The opinion of the court was delivered by: Jeffrey S. White, J.
AMENDED ORDER RE MOTIONS FOR SUMMARY JUDGMENT
This Amended Order is issued to correct clerical error Defendants brought to the Court's attention. In the Courts' original order, the header "Hastings' Nondiscrimination Policy Regulates Speech" should have read "Hastings' Nondiscrimination Policy Regulates Conduct." The Court issues this amended ordered solely to correct this clerical error.
Now before the Court is the motion for summary judgment filed by plaintiff Christian Legal Society Chapter of University of California, Hastings College of the Law, a/k/a Hastings Christian Fellowship ("CLS") and cross-motions for summary judgment filed by defendants Mary Kay Kane, Judy Chapman, Maureen E. Corcoran, Eugene L. Freeland, Carin T. Fujisaki, John T. Knox, Jan Lewenhaupt, James E. Mahoney, Brian D. Monaghan, Bruce L. Simon, John K. Smith, and Tony West (collectively "Hastings" or "Hastings Defendants") and intervenor-defendant Hastings Outlaw ("Outlaw"). Having carefully reviewed the parties' papers and considered their arguments and the relevant legal authority, and good cause appearing, the Court hereby DENIES CLS's motion for summary judgment and GRANTS Hastings' and Outlaws' cross-motions for summary judgment.*fn1
This case concerns whether a religious student organization may compel a public university law school to fund its activities and to allow the group to use the school's name and facilities even though the organization admittedly discriminates in the selection of its members and officers on the basis of religion and sexual orientation.
CLS is an unincorporated student organization comprised of students attending University of California, Hastings College of the Law (the "Law School"). (Joint Stipulation of Facts for Cross-Motions for Summary Judgment ("Joint Stip."), ¶ 1.) The mission of CLS is "to maintain a vibrant Christian Law Fellowship on the School's campus which enables its members, individually and as a group, to love the Lord with their whole beings-hearts, souls, and minds-and to love their neighbors as themselves." (Id., Ex. E.) In the beginning of the 2004-2005 academic year, CLS applied for, but was denied the privilege of becoming a recognized student organization at the Law School. ( Id., ¶¶ 38-42.)
University of California, Hastings College of the Law is a public law school located in San Francisco and is part of the University of California school system. (Id., ¶ 2.) Mary Kay Kane is the Chancellor and Dean of the Law School. Judy Chapman is the Director of the Office of Student Services, and the remaining defendants, Maureen E. Corcoran, Eugene L. Freeland, Carin T. Fujisaki, John T. Knox, Jan Lewenhaupt, James E. Mahoney, Brian D. Monaghan, Bruce L. Simon, John K. Smith, and Tony West, are members of the Board of Directors of the Law School. (Id., ¶¶ 3-5.)
The Hastings Defendants permit student organizations to register with the Office of Student Services. (Id., ¶ 6.) Student organizations must be registered in order to gain access to the following benefits: (a) use of the Law School's name and logo; (b) use of certain bulletin boards in the basement of Snodgrass Hall; (c) eligibility for a Law School organization email address; (d) eligibility to send out mass emails through the Associated Students of the University of California at Hastings; (e) eligibility for a student organization account with fiscal services at the Law School; (f) eligibility to apply for student activity fee funding; (g) eligibility to apply for limited travel funds; (h) ability to place announcements in the Hastings Weekly, a weekly newsletter prepared and distributed by the Office of Student Services; (I) eligibility to apply for permission to use limited office space; (j) eligibility for the use of an organization voice mailbox for telephone messages; (k) listing on the Office of Student Services' website and any hard copy lists, including the Student Guidebook and admissions publications; (I) participation in the annual Student Organizations Faire; and (m) use of the Student Information Center for distribution of organization materials to the Law School community. (Id., ¶ 9.) Registered student organizations may also apply for permission to use the Law School's rooms and audio-visual equipment for meetings. The Hastings Defendants have extended this benefit to CLS even though it is not a registered student organization. (Id., ¶ 10.) The Hastings Defendants provide non-registered organizations access to certain bulletin boards and chalk boards at the Law School to make announcements. (Id., ¶ 11.) Although the Hastings Defendants informed CLS that it could use the facilities at the Law School for its meetings, CLS never requested to use such facilities during the 2004-2005 academic year. (Id., ¶¶ 58, 61.)
As a condition of becoming a "registered student organization," the Hastings Defendants require a student organization to comply with the Law School's Policies and Regulations Applying to College Activities, Organizations and Students, which requires, inter alia, registered student organizations to abide by the Policy on Nondiscrimination ("Nondiscrimination Policy"). (Id., ¶¶ 12, 14.) The Nondiscrimination Policy provides:
The College is committed to a policy against legally impermissible, arbitrary or unreasonable discriminatory practices. All groups, including administration, faculty, student governments, College-owned student residence facilities and programs sponsored by the College, are governed by this policy of nondiscrimination....
The University of California, Hastings College of the Law shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admission, access and treatment in Hastings-sponsored programs and activities.
(Id., ¶ 15.) Hastings requires registered student organizations to allow any student to participate, become a member, or seek leadership positions, regardless of their status or beliefs. (Id., ¶ 18.)
From the 1994-1995 academic year to the 2003-2004 academic year, a student organization calling itself either Hastings Christian Legal Society or the Hastings Christian Fellowship was a registered student organization at Hastings. (Id., ¶ 22.) From the 1994-1995 academic year through the 2001-2002 academic year, the student organization used a set of bylaws which appear to be an old version of the chapter bylaws distributed by the National Christian Legal Society. (Id., ¶ 23.) These bylaws provided that the objectives of the organization were to "encourage those who identify themselves as followers of Jesus Christ to more faithfully live out their commitment in their personal and academic lives, to prepare members for future lives as Christian attorneys, and to provide a witness and outreach for Jesus Christ in the Hastings community." (Id., Ex. C.) The bylaws required voting members to acknowledge in writing their agreement with the following "Statement of Faith":
Trusting in Jesus Christ as my Savior, I believe in:
• The Bible as the inspired word of God;
• The Deity of our Lord, Jesus Christ, God's son;
• The vicarious death of Jesus Christ for our sins; His bodily resurrection and His personal return.
• The presence and power of the Holy Spirit in the work of regeneration.
• Jesus Christ, God's son, is Lord of my life;
(Id., Ex. C.) However, there is no evidence that Hastings Christian Legal Society or the Hastings Christian Fellowship ever enforced this requirement. (Id., ¶ 57.) Moreover, the bylaws also stated that the members and the organization would "comply with the Policies and Regulations Applying to College Activities, Organizations, and Students." (Id., Ex. C.)
During the 2002-2003 and 2003-2004 academic years, the student organization used a different set of bylaws. These bylaws provided: "HCF welcomes all students of the University of California, Hastings College of law." (Id., ¶ 25.) This organization did not exclude members on the basis of religion or sexual orientation. (Id.)
During the 2003-2004 academic year, approximately five to seven students attended their meetings and events. (Id., ¶ 26.) During that year, one of the participants in the meetings was an openly lesbian student and two were students who held beliefs inconsistent with what CLS considers to be orthodox Christianity. (Id., ¶¶ 27-28.)
At the end of the 2003-2004 academic year, Isaac Fong ("Fong"), Dina Haddad ("Haddad") and Julie Chan ("Chan") became the leaders of the Hastings Christian Fellowship. Fong and Haddad decided to affiliate their student organization officially with a national organization known as the Christian Legal Society ("CLS-National"). (Id., ¶ 30-31.) CLS-National requires its formally-associated student chapters to use a specific set of bylaws. (Id., ¶ 32, Ex. E.) The bylaws require any student who wants to become a member to sign a "Statement of Faith" which provides:
Trusting in Jesus Christ as my Savior, I believe in:
• One God, eternally existent in three persons, Father, Son and Holy Spirit.
• God the Father Almighty, Maker of heaven and earth.
• The Deity of our Lord, Jesus Christ, God's only Son conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return.
• The presence and power of the Holy Spirit in the work of regeneration.
• The Bible as the inspired Word of God.
(Id., ¶ 33.) CLS will not permit students who do not sign the Statement of Faith to become members or officers. CLS also bars individuals who engage in "unrepentant homosexual conduct" or are members of religions that have tenets which differ from those set forth in the Statement of Faith from becoming members or officers. ( Id., ¶¶ 34-35.) The bylaws also pronounce a "code of conduct" for officers which provides that officers "must exemplify the highest standards of morality as set forth in Scripture." (Id ., Ex. E at 2.)
While only actual members of CLS may vote for or remove officers, stand for election to become an officer, or vote to amend the organization's constitution, CLS's meetings and activities are open to all students, regardless of their religion or sexual orientation. ( Id., ¶ 36.)
In early September 2004, CLS also applied to the Office of Student Services for travel funds to attend CLS-National's annual conference, and initially, Hastings informed CLS that such funds were being set aside for CLS. (Id., ¶ 37.) On September 17, 2004, CLS submitted its registration form and set of bylaws to the Office of Student Services. (Id., ¶ 38.) Hastings informed CLS that its bylaws did not appear to be compliant with the Nondiscrimination Policy, in particular the religion and sexual orientation provisions, and invited CLS to discuss changing them. Hastings further advised CLS that to become a recognized student organization, CLS would have to open its membership to all students irrespective of their religion or sexual orientation. (Id., ¶¶ 39-41.) Subsequently, due to CLS's failure to become a registered student organization, Hastings informed CLS that the travel funds previously set aside for CLS had been withdrawn. (Id., ¶ 42.)
Despite not being a recognized student organization, throughout the 2004-2005 academic year, CLS held weekly Bible-study meetings, and hosted a beach barbeque, a Thanksgiving dinner, a campus lecture on the Christian faith and legal practice, several fellowship dinners, an end-of-year banquet, and several informal social activities. CLS also invited Hastings students to attend Good Friday and Easter Sunday church services with the organization. (Id., ¶ 44.) The Bible studies were led by one of CLS's officers, but any attendee or member was welcome to lead the group in prayer, share prayer requests, and otherwise participate in prayer. (Id., ¶¶ 49, 51.)
Between nine to fifteen Hastings students regularly attended CLS's meetings and activities during the 2004-2005 academic year. (Id., ¶ 48.) Julie Chan, CLS's treasurer, resigned from her position and membership in January 2005. In addition to CLS's officers, one other student became an official member of CLS during the academic year. ( Id., ¶¶ 47-48.) No known non-Christian, gay, lesbian, or bisexual students sought to join CLS as a member or officer, or attend any of its meetings during the 2004-2005 academic year. (Id., ¶¶ 50, 54.) As of October 2005, seven Hastings students, including three officers, joined CLS as members for the 2005-2006 academic year. (Id., ¶ 64.)
CLS filed a complaint in this action asserting that Hastings is violating: (1) CLS's rights to freedom of expressive association pursuant to the First Amendment of the United States Constitution; (2) CLS's free speech pursuant to the First Amendment; (3) the Establishment Clause of the First Amendment; (4) the Due Process Clause of the Fourteenth Amendment; (5) the Free Exercise Clause of the First Amendment; and (6) the Equal Protection Clause of the Fourteenth Amendment. On April 12, 2005, the Court granted a motion by Hastings to dismiss CLS's establishment, due process, and equal protection claims, but granted CLS leave to amend its equal protection claim. On May 3, 2005, CLS filed an amended complaint which asserts an amended equal protection claim. CLS, Hastings, and Outlaw have each filed cross-motions for summary judgment on each of CLS's claims for free speech, expressive association, free exercise and equal protection.
A. Legal Standard on Summary Judgment.
A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
A party moving for summary judgment who does not have the ultimate burden of persuasion at trial, must produce evidence which either negates an essential element of the non-moving party's claims or show that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.2000). A party who moves for summary judgment who does bear the burden of proof at trial, must produce evidence that would entitle him or her to a directed verdict if the evidence went uncontroverted at trial. C.A.R. Transp. Brokerage Co., Inc. v. Darden, 213 F.3d 474, 480 (9th Cir.2000).
Once the moving party meets his or her initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In order to make this showing, the non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996). It is not the Court's task to "scour the record in search of a genuine issue of triable fact." Id. (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir.1995)). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323. An issue of fact is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it may affect the outcome of the case. Id. at 248. "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 723, 735 (9th Cir.1997).
B. Cross-Motions for Summary Judgment.
CLS contends that Hastings' enforcement of its Nondiscrimination Policy, and its refusal to grant CLS an exception to exclude students on the basis of religion and sexual orientation, infringes its members' rights to free speech, free association, free exercise, and equal protection. As set forth below, the Court finds that Hastings' uniform enforcement of its Nondiscrimination Policy infringes none of these constitutional rights.
1. First Amendment: Free Speech.
a. Regulation of Conduct.
i. Hastings' Nondiscrimination Policy Regulates Conduct.
The parties dispute whether Hastings' Nondiscrimination Policy regulates speech or conduct. The Nondiscrimination Policy prohibits discrimination on the basis of religion and sexual orientation, among other categories. (Joint Stip., ¶ 15.) Courts have consistently held that regulations prohibiting discrimination, similar to Hastings' Nondiscrimination Policy, regulate conduct, not speech. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); Roberts v. United States Jaycees, 468 U.S. 609, ...