California Supreme Court Lets Stand Christian School Ban on Homosexuality


Private religious schools may have won a big victory Wednesday when the California Supreme Court declined to decide whether a so-called "Christian Conduct" rule prohibiting homosexuality violated the state's premier civil rights law.

The high court's decision not to review a case out of Riverside County lets stand a lower court's ruling that the California Lutheran High School is not a business enterprise and, therefore, not subject to the state's 50-year-old Unruh Civil Rights Act.

In a depublication request filed with the Supreme Court in March, the San Francisco-based American Civil Liberties Union of Northern California called the January ruling by Riverside's Fourth District Court of Appeal an "ill-considered opinion" -- even though the court itself called the ruling "narrow."

"The opinion could be construed," ACLU attorneys wrote, "to contain a wholesale exemption for any private school that in its mission statement claims to 'inculcate [its students] with a specific set of values.'"

The ACLU said the ruling causes not only significant confusion "as to when the Unruh act applies in the private school context," but also potentially defies "one of the express reasons Unruh applies to 'business establishments' -- the refusal of a private school to make its facilities available to African-American students."

The California Lutheran High School, a private religious institution in Wildomar, about 70 miles north of San Diego, and its principal, the Rev. Gregory Bork, were sued by the mother of a juvenile plaintiff identified only as Jane Doe and the father of a minor named only as Mary Roe. The two girls were expelled from the school on suspicion they were engaging in homosexual activity, which was expressly forbidden under the school's "Christian Conduct" code.

The two girls alleged that they had been discriminated against based on perceived sexual orientation, in violation of the Unruh act. Riverside County Superior Court Judge Gloria Trask entered summary judgment in favor of the defendants and the Fourth District affirmed earlier this year.

That court compared the religious school to the Boy Scouts, which the state Supreme Court has found exempt from the Unruh act. "Just like the Boy Scouts," Justice Betty Richli wrote for the Fourth District, "the school 'is an expressive social organization whose primary function is the inculcation of values in its youth members.'"

The court called its ruling in the case narrow. "We hold only that the school established, beyond a triable issue of fact, that it is not a business establishment within the meaning of the Unruh act," Richli wrote.

In their petition for review, attorneys for the parents of Doe and Roe pointed out that the Unruh Civil Rights Act has been held by courts to apply to public schools, nonprofit religious corporations, nonprofit homeowners associations, nonprofit civic associations, charitable nonprofit organizations and private golf and country clubs.

"The court of appeal's decision is ... not based upon the school's claimed right to freedom of expressive association nor the right of parents to control the education of their children," lawyers with San Diego's GraceHollis argued. "Thus, the court of appeal has created a broad exemption under the Unruh act for all private schools, secular and religious."

The school didn't file a brief with the Supreme Court, but the Association of Faith-Based Organizations -- which represents 830 private religious schools in California -- filed a document asking the high court to go beyond the Unruh Civil Rights Act and decide the case under the First Amendment.

"Under the religious autonomy doctrine of the First Amendment, religious institutions enjoy a certain level of independence and freedom from government interference when it comes to matters of religion," association lawyer Isaac Fong, of Springfield, Va., wrote. "To apply the Unruh act to second guess the admission and discipline decisions of private religious schools threatens to impermissibly intrude into their religious autonomy."

The Supreme Court chose not to take the case by a 6-1 vote. Justice Kathryn Mickle Werdegar favored granting review.

Neither attorneys for the plaintiffs nor for the Association of Faith-Based Organizations responded to calls for comment late Wednesday. But San Diego lawyer John McKay, who represented the school, was relieved that the high court denied review.

"I think the appellate court case was well drafted, narrow in its issues and narrow in its approach to the actual relief sought by the school," the McKay, Graham & de Lorimier partner said.

"What the court is saying is what the trial court found," he added, "that the issues raised by the plaintiffs were in essence not proper [and] that the school does have a right to provide an education to children within the religious beliefs that they subscribe to."

The case is Doe v. California Lutheran High School Association, S171078.