D.C. No. 3:05-cv-02186-LAB-AJB Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding
The opinion of the court was delivered by: Pregerson, Circuit Judge:
Argued and Submitted November 1, 2010-Pasadena, California
Before: Harry Pregerson, Kenneth F. Ripple,*fn1 and Susan P. Graber, Circuit Judges.
Opinion by Judge Pregerson; Concurrence by Judge Ripple
The Supreme Court held in Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez that a public law school does not violate the Constitution when it "condition[s] its official recognition of a student group-and the attendant use of school funds and facilities-on the organization's agreement to open eligibility for membership and leadership to all students." 130 S. Ct. 2971, 2978 (2010). The Court referred to the open membership requirement as an "all-comers policy" and concluded that such a policy was a "reasonable, viewpoint-neutral condition on access to the student-organization forum." Id. The Court further held that the all-comers policy did not violate the Free Exercise Clause of the First Amendment. Id. at 2995 n.27.
The Court expressly declined to address whether these holdings would extend to a narrower nondiscrimination policy that, instead of prohibiting all membership restrictions, prohibited membership restrictions only on certain specified bases, for example, race, gender, religion, and sexual orientation. See id. at 2982, 2984. The constitutionality of such a policy is the issue before us in this case. We conclude that the narrower policy is constitutional. We hold, however, that Plaintiffs have raised a triable issue of fact as to whether the narrower policy was selectively enforced in this particular case, thereby violating Plaintiffs' rights under the First and Fourteenth Amendments. We affirm in part and reverse in part, and remand to the district court for further proceedings.
Plaintiffs are Alpha Delta Chi, a Christian sorority, and Alpha Gamma Omega, a Christian fraternity, as well as sev- eral of their officers, at San Diego State University ("San Diego State") in California.*fn2
Alpha Delta Chi, the sorority, has several religious requirements for its members, including "personal acceptance of Jesus Christ as Savior and Lord," "active participation in Christian service," and "regular attendance or membership in an evangelical church."
Alpha Gamma Omega, the fraternity, requires its members "to sincerely want to know Jesus Christ as their Lord and Savior," and its officers must sign a "Statement of Faith" reading:
I hearby publicly confess my belief in the Lord Jesus Christ as God and only Savior and give witness to the regenerating power of the Holy Spirit in my life. I will make it a purpose of my life to continue in fellowship with God through prayer and reading of the Holy Scriptures.
Alpha Gamma Omega officers' beliefs and practices must be "consistent with orthodox Christian beliefs."
Plaintiffs have repeatedly submitted applications for official recognition in San Diego State's student organization program. There are approximately 115 officially recognized student organizations at San Diego State. San Diego State requires these groups to submit a signed "Student Organization On-Campus Recognition Application," and on-campus recognition must be renewed each year. Officially recognized student organizations receive a number of benefits, such as university funding, use of San Diego State's name and logo, access to campus office space and meeting rooms, free public- ity in school publications, and participation in various special university events. Officially recognized groups may set up informational tables and banners in the student union and participate in various events for recruiting new members. Further, officially recognized fraternities and sororities may be members of one of four fraternity and sorority councils, which grants them access to recruitment fairs, leadership conferences, and social activities organized by the councils.
Each time Plaintiffs have applied for official recognition, they have been denied by San Diego State administrators because of Plaintiffs' requirement that their members and officers profess a specific religious belief, namely, Christianity. These membership requirements conflict with San Diego State's nondiscrimination policy, which San Diego State requires all officially recognized student organizations to include in their bylaws. The policy states:
On-campus status will not be granted to any student organization whose application is incomplete or restricts membership or eligibility to hold appointed or elected student officer positions in the campus-recognized chapter or group on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition, except as explicitly exempted under federal law.
This policy reflects the California State University system's Non-Discrimination Regulation, which states:
No campus shall recognize any fraternity, sorority, living group, honor society, or other student organization which discriminates on the basis of race, religion, national origin, ethnicity, color, age, gender, marital status, citizenship, sexual orientation, or disability. The prohibition on membership policies that discriminate on the basis of gender does not apply to social fraternities or sororities or to other university living groups. 5 Cal. Code Regs. tit. 5, § 41500.
Because Plaintiffs were denied official recognition by San Diego State, they were denied the benefits of official recognition. They still may hand out flyers and post signs to recruit new members, but only in areas open to all groups, whether recognized or not, such as the "free speech steps" of the student union and the wall next to the university bookstore. Plaintiffs still may use university rooms for meetings and events, but not for free or at reduced prices, as officially recognized groups are able to do.
Plaintiffs brought suit in federal district court challenging San Diego State's nondiscrimination policy under the First and Fourteenth Amendments. Plaintiffs and Defendants filed cross-motions for summary judgment, and the district court granted summary judgment on all counts in Defendants' ...