Excluding Religious School That "Forfeited a Girls' Playoff Basketball Game to Avoid Playing a Team with a Transgender Athlete" Violated Free Exercise Clause

So the Second Circuit held today, concluding that the facts surrounding this particular exclusion showed hostility to religion, and not just the neutral application of generally applicable rules.

From today's decision by Second Circuit Judge Michael Park, joined by Judges Richard Wesley and Richard Sullivan, in Mid Vermont Christian School v. Saunders:

Mid Vermont Christian School forfeited a girls' playoff basketball game to avoid playing a team with a transgender athlete. The school believes that forcing girls to compete against biological males would affirm that those males are females, in violation of its religious beliefs. In response to the forfeit, the Vermont Principals' Association ("VPA") expelled the school from all state-sponsored extracurricular activities….

We conclude that Plaintiffs are likely to succeed in showing that the VPA's expulsion of Mid Vermont was not neutral because it displayed hostility toward the school's religious beliefs; Plaintiffs are therefore likely to prevail on their Free Exercise claim….

"At its heart, the Free Exercise Clause of the First Amendment protects the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through the performance of religious acts." It "guarantees to all Americans the right to believe and profess whatever religious doctrine they desire, even doctrines out of favor with a majority of fellow citizens."

Of course, the protections afforded under the First Amendment are not limitless. The Supreme Court has recognized that the Free Exercise Clause "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability." Nonetheless, even under a neutral law of general applicability, the government still "fails to act neutrally when it proceeds in a manner intolerant of religious beliefs." The First Amendment, in other words, guarantees not only that our laws be neutrally drafted, but that they subsequently "be applied in a manner that is neutral toward religion." … A plaintiff may therefore "prove a free exercise violation by showing that 'official expressions of hostility' to religion accompany" actions taken by the government to enforce its laws, and in such cases courts may set aside the adverse results of tainted enforcement proceedings "without further inquiry." …

First, [VPA Executive Director] Nichols's public statements evinced hostility toward Mid Vermont's religious beliefs…. Nichols testified before Vermont's House Education Committee just two days after Mid Vermont's forfeit—but three weeks before the VPA announced the expulsion. Advocating for a bill that would block private, religious schools from receiving public funding, Nichols urged the House Education Committee to "do the right thing" and pass "legislation that doesn't continue to allow misuses of taxpayer dollars to effectively discriminate against many of our children." In so doing, Nichols offered "official expressions of hostility to religion" that were "inconsistent with what the Free Exercise Clause requires."

In his testimony, Nichols listed examples of how religious schools "don't follow the same rules as public schools, at least on the most important issues." He mentioned that "[t]wo religious schools have refused … to sign an assurance that they would follow State Board rules regarding non-discrimination," noting that "[i]t doesn't take a rocket scientist to see that these schools and their far right supporters are gearing up for another lawsuit." He highlighted that "one religious high school that we are now sending public tax dollars to[ ]" requires "four credits of religion and theology" and "witness[ing] Christian values." And he criticized Mid Vermont's forfeit against Long Trail:

[A] Christian school forfeits so they won't have to play against this team that has a transgender student …. Thank goodness the student in question didn't attend that religious school … but what if they did? Would we be okay with that blatant discrimination under the guise of religious freedom?

Such testimony supports the inference that the VPA's punishment was "informed by hostility toward certain religious beliefs." As Executive Director, Nichols wielded the power to "enforc[e] VPA policies." On this record, Plaintiffs are likely to succeed in showing that he failed to serve as a "neutral decisionmaker who [gave] full and fair consideration to [Mid Vermont's] religious objection."

Second, the record reflects that the VPA itself challenged the school's religious beliefs. Rejecting Mid Vermont's appeal, the Committee explained that the substance of the religious claim was "wrong":

Participating in an athletic contest does not signify a common belief with the opponent. Brigham Young University athletes do not compromise their Mormon faith—or endorse Catholicism—when they play Notre Dame. The act of playing together on a basketball court does not imply any approval of the values or beliefs of the opponent.

This case has nothing to do with beliefs. It has everything to do with actions and their impact on transgender students.

That statement did not just question Mid Vermont's religious sincerity. It also attacked the validity of Mid Vermont's objection. But "[a]n individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are sincerely held and in the individual's own scheme of things, religious." That is because "courts should not inquire into the centrality of a litigant's religious beliefs."

What is binding on courts is equally binding on the VPA. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in … religion." Put simply, the VPA may not impose discipline based on its view that Mid Vermont's religious objection was "wrong." On this record, Plaintiffs are likely to succeed in establishing that the VPA did exactly that.

Third, the expulsion violated the VPA's own norms. Nichols conceded that, to his recollection, the VPA had never before banned a school from all sporting events. That concession actually understated the severity of the decision, which extended to any interschool activity, from spelling bees to math competitions….

Making matters worse, the VPA ignored the detailed procedural requirements governing its disciplinary process. Those procedures called for a formal investigation, a preliminary report, written notice of a probable violation, a recommended penalty, and an opportunity to be heard at a hearing involving counsel and evidence. But in its rush to impose an "immediate" expulsion, the VPA flouted its own rules.

In sum, Plaintiffs are likely to succeed in establishing that Defendants acted with hostility toward Mid Vermont's religious beliefs. The VPA's Executive Director publicly castigated Mid Vermont—and religious schools generally—while the VPA rushed to judgment on whether and how to discipline the school. In upholding the expulsion, the VPA doubled down on that hostility by challenging the legitimacy of the school's religious beliefs. And as noted above, the punishment imposed was unprecedented, overbroad, and procedurally irregular. Those facts strongly support the inference that Mid Vermont's religious objection "was not considered with the neutrality that the Free Exercise Clause requires."

Where a state actor's "hostility was inconsistent with the First Amendment's guarantee that our laws be applied in a manner that is neutral toward religion," our job is clear. We thus conclude, without engaging in strict scrutiny, that Plaintiffs have made a strong showing that the VPA violated "the minimum requirement of neutrality" to religion. See Stephanie H. Barclay, Replacing Smith, 133 Yale L.J. F. 436, 442 (2023) ("When the government is hostile, it does not get an opportunity to present a justification for its exercise-burdening action. Instead, the action is per se invalid.").

David A. Cortman, John J. Bursch, James A. Campbell, Christopher P. Schandevel, Jacob Reed, and Ryan J. Tucker (Alliance Defending Freedom) represent plaintiffs.