Gay rights suffered a serious blow this week as a California state appeals court ruled that a private high school could expel students on the mere supposition that they might be gay. The ruling is the latest to try to define the boundaries between civil rights and the rights of private organizations to discriminate. To the LGBT community, however, this is a clear step backward.
The Fourth District Court of Appeals in San Bernardino, California ruled that California Lutheran High School in Riverside had the right to expel two girls administrators suspected of being gay. According to the court, a third student at the school had informed the administration of material on the girls' MySpace pages suggesting a romantic relationship. One girl's page gave her screen name as "Scandalous love!" and listed her social orientation as “bi”; the other went by "Truely [sic] in [heart emoticon] with you", and listed her sexual orientation as "not sure". The school's principal called the girls to his office and separately questioned them, asking them if they were "bi", if they had kissed, and if they had done anything "inappropriate". According to the principal, Gregory Bork, both girls confessed to being in love and to having hugged and kissed. Bork suspended both girls; a month later, the school’s directors permanently expelled them.
The girls' families sued under California's Unruh Civil Rights Act, a law that prevents for-profit businesses from arbitrarily discriminating against customers. The law was crafted to prevent service-oriented businesses from discriminating on the basis of race, but has been expanded in recent years by both the California legislature and legal interpretation to cover discrimination on the basis of other factors, such as age or sexual orientation. Last year, a state appeals court used this law as the basis of a ruling stating that a private fertility clinic could not use religious beliefs as a reason for refusing to treat a lesbian woman. On the other hand, California Lutheran defended itself by reference to a 1998 state Supreme Court decision ruling that the Boy Scouts could refuse to admit gays and lesbians.
The San Bernardino court's three sitting justices ruled unanimously in favor of the school on the grounds that religious schools, though private organizations, are not businesses in the usual sense of the term, since their purpose is exclusively religious. Said Justice Betty Richli in the ruling, "The whole purpose of sending one's child to a religious school is to ensure that he or she learns even secular subjects within a religious framework; otherwise, merely supplementing the child’s secular education with Sunday school or a religion class would suffice." As to the specific religious values in question, the court observed in its ruling that, "Lutherans believe that homosexuality is a sin. 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." So, the court held, the school, as a primarily religious organization, was therefore not truly a business, and therefore could not be forced to admit gay students.
The court was careful to point out the limited nature of its ruling, saying that, "We emphasize the narrow scope of our holding. 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." Gay activists have nonetheless expressed serious concern over the ruling's implications. Kirk Hanson, a lawyer for the two girls, pointed out that, according to the ruling, "if you're a religious school, you can discriminate on any basis you want....It is almost like it could roll back 20 to 30 years of progress we have made in this area." He spoke of a possible appeal to the State Supreme Court, ensuring that the issue will not simply go away.