A California appellate court has ruled that the Riverside County-based California Lutheran High School was permitted to expelled two 16-year-old girls for having “a bond of intimacy” that was “characteristic of a lesbian relationship.” It is a major ruling in favor of free exercise, finding that the religious mission of the school trumped the state’s anti-discrimination laws.

The basis for the expulsion remains rather murky since the girls were punished for “conducting themselves in a manner consistent with being lesbians.” It is not clear what the Lutheran officials believed was “a manner consistent with being lesbians” but the court left that up to the respective church.

It appears that in 2005, a third student reported that one of the girls had said she loved the other and told the teacher that one of the girls was identified as bisexual on her MySpace page while the other’s page said she was “not sure” of her sexual orientation. There was also a picture of the girls hugging.

The decision is consistent with the U.S. Supreme Court’s decision in Boy Scouts of America v. Dale, where the Court upheld the right of the Boy Scouts to bar gay cub scout leaders. The case is relied upon by the California Supreme Court. Justice Betty A. Richli noted that “[t]he whole purpose of sending one’s child to a religious school is to ensure that he or she learns even secular subjects within a religious framework.”

One of the most interesting aspects of the decision is the holding that the school is not “a business” even if it accepts money from non-members:

Plaintiffs argue that the School is a business because it charges students for its educational services. However, both Warfield and Curran focused on business transactions with nonmembers. It seems implicit in both opinions that an otherwise private organization can engage in some business transactions with members without the risk of becoming a “business enterprise” for purposes of the Unruh Act. After all, even a private organization must have some source of funding for “the basic activities or services” that it offers. As long as this funding comes from members, it should not matter whether it is called a tithe, dues, fees, tuition, or something else.

While I strongly believe that religious organizations have the right to discriminate on the basis of their faith, as discussed here, I have great concerns about government support for such schools.

The ruling has great significance for the growing subsidy of religious schools through voucher programs. I have previously written about the problem of using government funds to support schools that routinely engage in discriminatory practices or teach offensive values that are protected by the first amendment.

For a copy of the opinion, click here.

For the full story, click here.