This will result in less diversity of religious expression — a "particularly perverse result." Simpson , 404 F.3d at 287 (upholding exclusion of Wiccan from prayer practice to avoid "push[ing] localities intent on avoiding litigation to select only one minister from only one faith"); cf. Freedom from Religion Found., Inc. v. City of Warren , 707 F.3d 686, 694 (6th Cir. 2013) (noting, in the context of religious holiday displays, that "requiring governments to add all comers to the mix" would create a "poison pill"). In matters of promoting religious diversity, the perfect should not be the enemy of the good.
We have held the same more directly: "The Religion Clauses, it turns out, do protect the religious and nonreligious." Freedom from Religion Found., Inc. v. City of Warren , 707 F.3d 686, 694 (6th Cir.2013) (citing Wallace v. Jaffree , 472 U.S. 38, 52–54, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) ). Furthermore, a court’s attempt to distinguish between what is or is not a religious belief might implicate the Establishment Clause.
The Sixth Circuit's decision in Freedom from Religion Foundation v. City of Warren is instructive. 707 F.3d 686 (6th Cir. 2013). The Foundation sued the City of Warren after it refused to place a sign with an anti-religious message next to the City's nativity and holiday scene in the atrium of the City's Civic Center.
Thus, when determining the purpose or primary effect of challenged religious content, courts, including this Circuit, consistently have examined the entire context surrounding the challenged practice, rather than only reviewing the contested portion. See Lambeth v. Bd. of Comm’rs of Davidson Cty. , 407 F.3d 266, 271 (4th Cir. 2005) ; see also Freedom from Religion Found., Inc. v. City of Warren , 707 F.3d 686, 692-93 (6th Cir. 2013) ; Croft v. Perry , 624 F.3d 157, 168 (5th Cir. 2010) ; Fleischfresser v. Dirs. of Sch. Dist. 200 , 15 F.3d 680, 688-89 (7th Cir. 1994) ; Cammack v. Waihee , 932 F.2d 765, 787 (9th Cir. 1991) ; Smith v. Bd. of Sch. Comm’rs of Mobile Cty. , 827 F.2d 684, 692 (11th Cir. 1987). Indeed, common sense dictates a context-driven approach.
Id. at 160 (quoting Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 970 (9th Cir. 2011)). Though perhaps true in the context of legislative prayer or holiday displays, see Freedom of Religion Found., Inc. v. City of Warren, Mich., 707 F.3d 686, 698 (6th Cir. 2013) (“To the extent the Foundation means to claim that the City's government speech commemorating the holiday disparately treats its preferred message, the answer is: welcome to the crowd.”), the Gender in Athletics Law clearly affects L.E.'s opportunity to participate in interscholastic athletics in a manner consistent with his gender identity.
Warren, 707 F.3d 686, 691 (6th Cir. 2013) (“[T]he Clause prohibits government from favoring one religion over another or from favoring religion over irreligion (or irreligion over religion).”).
"As made applicable to the States through the Fourteenth Amendment, the Clause prohibits government from favoring one religion over another or from favoring religion over irrelegion (or irrelegion over religion)." Freedom from Religion Foundation, Inc. v. City of Warren, Mich. , 707 F.3d 686, 691 (6th Cir. 2013). This "principle ... that government should not prefer one religion to another, or religion to irreligion," is "at the heart of the Establishment Clause."
The Armory flagpole is not designed to accommodate a large number of speakers (either simultaneously or seriatim). See Freedom from Religion Found., Inc. v. City of Warren, 707 F.3d 686, 698 (6th Cir.2013) (“[A] forum approach does not properly apply ... when the sought-after space is finite in terms of the structures or symbols it could accommodate.”).
But the fact that plaintiffs find the monument offensive is insufficient by itself to support an equal protection claim. (See Freedom from Religion Foundation, Inc. v. City of Warren (6th Cir. 2013) 707 F.3d 686, 698 [city's refusal to add Winter Solstice sign to holiday display, which included nativity scene, was not disparate treatment].) Further, plaintiffs argue laws that stigmatize a particular class, even when neutrally drawn violate equal protection of the laws, citing Parr v. Municipal Court (1971) 3 Cal.3d 861, 863-864 (Parr).