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  • Writer's pictureRobert Lusk

En Banc Ninth Circuit Affirms Injunction in Religious Liberty and Free Speech Case

Readers may recall that a little more than a year ago, on September 22, 2022, I published a short piece about a Ninth Circuit decision enjoining a California school district from violating the First Amendment rights of the Fellowship of Christian Athletes (FCA) and its student members. The violation arose in reaction to an FCA policy requiring FCA leaders (but not members who were not leaders) to affirm the belief that sexual relations should “be within the confines of a marriage between a man and a woman.” The school district contended this policy conflicted with its anti-discrimination policy and, for that reason, revoked the FCA's status as an “official” extra-curricular organization. I wrote about the case because it provided an example of school district personnel violating the constitution by trying to impose their personal political or social views on students.


The school district disagreed with the Ninth Circuit’s decision and appealed to the Ninth Circuit sitting en banc.[1] The entire Ninth Circuit affirmed. This was no surprise, as the case was relatively clear-cut on the merits. In fact, the two dissenting judges did not dissent based on the merits but primarily on procedural issues. The surprise was the school district perceived the need to appeal.


One may fairly assume the school district thought it was important to support the progressive political or social views that caused the constitutional violation. However, that is not what courts do. Or, more precisely, that is not what courts are supposed to do. The First Amendment was included in the constitution to protect minority religious beliefs and opinions from majority oppression. Courts are supposed to ensure the commands of the First Amendment are followed, even when the majority is very sure it is right. Particularly when the majority is very sure it is right.


The school district set a poor example in this case. The personal political or social opinions of school district staff and, presumably, the school district’s board of education may or may not have been more “correct, humane, progressive, considerate, etc.” than the religious or political/social opinions of the FCA and its student leaders. But that is not the point. The point is the First Amendment prohibits the government from imposing its religious, political, or social views its citizens and, in particular, on public school children. The school district should have known better.


The case is Fellowship of Christian Athletes v. San Jose Unified School District Board of Education. The Ninth Circuit’s original decision was issued on August 29, 2022 and appears at 46 F.4th 1075 (9th Cir. 2022). The Ninth Circuit’s en banc opinion was issued on September 13, 2023 and appears at 82 F.4th 664 (9th Cir. 2023).

[1]Circuit courts, including the Ninth Circuit, usually assign cases to three-judge panels. A litigant dissatisfied with a three-judge panel’s decision may appeal to all of the circuit court judges sitting together, or en banc.

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