The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
State May Not Deny Grants to Charity Based on Its Religious Discrimination in Employment, When
the state had allowed other organizations to get grants despite their discriminating based on race and sex—so suggests the Ninth Circuit in a recent decision granting an injunction pending appeal.
From Thursday's decision in Youth 71Five Ministries v. Williams, decided by Judge Kenneth Lee, joined by Judges Bridget Bade and Danielle Forrest:
Youth 71Five Ministries (71Five) is a Christian organization that serves and mentors at-risk youths of all backgrounds, including those who are not Christian. But 71Five hires only those who share its faith and can thus advance the group's mission and message. Once the state of Oregon learned of this hiring practice, it canceled $410,000 in grants to 71Five, asserting that the group violated the state's non-discrimination policy. The district court denied 71Five's motion for a preliminary injunction, and 71Five has now filed an emergency motion seeking an injunction pending appeal of the district court's order.
We grant the injunction and set an expedited briefing schedule for the appeal. We hold that 71Five is likely to succeed on the merits. Under the Free Exercise Clause of the First Amendment, the government must treat secular and religious groups equally. But Oregon has not applied its non-discrimination policy neutrally, as it continues to fund secular organizations that favor certain groups based on race and gender identification in violation of the same non-discrimination policy that Oregon relied on in denying funding to 71Five….
71Five is a nonprofit, Christian ministry in Medford, Oregon that provides services and mentoring to at-risk youth. Its name derives from Psalm 71:5, which says, "Lord God, you are my hope. I have trusted you since I was young." 71Five provides youth centers in two southern Oregon counties "where students can have a safe and supportive place to hang out and develop meaningful relationships" and enjoy free meals and team activities. It also sponsors a community-based ministry to "transform the lives of inner-city youth" by having them "know God and … serve their communities." In addition, 71Five provides "voluntary Bible studies," "one-to-one visits and mentoring," and "group discussions" for youths in detention centers, group homes, and emergency shelters.
While it serves youths of all backgrounds without regard to religion, 71Five requires that its employees and volunteers "subscribe and adhere without mental reservation" to a statement of Christian faith. As 71Five puts it, it strives to meet the youth's "physical, mental, emotional and social needs," but its main goal is for the youth to "have an opportunity of having a personal relationship" with Jesus Christ….
The Free Exercise Clause of the First Amendment provides that the government "shall make no law … prohibiting the free exercise" of religion. Besides forbidding "outright prohibitions," this clause also proscribes "indirect coercion or penalties on the free exercise of religion." "To avoid strict scrutiny, laws that burden religious exercise must be both neutral and generally applicable." …
State policies "are not neutral and generally applicable … whenever they treat any comparable secular activity more favorably than religious exercise." As evidenced by their websites, many other participants in the Program discriminate in violation of the Certification Rule [adopted by Oregon]. Take a few examples: Ophelia's Place and Girls Inc. only serve girls or those identifying as girls, even though the Certification Rule states that a group cannot discriminate based on gender in providing services. The Black Parent Initiative only serves African and African American families, despite the Certification Rule's prohibition on race-based distinctions. And Adelante Mujeres only serves Latina women and families in violation of the Certification Rule's prohibitions on both gender and race-based discrimination. Yet the state continues to fund these groups while it has revoked 71Five's grants.
The Free Exercise Clause bars the government from treating religious groups worse than secular ones—but Oregon has apparently done just that in selectively enforcing its Certification Rule against 71Five. This case falls well within the heartland of our en banc decision in Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Ed. (9th Cir. 2023) in which we held that a public school district could not enforce its non-discrimination policy against the Fellowship of Christian Athletes but not against other secular clubs at the school…. "Simply put, there is no meaningful constitutionally acceptable distinction between the types of [discrimination] at play here." …
The district court erred in holding that Oregon's actions were neutral. First, it incorrectly believed that the secular groups' exclusionary policies did not violate the Certification Rule because these groups were acting "in culturally responsive ways." The district court apparently believed that these secular groups were, at worst, guilty of only benign discrimination. But we rejected that argument in FCA: good intentions cannot justify the unequal treatment of religious organizations. Second, the district court also mistakenly found that there was "no evidence" that the secular programs "refused services for discriminator[y] reasons." This finding ignores the programs' own websites that explicitly admit that they discriminate in the provision of their services….
To be sure, these groups' preferences for serving only certain segments of society may "serve important purposes." But that is also true of 71Five's hiring practices, which serve its primary purpose of sharing its faith. "Whether they are based on gender, race, or faith, each group's exclusionary" practices violate the Certification Rule. But Oregon has chosen to enforce the rule only against 71Five. Strict scrutiny thus applies.
To survive strict scrutiny, Oregon's "action must advance interests of the highest order and must be narrowly tailored in pursuit of those interests." Oregon does not contend that its actions survive strict scrutiny. And in any event, we conclude that the Certification Rule, which reaches even beyond the strictures of Oregon's anti-discrimination policy, likely is not narrowly tailored to serve its asserted interests. We thus find that 71Five is likely to succeed on the merits….
"Anti-discrimination laws and policies serve undeniably admirable goals, but when those goals collide with the protections of the Constitution, they must yield—no matter how well-intentioned." …
James A. Campbell, Jeremiah Galus, Mark Lippelmann, David Andrew Cortman, John J. Bursch, and Ryan J. Tucker, all of Alliance Defending Freedom, represent Youth 71Five Ministries.
