Once upon a time, back in the days of the Bill Clinton White House, there was a strong church-state coalition that stretched, basically, from the Assemblies of God to the Unitarians. The legal activists in this coalition didn’t agree on everything, but they did agree on some basic First Amendment principles that helped defend believers in a wide variety of religious minorities.
If you know the history of that era, you can sense that a few important words are missing from the recent Los Angeles Times report (behind a paywall) that ran at Yahoo!News with this aggressive headline: “Court says San Jose school district must recognize Christian club that excludes LGBTQ kids.”
That headline, of course, could have noted — somehow — that the this victory for the Fellowship of Christian Athletes was based on the same legal principles that defend the First Amendment rights of LGBTQ support groups at the same school.
The key is that there are two crucial words — “equal access” — that are missing from this rather solid story, which includes enough quoted material from voices on both sides for readers to figure out what is going on (if they have a background in church-state studies). Hold that thought.
First, here is the Times overture:
In spring 2019, a teacher at Pioneer High School in San Jose posted a message on his classroom whiteboard questioning a "Sexual Purity" statement that a club for Christian student athletes was requiring its leaders to sign.
The club's statement said sexual relationships should exist only between married, heterosexual couples. The teacher wrote that he was "deeply saddened" that a club on the public school campus made its leaders "affirm" those ideas, and he asked students what they thought.
The resulting firestorm led to the San Jose Unified School District rescinding recognition of the Fellowship of Christian Athletes for excluding LGBTQ students in violation of the district's nondiscrimination policy. In response, the club and its international parent organization sued in federal court, alleging religious discrimination.
On Monday, the Fellowship of Christian Athletes won a major victory when a three-judge panel of the U.S. 9th Circuit Court of Appeals ordered the club be reinstated as an official student group for the current school year while litigation between the parties continues in the lower district court.
Shutting down the FCA violated the “nondiscrimination policy”?
Think of it this way: What if a court ruled that the school’s LGBTQ support group had to allow the inclusion of leaders that reject its foundational beliefs about gender and same-sex relationships?
Alas, at this point in the story the Times team is anxious to portray this First Amendment story as a clash between (#WaitForIt) judges linked to the Donald Trump era and those appointed by Barack Obama. That’s easy to spot in this next crucial chunk of the story:
Judge Kenneth Kiyul Lee, a Trump appointee, wrote for the appellate court that the case pitted "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."
But, he wrote, the question before the appellate court was simpler than that. Evidence showed the school district had not applied its antidiscrimination policy equally to all student groups, Lee wrote, but instead "engaged in selective enforcement" that unfairly targeted the Fellowship of Christian Athletes for its religious beliefs while letting secular groups that violated the policy go unpunished.
That was a violation of the free exercise clause of the 1st Amendment, he wrote.
"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," Lee wrote. "But the School District did just that."
And there you have it.
This is where “equal access” principles come into play.
Let’s flash back to a GetReligion post from earlier this year that ran with this headline: “Another SCOTUS win for 'equal access,' whether most journalists realized this or not.” I noted that there are:
… justices who back “equal access” concepts articulated by a broad, left-right coalition that existed in the Bill Clinton era. The big idea: Religious beliefs are not a uniquely dangerous form of speech and action and, thus, should be treated in a manner similar to secular beliefs and actions. If states choose to use tax dollars to support secular beliefs and practices, they should do the same for religious beliefs and practices.
If schools want to close ALL student clubs, they can do so. What they cannot do is argue that religious beliefs are automatically more dangerous than secular beliefs. In this case, it was also clear that school leaders were signaling that they accepted SOME religious beliefs, but not others. This is a classic sign of “entanglement” of secular leaders with questions of religious doctrine.
Moving on. Rather than a clash between the Trump and Obama eras, this case pivoted on a clash between the Clinton and Obama eras (or perhaps the evolving Joe Biden era). Knowing that would have given readers a much better picture of the complex issues at the heart of this First Amendment case.
Let’s keep reading what that “Trump” justice had to say:
… The judge noted that a "Senior Women Club" was recognized by the school district despite excluding male students, and that a "Big Sisters/Little Sisters" club was recognized even though it "obviously intended" to serve female students, not male students.
Lee wrote that the court did not intend to "minimize the ostracism that gay and lesbian students may endure" because of the Fellowship of Christian Athletes' religious views. But, he wrote, "in our pluralistic society in which people from diverse backgrounds must coexist despite having starkly different worldviews, the Free Exercise Clause requires the government to respect religious beliefs and conduct, even if many people may find such beliefs to not be 'acceptable, logical, consistent, or comprehensible.'"
Lee's ruling cited several recent court decisions in favor of religious groups over government bodies, including by the U.S. Supreme Court, which has come down solidly on the side of religious organizations in recent disputes.
It didn’t help that, in a nod to other recent SCOTUS cases (think Masterpiece Cakeshop), two “Trump” justices noted some rather blunt “animus” toward conservative Christians by some authority figures at this school. (The “Obama” justice’s dissent centered on some technical legal issues.)
In addition to writing the court's majority opinion, in which he was joined by fellow Trump appointee Judge Danielle Forrest, Lee wrote a separate, concurring opinion. …
Lee quoted one teacher as calling the club's beliefs "bulls—," another describing evangelical Christians "as 'charlatans' who perpetuate 'darkness' and 'ignorance,'" and another who "denigrated his own student as an 'idiot' for empathizing with FCA members who faced backlash from teachers and students."
"This is not, to put it mildly, neutral treatment of religion," Lee wrote. "More than a whiff, a stench of animus against the students’ religious beliefs pervades the Pioneer High School campus."
Lee said that "animus" was further reason to rule against the district.
The term “animus” was a direct reference to a U.S. Supreme Court decision. That seems relevant.
Still, Los Angeles Times editors gave this story quite a bit of ink, allowing for quotes that did a WAY better job than usual of handling this kind of (equal access) case. It’s an important story and, of course, there will be others like it in the future. It will help if journalists do a bit of homework on old-liberal First Amendment principles from the Clinton era.
FIRST IMAGE: Uncredited illustration on the National Secular Society website, with a feature entitled “Church and state should be separate.”