After a Lutheran school expelled two 16-year-old girls for having “a bond of intimacy” that was “characteristic of a lesbian relationship,” the girls sued, contending the school had violated a state anti-discrimination law.

In response to that suit, an appeals court decided this week that the private religious school was not a business and therefore did not have to comply with a state law that prohibits businesses from discriminating. A lawyer for the girls said Tuesday that he would ask the California Supreme Court to overturn the unanimous ruling by a three-judge panel of the 4th District Court of Appeal.

The appeals court called its decision “narrow,” but lawyers on both sides of the case said it would protect private religious schools across California from such discrimination suits.


Kirk D. Hanson, who represented the girls, said the “very troubling” ruling would permit private schools to discriminate against anyone, as long as the schools used their religious beliefs as justification.

“It is almost like it could roll back 20 to 30 years of progress we have made in this area,” said the San Diego attorney. “Basically, this decision gives private schools the license to discriminate.”

John McKay, who represented the Riverside County-based California Lutheran High School, said the ruling correctly acknowledged that the school’s purpose was to “teach Christian values in a Christian setting pursuant to a Christian code of conduct.”

The girls were expelled in their junior year for “conducting themselves in a manner consistent with being lesbians,” said McKay, who added that the girls never disclosed their sexual orientation during the litigation. Hanson said the girls had been “best friends” and, citing their privacy, declined to discuss their sexual orientation. They are now in college, he said.

The dispute started when a student at the school told a teacher in 2005 that one of the girls had said she loved the other. The student advised the teacher to look at the girls’ MySpace pages. One of the girls was identified as bisexual on her MySpace page, the other’s page said she was “not sure” of her sexual orientation.

McKay said the website also contained a photograph of the girls hugging.

According to the principal, who called each girl out of class separately, both admitted they had hugged and kissed each other and told other students they were lesbians. The girls said they admitted only that they loved each other as friends.


The principal “just looked at me like I was a disease and I was so wrong,” one of the girls later said. They were identified in the legal proceedings only as Jane Doe and Mary Roe.

In ruling in favor of the school, the appeals court cited a 1998 California Supreme Court decision that said the Boy Scouts of America was a social organization, not a business establishment, and therefore did not have to comply with the Unruh Civil Rights Act. That case also involved a discrimination complaint based on sexual orientation.

“The school’s religious message is inextricably intertwined with its secular functions,” wrote Justice Betty A. Richli for the appeals court. “The 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.”

The school is affiliated with synods that believe homosexuality is a sin, the court said. The school’s “Christian conduct” code said students could be expelled for engaging in immoral or scandalous contact, on or off campus.

In addition to their discrimination claim, the girls complained that the school invaded their privacy and detained them unlawfully. The girls complained the principal sat “very close” to them and asked them if they were bisexual, if they had kissed each other, and whether they had done anything “inappropriate,” the court said.

Mary Roe said, “He got very close to me and he said, ‘Have you ever touched [Jane Doe] in . . . any inappropriate ways? And he looked me up and down when he asked that.”


But the court said there was no evidence that the principal had a prurient interest in the girls.

“It is hard to imagine how he could have determined whether they had a homosexual relationship without asking the questions that he in fact asked,” wrote Richli, appointed to the court by former Gov. Pete Wilson.

The school also did not break the law when it disclosed the girls’ “suspected sexual orientation” to their parents, the court said. The parents, “in light of their right to control their children’s upbringing and education, had a right to know why” they were being expelled, the court said.

Hanson said the entire episode was “very traumatic” and “humiliating” for the girls.

Shannon Price Minter, legal director of the National Center for Lesbian Rights, said the ruling was based on “the particular circumstances of this school.”

“Labeling a young person or telling her she is ‘sinful’ can be psychologically devastating,” Minter said. “Regardless of one’s religious beliefs, all adults have a responsibility to treat young people with compassion and respect.”

School officials could not be reached for comment.

Timothy J. Tracey, litigation counsel for the Center for Law & Religious Freedom, said the ruling “preserves the right of Christian schools in California to make admission and discipline decisions consistent with their religious beliefs.”