A federal appeals court ruled Tuesday that San Diego State University (SDSU) [academic website] can deny funding and status as a student organization to two Christian groups that require members be of the same religion. A panel for the US Court of Appeals for the Ninth Circuit [official website] held that the SDSU nondiscrimination policy [student organizations handbook, PDF] prohibiting all student organizations from discriminating on the basis of "race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition" is constitutional as written. The plaintiffs, Alpha Delta Chi, a Christian sorority, and Alpha Gamma Omega [advocacy websites], a Christian fraternity, as well as several of their officers at SDSU, challenged the policy as violating their First Amendment rights to Free Exercise of Religion [Cornell LII backgrounders] and freedom of Expressive Association. They argued that the policy was unconstitutional because it allows secular groups to discriminate in membership based on certain viewpoints. They argued for example the that a campus immigration group is allowed to exclude those who do not agree with advancing immigration rights, while Christian organizations cannot exclude non-Christians. The Ninth Circuit distinguished this case from the US Supreme Court [official website] ruling last year in Christian Legal Society v. Martinez [Cornell LII backgrounder; JURIST report] which found a policy that required student groups to be open to all students was constitutional. In this case, the Ninth Circuit still found the more limited SDSU policy that allowed discrimination when not based on one of the enumerated categories was constitutional because the policy "serves to remove access barriers imposed against groups that have historically been excluded." However, the court remanded the case in part because there was evidence that SDSU had approved membership for other organizations that have religion requirements either by accident or by exemption.
Alpha Delta Chi sorority required its members to accept "Jesus Christ as Savior and Lord," to have "active participation in Christian service" and "regular attendance or membership in an evangelical church." The Alpha Gamma Omega fraternity had similar requirements in addition to signing a "Statement of Faith" expressing devotion to the Christian church and its tenets. In Christian Legal Society, the Supreme Court ruled that the "all comers" policy at Hastings, which limits funding to student organizations that adopt the school's nondiscrimination policy, is reasonable and viewpoint neutral and does not violate the First Amendment. The Ninth Circuit later dismissed a claim by the Christian Legal Society (CLS) [advocacy website] that the University of California-Hastings School of Law [academic website] selectively applies its nondiscrimination policy to CLS. In 2004, CLS became the first group to seek exemption from Hastings' nondiscrimination policy. CLS chapters exclude from affiliation anyone who engages in "unrepentant homosexual conduct" or holds religious convictions different from those in the "Statement of Faith", which all members are required to sign.