Students Expelled from Religious School Over Lesbian Relationship

A California appellate court has ruled that a religious high school was free to dismiss two students for having a lesbian affair, because the school is not a "place of public accommodation" covered by the state law banning sexual orientation discrimination. The ruling in Jane Doe v. California Lutheran High School Association, 2009 Westlaw 161869 (Cal.App., 4^th Dist.), was announced on January 26 in an opinion by Justice Betty Richli.

Students applying to the California Lutheran High School in Wildomar, California, a private religious school affiliated with the Evangelical Lutheran Synod and the Wisconsin Evangelical Lutheran Synod, are required to signify their acceptance of the rules governing the institution, which includes an agreement to conduct themselves according to rules of "Christian Conduct." According to Justice Richli, the school presented evidence about the view of non-marital sex and homosexuality embraced by the religious bodies that sponsor this school. "Lutherans believe that homosexuality is a sin," she wrote. "The School has a policy of refusing admission to homosexual students. Its ‘Christian Conduct’ rule provided that a student could be expelled for engaging in immoral or scandalous conduct, whether on or off campus. This would include homosexual conduct."

In this case, a student reported to a teacher that a female classmate had said that she loved another female classmate, without naming any names. The student told the teacher that he would be able to figure out who was involved by looking at the female students’ MySpace pages. The teacher reviewed the MySpace pages of his female students and discovered the two students who were subsequently expelled, each of whom had referred to being in love with the other. One of the students identified herself as "bi" and the other as "not sure" under the category of sexual orientation.

The teacher reported to the principal, Pastor Bork, who convened a meeting of the school’s Disciplinary Committee, which advised confronting the students and suspending them if they confirmed the truth of this information. Bork questioned each of the girls, they admitted that they loved each other, had hugged and kissed each other, and had told other students that they were lesbians. This earned them a suspension, letters to their parents explaining why they were being suspended – that they had a "bond of intimacy characteristic of a lesbian relationship" – and ultimately their expulsion by vote of the school’s board of directors.

The girls sued under California’s Unruh Civil Rights Act, which forbids sexual orientation discrimination by places of public accommodation. They also claimed damages for invasion of privacy and false imprisonment – referring to their sequestration in closed rooms for questioning until they were sent home, as well as "outing" them to their parents.

Judge Gloria Trask of Riverside Superior Court granted the school’s motion for summary judgment, concluding that it was not a "business enterprise" covered by the Unruh Act, and the plaintiffs appealed.

The Court of Appeal agreed with Judge Trask, finding that private, non-profit schools were generally not considered to be businesses. There was no need to get into the school’s alternative freedom of religion argument under the circumstances. Ironically, the main California precedent that the court invoked was a 1998 decision by the California Supreme Court, Curran v. Mt. Diablo Council of the Boy Scouts of America, 17 Cal.4th 670 (1998), holding that the Boy Scouts organization in California was not a place of public accommodation, thus rejecting a suit by a gay man who had been excluded under the Scout’s anti-gay membership policies.

"Curran is controlling here," wrote Justice Richli. "Just like the Boy Scouts, the School ‘is an expressive social organization whose primary function is the inculcation of values in its youth members.’ According to its mission statement, as set for in its student handbook, ‘CLHS exists to glorify God by using his inerrant Word to nurture discipleship in Christ, serving primarily the youth of our WELS and ELS congregations, equipping them for a lifetime of service to their Savior, their homes, churches, vocations and communities.’"

Justice Richli stressed the selective nature of the school’s admissions process, which was up-front in informing applicants about the "Christian Conduct" code. Even though the school engaged in some commercial transactions to support its activities, such as selling concessions and t-shirts at athletic events, the court did not consider this a basic activity of the organization.

The court also rejected the privacy and false imprisonment claims, finding them to be very much bound up with the unsuccessful Unruh Act claim. Justice Richli noted that the school had not publicized the reason for expelling the girls, and found that informing their parents was not a violation of the students’ privacy.

Comments

[Matthew Marcus]

While I'm not entirely sure that completely expelling the girls, rather than taking a less severe avenue of correction, was the best way to show a Christ-like love, I do agree with the courts and the rights of the school to act based on their moral values, especially since they are a private institution and not a public entity.

[Art Leonard]

It does feel irksome to me that in the U.S. we privilege religious institutions to discriminate against people they don't like, while everybody else is expected to toe the line of non-discrimination. But it is consistent with the way our understanding of the 1st Amendment has evolved over the past two centuries that we carve out religious exemptions in our civil rights statutes. It is, however, odd that a religion founded on love -- or so the founder of that religion proclaimed -- should assert as its doctrine the right to judge anybody with respect to compliance with moral law.

A propos of just about nothing, last week's issue of The Nation had a detailed article about Rev. Rick Warren's tax scam, and the way Congress unanimously bailed him out of a lawsuit by passing a quick and probably ill-considered amendment to the federal Tax Code.

[Stuart Steingraber]

A private organization has the perfect right to set the standards of personal morality for its members. "Love" between two homosexuals does not trump those rights. It is unfortunate, but true, that homosexuals choose to define themselves as a sex act. Christ loved the sinner but hated the sin. He forgave the adulterous woman but told her to "sin no more".

[Art Leonard]

Agreed that under our Constitution private religious institutions have a right to set moral standards for their members. But I totally reject the contention that gay people define themselves by sex acts. That is just a plain ignorant statement.