Club, which even the complaining teacher believed was formed to mock FCA, was approved despite having its own set of non-religious “tenets” similar to FCA’s faith requirements. 

Fellowship of Christian Athletes v. San Jose Unified School District Board of Education

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FCA continued to meet on campus as an unrecognized club, despite facing repeated protests — including one that required police intervention — and harassment from journalists in the school newspaper class. And in April 2020, FCA sued the district and school officials on First Amendment, Equal Protection Clause, and Equal Access Act grounds, seeking to regain recognition as an official school club.

In response, the school district adopted a new nondiscrimination policy for 2021-22: the All-Comers Policy. The Ninth Circuit noted that the “central feature” of this policy was that it “require[d] ASB recognized student groups to permit any student to become a member or leader, if they meet non-discriminatory criteria.” Such policies, as long as they truly require that all student groups accept every single interested student as members and leaders, regardless of belief or status, were deemed constitutional by the U.S. Supreme Court in 2010 in the case of Christian Legal Society v. Martinez. Indeed, the district’s All-Comers Policy specifically cited that case.

FIRE has long opposed requirements that student groups abandon belief-based requirements in order to receive official recognition. For that reason, we filed an amicus brief with the Supreme Court supporting the Christian Legal Society in the Martinez case. In our press release on the day of the decision, FIREPresident and CEO Greg Lukianoff stated, “FIREwill continue to fight for the rights of expressive campus organizations to form around shared beliefs and for the principle that the College Democrats have the right to be Democrats, the College Atheists have the right to be atheists, and the College Christians have the right to be Christians.”

How strict must courts be when considering restraints on the free exercise of religion? 

First Amendment concerns are at the heart of the Ninth Circuit’s opinion in Fellowship of Christian Athletes. 

First, the court discussed the Free Exercise Clause and whether “strict scrutiny” should be applied to the school board’s decision. Government decisions analyzed under strict scrutiny must be narrowly tailored to address a “compelling governmental interest,” and they rarely survive judicial review. Attempting to avoid this fate, the district claimed that the court should analyze the issue under Martinez and an even worse follow-up Ninth Circuit case from 2011 called .

Martinez and Reed largely avoided the Free Exercise issue by citing the leading Supreme Court case: Employment Division, Department of Human Resources of Oregon v. Smith. In that 1990 case, an Oregon state employee claimed he could not be fired for using peyote, despite the drug’s illegal status, because he used it in a Native American-inspired religious ceremony. The Supreme Court ruled against the employee, stating that “the Free Exercise Clause does not inhibit enforcement of otherwise valid regulations of general application that incidentally burden religious conduct.” In doing so, it eliminated the practice of applying strict scrutiny to such “generally applicable” laws and regulations.

The decision has been controversial ever since. It quickly led to the passage of federal and state-level “Religious Freedom Restoration Acts” that legislatively restored strict scrutiny to laws burdening the free exercise of religion. Since then, the Supreme Court has chipped away at Smith’s broad presumption that government action burdening free exercise — like the San Jose Unified School District’s decision to derecognize FCA — is acceptable. 

So instead of simply agreeing with the school district that the case sounded like Martinez and Reed, the Ninth Circuit discussed more recent Supreme Court precedent that has begun to reexamine how free exercise claims should be considered. And, in doing so, the Ninth Circuit overruled Reed.

New Ninth Circuit jurisprudence for a new legal landscape

In her opinion for the Ninth Circuit, Judge Consuelo Callahan discusses the 2020 case of Fulton v. City of Philadelphia, in which all nine Supreme Court Justices agreed that Philadelphia’s refusal to contract with Catholic Social Services for foster care because it would not place children with same-sex couples violated the Free Exercise Clause. Chief Justice Roberts wrote for the Court that Philadelphia’s “system of entirely discretionary exceptions” rendered the policy not generally applicable, and thus unconstitutional: 

The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it “invite[s]” the government to decide which reasons for not complying with the policy are worthy of solicitude.

One can easily see how the San Jose school district’s policy of making case-by-case decisions based on “common sense” would run afoul of this decision, and ����鷡’s amicus brief in Christian Legal Society pointed out the viewpoint discrimination that such systems of exceptions has enabled, both in San Jose and across the country. As FIREwrote, “While the school district determined that the South Asian Heritage club’s stated preference for members of a certain national origin was not discriminatory, it perplexingly decided FCA’s desire for leaders who agreed to affirm the group’s faith was.”&�Բ�����;

The Ninth Circuit felt the same way, saying that “the record is replete with instances in which the District has actually [granted exemptions], and done so in a viewpoint-discriminatory manner.”

The panel also relied on another Supreme Court case, , a 2021 case about California COVID-19 restrictions that restricted at-home religious gatherings more than it restricted comparable activities at secular gathering places such as restaurants and hair salons. That 5-4 decision held that “regulations are not neutral and generally applicable . . . whenever they treat any comparable secular activity more favorably than religious exercise.” (Internal citations omitted.) Tandon held that the relevant universe of “comparators” is much broader than just other near-identical groups — instead, “whether 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.”

Time and time again, the label of “all comers” has been slapped on policies that are anything but, in an effort to engage in viewpoint discrimination in a manner that might fool courts, but which certainly chills the expression of students in both high school and college.

As the Ninth Circuit found and as FIREnoted, the school district had obviously engaged in such treatment. For the first time in a federal appellate court, the Ninth Circuit acknowledged that under Tandon, the relevant “comparators” with which FCA should be compared were not just other student clubs, but any other school program, including programs run by the school. Several school-run programs and student clubs were allowed to limit attendance based on gender, race, and other protected characteristics. Yet FCA could not limit leadership based on religion. That meant the nondiscrimination policy was not “generally applicable.”

The court also discussed Masterpiece Cakeshop v. Colorado Civil Rights Commission, the famous 2018 “gay wedding cake case,” which prohibits decisions based on religious animus. After discussing the hostility shown toward FCA on the basis of its religious beliefs, Judge Callahan stated that the district’s argument that there was “not even ‘any whiff of antireligious animus . . . does not pass the straight-face test.”&�Բ�����;

But given the court’s reliance on Fulton and Tandon, it seems clear that even lack of animus would not have saved the school district’s policy.

All-comers means all comers

The clear takeaway from Fellowship of Christian Athletes, then, is that if a public school in the Ninth Circuit wishes to use an all-comers policy to derecognize a belief-based group, that policy had better both say and mean all comers. Exceptions, even those meant to be benign, will not fly. As Judge Callahan wrote, the “Constitution does not allow for ‘benign’ classification based on race, ethnicity, or sex.”&�Բ�����;

Restrictions that curiously apply to groups that discriminate based on belief, but not similar groups that discriminate on other bases, will also not pass muster. As the opinion put it:

Martinez 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. Rather, Martinez simply held that a truly categorical all-comers policy — one which required student groups to accept all members without exception — may comply with the First Amendment as a neutral law of general applicability.

Time and time again, the label of “all comers” has been slapped on policies that are anything but, in an effort to engage in viewpoint discrimination in a manner that might fool courts, but which certainly chills the expression of students in both high school and college. Last week’s decision makes that harder to get away with, which can only benefit the individual rights of everyone at public colleges and high schools.

FIRE congratulates the Becket Fund for Religious Liberty, the Christian Legal Society, and Christopher Schweickert of Seto Wood & Schweickert LLP on their win.

Robert Shibley is a FIRE Senior Fellow and is at the law firm of Allen Harris PLLC. The opinions expressed here are his own.