RIVERSIDE, Calif. — A California court decision that looks like a “sure win” for religious freedom may in fact be only the first skirmish in a bigger battle.

When a Lutheran high school expelled two 16-year-old girls on the grounds they had a lesbian relationship, the girls filed a lawsuit claiming, among other things, sexual orientation discrimination.

On Jan. 26, California Lutheran High School won the case. Sidestepping the lesbian rights vs. religious freedom issue, the appeals court ruled that private religious schools are not a business — and are, thus, exempt from the state civil rights law that applies to businesses.

By narrowing its decision to the “business” aspect of the law, the court prevented a broader head-on collision between the state’s Unruh Civil Rights Act and the First Amendment of the U.S. Constitution.

Calling the case “very heartily fought,” the school’s attorney, John McKay, said the victory has positive implications for Catholic and all other religious schools in California.

The decision “means religious schools are able to continue with their admissions standards,” McKay said. It also “allows schools to educate children in a Christian atmosphere with Christian values under a Christian code of conduct.”

“This finding is a relief for all Christian schools in California up and down the spectrum, from preschools to grad schools,” said Timothy Tracey, a lawyer with the Christian Legal Society’s Center for Law and Religious Freedom. “It upheld a right we always assumed private religious schools had.”

“If the school hadn’t won, private Christian schools couldn’t say, ‘We want you to agree with our statement of faith,’ or ‘we want you to abide by our code of conduct,’” Tracey said.

“What losing this particular case would have meant for Cal Lutheran is that they would no longer be able to make admission or disciplinary decisions consistent with their Lutheran beliefs — and they would face liability for damages if they tried to.”

A ‘Lesbian Rights’ Case?

The dispute began when a student at the school told a teacher that one of the girls said she loved the other. The student advised the teacher to look at the girls’ MySpace pages. One girl’s web page listed her as “bi”[sexual]; the other girl said she was “not sure” of her sexual orientation.

The school principal, a Lutheran pastor, testified that both girls admitted to him they had hugged and kissed each other and had told other students they were lesbians. Since homosexual relationships are against the school’s code of conduct, the principal suspended the girls, explaining they had “a bond of intimacy ... characteristic of a lesbian relationship.”

The girls, in turn, said they had admitted only that they loved each other as friends.

Although this case has been widely reported as a “lesbian” challenge to religious schools, the girls never actually admitted in court they were lesbians. Rather, they claimed the school discriminated against them based on their “perceived” sexual orientation.

The legal director of the San Francisco-based National Center for Lesbian Rights was out of the country and unavailable for comment.

The girls’ attorney, Kirk Hanson, of the San Diego firm Grace Hollis & Hanson, said he plans to appeal the decision to the California Supreme Court.

The chance the higher court will review the decision “may be somewhat slim,” Tracey suggested. “It’s hardly an extreme decision to say that a private religious school is not a business establishment.”

But given the California Supreme Court’s recent interest in cases that pit religious liberty against alleged homosexual rights, Tracey added, “you can’t be confident one way or the other.”

The decision, if it stands, will have no legal implications beyond California “unless some other state has a law worded exactly the same way as California’s Unruh Civil Rights Act,” said Howard Freidman, law professor emeritus at the University of Toledo.

Even if the decision stands, attorneys on both sides say the issue is bigger than this little battle.

The Bigger Picture

Likening this case to those fought during the civil rights movement, Hanson said, “I’m worried that this decision means private religious schools will now be able to discriminate against anyone, depending on how they read the Bible or whatever their religious book may be.”

But Alliance Defense Fund senior legal counsel Mike Johnson said, “The overarching issue we see with this [Cal Lutheran High] case, and so many other cases like it, is the danger the homosexual legal agenda poses to the First Amendment.”

“Under the First Amendment, we have the right of association, the right to free exercise of religion, the right of conscience,” Johnson said. “And all of those rights are imperiled by the homosexual legal agenda.”

Despite Cal Lutheran’s win, could Christian schools face more lawsuits like this down the road?

Said Johnson, “I think that’s a major concern as we go forward, and Christians need to be vigilant.”

Sue Ellin Browder writes from

Willits, California.