Chalk up a victory for the rights of private schools. A California appellate court has ruled in favor of a Lutheran high school that expelled two 16-year-old girls for having a "bond of intimacy" that was "characteristic of a lesbian relationship." The girls sued based on the state anti-discrimination law, and lost on appeal. Doe v. California Lutheran High School Assn., 170 Cal. App. 4th 828 (Cal. App. 4th Dist. 2009).

The three-judge panel unanimously held that a private religious school is not subject to the anti-discrimination law because it was not a business within the meaning of that law.

The attorney who sued the schools declared that this decision "could roll back 20 to 30 years of progress we have made in this area." He added that "this decision gives private schools the license to discriminate." Actually, the decision gives religious schools the "license to adhere to their missions, which in this case is to "teach Christian values in a Christian setting pursuant to a Christian code of conduct."

The girls refused to admit in the litigation whether they considered themselves to be lesbians or not. In fact, the lawsuit may have simply been a clever test case to force religious schools to submit to the increasingly pro-homosexual culture that dominates public schools.

Sixteen years old, the two girls maintained anonymity in court papers despite having reportedly written provocative material in connection with their MySpace pages, whereby one allegedly went by the screen name "Scandalous love!" and the other supposedly by the screen name, "Truely [sic] in [love, represented as a heart in source] with You." On their MySpace pages, the girls reportedly referred to being in love with each other.

The school's principal, Pastor Gregory R. Bork, convened a meeting of the School's disciplinary committee, which recommended that he speak with the girls immediately and, if there was a lesbian relationship, to suspend them. The same day Pastor Bork questioned the girls separately, and according to him both girls admitted that they loved each other, had hugged and kissed each other, and had told other students they were lesbians. Pastor Bork promptly suspended them.

Illustrating the risks in questioning a hostile 16-year-old girl without a chaperone, however, one of the girls later testified in the litigation that Pastor Bork "got very close and he said, 'Have you ever touched [the other girl] in … any inappropriate ways?' And he looked me up and down when he asked that." That allegation by the girl may not have impressed the Court.

A month after the suspension, the school's board of directors unanimously expelled the girls for engaging in a homosexual relationship.

The Court never reached any constitutional issues, and held in favor of the school on purely statutory groups: this type of private school is not subject to the sweeping California Unruh Civil Rights Act. The Court agreed with the girls that the school does engage in some business activity, but noted that the girls were not complaining about being excluded from business activities such as purchasing tickets to a football game or buying a sweatshirt. The Court also agreed with the girls that the school teaches many non-religious subjects, such as English and Mathematics. But the Court held that "the School's religious message is inextricably intertwined with its secular functions. 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; otherwise, merely supplementing the child's secular education with Sunday school or a religion class would suffice." Id. at 840-41.

This lawsuit may have seemed like a clever way to invite California courts to enforce anti-discrimination laws against religious schools, but the Court declined the invitation.