ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO.

Kristen K. Waggoner, Scottsdale, AZ, for Petitioners.

Noel J. Francisco, Solicitor General, for the United States as amicus curiae, by special leave of the Court, supporting the petitioners.

Frederick R. Yarger, Denver, CO, for the State Respondent.

David D. Cole, Washington, DC, for the Private Respondents.

David A. Cortman, Rory T, Gray, Alliance Defending Freedom, Lawrenceville, GA, Nicolle H. Martin, Lakewood, CO, Kristen K. Waggoner, Jeremy D. Tedesco, James A. Campbell, Jonathan A. Scruggs, Alliance Defending Freedom, Scottsdale, AZ, for Petitioners.

Cynthia H. Coffman, Attorney General, Frederick R. Yarger, Solicitor General, Office of the Colorado Attorney General, Denver, CO, Vincent E. Morscher, Deputy Attorney General, Glenn E. Roper, Deputy Solicitor General, Stacy L. Worthington, Senior Assistant Attorney General, Grant T. Sullivan, Assistant Solicitor General, for Respondent Colorado Civil Rights Commission.

Mark Silverstein, Sara R. Neel, American Civil Liberties Union Foundation of Colorado, Paula Greisen, King & Greisen, LLC, Denver, CO, Ria Tabacco Mar, James D. Esseks, Leslie Cooper, Rachel Wainer Apter, Louise Melling, Rose A. Saxe, Lee Rowland, American Civil Liberties Union Foundation, New York, NY, David D. Cole, Amanda W. Shanor, Daniel Mach, American Civil Liberties Union Foundation, Washington, DC, for Respondents Charlie Craig and David Mullins.

Syllabus^[*]

Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian. In 2012 he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages — marriages that Colorado did not then recognize — but that he would sell them other baked goods, e.g., birthday cakes. The couple filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), which prohibits, as relevant here, discrimination based on sexual orientation in a "place of business engaged in any sales to the public and any place offering services ... to the public." Under CADA's administrative review system, the Colorado Civil Rights Division first found probable cause for a violation and referred the case to the Commission. The Commission then referred the case for a formal hearing before a state Administrative Law Judge (ALJ), who ruled in the couple's favor. In so doing, the ALJ rejected Phillips' First Amendment claims: that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion. Both the Commission and the Colorado Court of Appeals affirmed.

Held: The Commission's actions in this case violated the Free Exercise Clause. Pp. 1727-1732.

(a) The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical  objections to gay marriage are protected views and in some instances protected forms of expression. See Obergefell v. Hodges, 576 U.S. ___, ___, 135 S.Ct. 2584, 2594, 192 L.Ed.2d 609. While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion. To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, 570 U.S. 744, 133 S.Ct. 2675, 186 L.Ed.2d 808, or Obergefell. Given the State's position at the time, there is some force to Phillips' argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. Pp. 1727-1729.

(b) That consideration was compromised, however, by the Commission's treatment of Phillips' case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission's formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips' faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission's adjudication of Phillips' case.

Another indication of hostility is the different treatment of Phillips' case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips' willingness to do the same irrelevant. The State Court of Appeals' brief discussion of this disparity of treatment does not answer Phillips' concern that the State's practice was to disfavor the religious basis of his objection. Pp. 1728-1731.

(c) For these reasons, the Commission's treatment of Phillips' case violated the State's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472. Factors relevant to the assessment of governmental neutrality include "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body." Id., at 540, 113 S.Ct. 2217. In view of these factors, the record here demonstrates that the Commission's consideration of Phillips' case was neither tolerant nor respectful of his religious beliefs. The Commission gave "every appearance," id., at 545, 113 S.Ct. 2217, of adjudicating his religious objection based on a negative normative "evaluation of the particular justification" for his objection and the religious grounds for it, id., at 537, 113 S.Ct. 2217, but government has no role in expressing or even suggesting whether the religious ground for Phillips' conscience-based objection is legitimate or illegitimate. The inference here is thus that Phillips' religious objection was not considered with the neutrality required by the Free Exercise Clause. The State's interest could have been weighed against Phillips' sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expressions of hostility to religion in some of the commissioners' comments were inconsistent with that requirement, and the Commission's disparate consideration of Phillips' case compared to the cases of the other bakers suggests the same. Pp. 1730-1732.

370 P.3d 272, reversed.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and BREYER, ALITO, KAGAN, and GORSUCH, JJ., joined. KAGAN, J., filed a concurring opinion, in which BREYER, J., joined. GORSUCH, J., filed a concurring opinion, in which ALITO, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

Justice KENNEDY delivered the opinion of the Court.

In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop's owner told the couple that he would not create a cake for their wedding because of his religious opposition to same-sex marriages — marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act.

The Commission determined that the shop's actions violated the Act and ruled in the couple's favor. The Colorado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Commission's order violated the Constitution.

The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.

The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

One of the difficulties in this case is that the parties disagree as to the extent of the baker's refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage — for instance, a cake showing words with religious meaning — that might be different from a refusal to sell any cake at all. In defining whether a baker's creation can be protected, these details might make a difference.

The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker's refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless.

Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission's consideration of this case was inconsistent with the State's obligation of religious neutrality. The reason and motive for the baker's refusal were based on his sincere religious beliefs and convictions. The Court's precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission's actions here violated the Free Exercise Clause; and its order must be set aside.

I

A

Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events.

Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Christian. He has explained that his "main goal in life is to be obedient to" Jesus Christ and Christ's "teachings in all aspects of his life." App. 148. And he seeks to "honor God through his work at Masterpiece Cakeshop." Ibid. One of Phillips' religious beliefs is that "God's intention for marriage from the beginning of history is that it is and should be the union of one man and one woman." Id., at 149. To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.

Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mullins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. To prepare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in ordering a cake for "our wedding." Id., at 152 (emphasis deleted). They did not mention the design of the cake they envisioned.

Phillips informed the couple that he does not "create" wedding cakes for same-sex weddings. Ibid. He explained, "I'll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don't make cakes for same sex weddings." Ibid.The couple left the shop without further discussion.

The following day, Craig's mother, who had accompanied the couple to the cakeshop and been present for their interaction with Phillips, telephoned to ask Phillips why he had declined to serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages. Id., at 153. He later explained his belief that "to create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into." Ibid. (emphasis deleted).

B

For most of its history, Colorado has prohibited discrimination in places of public accommodation. In 1885, less than a decade after Colorado achieved statehood, the General Assembly passed "An Act to Protect All Citizens in Their Civil Rights," which guaranteed "full and equal enjoyment" of certain public facilities to "all citizens," "regardless of race, color or previous condition of servitude." 1885 Colo. Sess. Laws pp. 132-133. A decade later, the General Assembly expanded the requirement to apply to "all other places of public accommodation." 1895 Colo. Sess. Laws ch. 61, p. 139.

Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state's tradition of prohibiting discrimination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteristics, CADA in relevant part provides as follows:

"It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation." Colo. Rev. Stat. § 24-34-601(2)(a) (2017).

The Act defines "public accommodation" broadly to include any "place of business engaged in any sales to the public and any place offering services ... to the public," but excludes "a church, synagogue, mosque, or other place that is principally used for religious purposes." § 24-34-601(1).

CADA establishes an administrative system for the resolution of discrimination claims. Complaints of discrimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Division investigates each claim; and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, in turn, decides whether to initiate a formal hearing before a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. See §§ 24-34-306, 24-4-105(14). The decision of the ALJ may be appealed to the full Commission, a seven-member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. See § 24-34-306(9). Available remedies include, among other things, orders to cease-and-desist a discriminatory policy, to file regular compliance reports with the Commission, and "to take affirmative action, including the posting of notices setting forth the substantive rights of the public." § 24-34-605. Colorado law does not permit the Commission to assess money damages or fines. §§ 24-34-306(9), 24-34-605.

C

Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in September 2012, shortly after the couple's visit to the shop. App. 31. The complaint alleged that Craig and Mullins had been denied "full and equal service" at the bakery because of their sexual orientation, id., at 35, 48, and that it was Phillips' "standard business practice" not to provide cakes for same-sex weddings, id., at 43.

The Civil Rights Division opened an investigation. The investigator found that "on multiple occasions," Phillips "turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception" because his religious beliefs prohibited it and because the potential customers "were doing something illegal" at that time. Id., at 76. The investigation found that Phillips had declined to sell custom wedding cakes to about six other same-sex couples on this basis. Id., at 72. The investigator also recounted that, according to affidavits submitted by Craig and Mullins, Phillips' shop had refused to sell cupcakes to a lesbian couple for their commitment celebration because the shop "had a policy of not selling baked goods to same-sex couples for this type of event." Id., at 73. Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission. Id., at 69.

The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. Finding no dispute as to material facts, the ALJ entertained cross-motions for summary judgment and ruled in the couple's favor. The ALJ first rejected Phillips' argument that declining to make or create a wedding cake for Craig and Mullins did not violate Colorado law. It was undisputed that the shop is subject to state public accommodations laws. And the ALJ determined that Phillips' actions constituted prohibited discrimination on the basis of sexual orientation, not simply opposition to same-sex marriage as Phillips contended. App. to Pet. for Cert. 68a-72a.

Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed. The ALJ rejected the contention that preparing a wedding cake is a form of protected speech and did not agree that creating Craig and Mullins' cake would force Phillips to adhere to "an ideological point of view." Id., at 75a. Applying CADA to the facts at hand, in the ALJ's view, did not interfere with Phillips' freedom of speech.

Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion, also protected by the First Amendment. Citing this Court's precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the ALJ determined that CADA is a "valid and neutral law of general applicability" and therefore that applying it to Phillips in this case did not violate the Free Exercise Clause. Id., at 879, 110 S.Ct. 1595; App. to Pet. for Cert. 82a-83a. The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both constitutional claims.

The Commission affirmed the ALJ's decision in full. Id., at 57a. The Commission ordered Phillips to "cease and desist from discriminating against ... same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples." Ibid. It also ordered additional remedial measures, including "comprehensive staff training on the Public Accommodations section" of CADA "and changes to any and all company policies to comply with ... this Order." Id., at 58a. The Commission additionally required Phillips to prepare "quarterly compliance reports" for a period of two years documenting "the number of patrons denied service" and why, along with "a statement describing the remedial actions taken." Ibid.

Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission's legal determinations and remedial order. The court rejected the argument that the "Commission's order unconstitutionally compels" Phillips and the shop "to convey a celebratory message about same sex marriage." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 283 (2015). The court also rejected the argument that the Commission's order violated the Free Exercise Clause. Relying on this Court's precedent in Smith, supra, at 879, 110 S.Ct. 1595, the court stated that the Free Exercise Clause "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability" on the ground that following the law would interfere with religious practice or belief. 370 P.3d, at 289. The court concluded that requiring Phillips to comply with the statute did not violate his free exercise rights. The Colorado Supreme Court declined to hear the case.

Phillips sought review here, and this Court granted certiorari. 582 U.S. ___, 137 S.Ct. 2290, 198 L.Ed.2d 723 (2017). He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment.

II

A

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), "[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths." Id., at ___, 135 S.Ct., at 2607. Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) ("Provisions like these are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments").

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court's precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. See Tr. of Oral Arg. 4-7, 10.

Phillips claims, however, that a narrower issue is presented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers' rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs.

Phillips' dilemma was particularly understandable given the background of legal principles and administration of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State. See Colo. Const., Art. II, § 31 (2012); 370 P.3d, at 277. At the time of the events in question, this Court had not issued its decisions either in United States v. Windsor, 570 U.S. 744, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), or Obergefell. Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State.

At the time, state law also afforded storekeepers some latitude to decline to create specific messages the storekeeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers' creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X (Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015).

There were, to be sure, responses to these arguments that the State could make when it contended for a different result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying "no goods or services will be sold if they will be used for gay marriages," something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case.

B

The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission's treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.

That hostility surfaced at the Commission's formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips' case. At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado's business community. One commissioner suggested that Phillips can believe "what he wants to believe," but cannot act on his religious beliefs "if he decides to do business in the state." Tr. 23. A few moments later, the commissioner restated the same position: "[I]f a businessman wants to do business in the state and he's got an issue with the — the law's impacting his personal belief system, he needs to look at being able to compromise." Id., at 30. Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor's personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips' free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.

On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting's discussion but said far more to disparage Phillips' beliefs. The commissioner stated:

"I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be — I mean, we — we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others." Tr. 11-12.

To describe a man's faith as "one of the most despicable pieces of rhetoric that people can use" is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere. The commissioner even went so far as to compare Phillips' invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's antidiscrimination law — a law that protects against discrimination on the basis of religion as well as sexual orientation.

The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission's decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission's adjudication of Phillips' case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-542, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); id., at 558, 113 S.Ct. 2217 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context — by an adjudicatory body deciding a particular case.

Another indication of hostility is the difference in treatment between Phillips' case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.

As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included "wording and images [the baker] deemed derogatory," Jack v. Gateaux, Ltd.,Charge No. P20140071X, at 4; featured "language and images [the baker] deemed hateful," Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker "deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4.

The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission's treatment of Phillips' objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips' willingness to sell "birthday cakes, shower cakes, [and] cookies and brownies," App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips' case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission's consideration of Phillips' religious objection did not accord with its treatment of these other objections.

Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers' conscience-based objections as legitimate, but treated his as illegitimate — thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that "[t]his case is distinguishable from the Colorado Civil Rights Division's recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed" when they refused to create the requested cakes. 370 P.3d, at 282, n. 8. In those cases, the court continued, there was no impermissible discrimination because "the Division found that the bakeries ... refuse[d] the patron's request ... because of the offensive nature of the requested message." Ibid.

A principled rationale for the difference in treatment of these two instances cannot be based on the government's own assessment of offensiveness. Just as "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion," West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U.S. ___, ___-___, 137 S.Ct. 1744, 1762-1764, 198 L.Ed.2d 366 (2017) (opinion of ALITO, J.). The Colorado court's attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips' religious beliefs. The court's footnote does not, therefore, answer the baker's concern that the State's practice was to disfavor the religious basis of his objection.

C

For the reasons just described, the Commission's treatment of Phillips' case violated the State's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

In Church of Lukumi Babalu Aye, supra, the Court made clear that the government, if it is to respect the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even "subtle departures from neutrality" on matters of religion. Id., at 534, 113 S.Ct. 2217. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips' religious beliefs. The Constitution "commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures." Id., at 547, 113 S.Ct. 2217.

Factors relevant to the assessment of governmental neutrality include "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body." Id., at 540, 113 S.Ct. 2217. In view of these factors the record here demonstrates that the Commission's consideration of Phillips' case was neither tolerant nor respectful of Phillips' religious beliefs. The Commission gave "every appearance," id., at 545, 113 S.Ct. 2217, of adjudicating Phillips' religious objection based on a negative normative "evaluation of the particular justification" for his objection and the religious grounds for it. Id., at 537, 113 S.Ct. 2217. It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips' conscience-based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips' religious objection was not considered with the neutrality that the Free Exercise Clause requires.

 While the issues here are difficult to resolve, it must be concluded that the State's interest could have been weighed against Phillips' sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners' comments — comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order — were inconsistent with what the Free Exercise Clause requires. The Commission's disparate consideration of Phillips' case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside.

III

The Commission's hostility was inconsistent with the First Amendment's guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission's order must be invalidated.

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

The judgment of the Colorado Court of Appeals is reversed.

It is so ordered.

Justice KAGAN, with whom Justice BREYER joins, concurring.

"[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law." Ante, at 1727. But in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views "neutral and respectful consideration." Ante, at 1729. I join the Court's opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation. I write separately to elaborate on one of the bases for the Court's holding.

The Court partly relies on the "disparate consideration of Phillips' case compared to the cases of [three] other bakers" who "objected to a requested cake on the basis of conscience." Ante, at 1730, 1732. In the latter cases, a customer named William Jack sought "cakes with images that conveyed disapproval of same-sex marriage, along with religious text"; the bakers whom he approached refused to make them. Ante, at 1730; see post, at 1749 (GINSBURG, J., dissenting) (further describing the requested cakes). Those bakers prevailed before the Colorado Civil Rights Division and Commission, while Phillips — who objected for religious reasons to baking a wedding cake for a same-sex couple — did not. The Court finds that the legal reasoning of the state agencies differed in significant ways as between the Jack cases and the Phillips case. See ante, at 1730. And the Court takes especial note of the suggestion made by the Colorado Court of Appeals, in comparing those cases, that the state agencies found the message Jack requested "offensive [in] nature." Ante, at 1731 (internal quotation marks omitted). As the Court states, a "principled rationale for the difference in treatment" cannot be "based on the government's own assessment of offensiveness." Ibid.

What makes the state agencies' consideration yet more disquieting is that a proper basis for distinguishing the cases was available — in fact, was obvious. The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny "the full and equal enjoyment" of goods and services to individuals based on certain characteristics, including sexual orientation and creed. Colo. Rev. Stat. § 24-34-601(2)(a) (2017). The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay people and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else — just as CADA requires. By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA's demand that customers receive "the full and equal enjoyment" of public accommodations irrespective of their sexual orientation. Ibid. The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law — untainted by any bias against a religious belief.^[*]

I read the Court's opinion as fully consistent with that view. The Court limits its analysis to the reasoning of the state agencies (and Court of Appeals) — "quite apart from whether the [Phillips and Jack] cases should ultimately be distinguished." Ante, at 1727. And the Court itself recognizes the principle that would properly account for a difference in result between those cases. Colorado law, the Court says, "can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public." Ante, at 1728. For that reason, Colorado can treat a baker who discriminates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State's decisions are not infected by religious hostility or bias. I accordingly concur.

Justice GORSUCH, with whom Justice ALITO joins, concurring.

In Employment Div., Dept. of Human Resources of Ore. v. Smith, this Court held that a neutral and generally applicable law will usually survive a constitutional free exercise challenge. 494 U.S. 872, 878-879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Smith remains controversial in many quarters. Compare McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990), with Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992). But we know this with certainty: when the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble. Then the government can prevail only if it satisfies strict scrutiny, showing that its restrictions on religion both serve a compelling interest and are narrowly tailored. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).

Today's decision respects these principles. As the Court explains, the Colorado Civil Rights Commission failed to act neutrally toward Jack Phillips's religious faith. Maybe most notably, the Commission allowed three other bakers to refuse a customer's request that would have required them to violate their secular commitments. Yet it denied the same accommodation to Mr. Phillips when he refused a customer's request that would have required him to violate his religious beliefs. Ante, at 1729-1731. As the Court also explains, the only reason the Commission seemed to supply for its discrimination was that it found Mr. Phillips's religious beliefs "offensive." Ibid. That kind of judgmental dismissal of a sincerely held religious belief is, of course, antithetical to the First Amendment and cannot begin to satisfy strict scrutiny. The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all. Because the Court documents each of these points carefully and thoroughly, I am pleased to join its opinion in full.

The only wrinkle is this. In the face of so much evidence suggesting hostility toward Mr. Phillips's sincerely held religious beliefs, two of our colleagues have written separately to suggest that the Commission acted neutrally toward his faith when it treated him differently from the other bakers — or that it could have easily done so consistent with the First Amendment. See post, at 1749-1750, and n. 4 (GINSBURG, J., dissenting); ante, at 1732-1734, and n. (KAGAN, J., concurring). But, respectfully, I do not see how we might rescue the Commission from its error.

A full view of the facts helps point the way to the problem. Start with William Jack's case. He approached three bakers and asked them to prepare cakes with messages disapproving same-sex marriage on religious grounds. App. 233, 243, 252. All three bakers refused Mr. Jack's request, stating that they found his request offensive to their secular convictions. Id., at 231, 241, 250. Mr. Jack responded by filing complaints with the Colorado Civil Rights Division. Id., at 230, 240, 249. He pointed to Colorado's Anti-Discrimination Act, which prohibits discrimination against customers in public accommodations because of religious creed, sexual orientation, or certain other traits. See ibid.; Colo. Rev. Stat. § 24-34-601(2)(a) (2017). Mr. Jack argued that the cakes he sought reflected his religious beliefs and that the bakers could not refuse to make them just because they happened to disagree with his beliefs. App. 231, 241, 250. But the Division declined to find a violation, reasoning that the bakers didn't deny Mr. Jack service because of his religious faith but because the cakes he sought were offensive to their own moral convictions. Id., at 237, 247, 255-256. As proof, the Division pointed to the fact that the bakers said they treated Mr. Jack as they would have anyone who requested a cake with similar messages, regardless of their religion. Id., at 230-231, 240, 249. The Division pointed, as well, to the fact that the bakers said they were happy to provide religious persons with other cakes expressing other ideas. Id., at 237, 247, 257. Mr. Jack appealed to the Colorado Civil Rights Commission, but the Commission summarily denied relief. App. to Pet. for Cert. 326a-331a.

Next, take the undisputed facts of Mr. Phillips's case. Charlie Craig and Dave Mullins approached Mr. Phillips about creating a cake to celebrate their wedding. App. 168. Mr. Phillips explained that he could not prepare a cake celebrating a same-sex wedding consistent with his religious faith. Id., at 168-169. But Mr. Phillips offered to make other baked goods for the couple, including cakes celebrating other occasions. Ibid. Later, Mr. Phillips testified without contradiction that he would have refused to create a cake celebrating a same-sex marriage for any customer, regardless of his or her sexual orientation. Id., at 166-167 ("I will not design and create wedding cakes for a same-sex wedding regardless of the sexual orientation of the customer"). And the record reveals that Mr. Phillips apparently refused just such a request from Mr. Craig's mother. Id., at 38-40, 169. (Any suggestion that Mr. Phillips was willing to make a cake celebrating a same-sex marriage for a heterosexual customer or was not willing to sell other products to a homosexual customer, then, would simply mistake the undisputed factual record. See post, at 1749, n. 2 (GINSBURG, J., dissenting); ante, at 1732-1734, and n. (KAGAN, J., concurring)). Nonetheless, the Commission held that Mr. Phillips's conduct violated the Colorado public accommodations law. App. to Pet. for Cert. 56a-58a.

The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there's no indication the bakers actually intended to refuse service because of a customer's protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else). So, for example, the bakers in the first case would have refused to sell a cake denigrating same-sex marriage to an atheist customer, just as the baker in the second case would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the first case were generally happy to sell to persons of faith, just as the baker in the second case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers.

The distinction between intended and knowingly accepted effects is familiar in life and law. Often the purposeful pursuit of worthy commitments requires us to accept unwanted but entirely foreseeable side effects: so, for example, choosing to spend time with family means the foreseeable loss of time for charitable work, just as opting for more time in the office means knowingly forgoing time at home with loved ones. The law, too, sometimes distinguishes between intended and foreseeable effects. See, e.g., ALI, Model Penal Code §§ 1.13, 2.02(2)(a)(i) (1985); 1 W. LaFave, Substantive Criminal Law § 5.2(b), pp. 460-463 (3d ed. 2018). Other times, of course, the law proceeds differently, either conflating intent and knowledge or presuming intent as a matter of law from a showing of knowledge. See, e.g., Restatement (Second) of Torts § 8A (1965); Radio Officers v. NLRB, 347 U.S. 17, 45, 74 S.Ct. 323, 98 L.Ed. 455 (1954).

The problem here is that the Commission failed to act neutrally by applying a consistent legal rule. In Mr. Jack's case, the Commission chose to distinguish carefully between intended and knowingly accepted effects. Even though the bakers knowingly denied service to someone in a protected class, the Commission found no violation because the bakers only intended to distance themselves from "the offensive nature of the requested message." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 282, n. 8 (Colo.App.2015); App. 237, 247, 256; App. to Pet. for Cert. 326a-331a; see also Brief for Respondent Colorado Civil Rights Commission 52 ("Businesses are entitled to reject orders for any number of reasons, including because they deem a particular product requested by a customer to be `offensive'"). Yet, in Mr. Phillips's case, the Commission dismissed this very same argument as resting on a "distinction without a difference." App. to Pet. for Cert. 69a. It concluded instead that an "intent to disfavor" a protected class of persons should be "readily ... presumed" from the knowing failure to serve someone who belongs to that class. Id., at 70a. In its judgment, Mr. Phillips's intentions were "inextricably tied to the sexual orientation of the parties involved" and essentially "irrational." Ibid.

Nothing in the Commission's opinions suggests any neutral principle to reconcile these holdings. If Mr. Phillips's objection is "inextricably tied" to a protected class, then the bakers' objection in Mr. Jack's case must be "inextricably tied" to one as well. For just as cakes celebrating same-sex weddings are (usually) requested by persons of a particular sexual orientation, so too are cakes expressing religious opposition to same-sex weddings (usually) requested by persons of particular religious faiths. In both cases the bakers' objection would (usually) result in turning down customers who bear a protected characteristic. In the end, the Commission's decisions simply reduce to this: it presumed that Mr. Phillip harbored an intent to discriminate against a protected class in light of the foreseeable effects of his conduct, but it declined to presume the same intent in Mr. Jack's case even though the effects of the bakers' conduct were just as foreseeable. Underscoring the double standard, a state appellate court said that "no such showing" of actual "animus" — or intent to discriminate against persons in a protected class — was even required in Mr. Phillips's case. 370 P.3d, at 282.

The Commission cannot have it both ways. The Commission cannot slide up and down the mens rea scale, picking a mental state standard to suit its tastes depending on its sympathies. Either actual proof of intent to discriminate on the basis of membership in a protected class is required (as the Commission held in Mr. Jack's case), or it is sufficient to "presume" such intent from the knowing failure to serve someone in a protected class (as the Commission held in Mr. Phillips's case). Perhaps the Commission could have chosen either course as an initial matter. But the one thing it can't do is apply a more generous legal test to secular objections than religious ones. See Church of Lukumi Babalu Aye, 508 U.S., at 543-544, 113 S.Ct. 2217. That is anything but the neutral treatment of religion.

The real explanation for the Commission's discrimination soon comes clear, too — and it does anything but help its cause. This isn't a case where the Commission self-consciously announced a change in its legal rule in all public accommodation cases. Nor is this a case where the Commission offered some persuasive reason for its discrimination that might survive strict scrutiny. Instead, as the Court explains, it appears the Commission wished to condemn Mr. Phillips for expressing just the kind of "irrational" or "offensive ... message" that the bakers in the first case refused to endorse. Ante, at 1730-1731. Many may agree with the Commission and consider Mr. Phillips's religious beliefs irrational or offensive. Some may believe he misinterprets the teachings of his faith. And, to be sure, this Court has held same-sex marriage a matter of constitutional right and various States have enacted laws that preclude discrimination on the basis of sexual orientation. But it is also true that no bureaucratic judgment condemning a sincerely held religious belief as "irrational" or "offensive" will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn't to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the "proudest boast of our free speech jurisprudence" that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive. See Matal v. Tam, 582 U.S. ___, ___, 137 S.Ct. 1744, 1764, 198 L.Ed.2d 366 (2017) (plurality opinion) (citing United States v. Schwimmer, 279 U.S. 644, 655, 49 S.Ct. 448, 73 L.Ed. 889 (1929) (Holmes, J., dissenting)). Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country's commitment to serving as a refuge for religious freedom. See Church of Lukumi Babalu Aye, supra, at 547, 113 S.Ct. 2217; Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715-716, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Wisconsin v. Yoder, 406 U.S. 205, 223-224, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Cantwell v. Connecticut, 310 U.S. 296, 308-310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

Nor can any amount of after-the-fact maneuvering by our colleagues save the Commission. It is no answer, for example, to observe that Mr. Jack requested a cake with text on it while Mr. Craig and Mr. Mullins sought a cake celebrating their wedding without discussing its decoration, and then suggest this distinction makes all the difference. See post, at 1749-1750, and n. 4 (GINSBURG, J., dissenting). It is no answer either simply to slide up a level of generality to redescribe Mr. Phillips's case as involving only a wedding cake like any other, so the fact that Mr. Phillips would make one for some means he must make them for all. See ante, at 1732-1734, and n. (KAGAN, J., concurring). These arguments, too, fail to afford Mr. Phillips's faith neutral respect.

Take the first suggestion first. To suggest that cakes with words convey a message but cakes without words do not — all in order to excuse the bakers in Mr. Jack's case while penalizing Mr. Phillips — is irrational. Not even the Commission or court of appeals purported to rely on that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against same-sex marriage rather than a cake bearing words conveying the same idea. Surely the Commission would have approved the bakers' intentional wish to avoid participating in that message too. Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding. See 370 P.3d, at 276 (stating that Mr. Craig and Mr. Mullins "requested that Phillips design and create a cake to celebrate their same-sex wedding") (emphasis added). Like "an emblem or flag," a cake for a same-sex wedding is a symbol that serves as "a short cut from mind to mind," signifying approval of a specific "system, idea, [or] institution." West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). It is precisely that approval that Mr. Phillips intended to withhold in keeping with his religious faith. The Commission denied Mr. Phillips that choice, even as it afforded the bakers in Mr. Jack's case the choice to refuse to advance a message they deemed offensive to their secular commitments. That is not neutral.

Nor would it be proper for this or any court to suggest that a person must be forced to write words rather than create a symbol before his religious faith is implicated. Civil authorities, whether "high or petty," bear no license to declare what is or should be "orthodox" when it comes to religious beliefs, id., at 642, 63 S.Ct. 1178, or whether an adherent has "correctly perceived" the commands of his religion, Thomas, supra, at 716, 101 S.Ct. 1425. Instead, it is our job to look beyond the formality of written words and afford legal protection to any sincere act of faith. See generally Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 569, 115 S.Ct. 2338. 132 L.Ed.2d 487 (1995) ("[T]he Constitution looks beyond written or spoken words as mediums of expression," which are "not a condition of constitutional protection").

The second suggestion fares no better. Suggesting that this case is only about "wedding cakes" — and not a wedding cake celebrating a same-sex wedding — actually points up the problem. At its most general level, the cake at issue in Mr. Phillips's case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn't play with the level of generality in Mr. Jack's case in this way. It didn't declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers' view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here.

Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer. Why calibrate the level of generality in Mr. Phillips's case at "wedding cakes" exactly — and not at, say, "cakes" more generally or "cakes that convey a message regarding same-sex marriage" more specifically? If "cakes" were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack's requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if "cakes that convey a message regarding same-sex marriage" were the relevant level of generality, the Commission would have to respect Mr. Phillips's refusal to make the requested cake just as it respected the bakers' refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same. Only by adjusting the dials just right — fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views — can you engineer the Commission's outcome, handing a win to Mr. Jack's bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper. Neither the Commission nor this Court may apply a more specific level of generality in Mr. Jack's case (a cake that conveys a message regarding same-sex marriage) while applying a higher level of generality in Mr. Phillips's case (a cake that conveys no message regarding same-sex marriage). Of course, under Smith a vendor cannot escape a public accommodations law just because his religion frowns on it. But for any law to comply with the First Amendment and Smith, it must be applied in a manner that treats religion with neutral respect. That means the government must apply the same level of generality across cases — and that did not happen here.

There is another problem with sliding up the generality scale: it risks denying constitutional protection to religious beliefs that draw distinctions more specific than the government's preferred level of description. To some, all wedding cakes may appear indistinguishable. But to Mr. Phillips that is not the case — his faith teaches him otherwise. And his religious beliefs are entitled to no less respectful treatment than the bakers' secular beliefs in Mr. Jack's case. This Court has explained these same points "[r]epeatedly and in many different contexts" over many years. Smith, 494 U.S. at 887, 110 S.Ct. 1595. For example, in Thomas a faithful Jehovah's Witness and steel mill worker agreed to help manufacture sheet steel he knew might find its way into armaments, but he was unwilling to work on a fabrication line producing tank turrets. 450 U.S., at 711, 101 S.Ct. 1425. Of course, the line Mr. Thomas drew wasn't the same many others would draw and it wasn't even the same line many other members of the same faith would draw. Even so, the Court didn't try to suggest that making steel is just making steel. Or that to offend his religion the steel needed to be of a particular kind or shape. Instead, it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments — and that those commitments, as defined by the faithful adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment. Id., at 714-716, 101 S.Ct. 1425; see also United States v. Lee, 455 U.S. 252, 254-255, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982); Smith, supra, at 887, 110 S.Ct. 1595(collecting authorities). It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other — without regard to the religious significance his faith may attach to it — than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap.

Only one way forward now remains. Having failed to afford Mr. Phillips's religious objections neutral consideration and without any compelling reason for its failure, the Commission must afford him the same result it afforded the bakers in Mr. Jack's case. The Court recognizes this by reversing the judgment below and holding that the Commission's order "must be set aside." Ante, at 1732. Maybe in some future rulemaking or case the Commission could adopt a new "knowing" standard for all refusals of service and offer neutral reasons for doing so. But, as the Court observes, "[h]owever later cases raising these or similar concerns are resolved in the future, ... the rulings of the Commission and of the state court that enforced the Commission's order" in this case "must be invalidated." Ibid. Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment.

Justice THOMAS, with whom Justice GORSUCH joins, concurring in part and concurring in the judgment.

I agree that the Colorado Civil Rights Commission (Commission) violated Jack Phillips' right to freely exercise his religion. As Justice GORSUCH explains, the Commission treated Phillips' case differently from a similar case involving three other bakers, for reasons that can only be explained by hostility toward Phillips' religion. See ante, at 1734-1737 (concurring opinion). The Court agrees that the Commission treated Phillips differently, and it points out that some of the Commissioners made comments disparaging Phillips' religion. See ante, at 1728-1731. Although the Commissioners' comments are certainly disturbing, the discriminatory application of Colorado's public-accommodations law is enough on its own to violate Phillips' rights. To the extent the Court agrees, I join its opinion.

While Phillips rightly prevails on his free-exercise claim, I write separately to address his free-speech claim. The Court does not address this claim because it has some uncertainties about the record. See ante, at 1723-1724. Specifically, the parties dispute whether Phillips refused to create a custom wedding cake for the individual respondents, or whether he refused to sell them any wedding cake (including a premade one). But the Colorado Court of Appeals resolved this factual dispute in Phillips' favor. The court described his conduct as a refusal to "design and create a cake to celebrate [a] same-sex wedding." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 276 (2015); see also id., at 286 ("designing and selling a wedding cake"); id., at 283 ("refusing to create a wedding cake"). And it noted that the Commission's order required Phillips to sell "`any product [he] would sell to heterosexual couples,'" including custom wedding cakes. Id., at 286 (emphasis added).

Even after describing his conduct this way, the Court of Appeals concluded that Phillips' conduct was not expressive and was not protected speech. It reasoned that an outside observer would think that Phillips was merely complying with Colorado's public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect. This reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.

I

The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits state laws that abridge the "freedom of speech." When interpreting this command, this Court has distinguished between regulations of speech and regulations of conduct. The latter generally do not abridge the freedom of speech, even if they impose "incidental burdens" on expression. Sorrell v. IMS Health Inc., 564 U.S. 552, 567, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). As the Court explains today, public-accommodations laws usually regulate conduct. Ante,at 1727-1728 (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995)). "[A]s a general matter," public-accommodations laws do not "target speech" but instead prohibit "the act of discriminating against individuals in the provision of publicly available goods, privileges, and services." Id., at 572, 115 S.Ct. 2338 (emphasis added).

Although public-accommodations laws generally regulate conduct, particular applications of them can burden protected speech. When a public-accommodations law "ha[s] the effect of declaring ... speech itself to be the public accommodation," the First Amendment applies with full force. Id., at 573, 115 S.Ct. 2338; accord, Boy Scouts of America v. Dale, 530 U.S. 640, 657-659, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). In Hurley, for example, a Massachusetts public-accommodations law prohibited "`any distinction, discrimination or restriction on account of ... sexual orientation ... relative to the admission of any person to, or treatment in any place of public accommodation.'" 515 U.S., at 561, 115 S.Ct. 2338(quoting Mass. Gen. Laws § 272:98 (1992); ellipsis in original). When this law required the sponsor of a St. Patrick's Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans, the Court unanimously held that the law violated the sponsor's right to free speech. Parades are "a form of expression," this Court explained, and the application of the public-accommodations law "alter[ed] the expressive content" of the parade by forcing the sponsor to add a new unit. 515 U.S., at 568, 572-573, 115 S.Ct. 2338. The addition of that unit compelled the organizer to "bear witness to the fact that some Irish are gay, lesbian, or bisexual"; "suggest ... that people of their sexual orientation have as much claim to unqualified social acceptance as heterosexuals"; and imply that their participation "merits celebration." Id., at 574, 115 S.Ct. 2338. While this Court acknowledged that the unit's exclusion might have been "misguided, or even hurtful," ibid., it rejected the notion that governments can mandate "thoughts and statements acceptable to some groups or, indeed, all people" as the "antithesis" of free speech, id., at 579, 115 S.Ct. 2338; accord, Dale, supra, at 660-661, 120 S.Ct. 2446.

The parade in Hurley was an example of what this Court has termed "expressive conduct." See 515 U.S., at 568-569, 115 S.Ct. 2338. This Court has long held that "the Constitution looks beyond written or spoken words as mediums of expression," id., at 569, 115 S.Ct. 2338, and that "[s]ymbolism is a primitive but effective way of communicating ideas," West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Thus, a person's "conduct may be `sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.'" Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Applying this principle, the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag.^[1]

Of course, conduct does not qualify as protected speech simply because "the person engaging in [it] intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). To determine whether conduct is sufficiently expressive, the Court asks whether it was "intended to be communicative" and, "in context, would reasonably be understood by the viewer to be communicative." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). But a "`particularized message'" is not required, or else the freedom of speech "would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll." Hurley, 515 U.S., at 569, 115 S.Ct. 2338.

Once a court concludes that conduct is expressive, the Constitution limits the government's authority to restrict or compel it. "[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide `what not to say'" and "tailor" the content of his message as he sees fit. Id., at 573, 115 S.Ct. 2338 (quoting Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 16, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion)). This rule "applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid." Hurley, supra, at 573, 115 S.Ct. 2338. And it "makes no difference" whether the government is regulating the "creati[on], distributi[on], or consum[ption]" of the speech. Brown v. Entertainment Merchants Assn., 564 U.S. 786, 792, n. 1, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011).

II

A

The conduct that the Colorado Court of Appeals ascribed to Phillips — creating and designing custom wedding cakes — is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist's paint palette with a paintbrush and baker's whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates — sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. Examples of his creations can be seen on Masterpiece's website. See http://masterpiececakes.com/wedding-cakes (as last visited June 1, 2018).

Phillips is an active participant in the wedding celebration. He sits down with each couple for a consultation before he creates their custom wedding cake. He discusses their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it. In addition to creating and delivering the cake — a focal point of the wedding celebration — Phillips sometimes stays and interacts with the guests at the wedding. And the guests often recognize his creations and seek his bakery out afterward. Phillips also sees the inherent symbolism in wedding cakes. To him, a wedding cake inherently communicates that "a wedding has occurred, a marriage has begun, and the couple should be celebrated." App. 162.

Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that made its way to America after the Civil War, "[w]edding cakes are so packed with symbolism that it is hard to know where to begin." M. Krondl, Sweet Invention: A History of Dessert 321 (2011) (Krondl); see also ibid. (explaining the symbolism behind the color, texture, flavor, and cutting of the cake). If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding. The cake is "so standardised and inevitable a part of getting married that few ever think to question it." Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 95 (1987). Almost no wedding, no matter how spartan, is missing the cake. See id., at 98. "A whole series of events expected in the context of a wedding would be impossible without it: an essential photograph, the cutting, the toast, and the distribution of both cake and favours at the wedding and afterwards." Ibid.Although the cake is eventually eaten, that is not its primary purpose. See id., at 95 ("It is not unusual to hear people declaring that they do not like wedding cake, meaning that they do not like to eat it. This includes people who are, without question, having such cakes for their weddings"); id., at 97 ("Nothing is made of the eating itself"); Krondl 320-321 (explaining that wedding cakes have long been described as "inedible"). The cake's purpose is to mark the beginning of a new marriage and to celebrate the couple.^[2]

Accordingly, Phillips' creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message — certainly more so than nude dancing, Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), or flying a plain red flag, Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).^[3] By forcing Phillips to create custom wedding cakes for same-sex weddings, Colorado's public-accommodations law "alter[s] the expressive content" of his message. Hurley, 515 U.S., at 572, 115 S.Ct. 2338. The meaning of expressive conduct, this Court has explained, depends on "the context in which it occur[s]." Johnson, 491 U.S., at 405, 109 S.Ct. 2533. Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are "weddings" and suggest that they should be celebrated — the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to "bear witness to [these] fact[s]," Hurley, 515 U.S., at 574, 115 S.Ct. 2338, or to "affir[m] ... a belief with which [he] disagrees," id., at 573, 115 S.Ct. 2338.

B

The Colorado Court of Appeals nevertheless concluded that Phillips' conduct was "not sufficiently expressive" to be protected from state compulsion. 370 P.3d, at 283. It noted that a reasonable observer would not view Phillips' conduct as "an endorsement of same-sex marriage," but rather as mere "compliance" with Colorado's public-accommodations law. Id., at 286-287 (citing Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 64-65, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (FAIR); Rosenberger v. Rector and Visitors of Univ. of Va.,515 U.S. 819, 841-842, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); PruneYard Shopping Center v. Robins, 447 U.S. 74, 76-78, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980)). It also emphasized that Masterpiece could "disassociat[e]" itself from same-sex marriage by posting a "disclaimer" stating that Colorado law "requires it not to discriminate" or that "the provision of its services does not constitute an endorsement." 370 P.3d, at 288. This reasoning is badly misguided.

1

The Colorado Court of Appeals was wrong to conclude that Phillips' conduct was not expressive because a reasonable observer would think he is merely complying with Colorado's public-accommodations law. This argument would justify any law that compelled protected speech. And, this Court has never accepted it. From the beginning, this Court's compelled-speech precedents have rejected arguments that "would resolve every issue of power in favor of those in authority." Barnette,319 U.S., at 636, 63 S.Ct. 1178. Hurley, for example, held that the application of Massachusetts' public-accommodations law "requir[ed] [the organizers] to alter the expressive content of their parade." 515 U.S., at 572-573, 115 S.Ct. 2338. It did not hold that reasonable observers would view the organizers as merely complying with Massachusetts' public-accommodations law.

The decisions that the Colorado Court of Appeals cited for this proposition are far afield. It cited three decisions where groups objected to being forced to provide a forum for a third party's speech. See FAIR, supra, at 51, 126 S.Ct. 1297 (law school refused to allow military recruiters on campus); Rosenberger, supra,at 822-823, 115 S.Ct. 2510 (public university refused to provide funds to a religious student paper); PruneYard, supra, at 77, 100 S.Ct. 2035 (shopping center refused to allow individuals to collect signatures on its property). In those decisions, this Court rejected the argument that requiring the groups to provide a forum for third-party speech also required them to endorse that speech. See FAIR, supra, at 63-65, 126 S.Ct. 1297; Rosenberger, supra, at 841-842, 115 S.Ct. 2510; PruneYard, supra, at 85-88, 100 S.Ct. 2035. But these decisions do not suggest that the government can force speakers to alter their own message. See Pacific Gas & Elec., 475 U.S., at 12, 106 S.Ct. 903 ("Notably absent from PruneYard was any concern that access... might affect the shopping center owner's exercise of his own right to speak"); Hurley, supra, at 580, 115 S.Ct. 2338 (similar).

The Colorado Court of Appeals also noted that Masterpiece is a "for-profit bakery" that "charges its customers." 370 P.3d, at 287. But this Court has repeatedly rejected the notion that a speaker's profit motive gives the government a freer hand in compelling speech. See Pacific Gas & Elec., supra, at 8, 16, 106 S.Ct. 903(collecting cases); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (deeming it "beyond serious dispute" that "[s]peech... is protected even though it is carried in a form that is `sold' for profit"). Further, even assuming that most for-profit companies prioritize maximizing profits over communicating a message, that is not true for Masterpiece Cakeshop. Phillips routinely sacrifices profits to ensure that Masterpiece operates in a way that represents his Christian faith. He is not open on Sundays, he pays his employees a higher-than-average wage, and he loans them money in times of need. Phillips also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages, cakes criticizing God, and cakes celebrating Halloween — even though Halloween is one of the most lucrative seasons for bakeries. These efforts to exercise control over the messages that Masterpiece sends are still more evidence that Phillips' conduct is expressive. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256-258, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974); Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, ___, 135 S.Ct. 2239, 2251, 192 L.Ed.2d 274 (2015).

2

The Colorado Court of Appeals also erred by suggesting that Phillips could simply post a disclaimer, disassociating Masterpiece from any support for same-sex marriage. Again, this argument would justify any law compelling speech. And again, this Court has rejected it. We have described similar arguments as "beg[ging] the core question." Tornillo, supra, at 256, 94 S.Ct. 2831. Because the government cannot compel speech, it also cannot "require speakers to affirm in one breath that which they deny in the next." Pacific Gas & Elec., 475 U.S., at 16, 106 S.Ct. 903; see also id., at 15, n. 11, 106 S.Ct. 903 (citing PruneYard, 447 U.S., at 99, 100 S.Ct. 2035 (Powell, J., concurring in part and concurring in judgment)). States cannot put individuals to the choice of "be[ing] compelled to affirm someone else's belief" or "be[ing] forced to speak when [they] would prefer to remain silent." Id., at 99, 100 S.Ct. 2035.

III

Because Phillips' conduct (as described by the Colorado Court of Appeals) was expressive, Colorado's public-accommodations law cannot penalize it unless the law withstands strict scrutiny. Although this Court sometimes reviews regulations of expressive conduct under the more lenient test articulated in O'Brien,^[4] that test does not apply unless the government would have punished the conduct regardless of its expressive component. See, e.g., Barnes, 501 U.S., at 566-572, 111 S.Ct. 2456 (applying O'Brien to evaluate the application of a general nudity ban to nude dancing); Clark, 468 U.S., at 293, 104 S.Ct. 3065(applying O'Brien to evaluate the application of a general camping ban to a demonstration in the park). Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage. In cases like this one, our precedents demand "`the most exacting scrutiny.'" Johnson, 491 U.S., at 412, 109 S.Ct. 2533; accord, Holder v. Humanitarian Law Project, 561 U.S. 1, 28, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010).

The Court of Appeals did not address whether Colorado's law survives strict scrutiny, and I will not do so in the first instance. There is an obvious flaw, however, with one of the asserted justifications for Colorado's law. According to the individual respondents, Colorado can compel Phillips' speech to prevent him from "`denigrat[ing] the dignity'" of same-sex couples, "`assert[ing] [their] inferiority,'" and subjecting them to "`humiliation, frustration, and embarrassment.'" Brief for Respondents Craig et al. 39 (quoting J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 142, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 292, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free-speech jurisprudence.

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Johnson, supra, at 414, 109 S.Ct. 2533. A contrary rule would allow the government to stamp out virtually any speech at will. See Morse v. Frederick,551 U.S. 393, 409, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) ("After all, much political and religious speech might be perceived as offensive to some"). As the Court reiterates today, "it is not ... the role of the State or its officials to prescribe what shall be offensive." Ante, at 1731. "`Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection.'" Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); accord, Johnson, supra, at 408-409, 109 S.Ct. 2533. If the only reason a public-accommodations law regulates speech is "to produce a society free of ... biases" against the protected groups, that purpose is "decidedly fatal" to the law's constitutionality, "for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression." Hurley, 515 U.S., at 578-579, 115 S.Ct. 2338; see also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ("Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails"). "[A] speech burden based on audience reactions is simply government hostility ... in a different guise." Matal v. Tam, 582 U.S. ___, ___, 137 S.Ct. 1744, 1767, 198 L.Ed.2d 366 (2017) (KENNEDY, J., concurring in part and concurring in judgment).

Consider what Phillips actually said to the individual respondents in this case. After sitting down with them for a consultation, Phillips told the couple, "`I'll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don't make cakes for same sex weddings.'" App. 168. It is hard to see how this statement stigmatizes gays and lesbians more than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or subjecting them to signs that say "God Hates Fags" — all of which this Court has deemed protected by the First Amendment. See Hurley, supra, at 574-575, 115 S.Ct. 2338; Dale, 530 U.S., at 644, 120 S.Ct. 2446; Snyder v. Phelps, 562 U.S. 443, 448, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011). Moreover, it is also hard to see how Phillips' statement is worse than the racist, demeaning, and even threatening speech toward blacks that this Court has tolerated in previous decisions. Concerns about "dignity" and "stigma" did not carry the day when this Court affirmed the right of white supremacists to burn a 25-foot cross, Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); conduct a rally on Martin Luther King Jr.'s birthday, Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992); or circulate a film featuring hooded Klan members who were brandishing weapons and threatening to "`Bury the niggers,'" Brandenburg v. Ohio,395 U.S. 444, 446, n. 1, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam).

Nor does the fact that this Court has now decided Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), somehow diminish Phillips' right to free speech. "It is one thing ... to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted" and unentitled to express a different view. Id., at ___, 135 S.Ct., at 2626 (ROBERTS, C.J., dissenting). This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individuals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage "long has been held — and continues to be held — in good faith by reasonable and sincere people here and throughout the world." Id., at ___, 135 S.Ct., at 2594 (majority opinion). If Phillips' continued adherence to that understanding makes him a minority after Obergefell,that is all the more reason to insist that his speech be protected. See Dale, supra,at 660, 120 S.Ct. 2446 ("[T]he fact that [the social acceptance of homosexuality] may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view").

* * *

In Obergefell, I warned that the Court's decision would "inevitabl[y] ... come into conflict" with religious liberty, "as individuals... are confronted with demands to participate in and endorse civil marriages between same-sex couples." 576 U.S., at ___, 135 S.Ct., at 2638 (dissenting opinion). This case proves that the conflict has already emerged. Because the Court's decision vindicates Phillips' right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefellfrom being used to "stamp out every vestige of dissent" and "vilify Americans who are unwilling to assent to the new orthodoxy." Id., at ___, 135 S.Ct., at 2642 (ALITO, J., dissenting). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals' must be rejected.

Justice GINSBURG, with whom Justice SOTOMAYOR joins, dissenting.

There is much in the Court's opinion with which I agree. "[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law." Ante, at 1727. "Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public." Ante, at 1727-1728. "[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying `no goods or services will be sold if they will be used for gay marriages.'" Ante, at 1728-1729. Gay persons may be spared from "indignities when they seek goods and services in an open market." Ante, at 1732.^[1] I strongly disagree, however, with the Court's conclusion that Craig and Mullins should lose this case. All of the above-quoted statements point in the opposite direction.

The Court concludes that "Phillips' religious objection was not considered with the neutrality that the Free Exercise Clause requires." Ante, at 1731. This conclusion rests on evidence said to show the Colorado Civil Rights Commission's (Commission) hostility to religion. Hostility is discernible, the Court maintains, from the asserted "disparate consideration of Phillips' case compared to the cases of" three other bakers who refused to make cakes requested by William Jack, an amicus here. Ante, at 1732. The Court also finds hostility in statements made at two public hearings on Phillips' appeal to the Commission. Ante, at 1728-1730. The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below.

I

On March 13, 2014 — approximately three months after the ALJ ruled in favor of the same-sex couple, Craig and Mullins, and two months before the Commission heard Phillips' appeal from that decision — William Jack visited three Colorado bakeries. His visits followed a similar pattern. He requested two cakes

"made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red `X' over the image. On one cake, he requested [on] one side[,] ... `God hates sin. Psalm 45:7' and on the opposite side of the cake `Homosexuality is a detestable sin. Leviticus 18:2.' On the second cake, [the one] with the image of the two groomsmen covered by a red `X' [Jack] requested [these words]: `God loves sinners' and on the other side `While we were yet sinners Christ died for us. Romans 5:8.'" App. to Pet. for Cert. 319a; see id., at 300a, 310a.

In contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold.

One bakery told Jack it would make cakes in the shape of Bibles, but would not decorate them with the requested messages; the owner told Jack her bakery "does not discriminate" and "accept[s] all humans." Id., at 301a (internal quotation marks omitted). The second bakery owner told Jack he "had done open Bibles and books many times and that they look amazing," but declined to make the specific cakes Jack described because the baker regarded the messages as "hateful." Id., at 310a (internal quotation marks omitted). The third bakery, according to Jack, said it would bake the cakes, but would not include the requested message. Id., at 319a.^[2]

Jack filed charges against each bakery with the Colorado Civil Rights Division (Division). The Division found no probable cause to support Jack's claims of unequal treatment and denial of goods or services based on his Christian religious beliefs. Id., at 297a, 307a, 316a. In this regard, the Division observed that the bakeries regularly produced cakes and other baked goods with Christian symbols and had denied other customer requests for designs demeaning people whose dignity the Colorado Antidiscrimination Act (CADA) protects. See id., at 305a, 314a, 324a. The Commission summarily affirmed the Division's no-probable-cause finding. See id., at 326a-331a.

The Court concludes that "the Commission's consideration of Phillips' religious objection did not accord with its treatment of [the other bakers'] objections." Ante, at 1730. See also ante, at 1736-1737 (GORSUCH, J., concurring). But the cases the Court aligns are hardly comparable. The bakers would have refused to make a cake with Jack's requested message for any customer, regardless of his or her religion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries' refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips' refusal to serve Craig and Mullins: Phillips would notsell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding — not a cake celebrating heterosexual weddings or same-sex weddings — and that is the service Craig and Mullins were denied. Cf. ante, at 1735-1736, 1738-1739 (GORSUCH, J., concurring). Colorado, the Court does not gainsay, prohibits precisely the discrimination Craig and Mullins encountered. See supra, at 1748. Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated — no better, no worse.^[3]

The fact that Phillips might sell other cakes and cookies to gay and lesbian customers^[4] was irrelevant to the issue Craig and Mullins' case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple. In contrast, the other bakeries' sale of other goods to Christian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer. Cf. ante, at 1730.

Nor was the Colorado Court of Appeals' "difference in treatment of these two instances... based on the government's own assessment of offensiveness." Ante,at 1731. Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display. As the Court recognizes, a refusal "to design a special cake with words or images... might be different from a refusal to sell any cake at all." Ante, at 1723.^[5] The Colorado Court of Appeals did not distinguish Phillips and the other three bakeries based simply on its or the Division's finding that messages in the cakes Jack requested were offensive while any message in a cake for Craig and Mullins was not. The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination. See App. to Pet. for Cert. 20a, n. 8 ("The Division found that the bakeries did not refuse [Jack's] request because of his creed, but rather because of the offensive nature of the requested message.... [T]here was no evidence that the bakeries based their decisions on [Jack's] religion... [whereas Phillips] discriminat[ed] on the basis of sexual orientation."). I do not read the Court to suggest that the Colorado Legislature's decision to include certain protected characteristics in CADA is an impermissible government prescription of what is and is not offensive. Cf. ante, at 1727-1728. To repeat, the Court affirms that "Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public." Ante, at 1728.

II

Statements made at the Commission's public hearings on Phillips' case provide no firmer support for the Court's holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips' refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one. See App. to Pet. for Cert. 5a-6a. First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties' cross-motions for summary judgment. Third, the Commission heard Phillips' appeal. Fourth, after the Commission's ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips' case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council, see id., at 526-528, 113 S.Ct. 2217.

* * *

For the reasons stated, sensible application of CADA to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals' judgment. I would so rule.

[*] The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

[*] Justice GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases "would not sell the requested cakes to anyone." Post, at 1735. That description perfectly fits the Jack cases — and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite-sex couples. Justice GORSUCH can make the claim only because he does not think a "wedding cake" is the relevant product. As Justice GORSUCH sees it, the product that Phillips refused to sell here — and would refuse to sell to anyone — was a "cake celebrating same-sex marriage." Ibid.; see post, at 1735, 1736-1737, 1737-1738. But that is wrong. The cake requested was not a special "cake celebrating same-sex marriage." It was simply a wedding cake — one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante, at 1724-1725 (majority opinion) (recounting that Phillips did not so much as discuss the cake's design before he refused to make it). And contrary to Justice GORSUCH's view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with "religious significance." Post, at 1728. As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam) (holding that a barbeque vendor must serve black customers even if he perceives such service as vindicating racial equality, in violation of his religious beliefs); ante,at 1727. A vendor can choose the products he sells, but not the customers he serves — no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis — which has nothing to do with Phillips' religious beliefs — Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination.

[1] Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); Texas v. Johnson, 491 U.S. 397, 405-406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); Spence v. Washington,418 U.S. 405, 406, 409-411, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam); Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505-506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Brown v. Louisiana, 383 U.S. 131, 141-142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (opinion of Fortas, J.); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 633-634, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Stromberg v. California, 283 U.S. 359, 361, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).

[2] The Colorado Court of Appeals acknowledged that "a wedding cake, in some circumstances, may convey a particularized message celebrating same-sex marriage," depending on its "design" and whether it has "written inscriptions." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 288 (2015). But a wedding cake needs no particular design or written words to communicate the basic message that a wedding is occurring, a marriage has begun, and the couple should be celebrated. Wedding cakes have long varied in color, decorations, and style, but those differences do not prevent people from recognizing wedding cakes as wedding cakes. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 96 (1987). And regardless, the Commission's order does not distinguish between plain wedding cakes and wedding cakes with particular designs or inscriptions; it requires Phillips to make any wedding cake for a same-sex wedding that he would make for an opposite-sex wedding.

[3] The dissent faults Phillips for not "submitting... evidence" that wedding cakes communicate a message. Post, at 1748, n. 1 (opinion of GINSBURG, J.). But this requirement finds no support in our precedents. This Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or nude dancing. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 568-570, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); Spence, 418 U.S., at 410-411, 94 S.Ct. 2727; Barnes, 501 U.S., at 565-566, 111 S.Ct. 2456. And we do not need extensive evidence here to conclude that Phillips' artistry is expressive, see Hurley, 515 U.S., at 569, 115 S.Ct. 2338, or that wedding cakes at least communicate the basic fact that "this is a wedding," see id., at 573-575, 115 S.Ct. 2338. Nor does it matter that the couple also communicates a message through the cake. More than one person can be engaged in protected speech at the same time. See id., at 569-570, 115 S.Ct. 2338. And by forcing him to provide the cake, Colorado is requiring Phillips to be "intimately connected" with the couple's speech, which is enough to implicate his First Amendment rights. See id., at 576, 115 S.Ct. 2338.

[4] "[A] government regulation [of expressive conduct] is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

[1] As Justice THOMAS observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. See ante, at 1740 (opinion concurring in part and concurring in judgment). Nor could it, consistent with our First Amendment precedents. Justice THOMAS acknowledges that for conduct to constitute protected expression, the conduct must be reasonably understood by an observer to be communicative. Ante, at 1724-1725 (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). The record in this case is replete with Jack Phillips' own views on the messages he believes his cakes convey. See ante, at 1742-1743 (THOMAS, J., concurring in part and concurring in judgment) (describing how Phillips "considers" and "sees" his work). But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker's, rather than the marrying couple's. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 100-101 (1987) (no explanation of wedding cakes' symbolism was forthcoming "even amongst those who might be expected to be the experts"); id., at 104-105 (the cake cutting tradition might signify "the bride and groom ... as appropriating the cake" from the bride's parents). And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct. Cf. ante, at 1743, n. 2 (THOMAS, J., concurring in part and concurring in judgment); Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557, 568-579, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (citing previous cases recognizing parades to be expressive); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (noting precedents suggesting nude dancing is expressive conduct); Spence v. Washington, 418 U.S. 405, 410, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)(observing the Court's decades-long recognition of the symbolism of flags).

[2] The record provides no ideological explanation for the bakeries' refusals. Cf. ante, at 1734-1735, 1738, 1739-1740 (GORSUCH, J., concurring) (describing Jack's requests as offensive to the bakers' "secular" convictions).

[3] Justice GORSUCH argues that the situations "share all legally salient features." Ante, at 1735 (concurring opinion). But what critically differentiates them is the role the customer's "statutorily protected trait," ibid., played in the denial of service. Change Craig and Mullins' sexual orientation (or sex), and Phillips would have provided the cake. Change Jack's religion, and the bakers would have been no more willing to comply with his request. The bakers' objections to Jack's cakes had nothing to do with "religious opposition to same-sex weddings." Ante, at 1736 (GORSUCH, J., concurring). Instead, the bakers simply refused to make cakes bearing statements demeaning to people protected by CADA. With respect to Jack's second cake, in particular, where he requested an image of two groomsmen covered by a red "X" and the lines "God loves sinners" and "While we were yet sinners Christ died for us," the bakers gave not the slightest indication that religious words, rather than the demeaning image, prompted the objection. See supra, at 1749. Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief; and the Commission properly found discrimination in one case but not the other. Cf. ante, at 1735-1737 (GORSUCH, J., concurring).

[4] But see ante, at 1726 (majority opinion) (acknowledging that Phillips refused to sell to a lesbian couple cupcakes for a celebration of their union).

[5] The Court undermines this observation when later asserting that the treatment of Phillips, as compared with the treatment of the other three bakeries, "could reasonably be interpreted as being inconsistent as to the question of whether speech is involved." Ante, at 1730. But recall that, while Jack requested cakes with particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were turned away before any specific cake design could be discussed. (It appears that Phillips rarely, if ever, produces wedding cakes with words on them — or at least does not advertise such cakes. See Masterpiece Cakeshop, Wedding, http://www.masterpiececakes.com/wedding-cakes (as last visited June 1, 2018) (gallery with 31 wedding cake images, none of which exhibits words).) The Division and the Court of Appeals could rationally and lawfully distinguish between a case involving disparaging text and images and a case involving a wedding cake of unspecified design. The distinction is not between a cake with text and one without, see ante, at 1737-1738 (GORSUCH, J., concurring); it is between a cake with a particular design and one whose form was never even discussed.

Appeal from the United States District Court for the Eastern District of Michigan at Detroit, No. 2:14-cv-13710—Sean F. Cox, District Judge.

ARGUED: Anne Noel Occhialino, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. John A. Knight, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Chicago, Illinois, for Intervenor. Douglas G. Wardlow, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Appellee. ON BRIEF: Anne Noel Occhialino, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. John A. Knight, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Chicago, Illinois, Jay D. Kaplan, Daniel S. Korobkin, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Intervenor. Douglas G. Wardlow, Gary S. McCaleb, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Appellee. Jennifer C. Pizer, Nancy C. Marcus, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Los Angeles, California, Gregory R. Nevins, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Atlanta, Georgia, Richard B. Katskee, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., Doron M. Kalir, CLEVELAND-MARSHALL COLLEGE OF LAW, Cleveland, Ohio, Elizabeth Reiner Platt, Katherine Franke, PRIVATE RIGHTS/PUBLIC CONSCIENCE PROJECT, New York, New York, Mary Jane Eaton, Wesley R. Powell, Sameer Advani, WILLKIE FARR & GALLAGHER, LLP, New York, New York, Eric Alan Isaacson, LAW OFFICE OF ERIC ALAN ISAACSON, La Jolla, California, William J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici Curiae.

Before: MOORE, WHITE, and DONALD, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Aimee Stephens (formerly known as Anthony Stephens) was born biologically male.^[1] While living and presenting as a man, she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. ("the Funeral Home"), a closely held for-profit corporation that operates three funeral homes in Michigan. Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work. Stephens filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), which investigated Stephens's allegations that she had been terminated as a result of unlawful sex discrimination. During the course of its investigation, the EEOC learned that the Funeral Home provided its male public-facing employees with clothing that complied with the company's dress code while female public-facing employees received no such allowance. The EEOC subsequently brought suit against the Funeral Home in which the EEOC charged the Funeral Home with violating Title VII of the Civil Rights Act of 1964 ("Title VII") by (1) terminating Stephens's employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes; and (2) administering a discriminatory-clothing-allowance policy.

The parties submitted dueling motions for summary judgment. The EEOC argued that it was entitled to judgment as a matter of law on both of its claims. For its part, the Funeral Home argued that it did not violate Title VII by requiring Stephens to comply with a sex-specific dress code that it asserts equally burdens male and female employees, and, in the alternative, that Title VII should not be enforced against the Funeral Home because requiring the Funeral Home to employ Stephens while she dresses and represents herself as a woman would constitute an unjustified substantial burden upon Rost's (and thereby the Funeral Home's) sincerely held religious beliefs, in violation of the Religious Freedom Restoration Act ("RFRA"). As to the EEOC's discriminatory-clothing-allowance claim, the Funeral Home argued that Sixth Circuit case law precludes the EEOC from bringing this claim in a complaint that arose out of Stephens's original charge of discrimination because the Funeral Home could not reasonably expect a clothing-allowance claim to emerge from an investigation into Stephens's termination.

The district court granted summary judgment in favor of the Funeral Home on both claims. For the reasons set forth below, we hold that (1) the Funeral Home engaged in unlawful discrimination against Stephens on the basis of her sex; (2) the Funeral Home has not established that applying Title VII's proscriptions against sex discrimination to the Funeral Home would substantially burden Rost's religious exercise, and therefore the Funeral Home is not entitled to a defense under RFRA; (3) even if Rost's religious exercise were substantially burdened, the EEOC has established that enforcing Title VII is the least restrictive means of furthering the government's compelling interest in eradicating workplace discrimination against Stephens; and (4) the EEOC may bring a discriminatory-clothing-allowance claim in this case because such an investigation into the Funeral Home's clothing-allowance policy was reasonably expected to grow out of the original charge of sex discrimination that Stephens submitted to the EEOC. Accordingly, we REVERSE the district court's grant of summary judgment on both the unlawful-termination and discriminatory-clothing-allowance claims, GRANT summary judgment to the EEOC on its unlawful-termination claim, and REMAND the case to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

Aimee Stephens, a transgender woman who was "assigned male at birth," joined the Funeral Home as an apprentice on October 1, 2007 and served as a Funeral Director/Embalmer at the Funeral Home from April 2008 until August 2013. R. 51-18 (Stephens Dep. at 49-51) (Page ID #817); R. 61 (Def.'s Counter Statement of Disputed Facts ¶ 10) (Page ID #1828). During the course of her employment at the Funeral Home, Stephens presented as a man and used her then-legal name, William Anthony Beasley Stephens. R. 51-18 (Stephens Dep. at 47) (Page ID #816); R. 61 (Def.'s Counter Statement of Disputed Facts ¶ 15) (Page ID #1829).

The Funeral Home is a closely held for-profit corporation. R. 55 (Def.'s Statement of Facts ¶ 1) (Page ID #1683).^[2] Thomas Rost ("Rost"), who has been a Christian for over sixty-five years, owns 95.4% of the company and operates its three funeral home locations. Id. ¶¶ 4, 8, 17 (Page ID #1684-85); R. 54-2 (Rost Aff. ¶ 2) (Page ID #1326). Rost proclaims "that God has called him to serve grieving people" and "that his purpose in life is to minister to the grieving." R. 55 (Def.'s Statement of Facts ¶ 31) (Page ID #1688). To that end, the Funeral Home's website contains a mission statement that states that the Funeral Home's "highest priority is to honor God in all that we do as a company and as individuals" and includes a verse of scripture on the bottom of the mission statement webpage. Id.¶¶ 21-22 (Page ID #1686). The Funeral Home itself, however, is not affiliated with a church; it does not claim to have a religious purpose in its articles of incorporation; it is open every day, including Christian holidays; and it serves clients of all faiths. R. 61 (Def.'s Counter Statement of Facts ¶¶ 25-27; 29-30) (Page ID #1832-34). "Employees have worn Jewish head coverings when holding a Jewish funeral service." Id. ¶ 31 (Page ID #1834). Although the Funeral Home places the Bible, "Daily Bread" devotionals, and "Jesus Cards" in public places within the funeral homes, the Funeral Home does not decorate its rooms with "visible religious figures ... to avoid offending people of different religions." Id. ¶¶ 33-34 (Page ID #1834). Rost hires employees belonging to any faith or no faith to work at the Funeral Home, and he "does not endorse or consider himself to endorse his employees' beliefs or non-employment-related activities." Id. ¶¶ 37-38 (Page ID #1835).

The Funeral Home requires its public-facing male employees to wear suits and ties and its public-facing female employees to wear skirts and business jackets. R. 55 (Def.'s Statement of Facts at ¶ 51) (Page ID #1691). The Funeral Home provides all male employees who interact with clients, including funeral directors, with free suits and ties, and the Funeral Home replaces suits as needed. R. 61 (Def.'s Counter Statement of Disputed Facts ¶¶ 42, 48) (Page ID #1836-37). All told, the Funeral Home spends approximately $470 per full-time employee per year and $235 per part-time employee per year on clothing for male employees. Id. ¶ 55 (Page ID #1839).

Until October 2014 — after the EEOC filed this suit — the Funeral Home did not provide its female employees with any sort of clothing or clothing allowance. Id. ¶ 54 (Page ID #1838-39). Beginning in October 2014, the Funeral Home began providing its public-facing female employees with an annual clothing stipend ranging from $75 for part-time employees to $150 for full-time employees. Id. ¶ 54 (Page ID #1838-39). Rost contends that the Funeral Home would provide suits to all funeral directors, regardless of their sex, id., but it has not employed a female funeral director since Rost's grandmother ceased working for the organization around 1950, R. 54-2 (Rost Aff. ¶¶ 52, 54) (Page ID #1336-37). According to Rost, the Funeral Home has received only one application from a woman for a funeral director position in the thirty-five years that Rost has operated the Funeral Home, and the female applicant was deemed not qualified. Id. ¶¶ 2, 53 (Page ID #1326, 1336).

On July 31, 2013, Stephens provided Rost with a letter stating that she has struggled with "a gender identity disorder" her "entire life," and informing Rost that she has "decided to become the person that [her] mind already is." R. 51-2 (Stephens Letter at 1) (Page ID #643). The letter stated that Stephens "intend[ed] to have sex reassignment surgery," and explained that "[t]he first step [she] must take is to live and work full-time as a woman for one year." Id. To that end, Stephens stated that she would return from her vacation on August 26, 2013, "as [her] true self, Amiee [sic] Australia Stephens, in appropriate business attire." Id.After presenting the letter to Rost, Stephens postponed her vacation and continued to work for the next two weeks. R. 68 (Reply to Def.'s Counter Statement of Material Facts Not in Dispute at 1) (Page ID #2122). Then, just before Stephens left for her intended vacation, Rost fired her. R. 61 (Def.'s Counter Statement of Disputed Facts ¶¶ 10-11) (Page ID #1828). Rost said, "this is not going to work out," and offered Stephens a severance agreement if she "agreed not to say anything or do anything." R. 54-15 (Stephens Dep. at 75-76) Page ID #1455; R. 63-5 (Rost Dep. at 126-27) Page ID #1974. Stephens refused. Id. Rost testified that he fired Stephens because "he was no longer going to represent himself as a man. He wanted to dress as a woman." R. 51-3 (Rost 30(b)(6) Dep. at 135-36) (Page ID #667).

Rost avers that he "sincerely believe[s] that the Bible teaches that a person's sex is an immutable God-given gift," and that he would be "violating God's commands if [he] were to permit one of [the Funeral Home's] funeral directors to deny their sex while acting as a representative of [the] organization" or if he were to "permit one of [the Funeral Home's] male funeral directors to wear the uniform for female funeral directors while at work." R. 54-2 (Rost Aff. ¶¶ 42-43, 45) (Page ID #1334-35). In particular, Rost believes that authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit "in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift." Id. ¶¶ 43, 45 (Page ID #1334-35).

After her employment was terminated, Stephens filed a sex-discrimination charge with the EEOC, alleging that "[t]he only explanation" she received from "management" for her termination was that "the public would [not] be accepting of [her] transition." R. 63-2 (Charge of Discrimination at 1) (Page ID #1952). She further noted that throughout her "entire employment" at the Funeral Home, there were "no other female Funeral Director/Embalmers." Id. During the course of investigating Stephens's allegations, the EEOC learned from another employee that the Funeral Home did not provide its public-facing female employees with suits or a clothing stipend. R. 54-24 (Memo for File at 9) (Page ID #1513).

The EEOC issued a letter of determination on June 5, 2014, in which the EEOC stated that there was reasonable cause to believe that the Funeral Home "discharged [Stephens] due to her sex and gender identity, female, in violation of Title VII" and "discriminated against its female employees by providing male employees with a clothing benefit which was denied to females, in violation of Title VII." R. 63-4 (Determination at 1) (Page ID #1968). The EEOC and the Funeral Home were unable to resolve this dispute through an informal conciliation process, and the EEOC filed a complaint against the Funeral Home in the district court on September 25, 2014. R. 1 (Complaint) (Page ID #1-9).

The Funeral Home moved to dismiss the EEOC's action for failure to state a claim. The district court denied the Funeral Home's motion, but it narrowed the basis upon which the EEOC could pursue its unlawful-termination claim. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F.Supp.3d 594, 599, 603 (E.D. Mich. 2015). In particular, the district court agreed with the Funeral Home that transgender status is not a protected trait under Title VII, and therefore held that the EEOC could not sue for alleged discrimination against Stephens based solely on her transgender and/or transitioning status. See id. at 598-99. Nevertheless, the district court determined that the EEOC had adequately stated a claim for discrimination against Stephens based on the claim that she was fired because of her failure to conform to the Funeral Home's "sex- or gender-based preferences, expectations, or stereotypes." Id. at 599 (quoting R. 1 (Compl. ¶ 15) (Page ID #4-5)).

The parties then cross-moved for summary judgment. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 201 F.Supp.3d 837, 840 (E.D. Mich. 2016). With regard to the Funeral Home's decision to terminate Stephens's employment, the district court determined that there was "direct evidence to support a claim of employment discrimination" against Stephens on the basis of her sex, in violation of Title VII. Id.at 850. However, the court nevertheless found in the Funeral Home's favor because it concluded that the Religious Freedom Restoration Act ("RFRA") precludes the EEOC from enforcing Title VII against the Funeral Home, as doing so would substantially burden Rost and the Funeral Home's religious exercise and the EEOC had failed to demonstrate that enforcing Title VII was the least restrictive way to achieve its presumably compelling interest "in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral home." Id. at 862-63. Based on its narrow conception of the EEOC's compelling interest in bringing the claim, the district court concluded that the EEOC could have achieved its goals by proposing that the Funeral Home impose a gender-neutral dress code. Id. The EEOC's failure to consider such an accommodation was, according to the district court, fatal to its case. Id. at 863. Separately, the district court held that it lacked jurisdiction to consider the EEOC's discriminatory-clothing-allowance claim because, under longstanding Sixth Circuit precedent, the EEOC may pursue in a Title VII lawsuit only claims that are reasonably expected to grow out of the complaining party's — in this case, Stephens's — original charge. Id. at 864-70. The district court entered final judgment on all counts in the Funeral Home's favor on August 18, 2016, R. 77 (J.) (Page ID #2235), and the EEOC filed a timely notice of appeal shortly thereafter, see R. 78 (Notice of Appeal) (Page ID #2236-37).

Stephens moved to intervene in this appeal on January 26, 2017, after expressing concern that changes in policy priorities within the U.S. government might prevent the EEOC from fully representing Stephens's interests in this case. See D.E. 19 (Mot. to Intervene as Plaintiff-Appellant at 5-7). The Funeral Home opposed Stephens's motion on the grounds that the motion was untimely and Stephens had failed to show that the EEOC would not represent her interests adequately. D.E. 21 (Mem. in Opp'n at 2-11). We determined that Stephens's request was timely given that she previously "had no reason to question whether the EEOC would continue to adequately represent her interests" and granted Stephens's motion to intervene on March 27, 2017. D.E. 28-2 (Order at 2). We further determined that Stephens's intervention would not prejudice the Funeral Home because Stephens stated in her briefing that she did not intend to raise new issues. Id. Six groups of amici curiae also submitted briefing in this case.

II. DISCUSSION

A. Standard of Review

"We review a district court's grant of summary judgment de novo." Risch v. Royal Oak Police Dep't, 581 F.3d 383, 390 (6th Cir. 2009) (quoting CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008)). Summary judgment is warranted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). In reviewing a grant of summary judgment, "we view all facts and any inferences in the light most favorable to the nonmoving party." Risch, 581 F.3d at 390 (citation omitted). We also review all "legal conclusions supporting [the district court's] grant of summary judgment de novo." Doe v. Salvation Army in U.S., 531 F.3d 355, 357 (6th Cir. 2008) (citation omitted).

B. Unlawful Termination Claim

Title VII prohibits employers from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). "[A] plaintiff can establish a prima facie case [of unlawful discrimination] by presenting direct evidence of discriminatory intent." Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion)). "[A] facially discriminatory employment policy or a corporate decision maker's express statement of a desire to remove employees in the protected group is direct evidence of discriminatory intent." Id. (citation omitted). Once a plaintiff establishes that "the prohibited classification played a motivating part in the [adverse] employment decision," the employer then bears the burden of proving that it would have terminated the plaintiff "even if it had not been motivated by impermissible discrimination." Id. (citing, inter alia, Price Waterhouse, 490 U.S. at 244-45, 109 S.Ct. 1775).

Here, the district court correctly determined that Stephens was fired because of her failure to conform to sex stereotypes, in violation of Title VII. R.G. & G.R. Harris Funeral Homes, Inc., 201 F.Supp.3d at 850 ("[W]hile this Court does not often see cases where there is direct evidence to support a claim of employment discrimination, it appears to exist here."). The district court erred, however, in finding that Stephens could not alternatively pursue a claim that she was discriminated against on the basis of her transgender and transitioning status. Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex, and thus the EEOC should have had the opportunity to prove that the Funeral Home violated Title VII by firing Stephens because she is transgender and transitioning from male to female.

1. Discrimination on the Basis of Sex Stereotypes

In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), a plurality of the Supreme Court explained that Title VII's proscription of discrimination "`because of ... sex' ... mean[s] that gender must be irrelevant to employment decisions." Id. at 240, 109 S.Ct. 1775 (emphasis in original). In enacting Title VII, the plurality reasoned, "Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Id. at 251, 109 S.Ct. 1775 (quoting Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n.13, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978)). The Price Waterhouse plurality, along with two concurring Justices, therefore determined that a female employee who faced an adverse employment decision because she failed to "walk ... femininely, talk ... femininely, dress ... femininely, wear make-up, have her hair styled, [or] wear jewelry," could properly state a claim for sex discrimination under Title VII — even though she was not discriminated against for being a woman per se, but instead for failing to be womanly enough. See id. at 235, 109 S.Ct. 1775 (plurality opinion) (quoting Hopkins v. Price Waterhouse, 618 F.Supp. 1109, 1117 (D.D.C. 1985)); id. at 259, 109 S.Ct. 1775 (White, J., concurring); id. at 272, 109 S.Ct. 1775 (O'Connor, J., concurring).

Based on Price Waterhouse, we determined that "discrimination based on a failure to conform to stereotypical gender norms" was no less prohibited under Title VII than discrimination based on "the biological differences between men and women." Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004). And we found no "reason to exclude Title VII coverage for non sex-stereotypical behavior simply because the person is a transsexual." Id. at 575. Thus, in Smith, we held that a transgender plaintiff (born male) who suffered adverse employment consequences after "he began to express a more feminine appearance and manner on a regular basis" could file an employment discrimination suit under Title VII, id. at 572, because such "discrimination would not [have] occur[red] but for the victim's sex," id. at 574. As we reasoned in Smith, Title VII proscribes discrimination both against women who "do not wear dresses or makeup" and men who do. Id. Under any circumstances, "[s]ex stereotyping based on a person's gender non-conforming behavior is impermissible discrimination." Id. at 575.

Here, Rost's decision to fire Stephens because Stephens was "no longer going to represent himself as a man" and "wanted to dress as a woman," see R. 51-3 (Rost 30(b)(6) Dep. at 135-36) (Page ID #667), falls squarely within the ambit of sex-based discrimination that Price Waterhouse and Smith forbid. For its part, the Funeral Home has failed to establish a non-discriminatory basis for Stephens's termination, and Rost admitted that he did not fire Stephens for any performance-related issues. See R. 51-3 (Rost 30(b)(6) Dep. at 109, 136) (Page ID #663, 667). We therefore agree with the district court that the Funeral Home discriminated against Stephens on the basis of her sex, in violation of Title VII.

The Funeral Home nevertheless argues that it has not violated Title VII because sex stereotyping is barred only when "the employer's reliance on stereotypes ... result[s] in disparate treatment of employees because they are either male or female." Appellee Br. at 31. According to the Funeral Home, an employer does not engage in impermissible sex stereotyping when it requires its employees to conform to a sex-specific dress code — as it purportedly did here by requiring Stephens to abide by the dress code designated for the Funeral Home's male employees — because such a policy "impose[s] equal burdens on men and women," and thus does not single out an employee for disparate treatment based on that employee's sex. Id. at 12. In support of its position, the Funeral Home relies principally on Jespersen v. Harrah's Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc), and Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977). Jespersen held that a sex-specific grooming code that imposed different but equally burdensome requirements on male and female employees would not violate Title VII. See 444 F.3d at 1109-11 (holding that the plaintiff failed to demonstrate how a grooming code that required women to wear makeup and banned men from wearing makeup was a violation of Title VII because the plaintiff failed to produce evidence showing that this sex-specific makeup policy was "more burdensome for women than for men"). Barker, for its part, held that a sex-specific grooming code that was enforced equally as to male and female employees would not violate Title VII. See 549 F.2d at 401 (holding that a grooming code that established different hair-length limits for male and female employees did not violate Title VII because failure to comply with the code resulted in the same consequences for men and women). For three reasons, the Funeral Home's reliance on these cases is misplaced.

First, the central issue in Jespersen and Barker — whether certain sex-specific appearance requirements violate Title VII — is not before this court. We are not considering, in this case, whether the Funeral Home violated Title VII by requiring men to wear pant suits and women to wear skirt suits. Our question is instead whether the Funeral Home could legally terminate Stephens, notwithstanding that she fully intended to comply with the company's sex-specific dress code, simply because she refused to conform to the Funeral Home's notion of her sex. When the Funeral Home's actions are viewed in the proper context, no reasonable jury could believe that Stephens was not "target[ed] ... for disparate treatment" and that "no sex stereotype factored into [the Funeral Home's] employment decision." SeeAppellee Br. at 19-20.

Second, even if we would permit certain sex-specific dress codes in a case where the issue was properly raised, we would not rely on either Jespersen or Barker to do so. Barker was decided before Price Waterhouse, and it in no way anticipated the Court's recognition that Title VII "strike[s] at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Price Waterhouse,490 U.S. at 251, 109 S.Ct. 1775 (plurality) (quoting Manhart, 435 U.S. at 707 n.13, 98 S.Ct. 1370). Rather, according to Barker, "[w]hen Congress makes it unlawful for an employer to `discriminate ... on the basis of ... sex ...', without further explanation of its meaning, we should not readily infer that it meant something different than what the concept of discrimination has traditionally meant." 549 F.2d at 401-02 (quoting Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 145, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), superseded by statute, Pregnancy Discrimination Act of 1978, Pub. L. 95-555, 92 Stat. 2076, 52 U.S.C. § 2000e(k), as recognized in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 89, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). Of course, this is precisely the sentiment that Price Waterhouse "eviscerated" when it recognized that "Title VII's reference to `sex' encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms." Smith,378 F.3d at 573 (citing Price Waterhouse, 490 U.S. at 251, 109 S.Ct. 1775). Indeed, Barker's incompatibility with Price Waterhouse may explain why this court has not cited Barker since Price Waterhouse was decided.

As for Jespersen, that Ninth Circuit case is irreconcilable with our decision in Smith. Critical to Jespersen's holding was the notion that the employer's "grooming standards," which required all female bartenders to wear makeup (and prohibited males from doing so), did not on their face violate Title VII because they did "not require [the plaintiff] to conform to a stereotypical image that would objectively impede her ability to perform her job." 444 F.3d at 1113. We reached the exact opposite conclusion in Smith, as we explained that requiring women to wear makeup does, in fact, constitute improper sex stereotyping. 378 F.3d at 574 ("After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex."). And more broadly, our decision in Smith forecloses the Jespersen court's suggestion that sex stereotyping is permissible so long as the required conformity does not "impede [an employee's] ability to perform her job," Jespersen, 444 F.3d at 1113,as the Smith plaintiff did not and was not required to allege that being expected to adopt a more masculine appearance and manner interfered with his job performance. Jespersen's incompatibility with Smith may explain why it has never been endorsed (or even cited) by this circuit — and why it should not be followed now.

Finally, the Funeral Home misreads binding precedent when it suggests that sex stereotyping violates Title VII only when "the employer's sex stereotyping resulted in `disparate treatment of men and women.'" Appellee Br. at 18 (quoting Price Waterhouse, 490 U.S. at 251, 109 S.Ct. 1775).^[3] This interpretation of Title VII cannot be squared with our holding in Smith. There, we did not ask whether transgender persons transitioning from male to female were treated differently than transgender persons transitioning from female to male. Rather, we considered whether a transgender person was being discriminated against based on "his failure to conform to sex stereotypes concerning how a man should look and behave." Smith, 378 F.3d at 572. It is apparent from both Price Waterhouse and Smith that an employer engages in unlawful discrimination even if it expects both biologically male and female employees to conform to certain notions of how each should behave. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 123, No. 15-3775, 2018 WL 1040820 (2d Cir. Feb. 26, 2018) (en banc) (plurality) ("[T]he employer in Price Waterhouse could not have defended itself by claiming that it fired a gender-non-conforming man as well as a gender-non-conforming woman any more than it could persuasively argue that two wrongs make a right.").

In short, the Funeral Home's sex-specific dress code does not preclude liability under Title VII. Even if the Funeral Home's dress code does not itself violate Title VII — an issue that is not before this court — the Funeral Home may not rely on its policy to combat the charge that it engaged in improper sex stereotyping when it fired Stephens for wishing to appear or behave in a manner that contradicts the Funeral Home's perception of how she should appear or behave based on her sex. Because the EEOC has presented unrefuted evidence that unlawful sex stereotyping was "at least a motivating factor in the [Funeral Home's] actions," see White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 238 (6th Cir. 2005) (quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)), and because we reject the Funeral Home's affirmative defenses (seeSection II.B.3, infra), we GRANT summary judgment to the EEOC on its sex discrimination claim.

2. Discrimination on the Basis of Transgender/Transitioning Status

We also hold that discrimination on the basis of transgender and transitioning status violates Title VII. The district court rejected this theory of liability at the motion-to-dismiss stage, holding that "transgender or transsexual status is currently not a protected class under Title VII." R.G. & G.R. Harris Funeral Homes, Inc., 100 F.Supp.3d at 598. The EEOC and Stephens argue that the district court's determination was erroneous because Title VII protects against sex stereotyping and "transgender discrimination is based on the non-conformance of an individual's gender identity and appearance with sex-based norms or expectations"; therefore, "discrimination because of an individual's transgender status is always based on gender-stereotypes: the stereotype that individuals will conform their appearance and behavior — whether their dress, the name they use, or other ways they present themselves — to the sex assigned them at birth." Appellant Br. at 24; see also Intervenor Br. at 10-15. The Funeral Home, in turn, argues that Title VII does not prohibit discrimination based on a person's transgender or transitioning status because "sex," for the purposes of Title VII, "refers to a binary characteristic for which there are only two classifications, male and female," and "which classification arises in a person based on their chromosomally driven physiology and reproductive function." Appellee Br. at 26. According to the Funeral Home, transgender status refers to "a person's self-assigned `gender identity'" rather than a person's sex, and therefore such a status is not protected under Title VII. Id. at 26-27.

For two reasons, the EEOC and Stephens have the better argument. First, it is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex. The Seventh Circuit's method of "isolat[ing] the significance of the plaintiff's sex to the employer's decision" to determine whether Title VII has been triggered illustrates this point. See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 345 (7th Cir. 2017). In Hively, the Seventh Circuit determined that Title VII prohibits discrimination on the basis of sexual orientation — a different question than the issue before this court — by asking whether the plaintiff, a self-described lesbian, would have been fired "if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same." Id. If the answer to that question is no, then the plaintiff has stated a "paradigmatic sex discrimination" claim. See id. Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women's dress code. The answer quite obviously is no. This, in and of itself, confirms that Stephens's sex impermissibly affected Rost's decision to fire Stephens.

The court's analysis in Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008),provides another useful way of framing the inquiry. There, the court noted that an employer who fires an employee because the employee converted from Christianity to Judaism has discriminated against the employee "because of religion," regardless of whether the employer feels any animus against either Christianity or Judaism, because "[d]iscrimination `because of religion' easily encompasses discrimination because of a change of religion.'" Id. at 306 (emphasis in original). By the same token, discrimination "because of sex" inherently includes discrimination against employees because of a change in their sex. See id. at 307-08.<sup>[4]</sup> Here, there is evidence that Rost at least partially based his employment decision on Stephens's desire to change her sex: Rost justified firing Stephens by explaining that Rost "sincerely believes that `the Bible teaches that a person's sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex,'" and "the Bible teaches that it is wrong for a biological male to deny his sex by dressing as a woman."^[5] R.G. & G.R. Harris Funeral Homes, Inc., 201 F.Supp.3d at 848 (quoting R. 55 (Def.'s Statement of Facts ¶ 28) (Page ID #1687); R. 53-3 (Rost 30(b)(6) Dep. ¶ 44) (Page ID #936)). As amici point out in their briefing, such statements demonstrate that "Ms. Stephens's sex necessarily factored into the decision to fire her." Equality Ohio Br. at 12; cf. Hively, 853 F.3d at 359 (Flaum, J., concurring)(arguing discrimination against a female employee because she is a lesbian is necessarily "motivated, in part, by ... the employee's sex" because the employer is discriminating against the employee "because she is (A) a woman who is (B) sexually attracted to women").

The Funeral Home argues that Schroer's analogy is "structurally flawed" because, unlike religion, a person's sex cannot be changed; it is, instead, a biologically immutable trait. Appellee Br. at 30. We need not decide that issue; even if true, the Funeral Home's point is immaterial. As noted above, the Supreme Court made clear in Price Waterhouse that Title VII requires "gender [to] be irrelevant to employment decisions." 490 U.S. at 240, 109 S.Ct. 1775. Gender (or sex) is not being treated as "irrelevant to employment decisions" if an employee's attempt or desire to change his or her sex leads to an adverse employment decision.

Second, discrimination against transgender persons necessarily implicates Title VII's proscriptions against sex stereotyping. As we recognized in Smith, a transgender person is someone who "fails to act and/or identify with his or her gender" — i.e., someone who is inherently "gender non-conforming." 378 F.3d at 575; see also id. at 568 (explaining that transgender status is characterized by the American Psychiatric Association as "a disjunction between an individual's sexual organs and sexual identity"). Thus, an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align. There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try.

We did not expressly hold in Smith that discrimination on the basis of transgender status is unlawful, though the opinion has been read to say as much — both by this circuit and others. In G.G. v. Gloucester County School Board, 654 Fed. Appx. 606 (4th Cir. 2016), for instance, the Fourth Circuit described Smith as holding "that discrimination against a transgender individual based on that person's transgender status is discrimination because of sex under federal civil rights statutes." Id. at 607. And in Dodds v. United States Department of Education, 845 F.3d 217 (6th Cir. 2016), we refused to stay "a preliminary injunction ordering the school district to treat an eleven-year old transgender girl as a female and permit her to use the girls' restroom" because, among other things, the school district failed to show that it would likely succeed on the merits. Id. at 220-21. In so holding, we cited Smith as evidence that this circuit's "settled law" prohibits "[s]ex stereotyping based on a person's gender non-conforming behavior," id. at 221 (second quote quoting Smith, 378 F.3d at 575), and then pointed to out-of-circuit cases for the propositions that "[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes," id. (citing Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011)), and "[t]he weight of authority establishes that discrimination based on transgender status is already prohibited by the language of federal civil rights statutes," id.(quoting G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 729 (4th Cir.) (Davis, J., concurring), cert. granted in part, ___ U.S. ___, 137 S.Ct. 369, 196 L.Ed.2d 283 (2016), and vacated and remanded, ___ U.S. ___, 137 S.Ct. 1239, 197 L.Ed.2d 460 (2017)).^[6] Such references support what we now directly hold: Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.

The Funeral Home raises several arguments against this interpretation of Title VII, none of which we find persuasive. First, the Funeral Home contends that the Congress enacting Title VII understood "sex" to refer only to a person's "physiology and reproductive role," and not a person's "self-assigned `gender identity.'" Appellee Br. at 25-26. But the drafters' failure to anticipate that Title VII would cover transgender status is of little interpretive value, because "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); see also Zarda, 883 F.3d at 113-16 (majority opinion) (rejecting the argument that Title VII was not originally intended to protect employees against discrimination on the basis of sexual orientation, in part because the same argument "could also be said of multiple forms of discrimination that are [now] indisputably prohibited by Title VII ... [but] were initially believed to fall outside the scope of Title VII's prohibition," such as "sexual harassment and hostile work environment claims"). And in any event, Smith and Price Waterhouse preclude an interpretation of Title VII that reads "sex" to mean only individuals' "chromosomally driven physiology and reproductive function." See Appellee Br. at 26. Indeed, we criticized the district court in Smith for "relying on a series of pre-Price Waterhouse cases from other federal appellate courts holding that transsexuals, as a class, are not entitled to Title VII protection because `Congress had a narrow view of sex in mind' and `never considered nor intended that [Title VII] apply to anything other than the traditional concept of sex.'" 378 F.3d at 572 (quoting Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984)) (alteration in original). According to Smith, such a limited view of Title VII's protections had been "eviscerated by Price Waterhouse." Id. at 573, 109 S.Ct. 1775. The Funeral Home's attempt to resurrect the reasoning of these earlier cases thus runs directly counter to Smith's holding.

In a related argument, the Funeral Home notes that both biologically male and biologically female persons may consider themselves transgender, such that transgender status is not unique to one biological sex. Appellee Br. at 27-28. It is true, of course, that an individual's biological sex does not dictate her transgender status; the two traits are not coterminous. But a trait need not be exclusive to one sex to nevertheless be a function of sex. As the Second Circuit explained in Zarda,

Title VII does not ask whether a particular sex is discriminated against; it asks whether a particular "individual" is discriminated against "because of such individual's... sex." Taking individuals as the unit of analysis, the question is not whether discrimination is borne only by men or only by women or even by both men and women; instead, the question is whether an individual is discriminated against because of his or her sex.

883 F.3d at 123 n.23 (plurality opinion) (emphasis in original) (quoting 42 U.S.C. § 2000e-2(a)(1)). Because an employer cannot discriminate against an employee for being transgender without considering that employee's biological sex, discrimination on the basis of transgender status necessarily entails discrimination on the basis of sex — no matter what sex the employee was born or wishes to be. By the same token, an employer need not discriminate based on a trait common to all men or women to violate Title VII. After all, a subset of both women and men decline to wear dresses or makeup, but discrimination against any woman on this basis would constitute sex discrimination under Price Waterhouse. See Hively, 853 F.3d at 346 n.3 ("[T]he Supreme Court has made it clear that a policy need not affect every woman [or every man] to constitute sex discrimination.... A failure to discriminate against all women does not mean that an employer has not discriminated against one woman on the basis of sex.").

Nor can much be gleaned from the fact that later statutes, such as the Violence Against Women Act, expressly prohibit discrimination on the basis of "gender identity," while Title VII does not, see Appellee Br. at 28, because "Congress may certainly choose to use both a belt and suspenders to achieve its objectives," Hively, 853 F.3d at 344; see also Yates v. United States, ___ U.S. ___, 135 S.Ct. 1074, 1096, 191 L.Ed.2d 64 (2015) (Kagan, J., dissenting) (noting presence of two overlapping provisions in a statute "may have reflected belt-and-suspenders caution"). We have, in fact, already read Title VII to provide redundant statutory protections in a different context. In In re Rodriguez, 487 F.3d 1001 (6th Cir. 2007),for instance, we recognized that claims alleging discrimination on the basis of ethnicity may fall within Title VII's prohibition on discrimination on the basis of national origin, see id. at 1006 n.1, even though at least one other federal statute treats "national origin" and "ethnicity" as separate traits, see 20 U.S.C. § 1092(f)(1)(F)(ii). Moreover, Congress's failure to modify Title VII to include expressly gender identity "lacks `persuasive significance' because `several equally tenable inferences' may be drawn from such inaction, `including the inference that the existing legislation already incorporated the offered change.'" Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (quoting United States v. Wise, 370 U.S. 405, 411, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962)). In short, nothing precludes discrimination based on transgender status from being viewed both as discrimination based on "gender identity" for certain statutes and, for the purposes of Title VII, discrimination on the basis of sex.

The Funeral Home places great emphasis on the fact that our published decision in Smith superseded an earlier decision that stated explicitly, as opposed to obliquely, that a plaintiff who "alleges discrimination based solely on his identification as a transsexual ... has alleged a claim of sex stereotyping pursuant to Title VII." Smith v. City of Salem, 369 F.3d 912, 922 (6th Cir.), opinion amended and superseded, 378 F.3d 566 (6th Cir. 2004). But such an amendment does not mean, as the Funeral Home contends, that the now-binding Smith opinion "directly rejected" the notion that Title VII prohibits discrimination on the basis of transgender status. See Appellee Br. at 31. The elimination of the language, which was not necessary to the decision, simply means that Smith did not expressly recognize Title VII protections for transgender persons based on identity. But Smith's reasoning still leads us to the same conclusion.

We are also unpersuaded that our decision in Vickers v. Fairfield Medical Center,453 F.3d 757 (6th Cir. 2006), precludes the holding we issue today. We held in Vickers that a plaintiff cannot pursue a claim for impermissible sex stereotyping on the ground that his perceived sexual orientation fails to conform to gender norms unless he alleges that he was discriminated against for failing to "conform to traditional gender stereotypes in any observable way at work." Id. at 764. Vickersthus rejected the notion that "the act of identification with a particular group, in itself, is sufficiently gender non-conforming such that an employee who so identifies would, by this very identification, engage in conduct that would enable him to assert a successful sex stereotyping claim." Id. The Vickers court reasoned that recognizing such a claim would impermissibly "bootstrap protection for sexual orientation into Title VII." Id. (quoting Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005)). The Funeral Home insists that, under Vickers, Stephens's sex-stereotyping claim survives only to the extent that it concerns her "appearance or mannerisms on the job," see id. at 763, but not as it pertains to her underlying status as a transgender person.

The Funeral Home is wrong. First, Vickers does not control this case because Vickers concerned a different legal question. As the EEOC and amici Equality Ohio note, Vickers "addressed only whether Title VII forbids sexual orientation discrimination, not discrimination against a transgender individual." Appellant Br. at 30; see also Equality Ohio Br. at 16 n.7. While it is indisputable that "[a] panel of this Court cannot overrule the decision of another panel" when the "prior decision [constitutes] controlling authority," Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001) (quoting Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)), one case is not "controlling authority" over another if the two address substantially different legal issues, cf. Int'l Ins. Co. v. Stonewall Ins. Co., 86 F.3d 601, 608 (6th Cir. 1996) (noting two panel decisions that "on the surface may appear contradictory" were reconcilable because "the result [in both cases wa]s heavily fact driven"). After all, we do not overrule a case by distinguishing it.

Second, we are not bound by Vickers to the extent that it contravenes Smith. See Darrah, 255 F.3d at 310 ("[W]hen a later decision of this court conflicts with one of our prior published decisions, we are still bound by the holding of the earlier case."). As noted above, Vickers indicated that a sex-stereotyping claim is viable under Title VII only if a plaintiff alleges that he was discriminated against for failing to "conform to traditional gender stereotypes in any observable way at work." 453 F.3d at 764 (emphasis added). The Vickers court's new "observable-at-work" requirement is at odds with the holding in Smith, which did not limit sex-stereotyping claims to traits that are observable in the workplace. The "observable-at-work" requirement also contravenes our reasoning in Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) — a binding decision that predated Vickersby more than a year — in which we held that a reasonable jury could conclude that a transgender plaintiff was discriminated against on the basis of his sex when, among other factors, his "ambiguous sexuality and his practice of dressing as a woman outside of work were well-known within the [workplace]." Id. at 738 (emphasis added).^[7] From Smith and Barnes, it is clear that a plaintiff may state a claim under Title VII for discrimination based on gender nonconformance that is expressed outside of work. The Vickers court's efforts to develop a narrower rule are therefore not binding in this circuit.

Therefore, for the reasons set forth above, we hold that the EEOC could pursue a claim under Title VII on the ground that the Funeral Home discriminated against Stephens on the basis of her transgender status and transitioning identity. The EEOC should have had the opportunity, either through a motion for summary judgment or at trial, to establish that the Funeral Home violated Title VII's prohibition on discrimination on the basis of sex by firing Stephens because she was transgender and transitioning from male to female.

3. Defenses to Title VII Liability

Having determined that the Funeral Home violated Title VII's prohibition on sex discrimination, we must now consider whether any defenses preclude enforcement of Title VII in this case. As noted above, the district court held that the EEOC's enforcement efforts must give way to the Religious Freedom Restoration Act ("RFRA"), which prohibits the government from enforcing a religiously neutral law against an individual if that law substantially burdens the individual's religious exercise and is not the least restrictive way to further a compelling government interest. R.G. & G.R. Harris Funeral Homes, Inc., 201 F.Supp.3d at 857-64. The EEOC seeks reversal of this decision; the Funeral Home urges affirmance. In addition, certain amici ask us to affirm the district court's grant of summary judgment on different grounds — namely that Stephens falls within the "ministerial exception" to Title VII and is therefore not protected under the Act. See Public Advocate Br. at 20-24.

We hold that the Funeral Home does not qualify for the ministerial exception to Title VII; the Funeral Home's religious exercise would not be substantially burdened by continuing to employ Stephens without discriminating against her on the basis of sex stereotypes; the EEOC has established that it has a compelling interest in ensuring the Funeral Home complies with Title VII; and enforcement of Title VII is necessarily the least restrictive way to achieve that compelling interest. We therefore REVERSE the district court's grant of summary judgment in the Funeral Home's favor and GRANT summary judgment to the EEOC on the unlawful-termination claim.

a. Ministerial Exception

We turn first to the "ministerial exception" to Title VII, which is rooted in the First Amendment's religious protections, and which "preclude[s] application of [employment discrimination laws such as Title VII] to claims concerning the employment relationship between a religious institution and its ministers." Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012). "[I]n order for the ministerial exception to bar an employment discrimination claim, the employer must be a religious institution and the employee must have been a ministerial employee." Conlon v. InterVarsity Christian Fellowship/USA, 777 F.3d 829, 833 (6th Cir. 2015) (quoting Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007)). "The ministerial exception is a highly circumscribed doctrine. It grew out of the special considerations raised by the employment claims of clergy, which `concern[] internal church discipline, faith, and organization, all of which are governed by ecclesiastical rule, custom, and law.'" Gen. Conf. Corp. of Seventh-Day Adventists v. McGill, 617 F.3d 402, 409 (6th Cir. 2010) (quoting Hutchison v. Thomas, 789 F.2d 392, 396 (6th Cir. 1986)) (alteration in original).

Public Advocate of the United States and its fellow amici argue that the ministerial exception applies in this case because (1) the exception applies both to religious and non-religious entities, and (2) Stephens is a ministerial employee. Public Advocate Br. at 20-24. Tellingly, however, the Funeral Home contends that the Funeral Home "is not a religious organization" and therefore, "the ministerial exception has no application" to this case. Appellee Br. at 35. Although the Funeral Home has not waived the ministerial-exception defense by failing to raise it, see Conlon, 777 F.3d at 836 (holding that private parties may not "waive the First Amendment's ministerial exception" because "[t]his constitutional protection is... structural"), we agree with the Funeral Home that the exception is inapplicable here.

As we made clear in Conlon, the ministerial exception applies only to "religious institution[s]." Id. at 833. While an institution need not be "a church, diocese, or synagogue, or an entity operated by a traditional religious organization," id. at 834 (quoting Hollins, 474 F.3d at 225), to qualify for the exception, the institution must be "marked by clear or obvious religious characteristics," id. at 834 (quoting Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299, 310 (4th Cir. 2004)). In accordance with these principles, we have previously determined that the InterVarsity Christian Fellowship/USA ("IVCF"), "an evangelical campus mission," constituted a religious organization for the purposes of the ministerial exception. See id. at 831, 833. IVCF described itself on its website as "faith-based religious organization" whose "purpose `is to establish and advance at colleges and universities witnessing communities of students and faculty who follow Jesus as Savior and Lord.'" Id. at 831 (citation omitted). In addition, IVCF's website notified potential employees that it has the right to "hir[e] staff based on their religious beliefs so that all staff share the same religious commitment." Id. (citation omitted). Finally, IVCF required all employees "annually [to] reaffirm their agreement with IVCF's Purpose Statement and Doctrinal Basis." Id.

The Funeral Home, by comparison, has virtually no "religious characteristics." Unlike the campus mission in Conlon, the Funeral Home does not purport or seek to "establish and advance" Christian values. See id. As the EEOC notes, the Funeral Home "is not affiliated with any church; its articles of incorporation do not avow any religious purpose; its employees are not required to hold any particular religious views; and it employs and serves individuals of all religions." Appellant Reply Br. at 33-34 (citing R. 61 (Def.'s Counter Statement of Disputed Facts ¶¶ 25-27, 30, 37) (Page ID #1832-35)). Though the Funeral Home's mission statement declares that "its highest priority is to honor God in all that we do as a company and as individuals," R. 55 (Def.'s Statement of Facts ¶ 21) (Page ID #1686), the Funeral Home's sole public displays of faith, according to Rost, amount to placing "Daily Bread" devotionals and "Jesus Cards" with scriptural references in public places in the funeral homes, which clients may pick up if they wish, see R. 51-3 (Rost 30(b)(6) Dep. at 39-40) (Page ID #652). The Funeral Home does not decorate its rooms with "religious figures" because it does not want to "offend[] people of different religions." R. 61 (Def.'s Counter Statement of Disputed Facts ¶ 33) (Page ID # 1834). The Funeral Home is open every day, including on Christian holidays. Id. at 88-89 (Page ID #659-60). And while the employees are paid for federally recognized holidays, Easter is not a paid holiday. Id. at 89 (Page ID #660).

Nor is Stephens a "ministerial employee" under Hosanna-Tabor. Following Hosanna-Tabor, we have identified four factors to assist courts in assessing whether an employee is a minister covered by the exception: (1) whether the employee's title "conveys a religious — as opposed to secular — meaning"; (2) whether the title reflects "a significant degree of religious training" that sets the employee "apart from laypersons"; (3) whether the employee serves "as an ambassador of the faith" and serves a "leadership role within [the] church, school, and community"; and (4) whether the employee performs "important religious functions ... for the religious organization." Conlon, 777 F.3d at 834-35. Stephens's title — "Funeral Director" — conveys a purely secular function. The record does not reflect that Stephens has any religious training. Though Stephens has a public-facing role within the funeral home, she was not an "ambassador of [any] faith," and she did not perform "important religious functions," see id. at 835; rather, Rost's description of funeral directors' work identifies mostly secular tasks — making initial contact with the deceased's families, handling the removal of the remains to the funeral home, introducing other staff to the families, coaching the families through the first viewing, greeting the guests, and coordinating the families' "final farewell," R. 53-3 (Rost Aff. ¶¶ 14-33) (Page ID #930-35). The only responsibilities assigned to Stephens that could be construed as religious in nature were, "on limited occasions," to "facilitate" a family's clergy selection, "facilitate the first meeting of clergy and family members," and "play a role in building the family's confidence around the role the clergy will play, clarifying what type of religious message is desired, and integrating the clergy into the experience." Id. ¶ 20 (Page ID #932-33). Such responsibilities are a far cry from the duties ascribed to the employee in Conlon, which "included assisting others to cultivate `intimacy with God and growth in Christ-like character through personal and corporate spiritual disciplines.'" 777 F.3d at 832. In short, Stephens was not a ministerial employee and the Funeral Home is not a religious institution, and therefore the ministerial exception plays no role in this case.

b. Religious Freedom Restoration Act

Congress enacted RFRA in 1993 to resurrect and broaden the Free Exercise Clause jurisprudence that existed before the Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which overruled the approach to analyzing Free Exercise Clause claims set forth by Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). See City of Boerne v. Flores, 521 U.S. 507, 511-15, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). To that end, RFRA precludes the government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability," unless the government "demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1. RFRA thus contemplates a two-step burden-shifting analysis: First, a claimant must demonstrate that complying with a generally applicable law would substantially burden his religious exercise. Upon such a showing, the government must then establish that applying the law to the burdened individual is the least restrictive means of furthering a compelling government interest.

The questions now before us are whether (1) we ought to remand this case and preclude the Funeral Home from asserting a RFRA-based defense in the proceedings below because Stephens, a non-governmental party, joined this action as an intervenor on appeal; (2) if not, whether the Funeral Home adequately demonstrated that it would be substantially burdened by the application of Title VII in this case; (3) if so, whether the EEOC nevertheless demonstrated that application of a such a burden to the Funeral Home furthers a compelling governmental interest; and (4) if so, whether the application of such a burden constitutes the least restrictive means of furthering that compelling interest. We address each inquiry in turn.

i. Applicability of the Religious Freedom Restoration Act

We have previously made clear that "Congress intended RFRA to apply only to suits in which the government is a party." Seventh-Day Adventists, 617 F.3d at 410. Thus, if Stephens had initiated a private lawsuit against the Funeral Home to vindicate her rights under Title VII, the Funeral Home would be unable to invoke RFRA as a defense because the government would not have been party to the suit. See id. Now that Stephens has intervened in this suit, she argues that the case should be remanded to the district court with instructions barring the Funeral Home from asserting a RFRA defense to her individual claims. Intervenor Br. at 15. The EEOC supports Stephens's argument. EEOC Reply Br. at 31.

The Funeral Home, in turn, argues that the question of RFRA's applicability to Title VII suits between private parties "is a new and complicated issue that has never been a part of this case and has never been briefed by the parties." Appellee Br. at 34. Because Stephens's intervention on appeal was granted, in part, on her assurances that she "seeks only to raise arguments already within the scope of this appeal," D.E. 23 (Stephens Reply in Support of Mot. to Intervene at 8); see also D.E. 28-2 (March 27, 2017 Order at 2), the Funeral Home insists that permitting Stephens to argue now in favor of remand "would immensely prejudice the Funeral Home and undermine the Court's reasons for allowing Stephens's intervention in the first place," Appellee Br. at 34-35 (citing Illinois Bell Tel. v. FCC,911 F.2d 776, 786 (D.C. Cir. 1990)).

The Funeral Home is correct. Stephens's reply brief in support of her motion to intervene insists that "no party to an appeal may broaden the scope of litigation beyond the issues raised before the district court." D.E. 23 (Stephens Reply in Support of Mot. to Intervene at 8) (citing Thomas v. Arn, 474 U.S. 140, 148, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)). Though the district court noted in a footnote that "the Funeral Home could not assert a RFRA defense if Stephens had filed a Title VII suit on Stephens's own behalf," R.G. & G.R. Harris Funeral Homes, Inc.,201 F.Supp.3d at 864 n.23, this argument was not briefed by the parties at the district-court level. Thus, in accordance with Stephens's own brief, she should not be permitted to argue for remand before this court.

Stephens nevertheless insists that "intervenors... are permitted to present different arguments related to the principal parties' claims." Intervenor Reply Br. at 14 (citing Grutter v. Bollinger, 188 F.3d 394, 400-01 (6th Cir. 1999)). But in Grutter, this court determined that proposed intervenors ought to be able to present particular "defenses of affirmative action" that the principal party to the case (a university) might be disinclined to raise because of "internal and external institutional pressures." 188 F.3d at 400. Allowing intervenors to present particular defenses on the merits to judiciable claims is different than allowing intervenors to change the procedural course of litigation by virtue of their intervention.

Moreover, we typically will not consider issues raised for the first time on appeal unless they are "presented with sufficient clarity and completeness and [their] resolution will materially advance the process of th[e] ... litigation." Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988) (citation omitted). The merits of a remand have been addressed only in passing by the parties, and thus have not been discussed with "sufficient clarity and completeness" to enable us to entertain Stephens's claim.^[8]

ii. Prima Facie Case Under RFRA

To assert a viable defense under RFRA, a religious claimant must demonstrate that the government action at issue "would (1) substantially burden (2) a sincere (3) religious exercise." Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). In reviewing such a claim, courts must not evaluate whether asserted "religious beliefs are mistaken or insubstantial." Burwell v. Hobby Lobby Stores, Inc., ___ U.S. ___, 134 S.Ct. 2751, 2779, 189 L.Ed.2d 675 (2014). Rather, courts must assess "whether the line drawn reflects `an honest conviction.'" Id. (quoting Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 716, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981)). In addition, RFRA, as amended by the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), protects "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A).

The EEOC argues that the Funeral Home's RFRA defense must fail because "RFRA protects religious exercise, not religious beliefs," Appellant Br. at 41, and the Funeral Home has failed to "identif[y] how continuing to employ Stephens after, or during, her transition would interfere with any religious `action or practice,'" id. at 43 (quoting Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008)). The Funeral Home, in turn, contends that the "very operation of [the Funeral Home] constitutes protected religious exercise" because Rost feels compelled by his faith to "serve grieving people" through the funeral home, and thus "[r]equiring [the Funeral Home] to authorize a male funeral director to wear the uniform for female funeral directors would directly interfere with — and thus impose a substantial burden on — [the Funeral Home's] ability to carry out Rost's religious exercise of caring for the grieving." Appellee Br. at 38.

If we take Rost's assertions regarding his religious beliefs as sincere, which all parties urge us to do, then we must treat Rost's running of the funeral home as a religious exercise — even though Rost does not suggest that ministering to grieving mourners by operating a funeral home is a tenet of his religion, more broadly. See United States v. Sterling, 75 M.J. 407, 415 (C.A.A.F. 2016) (noting that conduct that "was claimed to be religiously motivated at least in part ... falls within RFRA's expansive definition of `religious exercise'"), cert. denied, ___ U.S. ___, 137 S.Ct. 2212, 198 L.Ed.2d 657 (2017). The question then becomes whether the Funeral Home has identified any way in which continuing to employ Stephens would substantially burden Rost's ability to serve mourners. The Funeral Home purports to identify two burdens. "First, allowing a funeral director to wear the uniform for members of the opposite sex would often create distractions for the deceased's loved ones and thereby hinder their healing process (and [the Funeral Home's] ministry)," and second, "forcing [the Funeral Home] to violate Rost's faith ... would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people." Appellee Br. at 38. Neither alleged burden is "substantial" within the meaning of RFRA.

The Funeral Home's first alleged burden — that Stephens will present a distraction that will obstruct Rost's ability to serve grieving families — is premised on presumed biases. As the EEOC observes, the Funeral Home's argument is based on "a view that Stephens is a `man' and would be perceived as such even after her gender transition," as well as on the "assumption that a transgender funeral director would so disturb clients as to `hinder healing.'" Appellant Reply Br. at 19. The factual premises underlying this purported burden are wholly unsupported in the record. Rost testified that he has never seen Stephens in anything other than a suit and tie and does not know how Stephens would have looked when presenting as a woman. R. 54-5 (Rost 30(b)(6) Dep. at 60-61) (Page ID #1362). Rost's assertion that he believes his clients would be disturbed by Stephens's appearance during and after her transition to the point that their healing from their loved ones' deaths would be hindered, see R. 55 (Def.'s Statement of Facts ¶ 78) (Page ID #1697), at the very least raises a material question of fact as to whether his clients would actually be distracted, which cannot be resolved in the Funeral Home's favor at the summary-judgment stage. See Tree of Life Christian Sch. v. City of Upper Arlington, 823 F.3d 365, 371-72 (6th Cir. 2016) (holding that this court "cannot assume ... a fact" at the summary judgment stage); see also Guess? Inc. v. United States, 944 F.2d 855, 858 (Fed. Cir. 1991) (in case where manufacturer's eligibility for certain statutory refund on import tariffs turned on whether foreign customers preferred U.S.-made jeans more than foreign-made jeans, court held that the manufacturer's averred belief regarding foreign customers' preferences was not conclusive; instead, there remained a genuine dispute of material fact as to foreign customers' actual preferences). Thus, even if we were to find the Funeral Home's argument legally cognizable, we would not affirm a finding of substantial burden based on a contested and unsupported assertion of fact.

But more to the point, we hold as a matter of law that a religious claimant cannot rely on customers' presumed biases to establish a substantial burden under RFRA. Though we have seemingly not had occasion to address the issue, other circuits have considered whether and when to account for customer biases in justifying discriminatory employment practices. In particular, courts asked to determine whether customers' biases may render sex a "bona fide occupational qualification" under Title VII have held that "it would be totally anomalous ... to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid." Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir. 1971); see also Bradley v. Pizzaco of Nebraska, Inc., 7 F.3d 795, 799 (8th Cir. 1993) (holding grooming policy for pizza deliverymen that had disparate impact on African-American employees was not justified by customer preferences for clean-shaven deliverymen because "[t]he existence of a beard on the face of a delivery man does not affect in any manner Domino's ability to make or deliver pizzas to their customers"); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir. 1981) (rejecting claim that promoting a female employee would "`destroy the essence' of [the defendant's] business" — a theory based on the premise that South American clients would not want to work with a female vice-president — because biased customer preferences did not make being a man a "bona fide occupational qualification" for the position at issue). District courts within this circuit have endorsed these out-of-circuit opinions. See, e.g., Local 567 Am. Fed'n of State, Cty., & Mun. Emps. v. Mich. Council 25, Am. Fed'n of State, Cty., & Mun. Emps., 635 F.Supp. 1010, 1012 (E.D. Mich. 1986) (citing Diaz, 442 F.2d 385, and Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969),for the proposition that "[a]ssertions of sex-based employee classification cannot be made on the basis of stereotypes or customer preferences").

Of course, cases like Diaz, Fernandez, and Bradley concern a different situation than the one at hand. We could agree that courts should not credit customers' prejudicial notions of what men and women can do when considering whether sex constitutes a "bona fide occupational qualification" for a given position while nonetheless recognizing that those same prejudices have practical effects that would substantially burden Rost's religious practice (i.e., the operation of his business) in this case. But the Ninth Circuit rejected similar reasoning in Fernandez, and we reject it here. In Fernandez, the Ninth Circuit held that customer preferences could not transform a person's gender into a relevant consideration for a particular position even if the record supported the idea that the employer's business would suffer from promoting a woman because a large swath of clients would refuse to work with a female vice-president. See 653 F.2d at 1276-77. Just as the Fernandez court refused to treat discriminatory promotion practices as critical to an employer's business, notwithstanding any evidence to that effect in the record, so too we refuse to treat discriminatory policies as essential to Rost's business — or, by association, his religious exercise.

The Funeral Home's second alleged burden also fails. Under Holt v. Hobbs, ___ U.S. ___, 135 S.Ct. 853, 190 L.Ed.2d 747 (2015), a government action that "puts [a religious practitioner] to th[e] choice" of "`engag[ing] in conduct that seriously violates [his] religious beliefs' [or]... fac[ing] serious" consequences constitutes a substantial burden for the purposes of RFRA. See id. at 862 (quoting Hobby Lobby, 134 S.Ct. at 2775). Here, Rost contends that he is being put to such a choice, as he either must "purchase female attire" for Stephens or authorize her "to dress in female attire while representing [the Funeral Home] and serving the bereaved," which purportedly violates Rost's religious beliefs, or else face "significant[] pressure... to leave the funeral industry and end his ministry to grieving people." Appellee Br. at 38-39 (emphasis in original). Neither of these purported choices can be considered a "substantial burden" under RFRA.

First, though Rost currently provides his male employees with suits and his female employees with stipends to pay for clothing, this benefit is not legally required and Rost does not suggest that the benefit is religiously compelled. See Appellant Br. at 49 ("[T]he EEOC's suit would require only that if Rost provides a clothing benefit to his male employees, he provide a comparable benefit (which could be in-kind, or in cash) to his female employees."); R. 54-2 (Rost Aff.) (Page ID 1326-37) (no suggestion that clothing benefit is religiously motivated). In this regard, Rost is unlike the employers in Hobby Lobby, who rejected the idea that they could simply refuse to provide health care altogether and pay the associated penalty (which would allow them to avoid providing access to contraceptives in violation of their beliefs) because they felt religiously compelled to provide their employees with health insurance. See 134 S.Ct. at 2776. And while "it is predictable that the companies [in Hobby Lobby] would face a competitive disadvantage in retaining and attracting skilled workers" if they failed to provide health insurance, id. at 2777, the record here does not indicate that the Funeral Home's clothing benefit is necessary to attract workers; in fact, until the EEOC commenced the present action, the Funeral Home did not provide any sort of clothing benefit to its female employees. Thus, Rost is not being forced to choose between providing Stephens with clothing or else leaving the business; this is a predicament of Rost's own making.

Second, simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost's religious beliefs is not a substantial burden under RFRA. We presume that the "line [Rost] draw[s]" — namely, that permitting Stephens to represent herself as a woman would cause him to "violate God's commands" because it would make him "directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift," R. 54-2 (Rost Aff. ¶¶ 43, 45) (Page ID #1334-35) — constitutes "an honest conviction." See Hobby Lobby, 134 S.Ct. at 2779 (quoting Thomas, 450 U.S. at 716, 101 S.Ct. 1425). But we hold that, as a matter of law, tolerating Stephens's understanding of her sex and gender identity is not tantamount to supporting it.

Most circuits, including this one, have recognized that a party can sincerely believe that he is being coerced into engaging in conduct that violates his religious convictions without actually, as a matter of law, being so engaged. Courts have recently confronted this issue when non-profit organizations whose religious beliefs prohibit them "from paying for, providing, or facilitating the distribution of contraceptives," or in any way "be[ing] complicit in the provision of contraception" argued that the Affordable Care Act's opt-out procedure — which enables organizations with religious objections to the contraceptive mandate to avoid providing such coverage by either filling out a form certifying that they have a religious objection to providing contraceptive coverage or directly notifying the Department of Health and Human Services of the religious objection — substantially burdens their religious practice. See Eternal Word Television Network, Inc. v. Sec'y of U.S. Dep't of Health & Human Servs., 818 F.3d 1122, 1132-33, 1143 (11th Cir. 2016).

Eight of the nine circuits to review the issue, including this court, have determined that the opt-out process does not constitute a substantial burden. See id. at 1141 (collecting cases); see also Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 807 F.3d 738 (6th Cir. 2015), cert. granted, judgment vacated sub nom. Mich. Catholic Conf. v. Burwell, ___ U.S. ___, 136 S.Ct. 2450, 195 L.Ed.2d 261 (2016).^[9] The courts reached this conclusion by examining the Affordable Care Act's provisions and determining that it was the statute — and not the employer's act of opting out — that "entitle[d] plan participants and beneficiaries to contraceptive coverage." See, e.g., Eternal Word, 818 F.3d at 1148-49. As a result, the employers' engagement with the opt-out process, though legally significant in that it leads the government to provide the organizations' employees with access to contraceptive coverage through an alternative route, does not mean the employers are facilitating the provision of contraceptives in a way that violates their religious practice. See id.

We view the Funeral Home's compliance with antidiscrimination laws in much the same light. Rost may sincerely believe that, by retaining Stephens as an employee, he is supporting and endorsing Stephens's views regarding the mutability of sex. But as a matter of law, bare compliance with Title VII — without actually assisting or facilitating Stephens's transition efforts — does not amount to an endorsement of Stephens's views. As much is clear from the Supreme Court's Free Speech jurisprudence, in which the Court has held that a statute requiring law schools to provide military and nonmilitary recruiters an equal opportunity to recruit students on campus was not improperly compelling schools to endorse the military's policies because "[n]othing about recruiting suggests that law schools agree with any speech by recruiters," and "students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy." Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 65, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (citing Bd. of Ed. of Westside Cmty. Schs. (Dist. 66) v. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (plurality opinion)); see also Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 841-42, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (being required to provide funds on an equal basis to religious as well as secular student publications does not constitute state university's support for students' religious messages). Similarly, here, requiring the Funeral Home to refrain from firing an employee with different religious views from Rost does not, as a matter of law, mean that Rost is endorsing or supporting those views. Indeed, Rost's own behavior suggests that he sees the difference between employment and endorsement, as he employs individuals of any or no faith, "permits employees to wear Jewish head coverings for Jewish services," and "even testified that he is not endorsing his employee's religious beliefs by employing them." Appellant Reply Br. at 18-19 (citing R. 61 (Def.'s Counter Statement of Disputed Facts ¶¶ 31, 37, 38) (Page ID #1834-36); R. 51-3 (Rost Dep. at 41-42) (Page ID #653)).^[10]

At bottom, the fact that Rost sincerely believes that he is being compelled to make such an endorsement does not make it so. Cf. Eternal Word, 818 F.3d at 1145("We reject a framework that takes away from courts the responsibility to decide what action the government requires and leaves that answer entirely to the religious adherent. Such a framework improperly substitutes religious belief for legal analysis regarding the operation of federal law."). Accordingly, requiring Rost to comply with Title VII's proscriptions on discrimination does not substantially burden his religious practice. The district court therefore erred in granting summary judgment to the Funeral Home on the basis of its RFRA defense, and we REVERSE the district court's decision on this ground. As Rost's purported burdens are insufficient as a matter of law, we GRANT summary judgment to the EEOC with respect to the Funeral Home's RFRA defense.

iii. Strict Scrutiny Test

Because the Funeral Home has not established that Rost's religious exercise would be substantially burdened by requiring the Funeral Home to comply with Title VII, we do not need to consider whether the EEOC has adequately demonstrated that enforcing Title VII in this case is the least restrictive means of furthering a compelling government interest. However, in the interest of completeness, we reach this issue and conclude that the EEOC has satisfied its burden. We therefore GRANT summary judgment to the EEOC with regard to the Funeral Home's RFRA defense on the alternative grounds that the EEOC's enforcement action in this case survives strict scrutiny.

(a) Compelling Government Interest

Under the "to the person" test, the EEOC must demonstrate that its compelling interest "is satisfied through application of the challenged law [to] ... the particular claimant whose sincere exercise of religion is being substantially burdened." Gonzales, 546 U.S. at 430-31, 126 S.Ct. 1211 (citing 42 U.S.C. § 2000bb-1(b)). This requires "look[ing] beyond broadly formulated interests justifying the general applicability of government mandates and scrutiniz[ing] the asserted harm of granting specific exemptions to particular religious claimants." Id. at 431, 126 S.Ct. 1211.

As an initial matter, the Funeral Home does not seem to dispute that the EEOC "has a compelling interest in the `elimination of workplace discrimination, including sex discrimination.'" Appellee Br. at 41 (quoting Appellant Br. at 51).^[11] However, the Funeral Home criticizes the EEOC for "cit[ing] a general, broadly formulated interest" to support enforcing Title VII in this case. Id. According to the Funeral Home, the relevant inquiry is whether the EEOC has a "specific interest in forcing [the Funeral Home] to allow its male funeral directors to wear the uniform for female funeral directors while on the job." Id. The EEOC instead asks whether its interest in "eradicating employment discrimination" is furthered by ensuring that Stephens does not suffer discrimination (either on the basis of sex-stereotyping or her transgender status), lose her livelihood, or face the emotional pain and suffering of being effectively told "that as a transgender woman she is not valued or able to make workplace contributions." Appellant Br. at 52, 54 (citing Lusardi v. McHugh, EEOC DOC XXXXXXXXXX, 2015 WL 1607756, at *1 (E.E.O.C. Apr. 1, 2015)). Stephens similarly argues that "Title VII serves a compelling interest in eradicating all the forms of invidious employment discrimination proscribed by the statute," and points to studies demonstrating that transgender people have experienced particularly high rates of "bodily harm, violence, and discrimination because of their transgender status." Intervenor Br. at 21, 23-25.

The Funeral Home's construction of the compelling-interest test is off-base. Rather than focusing on the EEOC's claim — that the Funeral Home terminated Stephens because of her proposed gender nonconforming behavior — the Funeral Home's test focuses instead on its defense (discussed above) that the Funeral Home merely wishes to enforce an appropriate workplace uniform. But the Funeral Home has not identified any cases where the government's compelling interest was framed as its interest in disturbing a company's workplace policies. For instance, in Hobby Lobby, the issue, which the Court ultimately declined to adjudicate, was whether the government's "interest in guaranteeing cost-free access to the four challenged contraceptive methods" was compelling — not whether the government had a compelling interest in requiring closely held organizations to act in a way that conflicted with their religious practice. See 134 S.Ct. at 2780.

The Supreme Court's analysis in cases like Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and Holt guides our approach. In those cases, the Court ultimately determined that the interests generally served by a given government policy or statute would not be "compromised" by granting an exemption to a particular individual or group. See Holt, 135 S.Ct. at 863. Thus, in Yoder, the Court held that the interests furthered by the government's requirement of compulsory education for children through the age of sixteen (i.e., "to prepare citizens to participate effectively and intelligently in our open political system" and to "prepare[] individuals to be self-reliant and self-sufficient participants in society") were not harmed by granting an exemption to the Amish, who do not need to be prepared "for life in modern society" and whose own traditions adequately ensure self-sufficiency. 406 U.S. at 221-22, 92 S.Ct. 1526. Similarly, in Holt, the Court recognized that the Department of Corrections has a compelling interest in preventing prisoners from hiding contraband on their persons, which is generally effectuated by requiring prisoners to adhere to a strict grooming policy, but the Court failed to see how the Department's "compelling interest in staunching the flow of contraband into and within its facilities ... would be seriously compromised by allowing an inmate to grow a ½-inch beard." 135 S.Ct. at 863.

Here, the same framework leads to the opposite conclusion. Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person — Stephens — to suffer discrimination, and such an outcome is directly contrary to the EEOC's compelling interest in combating discrimination in the workforce. See, e.g., United States v. Burke, 504 U.S. 229, 238, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992) ("[I]t is beyond question that discrimination in employment on the basis of sex ... is, as ... this Court consistently has held, an invidious practice that causes grave harm to its victims.").^[12] In this regard, this case is analogous to Eternal Word, in which the Eleventh Circuit determined that the government had a compelling interest in requiring a particular nonprofit organization with religious objections to the Affordable Care Act's contraceptive mandate to follow the procedures associated with obtaining an accommodation to the Act because

applying the accommodation procedure to the plaintiffs in these casesfurthers [the government's] interests because the accommodation ensures that the plaintiffs' female plan participants and beneficiaries — who may or may not share the same religious beliefs as their employer — have access to contraception without cost sharing or additional administrative burdens as the ACA requires.

818 F.3d at 1155 (emphasis added). The Eternal Word court reasoned that "[u]nlike the exception made in Yoder for Amish children," who would be adequately prepared for adulthood even without compulsory education, the "poor health outcomes related to unintended or poorly timed pregnancies apply to the plaintiffs' female plan participants or beneficiaries and their children just as they do to the general population." Id. Similarly, here, the EEOC's compelling interest in eradicating discrimination applies with as much force to Stephens as to any other employee discriminated against based on sex.

It is true, of course, that the specific harms the EEOC identifies in this case, such as depriving Stephens of her livelihood and harming her sense of self-worth, are simply permutations of the generic harm that is always suffered in employment discrimination cases. But O Centro's "to the person" test does not mean that the government has a compelling interest in enforcing the laws only when the failure to enforce would lead to uniquely harmful consequences. Rather, the question is whether "the asserted harm of granting specific exemptions to particular religious claimants" is sufficiently great to require compliance with the law. O Centro, 546 U.S. at 431, 126 S.Ct. 1211. Here, for the reasons stated above, the EEOC has adequately demonstrated that Stephens has and would suffer substantial harm if we exempted the Funeral Home from Title VII's requirements.

Finally, we reject the Funeral Home's claim that it should receive an exemption, notwithstanding any harm to Stephens or the EEOC's interest in eradicating discrimination, because "the constitutional guarantee of free exercise[,] effectuated here via RFRA ... [,] is a higher-order right that necessarily supersedes a conflicting statutory right," Appellee Br. at 42. This point warrants little discussion. The Supreme Court has already determined that RFRA does not, in fact, "effectuate... the First Amendment's guarantee of free exercise," id., because it sweeps more broadly than the Constitution demands. See Boerne, 521 U.S. at 532, 117 S.Ct. 2157. And in any event, the Supreme Court has expressly recognized that compelling interests can, at times, override religious beliefs — even those that are squarely protected by the Free Exercise Clause. See Cutter v. Wilkinson, 544 U.S. 709, 722, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) ("We do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests."). We therefore decline to hoist automatically Rost's religious interests above other compelling governmental concerns. The undisputed record demonstrates that Stephens has been and would be harmed by the Funeral Home's discriminatory practices in this case, and the EEOC has a compelling interest in eradicating and remedying such discrimination.

(b) Least Restrictive Means

The final inquiry under RFRA is whether there exist "other means of achieving [the government's] desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y]." Hobby Lobby, 134 S.Ct. at 2780 (citing 42 U.S.C. §§ 2000bb-1(a), (b)). "The least-restrictive-means standard is exceptionally demanding," id. (citing Boerne, 521 U.S. at 532, 117 S.Ct. 2157), and the EEOC bears the burden of showing that burdening the Funeral Home's religious exercise constitutes the least restrictive means of furthering its compelling interests, see id.at 2779. Where an alternative option exists that furthers the government's interest "equally well," see id. at 2782, the government "must use it," Holt, 135 S.Ct. at 864(quoting United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 815, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000)). In conducting the least-restrictive-alternative analysis, "courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries." Hobby Lobby, 134 S.Ct. at 2781 n.37 (quoting Cutter, 544 U.S. at 720, 125 S.Ct. 2113). Cost to the government may also be "an important factor in the least-restrictive-means analysis." Id. at 2781.

The district court found that requiring the Funeral Home to adopt a gender-neutral dress code would constitute a less restrictive alternative to enforcing Title VII in this case, and granted the Funeral Home summary judgment on this ground. According to the district court, the Funeral Home engaged in illegal sex stereotyping only with respect to "the clothing Stephens [c]ould wear at work," and therefore a gender-neutral dress code would resolve the case because Stephens would not be forced to dress in a way that conforms to Rost's conception of Stephens's sex and Rost would not be compelled to authorize Stephens to dress in a way that violates Rost's religious beliefs. R.G. & G.R. Harris Funeral Homes, Inc., 201 F.Supp.3d at 861, 863.

Neither party endorses the district court's proposed alternative, and for good reason. The district court's suggestion, although appealing in its tidiness, is tenable only if we excise from the case evidence of sex stereotyping in areas other than attire. Though Rost does repeatedly say that he terminated Stephens because she "wanted to dress as a woman" and "would no longer dress as a man," see R. 54-5 (Rost 30(b)(6) Dep. at 136-37) (Page ID #1372) (emphasis added), the record also contains uncontroverted evidence that Rost's reasons for terminating Stephens extended to other aspects of Stephens's intended presentation. For instance, Rost stated that he fired Stephens because Stephens "was no longer going to represent himself as a man," id. at 136 (Page ID #1372) (emphasis added), and Rost insisted that Stephens presenting as a female would disrupt clients' healing process because female clients would have to "share a bathroom with a man dressed up as a woman," id. at 74, 138-39 (Page ID #1365, 1373). The record thus compels the finding that Rost's concerns extended beyond Stephens's attire and reached Stephens's appearance and behavior more generally.

At the summary-judgment stage, where a court may not "make credibility determinations, weigh the evidence, or draw [adverse] inferences from the facts," Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)), the district court was required to account for the evidence of Rost's non-clothing-based sex stereotyping in determining whether a proposed less restrictive alternative furthered the government's "stated interests equally [as] well," Hobby Lobby, 134 S.Ct. at 2782. Here, as the evidence above shows, merely altering the Funeral Home's dress code would not address the discrimination Stephens faced because of her broader desire "to represent [her]self as a [wo]man." R. 54-5 (Rost 30(b)(6) Dep. at 136) (Page ID #1372). Indeed, the Funeral Home's counsel conceded at oral argument that Rost would have objected to Stephens's coming "to work presenting clearly as a woman and acting as a woman," regardless of whether Stephens wore a man's suit, because that "would contradict [Rost's] sincerely held religious beliefs." See Oral Arg. at 46:50-47:46.

The Funeral Home's proposed alternative — to "permit businesses to allow the enforcement of sex-specific dress codes for employees who are public-facing representatives of their employer, so long as the dress code imposes equal burdens on the sexes and does not affect employee dress outside of work," Appellee Br. at 44-45 — is equally flawed. The Funeral Home's suggestion would do nothing to advance the government's compelling interest in preventing and remedying discrimination against Stephens based on her refusal to conform at work to stereotypical notions of how biologically male persons should dress, appear, behave, and identify. Regardless of whether the EEOC has a compelling interest in combating sex-specific dress codes — a point that is not at issue in this case — the EEOC does have a compelling interest in ensuring that the Funeral Home does not discriminate against its employees on the basis of their sex. The Funeral Home's proposed alternative sidelines this interest entirely.^[13]

The EEOC, Stephens, and several amici argue that searching for an alternative to Title VII is futile because enforcing Title VII is itself the least restrictive way to further EEOC's interest in eradicating discrimination based on sex stereotypes from the workplace. See, e.g., Appellant Br. at 55-61; Intervenor Br. at 27-33. We agree.

To start, the Supreme Court has previously acknowledged that "there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA." O Centro, 546 U.S. at 436, 126 S.Ct. 1211. The Court highlighted Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961), as an example of a case where the "need for uniformity" trumped "claims for religious exemptions."O Centro, 546 U.S. at 435, 126 S.Ct. 1211. In Braunfeld, the plurality "denied a claimed exception to Sunday closing laws, in part because ... [t]he whole point of a `uniform day of rest for all workers' would have been defeated by exceptions." O Centro, 546 U.S. at 435, 126 S.Ct. 1211 (quoting Sherbert, 374 U.S. at 408, 83 S.Ct. 1790 (discussing Braunfeld)). Braunfeld thus serves as a particularly apt case to consider here, as it too concerned an attempt by an employer to seek an exemption that would elevate its religious practices above a government policy designed to benefit employees. If the government's interest in a "uniform day of rest for all workers" is sufficiently weighty to preclude exemptions, see O Centro, 546 U.S. at 435, 126 S.Ct. 1211,then surely the government's interest in uniformly eradicating discrimination against employees exerts just as much force.

The Court seemingly recognized Title VII's ability to override RFRA in Hobby Lobby, as the majority opinion stated that its decision should not be read as providing a "shield" to those who seek to "cloak[] as religious practice" their efforts to engage in "discrimination in hiring, for example on the basis of race." 134 S.Ct. at 2783. As the Hobby Lobby Court explained, "[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." Id. We understand this to mean that enforcement actions brought under Title VII, which aims to "provid[e] an equal opportunity to participate in the workforce without regard to race" and an array of other protected traits, see id., will necessarily defeat RFRA defenses to discrimination made illegal by Title VII. The district court reached the opposite conclusion, reasoning that Hobby Lobby did not suggest that "a RFRA defense can never prevail as a defense to Title VII" because "[i]f that were the case, the majority would presumably have said so." R.G. & G.R. Harris Funeral Homes, Inc., 201 F.Supp.3d at 857. But the majority did say that anti-discrimination laws are "precisely tailored" to achieving the government's "compelling interest in providing an equal opportunity to participate in the workforce" without facing discrimination. Hobby Lobby, 134 S.Ct. at 2783.

As Stephens notes, at least two district-level federal courts have also concluded that Title VII constitutes the least restrictive means for eradicating discrimination in the workforce. See Redhead v. Conf. of Seventh-Day Adventists, 440 F.Supp.2d 211, 222 (E.D.N.Y. 2006) (holding that "the Title VII framework is the least restrictive means of furthering" the government's interest in avoiding discrimination against non-ministerial employees of religious organization), adhered to on reconsideration, 566 F.Supp.2d 125 (E.D.N.Y. 2008); EEOC v. Preferred Mgmt. Corp., 216 F.Supp.2d 763, 810-11 (S.D. Ind. 2002) ("[I]n addition to finding that the EEOC's intrusion into [the defendant's] religious practices is pursuant to a compelling government interest," — i.e., "the eradication of employment discrimination based on the criteria identified in Title VII" — "we also find that the intrusion is the least restrictive means that Congress could have used to effectuate its purpose.").

We also find meaningful Congress's decision not to include exemptions within Title VII to the prohibition on sex-based discrimination. As both the Supreme Court and other circuits have recognized, "[t]he very existence of a government-sanctioned exception to a regulatory scheme that is purported to be the least restrictive means can, in fact, demonstrate that other, less-restrictive alternatives could exist." McAllen Grace Brethren Church v. Salazar, 764  F.3d 465, 475 (5th Cir. 2014)(citing Hobby Lobby, 134 S.Ct. at 2781-82); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) ("It is established in our strict scrutiny jurisprudence that `a law cannot be regarded as protecting an interest of the highest order... when it leaves appreciable damage to that supposedly vital interest unprohibited.'" (omission in original) (quoting Fla. Star v. B.J.F., 491 U.S. 524, 541-42, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (Scalia, J., concurring))). Indeed, a driving force in the Hobby Lobby Court's determination that the government had failed the least-restrictive-means test was the fact that the Affordable Care Act, which the government sought to enforce in that case against a closely held organization, "already established an accommodation for nonprofit organizations with religious objections." See 134 S.Ct. at 2782. Title VII, by contrast, does not contemplate any exemptions for discrimination on the basis of sex. Sex may be taken into account only if a person's sex "is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise," 42 U.S.C. § 2000e-2(e)(1) — and in that case, the preference is no longer discriminatory in a malicious sense. Where the government has developed a comprehensive scheme to effectuate its goal of eradicating discrimination based on sex, including sex stereotypes, it makes sense that the only way to achieve the scheme's objectives is through its enforcement.

State courts' treatment of RFRA-like challenges to their own antidiscrimination laws is also telling. In several instances, state courts have concluded that their respective antidiscrimination laws survive strict scrutiny, such that religious claimants are not entitled to exemptions to enforcement of the state prohibitions on discrimination with regard to housing, employment, medical care, and education. See State v. Arlene's Flowers, Inc., 187 Wash.2d 804, 389 P.3d 543, 565-66 (2017) (collecting cases), petition for cert. filed Arlene's Flowers, Inc. v. Washington, 86 U.S.L.W. 3047(July14017)). These holdings support the notion that antidiscrimination laws allow for fewer exceptions than other generally applicable laws.

As a final point, we reject the Funeral Home's suggestion that enforcing Title VII in this case would undermine, rather than advance, the EEOC's interest in combating sex stereotypes. According to the Funeral Home, the EEOC's requested relief reinforces sex stereotypes because the agency essentially asks that Stephens "be able to dress in a stereotypical feminine manner." R.G. & G.R. Funeral Homes, Inc., 201 F.Supp.3d at 863 (emphasis omitted). This argument misses the mark. Nothing in Title VII or this court's jurisprudence requires employees to reject their employer's stereotypical notions of masculinity or femininity; rather, employees simply may not be discriminated against for a failure to conform. See Smith, 378 F.3d at 572 (holding that a plaintiff makes out a prima facie case for discrimination under Title VII when he pleads that "his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind" an adverse employment action (emphasis added)). Title VII protects both the right of male employees "to c[o]me to work with makeup or lipstick on [their] face[s]," Barnes, 401 F.3d at 734, and the right of female employees to refuse to "wear dresses or makeup," Smith, 378 F.3d at 574, without any internal contradiction.

In short, the district court erred in finding that EEOC had failed to adopt the least restrictive means of furthering its compelling interest in eradicating discrimination in the workplace. Thus, even if we agreed with the Funeral Home that Rost's religious exercise would be substantially burdened by enforcing Title VII in this case, we would nevertheless REVERSE the district court's grant of summary judgment to the Funeral Home and hold instead that requiring the Funeral Home to comply with Title VII constitutes the least restrictive means of furthering the government's compelling interest in eradicating discrimination against Stephens on the basis of sex. Thus, even assuming Rost's religious exercise is substantially burdened by the EEOC's enforcement action in this case, we GRANT summary judgment to the EEOC on the Funeral Home's RFRA defense on this alternative ground.

C. Clothing-Benefit Discrimination Claim

The district court erred in granting summary judgment in favor of the Funeral Home on the EEOC's discriminatory clothing-allowance claim. We long ago held that the scope of the complaint the EEOC may file in federal court in its efforts to enforce Title VII is "limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination." EEOC v. Bailey Co., 563 F.2d 439, 446 (6th Cir. 1977) (quoting inter alia, Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125, 131 (6th Cir. 1971)), disapproved of on other grounds by Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). The EEOC now urges us to hold that Bailey is incompatible with subsequent Supreme Court precedent and therefore no longer binding on this court. Because we believe that the EEOC may properly bring a clothing-allowance claim under Bailey, we need not decide whether Bailey has been rendered obsolete.

In Bailey, a white female employee charged that her employer failed to promote her on account of her sex, generally failed to promote women because of their sex, failed to pay equally qualified women as well as men, and failed to recruit and hire black women because of their race. Id. at 442. While investigating these claims, the EEOC found there was no evidence to support the complainant's charges of sex discrimination, but there was reasonable cause to believe the company had racially discriminatory hiring and promotion practices. In addition, the EEOC learned that the employer had seemingly refused to hire one applicant on the basis of his religion. After failed efforts at conciliation, the EEOC initiated a lawsuit against the employer alleging both racial and religious discrimination. We held that the EEOC lacked authority to bring an enforcement action regarding alleged religious discrimination because "[t]he portion of the EEOC's complaint incorporating allegations of religious discrimination exceeded the scope of the EEOC investigation of [the defendant employer] reasonably expected to grow out of [the original] charge of sex and race discrimination." Id. at 446. We determined, however, that the EEOC was authorized to bring race discrimination claims against the employer because the original charge alleged racial discrimination against black applicants and employees and the charging party — a white woman — had standing under Title VII to file such a charge with the EEOC because she "may have suffered from the loss of benefits from the lack of association with racial minorities at work." Id. at 452 (citations omitted).

As we explained in Bailey, the EEOC may sue for matters beyond those raised directly in the EEOC's administrative charge for two reasons. First, limiting the EEOC complaint to the precise grounds listed in the charge of discrimination would undercut Title VII's "effective functioning" because laypersons "who are unfamiliar with the niceties of pleading and are acting without the assistance of counsel" submit the original charge. Id. at 446 (quoting Tipler, 443 F.2d at 131). Second, an initial charge of discrimination does not trigger a lawsuit; it instead triggers an EEOC investigation. The matter evolves into a lawsuit only if the EEOC is unable "to obtain voluntary compliance with the law.... Thus it is obvious that the civil action is much more intimately related to the EEOC investigation than to the words of the charge which originally triggered the investigation." Id. at 447 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)).

At the same time, however, we concluded in Bailey that allowing the EEOC to sue for matters beyond those reasonably expected to arise from the original charge would undermine Title VII's enforcement process. In particular, we understood that an original charge provided an employer with "notice of the allegation, an opportunity to participate in a complete investigation of such allegation, and an opportunity to participate in meaningful conciliation discussions should reasonable cause be found following the EEOC investigation." Id. at 448. We believed that the full investigatory process would be short-circuited, and the conciliation process thereby threatened, if the EEOC did not file a separate charge and undertake a separate investigation when facts are learned suggesting an employer may have engaged in "discrimination of a type other than that raised by the individual party's charge and unrelated to the individual party." Id.

The EEOC now insists that Bailey is no longer good law after the Supreme Court's decision in General Telephone Company of the Northwest, Inc. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). In General Telephone, the Supreme Court held that Rule 23 of the Federal Rules of Civil Procedure, which governs class actions, does not apply to enforcement actions initiated by the EEOC. Id. at 331, 100 S.Ct. 1698. As part of its reasoning, the Court found that various requirements of Rule 23 — such as the requirement that "the claims or defenses of the representative parties [must be] typical of the claims or defenses of the class," FED. R. CIV. P. 23(a)(3) — are incompatible with the EEOC's enforcement responsibilities under Title VII:

The typicality requirement is said to limit the class claims to those fairly encompassed by the named plaintiff's claims. If Rule 23 were applicable to EEOC enforcement actions, it would seem that the Title VII counterpart to the Rule 23 named plaintiff would be the charging party, with the EEOC serving in the charging party's stead as the representative of the class. Yet the Courts of Appeals have held that EEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable. The latter approach is far more consistent with the EEOC's role in the enforcement of Title VII than is imposing the strictures of Rule 23, which would limit the EEOC action to claims typified by those of the charging party.

Gen. Tel., 446 U.S. at 330-31, 100 S.Ct. 1698 (internal citations omitted). The EEOC argues that this passage directly contradicts the holding in Bailey, in which we rejected the EEOC's argument that it "can investigate evidence of any other discrimination called to its attention during the course of an investigation." See 563 F.2d at 446.

Though there may be merit to the EEOC's argument, see EEOC v. Kronos Inc., 620 F.3d 287, 297 (3d Cir. 2010) (citing General Telephone for the proposition that "[o]nce the EEOC begins an investigation, it is not required to ignore facts that support additional claims of discrimination if it uncovers such evidence during the course of a reasonable investigation of the charge" (citing Gen. Tel., 446 U.S. at 331, 100 S.Ct. 1698)), we need not resolve Bailey's compatibility with General Telephone at this time because our holding in Bailey does not preclude the EEOC from bringing a clothing-allowance-discrimination claim in this case.

First, the present case is factually distinguishable from Bailey. In Bailey, the court determined that allegations of religious discrimination were outside the scope of an investigation "reasonably related" to the original charge of sex and race discrimination because, in part, "[t]he evidence presented at trial by the EEOC to support its allegations of religious discrimination did not involve practices affecting [the original charger]." 563 F.2d at 447. Here, by contrast, Stephens would have been directly affected by the Funeral Home's allegedly discriminatory clothing-allowance policy had she not been terminated, as the Funeral Home's current practice indicates that she would have received either no clothing allowance or a less valuable clothing allowance once she began working at the Funeral Home as a woman.^[14] And, unlike the EEOC's investigation of religious discrimination in Bailey, the EEOC's investigation into the Funeral Home's discriminatory clothing-allowance policy concerns precisely the same type of discrimination — discrimination on the basis of sex — that Stephens raised in her initial charge.

Second, we have developed a broad conception of the sorts of claims that can be "reasonably expected to grow out of the initial charge of discrimination." See Bailey, 563 F.2d at 446. As we explained in Davis v. Sodexho, 157 F.3d 460 (6th Cir. 1998), "where facts related with respect to the charged claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim." Id. at 463. And we have also cautioned that "EEOC charges must be liberally construed to determine whether ... there was information given in the charge that reasonably should have prompted an EEOC investigation of [a] separate type of discrimination." Leigh v. Bur. of State Lottery, 1989 WL 62509, at *3 (6th Cir. June 13, 1989) (Table) (citing Bailey, 563 F.2d at 447). Here, Stephens alleged that she was fired after she shared her intention to present and dress as a woman because the Funeral Home "management [told her that it] did not believe the public would be accepting of [her] transition" from male to female. R. 63-2 (Charge of Discrimination at 1) (Page ID #1952). It was reasonable to expect, in light of this allegation, that the EEOC would investigate the Funeral Home's employee-appearance requirements and expectations, would learn about the Funeral Home's sex-specific dress code, and would thereby uncover the Funeral Home's seemingly discriminatory clothing-allowance policy. As much is clear from our decision in Farmer v. ARA Services, Inc., 660 F.2d 1096 (6th Cir. 1981), in which "we held that the plaintiffs could bring equal pay claims alleging that their union discriminated in negotiating pay scales for different job designations, despite the fact that the plaintiffs' EEOC charge alleged only that the union failed to represent them in securing the higher paying job designations." Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 380 (6th Cir. 2002) (citing Farmer, 660 F.2d at 1105). As we recognized then, underlying the Farmer plaintiffs' claim was an implicit allegation that the plaintiffs were as qualified and responsible as the higher-paid employees, and this fact "could reasonably be expected to lead the EEOC to investigate why different job designations that required the same qualifications and responsibilities used disparate pay scales." Id. By the same token, Stephens's claim that she was fired because of her planned change in appearance and presentation contains an implicit allegation that the Funeral Home requires its male and female employees to look a particular way, and this fact could (and did) reasonably prompt the EEOC to investigate whether these appearance requirements imposed unequal burdens — in this case, fiscal burdens — on its male and female employees.

We therefore REVERSE the district court's grant of summary judgment to the Funeral Home on the EEOC's discriminatory-clothing-allowance claim and REMAND with instructions to consider the merits of the EEOC's claim.

III. CONCLUSION

Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII. The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employer's stereotypical conception of her sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim. RFRA provides the Funeral Home with no relief because continuing to employ Stephens would not, as a matter of law, substantially burden Rost's religious exercise, and even if it did, the EEOC has shown that enforcing Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination. We therefore REVERSE the district court's grant of summary judgment in favor of the Funeral Home and GRANT summary judgment to the EEOC on its unlawful-termination claim. We also REVERSE the district court's grant of summary judgment on the EEOC's discriminatory-clothing-allowance claim, as the district court erred in failing to consider the EEOC's claim on the merits. We REMAND this case to the district court for further proceedings consistent with this opinion.

[1] We refer to Stephens using female pronouns, in accordance with the preference she has expressed through her briefing to this court.

[2] All facts drawn from Def.'s Statement of Facts (R. 55) are undisputed. See R. 64 (Pl.'s Counter Statement of Disputed Facts) (Page ID #2066-88).

[3] See also Appellee Br. at 16 ("It is a helpful exercise to think about Price Waterhouse and imagine that there was a dress code imposed which obligated Ms. Hopkins to wear a skirt while her male colleagues were obliged to wear pants. Had she simply been fired for wearing pants rather than a skirt, the case would have ended there — both sexes would have been equally burdened by the requirement to comply with their respective sex-specific standard. But what the firm could not do was fire her for being aggressive or macho when it was tolerating or rewarding the behavior among men — and when it did, it relied on a stereotype to treat her disparately from the men in the firm.").

[4] Moreover, discrimination because of a person's transgender, intersex, or sexually indeterminate status is no less actionable than discrimination because of a person's identification with two religions, an unorthodox religion, or no religion at all. And "religious identity" can be just as fluid, variable, and difficult to define as "gender identity"; after all, both have "a deeply personal, internal genesis that lacks a fixed external referent." Sue Landsittel, Strange Bedfellows? Sex, Religion, and Transgender Identity Under Title VII, 104 NW. U. L. REV. 1147, 1172 (2010) (advocating for "[t]he application of tests for religious identity to the problem of gender identity [because it] produces a more realistic, and therefore more appropriate, authentication framework than the current reliance on medical diagnoses and conformity with the gender binary").

[5] On the other hand, there is also evidence that Stephens was fired only because of her nonconforming appearance and behavior at work, and not because of her transgender identity. See R. 53-6 (Rost Dep. at 136-37) (Page ID #974) (At his deposition, when asked whether "the reason you fired [Stephens], was it because [Stephens] claimed that he was really a woman; is that why you fired [Stephens] or was it because he claimed — or that he would no longer dress as a man," Rost answered: "That he would no longer dress as a man," and when asked, "if Stephens had told you that he believed that he was a woman, but would only present as a woman outside of work, would you have terminated him," Rost answered: "No.").

[6] We acknowledge that Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), read Smith as focusing on "look and behav[ior]." Id. at 737 ("By alleging that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind defendant's actions, Smith stated a claim for relief pursuant to Title VII's prohibition of sex discrimination."). That is not surprising, however, given that only "look and behavior," not status, were at issue in Barnes.

[7] Oddly, the Vickers court appears to have recognized that its new "observable-at-work" requirement cannot be squared with earlier precedent. Immediately after announcing this new requirement, the Vickers court cited Smith for the proposition that "a plaintiff hoping to succeed on a claim of sex stereotyping [must] show that he `fails to act and/or identify with his or her gender'" — a proposition that is necessarily broader than the narrow rule Vickers sought to announce. 453 F.3d at 764 (citing Smith,378 F.3d at 575) (emphasis added). The Vickers court also seemingly recognized Barnes as binding authority, see id. (citing Barnes), but portrayed the decision as "affirming [the] district court's denial of defendant's motion for summary judgment as a matter of law on discrimination claim where pre-operative male-to-female transsexual was demoted based on his `ambiguous sexuality and his practice of dressing as a woman' and his co-workers' assertions that he was `not sufficiently masculine.'" Id.This summary is accurate as far as it goes, but it entirely omits the discussion in Barnes of discrimination against the plaintiff based on "his practice of dressing as a woman outside of work." 401 F.3d at 738 (emphasis added).

[8] For a similar reason, we decline to consider the argument raised by several amici that reading RFRA to "permit a religious accommodation that imposes material costs on third parties or interferes with the exercise of rights held by others" would violate the Establishment Clause of the First Amendment. See Private Rights/Public Conscience Br. at 15; see also id. at 5-15; Americans United Br. at 6-15. Amici may not raise "issues or arguments [that] ... `exceed those properly raised by the parties.'" Shoemaker v. City of Howell, 795 F.3d 553, 562 (6th Cir. 2015) (quoting Cellnet Commc'ns, Inc. v. FCC, 149 F.3d 429, 433 (6th Cir. 1998)). Although Stephens notes that the Establishment Clause "requires the government and courts to account for the harms a religious exemption to Title VII would impose on employees," Intervenor Br. at 26, no party to this action presses the broad constitutional argument that amici seek to present. We therefore will not address the merits of amici's position.

[9] Though a number of these decisions have been vacated on grounds that are not relevant to this case, their reasoning remains useful here.

[10] Even ignoring any adverse inferences that might be drawn from the incongruity between Rost's earlier deposition testimony and the Funeral Home's current litigation position, as we must do when considering whether summary judgment is appropriate in the EEOC's favor, we conclude as a matter of law that Rost does not express "support[] [for] the idea that sex is a changeable social construct rather than an immutable God-given gift" by continuing to hire Stephens, see R. 54-2 (Rost Aff. ¶¶ 43, 45) (Page ID #1334-35) — even if Rost sincerely believes otherwise.

[11] While the district court did not hold that the EEOC had conclusively established the "compelling interest" element of its opposition to the Funeral Home's RFRA defense, it assumed so arguendo. See R.G. & G.R. Harris Funeral Homes, Inc., 201 F.Supp.3d at 857-59.

[12] Courts have repeatedly acknowledged that Title VII serves a compelling interest in eradicating all forms of invidious employment discrimination proscribed by the statute. See, e.g., EEOC v. Miss. Coll.,626 F.2d 477, 488-89 (5th Cir. 1980). As the Supreme Court stated, the "stigmatizing injury" of discrimination, "and the denial of equal opportunities that accompanies it, is surely felt as strongly by persons suffering discrimination on the basis of their sex as by those treated differently because of their race." Roberts v. U.S. Jaycees, 468 U.S. 609, 625, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984); see also EEOC v. Pac. Press Publ'g Ass'n, 676 F.2d 1272, 1280 (9th Cir. 1982) ("By enacting Title VII, Congress clearly targeted the elimination of all forms of discrimination as a `highest priority.' Congress' purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions."), abrogation on other grounds recognized by Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957, 960 (9th Cir. 1991).

[13] In its district court briefing, the Funeral Home proposed three additional purportedly less restrictive alternatives: the government could hire Stephens; the government could pay Stephens a full salary and benefits until she secures comparable employment; or the government could provide incentives to other employers to hire Stephens and allow her to dress as she pleases. R. 67 (Def.'s Reply Mem. of Law in Support of Def.'s Mot. for Summ. J. at 17-18) (Page ID #2117-18). Not only do these proposals fail to further the EEOC's interest enabling Stephens to work for the Funeral Home without facing discrimination, but they also fail to consider the cost to the government, which is "an important factor in the least-restrictive-means analysis." Hobby Lobby, 134 S.Ct. at 2781. We agree with the EEOC that the Funeral Home's suggestions — which it no longer pushes on appeal — are not viable alternatives to enforcing Title VII in this case, as they do not serve the EEOC's interest in eradicating discrimination "equally well." See id. at 2782.

[14] The Funeral Home insists that it would provide female funeral directors with a company-issued suit if it had any female Funeral Directors. See R. 53-3 (Rost Aff. ¶ 54) (Page ID #939). This is a factual claim that we cannot credit at the summary-judgment stage.

United States District Court D. South Carolina, Columbia Division.

Civ. A. No. AC-1605.

Anne P. NEWMAN, Sharon W. Neal and John Mungin, Plaintiffs, v. PIGGIE PARK ENTERPRISES, INC., a Corporation, and L. Maurice Bes­singer, Defendants.

July 28, 1966.

Matthew J. Perry, Columbia, S. C., Jack Greenberg, New York City, for plaintiffs.

Samuel B. Ray, Jr., Barnwell, S. C., for defendants.

ORDER

SIMONS, District Judge.

This suit was commenced December 18, 1964 by plaintiffs, who are Negro citizens and residents of South Carolina and of the United States, on behalf of themselves and others similarly situated, pursuant to Rule 23(a) (3) of the Fed­eral Rules of Civil Procedure. Jurisdic­tion of this court is expressly conferred by Title II, Section 207 of the Civil Rights Act of 1964, 42 U.S.C. Section 2000a-6.1

The gravamen of plaintiffs’ complaint is that corporate defendant operates sev­eral restaurants in Columbia and else­where in South Carolina which are places of public accommodation within the pur­view of the Civil Rights Act of 1964; and that defendant violated said Act by denying service to plaintiffs at certain of its restaurants on July 3rd and August 12th, 1964 solely upon the ground that they were Negroes. The complaint fur­ther specifically alleges that in their res­taurants defendants serve and offer to serve interstate travelers; that a sub­stantial portion of the goods which they serve move in interstate commerce; and that defendants’ operations affect com­merce between the states. Plaintiffs ask that defendants be temporarily and per­manently enjoined from discriminating against plaintiffs and the class of per­sons they represent upon the ground of race, color, religion and national origin.

Defendants admit jurisdiction of the court under Section 2000a-6, supra, gen­erally deny the material allegations of plaintiffs’ complaint, and specifically de­ny the allegations of the complaint which allege that their establishments are places of public accommodation as de­fined in the Civil Rights Act of 1964. Although defendants concede that they cater to white trade only and refuse, to serve members of the Negro race at their restaurants for on-the-premises con­sumption of food, they stoutly maintain that they do not come within the cover­age of Section 2000a(b) (2) and (c) (2) of the Act, infra note 2, because (1) they do not serve the public as required by the Act; (2) they are not principally en­gaged in selling food for consumption on the premises; (3) they do not serve or offer to serve interstate travelers; and (4) they do not serve food, a substantial portion of which has moved in commerce.

Defendants further contend that all foodstuffs served by them which are processed in this state, including cattle and hogs slaughtered in South Carolina, although shipped in commerce from another State to this State, cannot be considered as moving in interstate com­merce under the Act; that the Act de­nies defendants “due process of law and/or equal protection of the law” as guaranteed by the Fourteenth Amend­ment; that the phrase “substantial por­tion of the food which it serves * * * has moved in commerce” is so vague and indefinite as to be impossible to deter­mine whether a business operation comes within the Act; and further, that the Act ■ violates defendants’ “property right and right of liberty protected by the Fifth Amendment.”

Defendant Bessinger further contends that the Act violates his freedom of religion under the First Amendment “since his religious beliefs compel him to oppose any integration of the races whatever.”

The constitutionality of the public ac­commodations section, Title II of the Civil Rights Act of 1964, 42 U.S.C. Sec­tion 2000a, has been fully considered and determined by the United States Supreme Court in Heart of Atlanta Motel, Inc. v. United States, et al., 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); see also Willis v. Pickrick Restaurant, D.C., 231 F.Supp. 396 (1964), appeal dismissed, Maddox v. Willis, 382 U.S. 18, 86 S.Ct. 72, 15 L.Ed.2d 13 (1965).

The constitutional questions pos­ed by defendants herein were before the Supreme Court in McClung and Atlanta Motel, supra, and were decided adversely to defendant’s contentions. Consequent­ly, defendant’s defenses founded upon the due process and equal protection clauses of the Fourteenth Amendment, the Fifth Amendment, and the Commerce Clause of the Constitution are found by the court to be without merit in view of the Mc­Clung and Atlanta Motel cases, supra. It is noted that in McClung, Atlanta Motel and Pickrick Restaurant the motel and restaurants involved were admittedly places of public accommodation under the Act, there being no factual issue as to whether they came within the purview of same. Neither was any question rais­ed that the restaurants involved therein were not principally engaged in selling food for consumption on the premises. The sole consideration before the lower courts and the Supreme Court in those cases was the question of the constitu­tionality of the public accommodations provisions of the Act (Section 2000a).

Neither is the court impressed by defendant Bessinger's contention that the judicial enforcement of the public accommodations provisions of the Civil Rights Act of 1964 upon which this suit is predicated violates the free exercise of his religious beliefs in contravention of the First Amendment to the Constitu­tion. It is unquestioned that the First Amendment prohibits compulsion by law of any creed or the practice of any form of religion, but it also safeguards the free exercise of one’s chosen religion. Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). The free exercise of one’s beliefs, however, as dis­tinguished from the absolute right to a belief, is subject to regulation when re­ligious acts require accommodation to society. United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944) (Mails to defraud); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878) (polygamy conviction); Prince v. Commonwealth of Massachu­setts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1943) (minor in company of ward distributing religious literature in viola­tion of statute). Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citi­zens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his busi­ness establishments upon the ground that to do so would violate his sacred religious beliefs.

The sole question for determination under the circumstances of instant case is whether any or all of defendants' eating establishments are places of pub­lic accommodation within the meaning and purview of Section 201 of Title II of the Civil Rights Act of 1964 (Section 2000a).2 In arriving at this determina­tion the court is primarily concerned with the following factual and legal ques­tions, which will be considered in inverse order hereinafter: (1) Is corporate de­fendant’s establishments, or any of them, “principally engaged in selling food for consumption on the premises(2) Does said defendant at its establishments serve or offer “to serve interstate travelers;” and (3) has “a substantial portion of the food which it serves, * * * or other products which it sells * * * moved in commerce”?

Should the court’s answer to question # 1 be in the affirmative, and either questions # 2 or # 3 in the alternative in the affirmative, then such of defend­ants’ establishments are places of public accommodation within the purview of the Act, and plaintiffs are entitled to the requested relief as to these establish­ments.

The cause was heard by the court on April 4th and 5th, 1966. Subsequently excellent briefs and arguments have been filed by counsel for the parties. After a careful consideration of the evidence and the law and pursuant to Rule 52(a) of Federal Rules of Civil Procedure the court makes its findings of fact and con­clusions of law.

FINDINGS OF FACT

1. Defendant Piggie Park Enterpris­es, Inc., hereinafter designated as Piggie Park, is a South Carolina corporation with its principal office in Columbia, South Carolina. Defendant L. Maurice Bessinger, hereinafter designated as Bes­singer, is the principal stockholder and general manager of the corporate defend­ant.

2. Piggie Park owns, operates, or franchises six eating establishments spe­cializing in Southern style barbecue which are located as follows:3 1) Piggie Park No. 1, 1601 Charleston Highway, also being designated as U. S. Highways Nos. 21, 176 and 321 at the intersection of S. C. Highway No. 215, in West Colum­bia, South Carolina; 2) Piggie Park No. 2 on the Sumter Highway, also being des­ignated as U. S. Highways Nos. 76 and 378 in Columbia, South Carolina; 3) Piggie Park No. 3 on the Camden High­way, also being designated as U. S. High­way No. 1, in Columbia, S. C.; 4) Piggie Park No. 4 on Broad Street Extension, which is also designated as U. S. High­ways Nos. 76, 378 and 521 in Sumter, South Carolina; 5) Piggie Park No. 6 on Highway No. 291 By-Pass North, which connects U. S. Highways Nos. 25, 29, and Interstate Highways Nos. 85 and 385 in< Greenville, South Carolina; and 6) Piggie Park No. 7, also known as “Little Joe’s Sandwich Shop,” at 1430 Main Street in Columbia, South Caro­lina. All of Piggie Park’s eating places are of the drive-in type with the excep­tion of Piggie Park No. 7 also known as “Little Joe’s Sandwich Shop” in down­town Columbia. In order to be served at one of the drive-ins a customer drives upon the premises in his automobile and places his order through an intercom located on the teletray immediately ad­jacent to and left of his parked position. After pushing a button located on the teletray his order is taken by an employee inside the building who is generally out of sight of the customer. When the order is prepared a curb girl then de­livers the food or beverage to the cus­tomer’s car and collects for same. This is generally the only contact which any of defendant’s employees has with any customer unless additional service is de­sired. The orders are served in dis­posable paper plates and cups, and may be consumed by the customer in his auto­mobile on the premises or after he drives away, solely at his option. There are no tables and chairs, or counters, bars or stools at any of the drive-ins sufficient to accommodate any appreciable number of patrons. The service is geared to ser­vice in the customers’ cars. Piggie Park claims the distinction of operating the first drive-in specializing in barbecue al­though it sells other types of short or­ders. The barbecue meat and hash com­prising a substantial majority of its sales are sold in bulk by the pound or the quart, as well as in individual orders. Customers are encouraged to consume the food off the premises by its service in disposable containers, with no china­ware or silver eating utensils being used. At the five drive-ins the carry-out busi­ness for off-the-premises consumption averages fifty percent during the year, depending upon the season and the weather.4

3. Piggie Park No. 7, or “Little Joe’s Sandwich Shop”, in downtown Columbia is the one exception to the drive-in type operation. Defendant operates this estab­lishment as a cafeteria type sandwich shop offering three-minute service, also specializing in barbecue, with table and chair seating capacity for sixty custom­ers and where the food is primarily con­sumed on the premises. It is located in the prime shopping area of Columbia’s Main Street; ninety percent of its busi­ness is between 11:00 a.m. and 2:30 p.m., with the majority of its customers being office workers, clerks and downtown shoppers. Its business hours correspond generally with those of the surrounding retail stores.

4. Two of the Negro plaintiffs were denied service by Piggie Park No. 2 on the Sumter Highway in Columbia on August 12, 1964 when they drove upon the premises in their automobile. At first a waitress who came out seeing that they were colored went back into the building without taking their order or saying anything to them. Shortly a man with an order pad came to their car, he also refused to take their order, and gave no reason or excuse for this denial of service, although other white custom­ers were being served there at that time. The fact that Piggie Park at all six of its eating places denies full and equal service to Negroes because of their race is uncontested and completely established by the evidence. The limited Negro cus­tomers who are served must place and pick up their orders at the kitchen win­dows and are not permitted to consume their purchases on the premises. Thus, Negroes because of race are being denied full service and are victims of discrimi­nation at all of Piggie Park’s eating establishments.

5. No effort is made by defendant to determine whether a Negro customer who purchases food on a take-out basis is an interstate traveler.

6. Piggie Park displays on each of its establishments one modest sign located generally in the front window advising that it does not serve interstate travelers. In its newspaper advertisements is in­cluded a notice in small print at the bot­tom of the ad advising that “we do not serve interstate travelers”.5 No mention of this practice is included in any of its radio advertisements for business. Al­though some testimony and business rec­ords indicate that defendant has refus­ed to serve a very limited number of in­terstate travelers in the past, the in­escapable conclusion demanded by all of the circumstances before the court is that many interstate travelers do obtain service at all of its locations. Except for the small sign in the window no steps are taken by defendant at “Little Joe’s Sandwich Shop” to determine whether or not a customer is an interstate travel­er, and at its drive-ins no attempt to de­termine a customer’s travel status is claimed to be made until after his order is prepared and actually delivered to his automobile. If the curb girl who serves the order notices that a customer’s car bears an out-of-state license, she is in­structed to inquire whether such custom­er is an interstate traveler or is residing in South Carolina. There is testimony to the effect that if the customer admits that he is an interstate tourist service is denied to him although the food has been especially prepared to his order. No in­quiry whatever is ever made of any cus­tomers who are riding in an automobile with South Carolina license plates. In­asmuch as all five of defendant’s drive-­ins are located at most strategic positions upon main and much traveled interstate highways and especially in view of the limited action taken by defendant to de­termine the travel status of its custom­ers the court can only conclude that de­fendant does serve interstate travelers at all of its locations.6

7. Several employees of wholesale food companies which regularly sell food­stuffs and other merchandise to Piggie Park testified that the bulk of the food and related products sold by their firms to defendant was and is obtained by them from producers and suppliers be­yond the State of South Carolina as fol­lows:

(a) Greenwood Packing Company, a large supplier of meat products, pur­chases two-thirds of its merchandise from suppliers outside of South Caro­lina. They sell primarily pork shoul­ders, spareribs and Boston Butt (a cut off the shoulder). All hogs are live when purchased by it. They are there­after slaughtered, cut-up, processed and packed within the State.of South Carolina. Its total sales to defendant during the fiscal year 1964-65 was $39,663.91 and $15,148.24 from June 1 through December 12,1965. Its sales to defendant are made without keeping records to indicate which of its meat is produced or slaughtered in South Carolina as contrasted to that which is purchased by it from out-of-state already processed and ready for sale to defendant.

(b) Dreher Packing Company of Co­lumbia, South Carolina, a wholesale distributor of luncheon meats, pork sausage, beef and ground beef patties regularly sells meat products to defend­ant. Approximately eighty percent of the meat products sold by it to Piggie Park is acquired from suppliers from outside of South Carolina, and no rec­ords are maintained to distinguish the in-state from the out-of-state items. However, all of its meat products is processed in some manner by it within the state before sale and delivery to defendant. It considers defendant as one of its good customers.

(c) Holly Farms Poultry Industry, which secures eighty-five percent to ninety percent of its chickens from a North Carolina supplier, sells a small quantity of meat each month to defend­ant.

(d) Piggie Park no longer sells beer at any of its locations, its licenses hav­ing expired in June 1965. Prior to that time substantial quantities of beer were purchased from Schafer Distrib­uting Company of Columbia, none of which was brewed in South Carolina. It also purchased beer from Acme Dis­tributing Company, distributors of Pabst Blue Ribbon beer which was shipped into the state from Peoria, Il­linois.

(e) Defendant purchases pepsi-cola syrup by the gallon from Pepsi-Cola Bottling Company of Columbia. The ingredients which go into this syrup are shipped into South Carolina from New York, Kentucky and Georgia. During 1965 defendant purchased 1,-­374 gallons of the syrup at $2.75 per gallon, including tax.

(f) Defendant regularly buys fresh, frozen and canned foods from Pearce­Young-Angel of Columbia, a large wholesaler. With the exception of its eggs all items regularly sold to defend­ant, including limes, onions, beef pat­ties, cabbage, lettuce, tomatoes, french fried potatoes, bell peppers, shrimp and cheese are produced out of South Caro­lina. Defendant’s purchases from this firm during the fiscal year 1964-65 amounted to $41,255.45, most of which had moved into the state in commerce.

(g) Thomas and Howard Company of Columbia, a large wholesale dis­tributor of food and related products, regularly sells merchandise to defend­ant such as coca-cola syrup, sugar and salt. Altogether it handles approxi­mately 7,000 items with about sixty percent or more being food items, mostly produced or manufactured in states other than South Carolina. Thus a large quantity and variety of the products purchased by defendant from this company have moved in com­merce. Although only about sixty percent of the items purchased from it are foodstuffs the remaining forty percent of the items as herein enumer­ated are necessary and related to either the preparation of defendant’s food for sale or its service of same.

(h) Epes-Pitzgerald Company sells to defendant paper products consist­ing of cups, plates, napkins, waxed paper, paper bags and boxes. Of these items all are manufactured outside of South Carolina except the paper cups and the paper boxes.

(i) Trusdale Wholesale Meat Com­pany of Columbia sold a substantial quantity of meat products to defend­ant up until August 1965. Since that time they have made no sales to the defendant. This supplier received less than five percent of its products from outside of South Carolina.

(j) Roddey Packing Company of Columbia also supplies meat products to defendant. Approximately twenty percent of its hogs are purchased live out-of-state and then slaughtered and processed in South Carolina before sale to its customers.

(k) Southeastern Poultry Company of Columbia is another supplier of chickens to defendant. All of its chick­ens are grown and processed in South Carolina. During 1964 its sales to de­fendant totalled $6,895.82 and in 1965 totalled $13,757.48.

8. Mrs. Merle Brigman, defendant’s bookkeeper and chief buyer of its mer­chandise, testified that she had made a compilation from defendant’s records which she keeps to determine what per­centage of food served by defendant was either produced, grown or processed in South Carolina. In arriving at her per­centages she did not include as out-of-­state foods such items as live hogs and cows purchased out-of-state by their sup­pliers when slaughtering or any process­ing were done in the state prior to deliv­ery to defendant. Neither did she in­clude pepsi-cola syrup concentrate pur­chased from the Pepsi-Cola Bottling Company as an out-of-state product since it was mixed and processed within the state. Not included in her per­centages were any of the ancillary or related items purchased by defendant’s suppliers from out-of-state such as salt, sugar, paper products, spices, etc. She concluded that twenty-five percent of the “food” purchased by defendant during fiscal years 1963-64 and 1964-65 was “processed and/or manufactured” out­side of South Carolina, and seventy-five percent was produced and/or manufac­tured into “food” within South Carolina. She further testified that eighteen per­cent of defendant’s “food” purchased during the period of June 1,1965 through December 12,1965 was “processed and/or manufactured” into “food” out-of-state.7 Defendant’s bookkeeper also testified that defendant’s expenditures for food and related items for fiscal year 1963-64 totaled $240,565.58 and for fiscal year 1964-65 totaled $222,845.25. Its ex­penditures for May 31, 1965 through December 12, 1965 were $122,724.13.

Considering defendant’s admission that from eighteen percent to twenty-five percent of its “food” in a finished and ready-for-use form for the years 1963 through 1965 moved in commerce into the state from another state; also the large quantities of live cattle, hogs and chick­ens purchased by defendant’s suppliers from outside of the State and slaughtered and processed within the State before de­livery to defendant, which were not in­cluded by defendant in its out-of-state percentages, along with other foodstuffs purchased by it which were shipped into the State and processed herein, together with such related items as sugar, salt, pepper, spices and sauces which admit­tedly moved in commerce, it is obvious that considerably more than twenty-five percent of the total food products served by defendant came from outside of the State. The court is persuaded and there­fore finds that at least forty percent of the food served by defendant during the years in question “moved in commerce”.

CONCLUSIONS OF LAW

By Section 2000a (c) Congress has determined that an establishment described in paragraph (2) of Subsection (b) of Section 2000a affects commerce within the meaning of the public accom­modations subchapter of the Act if “it serves or offers to serve interstate travel­ers or a substantial portion of the food which it serves * * *, has moved in commerce”. As was stated by the Three-­Judge Court in Willis v. Pickrick Restau­rant, 231 F.Supp. 396 at page 399 (N.D. Ga. 1964):

“[T]he application of the Civil Rights Act to these defendants depends upon the resolution of issues of fact, for a restaurant is not brought within the definition of interstate commerce unless it meets one of the tests enumer­ated in subparagraph (c) of Section 201. These tests are in the alternative. Either it must serve or offer to serve interstate travelers, or a substantial portion of the food which it serves or other products which it sells must have moved in interstate commerce.” (Em­phasis added.)

Moreover, the Supreme Court in Mc­Clung, supra, in upholding the constitu­tionality of the public accommodations section of the Act indicated that Con­gress has made sufficient findings of discrimination to be conclusive and acted within its constitutional right granted by the Commerce Clause of the United States Constitution. Thus it is not nec­essary in this or any other individual case to determine that defendant’s acts in actuality affect commerce in and of itself; but it is necessary to determine whether defendant in the operation of its eating establishments serves a substan­tial portion of food which has moved in interstate commerce, or whether it serves or offers to serve interstate travelers. If it is determined that defendant’s es­tablishments meet either of these tests in the alternative, then under the Act they affect commerce.

Has a substantial portion of the food which defendant serves in its six eating establishments moved in inter­state commerce? In line with the fac­tual determinations hereinabove arrived at the answer is yes. Although the Act does not specifically define “substantial” the court construes it in the light of its usual and customary meaning: That is, something of real worth and impor­tance; of considerable value; valuable; something worthwhile as distinguished from something without value or merely nominal.8

Under defendant’s own admission that twenty-five percent of the foods it served in the years 1963-64 and 1964-65 and eighteen percent for the first six months of fiscal year 1965-66 moved in commerce, the court has no hesitancy in concluding as a matter of fact and law that a “substantial” portion of the food which it serves has moved in interstate commerce.

Neither can the court agree with de­fendant’s contention that all foodstuffs, including hogs, beef and chickens, to­gether with other related items, which are slaughtered or processed within the State after having been shipped in from another state, should be considered as in­state goods which have not moved in commerce on the basis that they came to rest in this state and thereby became intrastate in character. Such contention was overruled by McClung, supra, 379 U.S. at page 302, 85 S.Ct. at page 383 where the Court stated:

“Nor are the cases holding that in­terstate commerce ends when goods come to rest in the State of destina­tion apposite here. That line of cases has been applied with reference to state taxation or regulation but not in the field of federal regulation.”

From the foregoing this court has a mandate from the Supreme Court to conclude that all products sold to de­fendant as food by its producers which have moved in interstate commerce into this state in some form, even though they may have been slaughtered or other­wise processed after arrival here, are to be considered as food which has moved in commerce, as that phrase is used in Section 2000a(c) (2) of the Act. There­fore, by including all foodstuffs served by the defendant during the periods un­der consideration which have moved in interstate commerce the court has con­cluded that at least forty percent of the same has moved in commerce and unques­tionably constitutes a “substantial” por­tion of the total food which it serves in all of its six locations.

Does the defendant serve or offer to serve interstate travelers ? As herein-­above pointed out, the direct evidence produced by plaintiffs that defendant serves or offers to serve interstate travel­ers is slight, unimpressive and inconclu­sive ; however, from all the circumstanc­es before the court there is no doubt but that defendant has served and is serving interstate travelers. This is apparent from the testimony of a witness who tes­tified that upon presenting herself for service at “Little Joe’s Sandwich Shop” no inquiry whatever was made as to her place of residence. Probably of more im­port is the fact that all five of defend­ant’s drive-ins are located upon much traveled interstate and federal highways with large signs at and about each loca­tion advertising its products. Defendant also advertises for business in daily news­papers and over the radio. Moreover, it employs no reasonably effective means of determining whether its customers are inter- or intra-state travelers. The court, therefore, concludes that defendant serves or offers to serve interstate travel­ers at all of its locations.

Having concluded that all of defend­ant’s establishments “affect commerce” within the provisions of Section 2000a (c) (2) of the Act, the third and last ques­tion for determination arises from the construction to be given to subsection (b) (2) of said section of the Act which provides that “any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the prem­ises” [emphasis added] is a place of public accommodation within the mean­ing of the Act.

Do defendants’ drive-ins and sandwich shop come within the ambit of the Act as intended by Congress? The court has no difficulty in deciding that “Little Joe’s Sandwich Shop” is within the coverage of the Act. It comes with­in the usual and customary definition of a restaurant, lunchroom, lunch counter, or other eating establishment mainly en­gaged in serving food for on-the-premis­es consumption. It caters to walk-in customers who are furnished tables and chairs, including a balcony, where they may, and generally do, sit down and con­sume their orders within the building, Its facilities, operation, and clientele are entirely different to those of the five drive-ins, which have no such accommo­dations for diners to walk into buildings to be served and to eat inside. They cater entirely to motorized customers who do not alight from their automobiles to order or eat, whose orders are served in disposable containers, and fifty per­cent of all foods served to them is con­sumed off the premises.

By limiting the scope of places of public accommodation to restau­rants, cafeterias, lunchrooms, soda foun­tains, and other facilities principally en­gaged in serving food for consumption on the premises, it is only reasonable to assume that Congress did not intend to include within coverage of the Act such eating places as defendant’s drive-ins, which do not in the main provide its patrons with facilities to be seated so that their orders may be and generally are eaten on the premises. None of the reported cases dealing with eating houses has considered this aspect of the Act. Both McClung and Pickrick Restaurant, supra, involved conventional type restau­rants which served their customers while seated at tables and who consumed the food entirely on the premises. Surely if Congress had intended to include within the public accommodations provisions of the Act all public eating establishments which it determined “affect commerce” if they meet either of the alternate tests of Section 2000a(c) (2), then its includ­ing in Subsection (b) (2) of said Section the phrase “or other facility principally engaged in selling food for consumption on the premises”, would be totally futile and meaningless. Our review of the Act’s legislative history, committee re­ports, and congressional debates has fail­ed to indicate a contrary motivation, The court must assume from its verbiage that Congress intended to limit the cov­erage of the Act to those eating places primarily engaged in serving food for on-­the-premises consumption.9

Indeed this court has no motive, intent Purpose extend by judicial fiat any °! pr°V1S1“S+°f the Cl^ *lgMs A<? °f *964 J^yond ft ^ Y a e an a op e y ongress.

Although it has been stated that the term restaurant has no definite legal meaning unless defined by statute, Con­gress was well aware that an eating place or a restaurant in the generally accepted sense is defined as follows: “A public place where food is sold casual guests to be eaten upon the premises; a house where cooked provisions are sold, to be eaten on the premisesa house where food is sold to customers; a place of re­sort for meals”. 28 C.J.S. pp. 825-826. In State v. Shoaf, 179 N.C. 744, 102 S.E. 705, 9 A.L.R. 426 (1920), the Su­preme Court of North Carolina in apply­ing a Sunday law stated:

“The terms ‘restaurant’ and ‘cafe,’ in common parlance * * * are substantially synonymous. A restau­rant is generally understood to be a place where refreshments, food, and drink are served * * * While the word ‘restaurant’ has no strictly defin­ed meaning, it seems to be used indis­criminately as a name for all places where refreshments can be had, from a mere eating house and cookshop to any other place where eatables are furnished to be consumed on the prem­ises.” (Emphasis added.) See also the annotation in 122 A.L.R. page 1399.

Even if defendant’s drive-ins were found to be restaurants or eating places within the popular and usual defi­nition, they should not be considered as facilities “principally engaged in selling food for consumption on the premises”. The adverb “principally” is defined as “primarily; chiefly, mainly, in the prin­cipal manner, in the chief place or de­gree”. Webster’s International Diction­ary, Second Edition. Under the plain meaning of the phrase one who serves fifty percent or less of its food which is taken away and eaten off the premises cannot be held to be principally engaged in selling food for consumption on the premises. The uncontradicted evidence before the court is that only fifty percent of the food served at defendant’s drive-­ins is consumed off the premises, and all of its patrons are encouraged to take their orders elsewhere for consumption.

The court therefore concludes that de­fendant’s five drive-in establishments are not principally engaged in serving food for on the premises consumption, and are not places of public accommoda­tion within the meaning and purview of the Civil Rights Act of 1964; thus, plaintiffs are not entitled to the demand­ed relief as to them. On the other hand it is concluded that “Little Joe’s Sand­wich Shop” is principally engaged in selling food for consumption on the prem­ises, and is therefore a place of public accommodation with the Act. As to it, plaintiffs have established their right to the requested relief. It is, therefore,

Ordered that an induction will issue in the following terms:

(a) The defendants, Piggie Park En­terprises, Inc., and L. Maurice Bessinger, their agents, employees, successors, and all persons acting in concert with them, and at their direction, are enjoined from refusing to admit Negroes to the prem­ises of Piggie Park No. 7, also known as “Little Joe’s Sandwich Shop”, located at 1430 Main Street, Columbia, South Carolina, upon the same basis and upon the same conditions that non-Negro members of the general public are ad­mitted to said establishment;

(b) They are also enjoined from fail­ing or refusing to sell food, meals, or other merchandise and to provide serv­ices, facilities, privileges, advantages and accommodations to Negro patrons at said establishment upon the same basis and upon the same conditions that they are made available to patrons and customers of other races.

In order that the defendants may have an opportunity to appeal, and if they so desire to seek a stay of this order until such appeal is consummated, it is ordered that the foregoing injunction shall be­come effective thirty days from the date hereof, to wit, on the 27th day of August, 1966. Court costs exclusive of attorneys’ fees are hereby awarded to plaintiffs. Let judgment be entered accordingly.

1

. “ § 2000a-6. Jurisdiction; exhaustion of other remedies; exclusiveness of remedies; assertion of rights based on other Federal or State laws and pur­suant of remedies for enforcement of such rights

“(a) The district courts of the United States shall have jurisdiction of pro­ceedings instituted pursuant to this sub-­chapter and shall exercise the same without regard to whether the aggrieved party shall have exhausted any adminis­trative or other remedies that may be provided by law.

“(b) The remedies provided in this sub-­chapter shall be the exclusive means of enforcing the rights based on this sub-­chapter, but nothing in this subchapter shall preclude any individual or any State or local agency from asserting any right based on any other Federal or State law not inconsistent with this subchapter, including any statute or ordi­nance requiring nondiscrimination in pub­lic establishments or accommodations, or from pursuing any remedy, civil or crim­inal, which may be available for the vindication or enforcement of such right. Pub.L. 88-352, Title II, § 207, July 2, 1964, 78 Stat. 245.”

2

. “§ 2000a. Prohibition against discrim­ination or segregation in places of pub­lic accommodation — Equal access

“(a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segre­gation on the ground of race, color, re­ligion, or national origin.

“Establishments affecting interstate commerce or supported in their activi­ties by State action as places of public accommodation; lodgings; facilities principally engaged in selling food for consumption on the premises; gaso­line stations; places of exhibition or entertainment; other covered estab­lishments

“(b) Each of the following establish­ments which serves the public is a place of public accommodation within the meaning of this subchapter if its opera­tions affect commerce, or if discrimina­tion or segregation by it is supported by State action:

# * *

“(2) any restaurant, cafeteria, lunch­room, lunch counter, soda fountain, or other facility, principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the prem­ises of any retail establishment; or any gasoline station;

“(3) * * * ; and

“(4) * * *

“(c) The operations of an establishment affect commerce within the meaning of this subchapter if (1) * * * (2) in the case of an establishment described in paragraph (2) of subsection (b) of this section, it serves or offers to serve interstate travelers or a substantial por­tion of the food which it serves, or gaso­line or other products which it sells, has moved in commerce; * * * ”

3

. The official South Carolina State High­way Department Primary System Map for 1965-66 has been used in determining the United States and State Highway designations.

4

. The uncontradicted testimony of defend­ant Bessinger at pp. 222-223 of Tr. was as follows:

“Q Mr. Bessinger, with reference to the total volume of your business, do you know how much of your business is carry out, or take away business from your drive-ins ?

“A Yes. Of course, as I said, we try to encourage this to the maximum degree. This would average 50%. Carry out would average 50%. I say average, be­cause in the real cold temperature it would jump up to eighty to ninety per­cent; in the real hot temperature it would also jump up to eighty to ninety percent. So it will have an overall per­centage of my business that I know for a fact is carried back to the office or carried back home or carried on a picnic, what have you.

“Q Do you in fact have facilities for bulk carrying out?

“A Yes we sell a lot of barbecue by the pound. We sell a lot of quarts of hash by the quart, and slaw by the quarts, and rice by the quarts. We built up quite a big business on that.

“Q Carry off?

“A Oh absolutely, and July 4th we sell several tons of barbecue.”

It is noted that plaintiff’s counsel did not cross-examine Bessinger to any extent in • reference to the above testimony and no evidence was offered to counter or rebut the same.

5

. See defendant’s Exhibit “G”.

6

. The only direct evidence adduced by plaintiffs tending to establish service to interstate travelers was the testimony of . their witness, Sharon A. Miles, a white woman who entered “Little Joe’s Sand­wich Shop” on April 2, 1966 and obtained service without any question. Upon cross-examination she admitted that she and her husband who is the Columbia Director for the South Carolina Board of Voter Education Project had resided in this state for one and one-half years. Apparently plaintiffs made no attempt to conduct any surveys at defendant’s drive-in establishments to show that cus­tomers in out-of-state automobiles were actually being served at any of defend­ant’s locations.

7

. See defendant’s Exhibit “E”, witness’s compilation of in-state and out-of-state foods.

8

. Definition of “substantial” contained in Black’s Law Dictionary, Fourth Edition, 1951.

9

. Whether “principally engaged in the sale of food for consumption on the premises” qualifies “any restaurant, cafeteria, lunchroom, lunch counter, soda fountain” or only “other facility” has opposing persuasions. The House Report of the Committee on the Judiciary, 2 U.S. Cong. & Admin.News 1964, pp. 2391, 2395 reads as follows:

“Section 201(b) defines certain estah­lishments to be places of public accom­modation if their operations affect com­merce * * * These establishments are * * * (2) restaurants, lunch counters, and similar establishments, including those located in a retail store; and gasoline stations.” (Emphasis add­ed.) By this statement the inference could be drawn that the disjunctive “or” in Section 201(b), as enacted, limited the qualifying phrase to “other facility”, In other words, “or other facility prin­cipally engaged in selling food for con­sumption on the premises” means only “and similar establishments”. The court, however, is persuaded in that “other” as used in its primary sense of “one of two or more” requires the qualifying phrase to be read with “any restaurant, cafeteria, lunchroom, lunch counter, soda fountain” or at least required to be used to define “restaurant, lunchroom, lunch counter, soda fountain.”

United States Court of Appeals, Ninth Circuit.

No. 04-57037.

Tyler Chase HARPER, a minor, by and through his parents Ron and Cheryl Harper; Ron Harper; Cheryl Harper, Plaintiffs-Appellants, v. POWAY UNIFIED SCHOOL DISTRICT; Jeff Mangum; Linda Vander­veen; Penny Ranftyle; Steve McMil­lan; Andy Patapow, All Individually and in their official capacity as Mem­bers of the Board of the Poway Uni­fied School District; Donald A. Phil­lips, Individually, and in his official capacity as Superintendent of the Po­way Unified School District; Scott Fisher, Individually and in his official capacity as Principal of Poway High School; Lynell Antrim, Individually and in her official capacity as Assis­tant Principal of Poway High School; Ed Giles, Individually and in his offi­cial capacity as Vice Principal of Po­way High School; David LeMaster, Individually and in his official capaci­ty as Teacher of Poway High School; Does 1 Through 20, Inclusive, Defen­dants-Appellees.

Filed April 20, 2006.

Argued and Submitted June 6, 2005.

As Amended May 31, 2006.

Before REINHARDT, KOZINSKI, and THOMAS, Circuit Judges.

Robert H. Tyler, Kevin Theriot; Alli­ance Defense Fund, Murrieta, CA, for the plaintiff-appellant.

Daniel Shinoff, Jack M. Sleeth, Jr., Paul V. Carelli, TV; Stutz, Artiano, Shinoff & Holtz, APC, San Diego, CA, for the defen­dants-appellees.

REINHARDT, Circuit Judge.

May a public high school prohibit stu­dents from wearing T-shirts with mes­sages that condemn and denigrate other students on the basis of their sexual orien­tation? Appellant in this action is a sopho­more at Poway High School who was or­dered not to wear a T-shirt to school that read, “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CON­DEMNED” handwritten on the front, and “HOMOSEXUALITY IS SHAMEFUL” handwritten on the back. He appeals the district court’s order denying his motion for a preliminary injunction. Because he is not likely to succeed on the merits, we affirm the district court’s order.

I. Factual Background1

Poway High School (“the School”) has had a history of conflict among its students over issues of sexual orientation. In 2003, the School permitted a student group called the Gay-Straight Alliance to hold a “Day of Silence” at the School which, in the words of an Assistant Principal, is intended to “teach tolerance of others, par­ticularly those of a different sexual orien­tation.”2 During the days surrounding the 2003 “Day of Silence,”3 a series of incidents and altercations occurred on the school campus as a result of anti-homosex­ual comments that were made by students. One such confrontation required the Prin­cipal to separate students physically. Ac­cording to David LeMaster, a teacher at Poway, several students were suspended as a result of these conflicts. Moreover, a week or so after the “Day of Silence,” a group of heterosexual students informally organized a “Straight-Pride Day,” during which they wore T-shirts which displayed derogatory remarks about homosexuals. According to Assistant Principal Lynell Antrim, some students were asked to re­move the shirts and did so, while others “had an altercation and were suspended for their actions.”

Because of these conflicts in 2003, when the Gay-Straight Alliance sought to hold another “Day of Silence” in 2004, the School required the organization to consult with the Principal to “problem solve” and find ways to reduce tensions and potential altercations. On April 21, 2004, the date of the 2004 “Day of Silence,” appellant Tyler Chase Harper wore a T-shirt to school on which “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED,” was handwritten on the front and “HOMO­SEXUALITY IS SHAMEFUL ‘Romans 1:27’ ” was handwritten on the back. There is no evidence in the record that any school staff saw Harper’s T-shirt on that day.

The next day, April 22, 2004, Harper wore the same T-shirt to school, except that the front of the shirt read “BE ASHAMED, OUR SCHOOL EM­BRACED WHAT GOD HAS CON­DEMNED,” while the back retained the same message as before, “HOMOSEXU­ALITY IS SHAMEFUL ‘Romans 1:27.’ ” 4 LeMaster, Harper’s second peri­od teacher, noticed Harper’s shirt and ob­served “several students off-task talking about” the shirt. LeMaster, recalling the altercations that erupted as a result of “anti-homosexual speech” during the previ­ous year’s “Day of Silence,” explained to Harper that he believed that the shirt was “inflammatory,” that it violated the School’s dress code, and that it “created a negative and hostile working environment for others.” When Harper refused to re­move his shirt and asked to speak to an administrator, LeMaster gave him a dress code violation card to take to the front office.

When Harper arrived at the front office, he met Assistant Principal Antrim. She told Harper that the “Day of Silence” was “not about the school promoting homosex­uality but rather it was a student activity trying to raise other students’ awareness regarding tolerance in their judgement [sic] of others.” Antrim believed that Har­per’s shirt “was inflammatory under the circumstances and could cause disruption in the educational setting.” Like LeMas­ter, she also recalled the altercations that had arisen as a result of anti-homosexual speech one year prior. According to her affidavit, she “discussed [with Harper] ways that he and students of his faith could bring a positive light onto this issue without the condemnation that he dis­played on his shirt.” Harper was in­formed that if he removed the shirt he could return to class.

When Harper again refused to remove his shirt, the Principal, Scott Fisher, spoke with him, explaining his concern that the shirt was “inflammatory” and that it was the School’s “intent to avoid physical con­flict on campus.” Fisher also explained to Harper that it was not healthy for stu­dents to be addressed in such a derogatory manner. According to Fisher, Harper in­formed him that he had already been “con­fronted by a group of students on campus” and was “involved in a tense verbal conver­sation” earlier that morning.5 The Princi­pal eventually decided that Harper could not wear his shirt on campus, a decision that, he asserts, was influenced by “the fact that during the previous year, there was tension on campus surrounding the Day of Silence between certain gay and straight students.”6 Fisher proposed some alternatives to wearing the shirt, all of which Harper turned down. Harper asked two times to be suspended. Fisher “told him that [he] did not want him sus­pended from school, nor did [he] want him to have something in his disciplinary rec­ord because of a stance he felt strongly about.” Instead, Fisher told Harper that he would be required to remain in the front office for the remainder of the school day.

Harper spent the rest of the day in the school conference room doing his home­work. At some point during that day, Deputy Sheriff Norman Hubbert, who served as the school resource officer for Poway High, came in to speak with Har­per.7 The complaint alleges that Hubbert “came to interrogate” Harper to “deter­mine if he was a dangerous student.” Hubbert, however, asserts in his affidavit that he and Harper had a “casual conver­sation concerning the content of the shirt ... the Bible and [the] scripture reference on the shirt,” and that the conversation was conducted “simpl[y out of] curiosity ... to understand the situation.”

Toward the end of the school day, Assis­tant Principal Ed Giles spoke with Harper. Giles had discovered earlier in the day that Harper attended the same church that he had previously attended, and that he “knew [Harper’s] father personally and had attended Biblical studies that [Har­per’s] father led on Tuesday nights.” Ac­cording to Giles, he went to speak with Harper “out of respect to [Harper] and his family” and “to make sure he was alright.” Giles told Harper that he understood “where he was coming from” but wished that he could “express himself in a more positive way.” Giles also said that he shared the same Christian faith as Harper, but that as a school employee, he had to watch how he expressed his beliefs and that when he came to work, he had to “leave his faith in [the] car.” Giles then asked Harper to “consider other alterna­tives that would be more positive and non-­confrontational,” including sponsoring ac­tivities through the campus Bible Club.

After his conversation with Giles, Har­per remained in the office for the last period of the day, after which he was instructed to proceed directly off campus. Harper was not suspended, no disciplinary record was placed in his file, and he re­ceived full attendance credit for the day.

II. Procedural History

On June 2, 2004, Harper filed a lawsuit in district court against Poway Unified School District and certain named individ­uals in their individual and official capaci­ties. Harper alleged five federal causes of action — violations of his right to free speech, his right to free exercise of reli­gion, the Establishment Clause, the Equal Protection Clause, and the Due Process Clause — and one state law claim based on California Civil Code § 52.1, which creates a private cause of action for the violation of individual federal and state constitutional rights. On June 22, 2004, the School filed a motion to dismiss, and on July 12, 2004, Harper filed a motion for a preliminary injunction seeking to enjoin the school from “continuing [its] violation of the con­stitutional rights of Plaintiff Tyler Chase Harper.” On November 4, 2004, the dis­trict court granted the School’s motion to dismiss as to Harper’s equal protection, due process,8 and state law claims, but denied the motion as to his three First Amendment claims: freedom of speech, free exercise of religion, and establishment of religion. The district court also granted the School’s motion to dismiss Harper’s damages claims against Poway Unified School District and the individual defen­dants on the ground of qualified immunity. Finally, the district court denied Harper’s motion for a preliminary injunction. Har­per then filed an interlocutory appeal from the order denying the latter motion.9

III. Jurisdiction

We have jurisdiction to review the dis­trict court’s denial of the preliminary in­junction motion under 28 U.S.C. § 1292(a)(1).

IY. Standard and Scope of Review

For a district court to grant a preliminary injunction, the moving party must demonstrate either “(1) a combina­tion of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor.” A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001). “Each of these two formulations requires an exami­nation of both the potential merits of the asserted claims and the harm or hardships faced by the parties.” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 965 (9th Cir.2002). “These two alterna­tives represent extremes of a single contin­uum, rather than two separate tests.” Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir.1999) (citation and internal quotation marks omitted). Accordingly, “the greater the relative hardship to the moving party, the less probability of success must be shown.” Id. (citation and internal quotation marks omitted).

The district court concluded, and the School concedes on appeal, that because Harper’s First Amendment claims sur­vived the motion to dismiss, Harper made the necessary showing of irreparable harm. See Sammartano, 303 F.3d at 973 (internal quotation marks omitted) (“[A] party seeking preliminary injunctive relief in a First Amendment context can estab­lish irreparable injury sufficient to merit the grant of relief by demonstrating the existence of a colorable First Amendment claim.”). The balance of hardships does not, however, tip in his favor.10 Therefore, the question is whether Harper demon­strated a likelihood of success on the mer­its as to any or all of his three First Amendment claims.

We review a district court’s grant or denial of a preliminary injunction for abuse of discretion. A & M Records, Inc., 239 F.3d at 1013. We will reverse “only where the district court abused its discretion or based its decision on an erro­neous legal standard or on clearly errone­ous findings of fact.” El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1038 (9th Cir.­2003) (citation and internal quotation marks omitted). Where, as here, the ap­pellant does not dispute the district court’s factual findings, we are required to deter­mine “whether the court employed the ap­propriate legal standards governing the issuance of a preliminary injunction and whether the district court correctly appre­hended the law with respect to the under­lying issues in the case.” A & M Records, Inc., 239 F.3d at 1013 (internal quotation and citation omitted). The district court’s interpretation of the underlying legal prin­ciples is subject to de novo review. Id. We may affirm the district court’s order “on any ground supported by the record even if it differs from the rationale of the dis­trict court.” Nat’l Wildlife Fed’n v. Unit­ed States Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir.2004).

V. Analysis

I. Freedom of Speech Claim

The district court concluded that Harper failed to demonstrate a likelihood of suc­cess on the merits of his claim that the School violated his First Amendment right to free speech because, under Tinker v. Des Moines Indep. Cmty. Sch. Dist., the evidence in the record was sufficient to permit the school officials to “reasonably ... forecast substantial disruption of or material interference with school activi­ties.” 393 U.S. 503, 514, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Harper contends that the district court erred in rejecting his free speech claim on three grounds: (1) his speech is protected under the Supreme Court’s holdings in Tinker and Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986); (2) the School’s actions and policies amount to viewpoint discrimination under Rosenber­ger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); and (3) the School’s dress code and speech policies are over-­broad under Bd. of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987).11 We affirm the district court’s denial of the requested preliminary injunc­tion. Although we, like the district court, rely on Tinker, we rely on a different provision — that schools may prohibit speech that “intrudes upon ... the rights of other students.” Tinker, 393 U.S. at 508, 89 S.Ct. 733.

a. Student Speech Under Tinker

Public schools are places where impres­sionable young persons spend much of their time while growing up. They do so in order to receive what society hopes will be a fair and full education — an education without which they will almost certainly fail in later life, likely sooner rather than later. See Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (“[I]t is doubtful that any child may rea­sonably be expected to succeed in life if he is denied the opportunity of an edu­cation.”). The public school, with its free education, is the key to our democracy. See id. (stating that public education “is the very foundation of good citizenship”). Almost all young Americans attend public schools.12 During the time they do — from first grade through twelfth — students are discovering what and who they are. Of­ten, they are insecure. Generally, they are vulnerable to cruel, inhuman, and prej­udiced treatment by others.

The courts have construed the First Amendment as applied to public schools in a manner that attempts to strike a balance between the free speech rights of students and the special need to main­tain a safe, secure and effective learning environment. See, e.g., Tinker, 393 U.S. at 507, 89 S.Ct. 733 (balancing the need for “scrupulous protection of Constitutional freedoms of the individual” against the need of schools to perform their proper educational function). This court has ex­pressly recognized the need for such bal­ance: “States have a compelling interest in their educational system, and a balance must be met between the First Amend­ment rights of students and preservation of the educational process.” LaVine v. Blaine Sch. Dist., 257 F.3d 981, 988 (9th Cir.2001). Although public school students do not “shed their constitutional rights to freedom of speech or expression at the sehoolhouse gate,” Tinker, 393 U.S. at 506, 89 S.Ct. 733, the Supreme Court has de­clared that “the First Amendment rights of students in public schools are not auto­matically coextensive with the rights of adults in other settings, and must be ap­plied in light of the special characteristics of the school environment.”13 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed,2d 592 (1988) (inter­nal citation and quotation marks omitted). Thus, while Harper’s shirt embodies the very sort of political speech that would be afforded First Amendment protection out­side of the public school setting, his rights in the case before us must be determined “in light of [those] special characteristics.” Tinker, 393 U.S. at 506, 89 S.Ct. 733.

This court has identified “three distinct areas of student speech,” each of which is governed by different Supreme Court precedent: (1) vulgar, lewd, obscene, and plainly offensive speech which is governed by Fraser,14 (2) school-sponsored speech which is governed by Hazelwood,15 and (3) all other speech which is governed by Tinker. Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 529 (9th Cir.1992) (in­ternal citations omitted).

In Tinker, the Supreme Court con­firmed a student’s right to free speech in public schools.16 In balancing that right against the state interest in maintaining an ordered and effective public education sys­tem, however, the Court declared that a student’s speech rights could be curtailed under two circumstances. First, a school may regulate student speech that would “impinge upon the rights of other stu­dents.” Tinker, 393 U.S. at 509, 89 S.Ct. 733. Second, a school may prohibit stu­dent speech that would result in “substan­tial disruption of or material interference with school activities.” Id. at 514, 89 S.Ct. 733. Because, as we explain below, the School’s prohibition of the wearing of the demeaning T-shirt is constitutionally per­missible under the first of the Tinker prongs, we conclude that the district court did not abuse its discretion in finding that Harper failed to demonstrate a likelihood of success on the merits of his free speech claim.17

i. The Rights of Other Students

In Tinker, the Supreme Court held that public schools may restrict student speech which “intrudes upon ... the rights of other students” or “collides] with the rights of other students to be secure and to be let alone.” 393 U.S. at 508, 89 S.Ct. 733. Harper argues that Tinker’s refer­ence to the “rights of -other students” should be construed narrowly to involve only circumstances in which a student’s right to be free from direct physical con­frontation is infringed. Drawing on the Fifth Circuit’s opinion in Blackwell v. Is­saquena County Bd. of Ed., 363 F.2d 749, 751 (5th Cir.1966), which the Supreme Court cited in Tinker, Harper contends that because the speakers in Blackwell “accosted other students by pinning the buttons on them even though they did not ask for one,” a student must be physically accosted in order to have his rights in­fringed.

Notwithstanding the facts of Blackwell, the law does not support Harper’s argu­ment. This court has explained that vul­gar, lewd, obscene, indecent, and plainly offensive speech “by definition, may well ‘impinge[] upon the rights of other stu­dents,’ ” even if the speaker does not di­rectly accost individual students with his remarks. Chandler, 978 F.2d at 529 (quot­ing Tinker, 393 U.S. at 509, 89 S.Ct. 733). So too may other speech capable of caus­ing psychological injury. The Tenth Cir­cuit has held that the “display of the Con­federate flag might ... interfere with the rights of other students to be secure and let alone,” even though there was no indi­cation that any student was physically ac­costed with the flag, aside from its general display. West v. Derby Unified Sch. Dist., 206 F.3d 1358, 1366 (10th Cir.2000). While “[t]he precise scope of Tinker’s ‘interfer­ence with the rights of others’ language is unclear,” Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3rd Cir.2001), we unequivocally reject Harper’s overly nar­row reading of the phrase.

We conclude that Harper’s wearing of his T-shirt “collides] with the rights of other students” in the most fundamental way. Tinker, 393 U.S. at 508, 89 S.Ct. 733. Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses. As Tinker clearly states, students have the right to “be se­cure and to be let alone.” Id,. Being se­cure involves not only freedom from physi­cal assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in socie­ty.18 The “right to be let alone” has been recognized by the Supreme Court, of course, as “ ‘the most comprehensive of rights and the right most valued by civi­lized men.’ ” Hill v. Colorado, 530 U.S. 703, 716-17, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quoting Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandéis, J., dissenting)). In­deed, the “recognizable privacy interest in avoiding unwanted communication” is per­haps most important “when persons are ‘powerless to avoid’ it.” Id. at 716, 120 S.Ct. 2480 (quoting Cohen v. California, 403 U.S. 15, 21-22, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971)). Because minors are subject to mandatory attendance require­ments, the Court has emphasized “the ob­vious concern on the part of parents, and school authorities acting in loco parentis, to protect children — especially in a captive audience.... ” Fraser, 478 U.S. at 684, 106 S.Ct. 3159. Although name-calling is ordi­narily protected outside the school context, “[sjtudents cannot hide behind the First Amendment to protect their ‘right’ to abuse and intimidate other students at school.” Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 264 (3rd Cir.2002).

Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimi­date them, as well as to damage their sense of security and interfere with their opportunity to learn.19 The demeaning of young gay and lesbian students in a school environment is detrimental not only to their psychological health and well-being, but also to their educational development. Indeed, studies demonstrate that “aca­demic underachievement, truancy, and dropout are prevalent among homosexual youth and are the probable consequences of violence and verbal and physical abuse at school.” Susanne M. Stronski Huwiler and Gary Remafedi, Adolescent Homosex­uality, 33 Rev. Jur. U.I.P.R. 151, 164 (1999); see also Thomas A. Mayes, Con­fronting Same-Sex, Student-to-Student Sexual Harassment: Recommendations for Educators and Policy Makers, 29 Fordham Urb. L.J. 641, 655 (2001) (describ­ing how gay students are at a greater risk of school failure and dropping out, most likely as a result of “social pressure and isolation”); Amy Lovell, “Other Students Always Used to Say, ‘Look At The Dykes’ ”: Protecting Students From Peer Sexual Orientation Harassment, 86 Cal. L.Rev. 617, 625-28 (1998) (summarizing the negative effects on gay students of peer sexual orientation harassment). One study has found that among teenage vic­tims of anti-gay discrimination, 75% expe­rienced a decline in academic performance, 39% had truancy problems and 28% dropped out of school. See Courtney Weiner, Note, Sex Education: Recogniz­ing Anti-Gay Harassment as Sex Dis­crimination Under Title VII and Title IX, 37 Colum. Hum. Rts. L.Rev. 189, 225 (2005). Another study confirmed that gay students had difficulty concentrating in school and feared for their safety as a result of peer harassment, and that verbal abuse led some gay students to skip school and others to drop out altogether. Human Rights Watch, Hatred in the Hallways (1999), http://hr w.org/re­ports/2001/uslgbt/Final-05.­htm# P609_91364. Indeed, gay teens suf­fer a school dropout rate over three times the national average. Nat’l Mental Health Ass’n, Bullying in Schools: Harassment Puts Gay Youth at Risk, http:// www.nmha.org/pbedu/backtoschool/bully­ingGayYouth.pdf; see also Maurice R. Dy­son, Safe Rules or Gays’ Schools? The Dilemma of Sexual Orientation Segrega­tion in Public Education, 7 U. Pa. J. Const. L. 183, 187 (2004) (gay teens face greater risks of “dropping out [and] per­forming poorly in school”); Kelli Arm­strong, The Silent Minority Within a Mi­nority: Focusing on the Needs of Gay Youth in Our Public Schools, 24 Golden Gate U. L.Rev. 67, 76-77 (1994) (describ­ing how abuse by peers causes gay youth to experience social isolation and drop out of school). In short, it is well established that attacks on students on the basis of their sexual orientation are harmful not only to the students’ health and welfare, but also to their educational performance and their ultimate potential for success in life.

Those who administer our public edu­cational institutions need not tolerate ver­bal assaults that may destroy the self-­esteem of our most vulnerable teenagers and interfere with their educational devel­opment.20 See Muller by Muller v. Jeffer­son Lighthouse Sch., 98 F.3d 1530, 1540 (7th Cir.1996) (stating that elementary schools may restrict speech “that could crush a child’s sense of self-worth”); Saxe, 240 F.3d at 217 (observing that speech that “substantially interferes] with a stu­dent’s educational performance” may satis­fy the Tinker standard).21 To the con­trary, the School had a valid and lawful basis for restricting Harper’s wearing of his T-shirt on the ground that his conduct was injurious to gay and lesbian students and interfered with their right to learn.22

The dissent claims that we should not take notice of the fact that gay stu­dents are harmed by derogatory messages such as Harper’s because there is no “evi­dence” that they are in fact injured by being shamed or humiliated by their peers. See dis. op. at 1198-1199. It is simply not a novel concept, however, that such attacks on young minority students can be harmful to their self-esteem and to their ability to learn. As long ago as in Brown v. Board of Education, the Supreme Court recognized that “[a] sense of inferiority affects the motivation of a child to learn.” 347 U.S. at 494, 74 S.Ct. 686 (internal quotation marks omitted). If a school per­mitted its students to wear shirts reading, “Negroes: Go Back To Africa,” no one would doubt that the message would be harmful to young black students. So, too, in the case of gay students, with regard to messages such as those written on Har­per’s T-shirt.23 As our dissenting col­league recently concluded, “[y]ou don’t need an expert witness to figure out” the self-evident effect of certain policies or messages. Jespersen v. Harrah’s Operat­ing Co., Inc., 444 F.3d 1104, 1117, at *13 (9th Cir.2006) (Kozinski, Circuit Judge, dissenting). Just as Judge Kozinski found it to be “perfectly clear” — without the aid of any evidence in the record — that an employer’s makeup requirement burdened women, the fact that Harper’s demeaning statement is harmful to gay students at Poway High “hardly seem[s] like [a] ques­tion ] reasonably subject to dispute.” Id. at *12, 1117. One would think that if we should be able to take notice of how long it takes women to put on makeup, or that makeup is an expensive item, we can cer­tainly take notice that it is harmful to gay teenagers to be publicly degraded and called immoral and shameful.24 Certainly, the California legislature had no difficulty in determining that harassment on the ba­sis of sexual orientation adversely affects the rights of public high school students. See Cal. Educ.Code § 201(c).25

The dissent takes comfort in the fact that there is a political disagreement re­garding homosexuality in this country. See dis. op. at 1197. We do not deny that there is, just as there was a longstanding political disagreement about racial equality that reached its peak in the 1950’s and about whether religious minorities should hold high office that lasted at least until after the 1960 presidential election,26 or whether blacks or Jews should be permit­ted to attend private universities and prep schools, work in various industries such as banks, brokerage houses, and Wall Street law firms, or stay at prominent resorts or hotels. Such disagreements may justify social or political debate, but they do not justify students in high schools or elemen­tary schools assaulting their fellow stu­dents with demeaning statements: by call­ing gay students shameful, by labeling black students inferior or by wearing T-­shirts saying that Jews are doomed to Hell. Perhaps our dissenting colleague be­lieves that one can condemn homosexuality without condemning homosexuals. If so, he is wrong. To say that homosexuality is shameful is to say, necessarily, that gays and lesbians are shameful. There are nu­merous locations and opportunities avail­able to those who wish to advance such an argument. It is not necessary to do so by directly condemning, to their faces, young students trying to obtain a fair and full education in our public schools.

Our dissenting colleague also appears to believe that the fact that Harper wore his T-shirt in response to a “Day of Silence” somehow lessens the injurious effect of his act because by participating in the gay rights event, gay students “perforce ac­knowledge that their status is not univer­sally admired or respected.” Dis. op. at 1200. This argument is completely with­out merit. The fact that gays, or for that matter blacks, Jews, or Latinos, recognize that they are the subject of prejudice and are not “respected” or considered equal by some in certain public schools in this coun­try does not mean that they are not in­jured when the usually unspoken prejudice turns into harmful verbal conduct. More­over, the dissent’s assertion that gay stu­dents may prefer to see the demeaning statements contained on Harper’s T-shirt rather than on bathroom walls makes even less sense. See id. The First Amendment does not justify students launching such injurious and harmful personal attacks in either location.

What we hold in this opinion is a far cry from what the dissent suggests. We do not hold that schools may “define civic responsibility and then ban opposing points of view.” Id. at 1196 n. 7. The question of what types of assemblies schools should or may conduct regarding controversial public issues or what types of speech students may otherwise generally engage in regarding such issues is not before us. Different circumstances re­quire different results. We consider here only whether schools may prohibit the wearing of T-shirts on high school campus­es and in high school classes that flaunt demeaning slogans, phrases or aphorisms relating to a core characteristic of particu­larly vulnerable students and that may cause them significant injury. We do not believe that the schools are forbidden to regulate such conduct. Nor, contrary to the dissent, do we believe that because a school sponsors or permits a “Day of Tol­erance” or a “Day of Silence” minority students should be required to publicly “[c]onfront[ ]” and “refut[e]” demeaning verbal assaults on them — that they may be left with no option other than to try to justify their sexual practices to the entire student body or explain to all their fellow students why they are not inferior or evil. Id. at 1200. The First Amendment does not require that young students be sub­jected to such a destructive and humiliat­ing experience.

In his declaration in the district court, the school principal justified his actions on the basis that “any shirt which is worn on campus which speaks in a derogatory man­ner towards an individual or group of indi­viduals is not healthy for young peo­ple.... ” If, by this, the principal meant that all such shirts may be banned under Tinker, we do not agree. T-shirts pro­claiming, “Young Republicans Suck,” or “Young Democrats Suck,” for example, may not be very civil but they would cer­tainly not be sufficiently damaging to the individual or the educational process to warrant a limitation on the wearer’s First Amendment rights. Similarly, T-shirts that denigrate the President, his adminis­tration, or his policies, or otherwise invite political disagreement or debate, including debates over the war in Iraq, would not fall within the “rights of others” Tinker prong.27

Although we hold that the School’s restriction of Harper’s right to carry messages on his T-shirt was permis­sible under Tinker, we reaffirm the impor­tance of preserving student speech about controversial issues generally and protect­ing the bedrock principle that students “may not be confined to the expression of those sentiments that are officially ap­proved.” Tinker, 393 U.S. at 511, 89 S.Ct. 733; see also Fraser, 478 U.S. at 681, 106 S.Ct. 3159 (noting students’ “freedom to advocate unpopular and controversial views in schools and classrooms”). It is essential that students have the opportuni­ty to engage in full and open political expression, both in and out of the school environment. Engaging in controversial political speech, even when it is offensive to others, is an important right of all Americans and learning the value of such freedoms is an essential part of a public school education. Indeed, the inculcation of “the fundamental values necessary to the maintenance of a democratic political system” is “truly the ‘work of the schools.’ ” Fraser, 478 U.S. at 683, 106 S.Ct. 3159 (quoting Tinker, 393 U.S. at 508, 89 S.Ct. 733). Limitations on student speech must be narrow, and applied with sensitivity and for reasons that are consis­tent with the fundamental First Aménd­ment mandate. Accordingly, we limit our holding to instances of derogatory and in­jurious remarks directed at students’ mi­nority status such as race, religion, and sexual orientation.28 Moreover, our deci­sion is based not only on the type and degree of injury the speech involved causes to impressionable young people, but on the locale in which it takes place. See Tinker, 393 U.S. at 506, 89 S.Ct. 733 (stu­dent rights must be construed “in light of the special characteristics of the school environment”). Thus,' it is limited to con­duct that occurs in public high schools (and in elementary schools). As young students acquire more strength and maturity, and specifically as they reach college age, they become adequately equipped emotionally and intellectually to deal with the type of verbal assaults that may be prohibited during their earlier years. Accordingly, we do not condone the use in public col­leges or other public institutions of higher learning of restrictions similar to those permitted here.

Finally, we emphasize that the School’s actions here were no more than necessary to prevent the intrusion on the rights of other students. Aside from prohibiting the wearing of the shirt, the School did not take the additional step of punishing the speaker: Harper was not suspended from school nor was the incident made a part of his disciplinary record.

Under the circumstances present here, we conclude that the School’s actions did not extend beyond the scope of the restric­tions permitted by Tinker, and that the district court did not abuse its discretion in finding that Harper failed to demonstrate a likelihood of success on the merits of his free speech claim.

ii. Substantial Disruption

The district court concluded that Harper had failed to demonstrate a likelihood of success on the merits of his free speech claim because there was sufficient evidence to permit the school officials to “reason­ably ... forecast substantial disruption of or material interference with school activi­ties.” Tinker, 393 U.S. at 514, 89 S.Ct. 733. In so holding, the district court re­lied on the declarations of Principal Fish­er, Assistant Principal Antrim, and Le-­Master which described how the previous year’s “Day of Silence” had resulted in “volatile behavior” and “tensions between students,” including physical altercations. The court also cited LeMaster’s testimony that he had observed disruption in the class that Harper attended while wearing the T-shirt, and Principal Fisher’s testimo­ny that Harper told him that a “tense verbal conversation with a group of stu­dents” had already taken place due to the T-shirt’s message.

In light of our conclusion regarding the application of the “rights of others” prong of Tinker, we have no cause to decide whether the evidence would be sufficient to warrant denial of a preliminary injunc­tion under the “substantial disruption” prong as well.29

b. Viewpoint Discrimination

In reaching our decision that Harper may lawfully be prohibited from wearing his T-shirt, we reject his argu­ment that the School’s action constituted impermissible viewpoint discrimination. The government is generally prohibited from regulating speech “when the specific motivating ideology or the opinion or per­spective of the speaker is the rationale for the restriction.” Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. However, as the dis­trict court correctly pointed out, speech in the public schools is not always governed by the same rules that apply in other circumstances. See Hazelwood, 484 U.S. at 266, 108 S.Ct. 562; Fraser, 478 U.S. at 685, 106 S.Ct. 3159; West, 206 F.3d at 1366 (schools may ban student speech that “could well be considered a form of politi­cal speech to be afforded First Amend­ment protection outside the educational setting”). Indeed, the Court in Tinker held that a school may prohibit student speech, even if the consequence is view­point discrimination, if the speech violates the rights of other students or is material­ly disruptive. See Tinker, 393 U.S. at 511, 89 S.Ct. 733 (stating school cannot prohibit “expression of one particular opinion” un­less it makes a specific showing of consti­tutionally valid reasons); see also Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 615 (5th Cir.2004) (stating that Tinker “applies to school regulations directed at specific student viewpoints”); Muller by Muller, 98 F.3d at 1538 (emphasis added) (observing difference between suppressing religious speech “solely because it is reli­gious” and suppressing speech that is “re­ligious and disruptive or hurtful”). Thus, pursuant to Tinker, courts have allowed schools to ban the display of Confederate flags despite the fact that such a ban may constitute viewpoint discrimination. See Scott, 324 F.3d at 1248 (upholding ban on Confederate flag where school officials presented evidence of racial tensions at the school); West, 206 F.3d at 1366 (same). While the Confederate flag may express a particular viewpoint, “[i]t is not only constitutionally allowable for school officials” to limit the expression of racially explosive views, “it is their duty to do so.” Scott, 324 F.3d at 1249. Because, as we have already explained, the record demon­strates that Harper’s speech intruded upon the rights of other students, the School’s restriction is permissible under Tinker, and we must reject Harper’s view­point discrimination claim.30

The dissent claims that although the School may have been justified in ban­ning discussion of the subject of sexual orientation altogether, it cannot “gag[ ] only those who oppose the Day of Silence.” Dis. op. at 1197. As we have explained, however, although Tinker does not allow schools to restrict the non-invasive, non-­disruptive expression of political view­points, it does permit school authorities to restrict “one particular opinion” if the ex­pression would “impinge upon the rights of other students” or substantially disrupt school activities. Tinker, 393 U.S. at 509, 511, 89 S.Ct. 733. Accordingly, a school may permit students to discuss a particu­lar subject without being required to allow them to launch injurious verbal assaults that intrude upon the rights of other stu­dents.

“A school need not tolerate student speech that is inconsistent with its basic educational mission, [] even though the government could not censor similar speech outside the school.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (cita­tion and internal quotation marks omitted). Part of a school’s “basic educational mis­sion” is the inculcation of “fundamental values of habits and manners of civility essential to a democratic society.” Fraser, 478 U.S. at 681, 106 S.Ct. 3159 (internal quotation marks omitted). For this rea­son, public schools may permit, and even encourage, discussions of tolerance, equali­ty and democracy without being required to provide equal time for student or other speech espousing intolerance, bigotry or hatred. As we have explained, supra pp. 1182-1183, because a school sponsors a “Day of Religious Tolerance,” it need not permit its students to wear T-shirts read­ing, “Jews Are ChrisNKillers” or “All Muslims Are Evil Doers.” Such expres­sions would be “wholly inconsistent with the ‘fundamental values’ of public school education.” Id. at 685-86, 106 S.Ct. 3159. Similarly, a school that permits a “Day of Racial Tolerance,” may restrict a student from displaying a swastika or a Confeder­ate Flag. See West, 206 F.3d at 1365-66. In sum, a school has the right to teach-­civic responsibility and tolerance as part of its basic educational mission; it need not as a quid pro quo permit hateful and inju­rious speech that runs counter to that mission.31

We again emphasize that we do not sug­gest that all debate as to issues relating to tolerance or equality may be prohibited. As we have stated repeatedly, we consider here only the question of T-shirts, ban­ners, and other similar items bearing slo­gans that injure students with respect to their core characteristics. Other issues must await another day.

2. Free Exercise of Religion Claim

Harper also contends that the dis­trict court erred because he was entitled to a preliminary injunction as a result of the School’s violation of his rights under the Free Exercise Clause. -He asserts that his wearing of the T-shirt was “motivated by sincerely held religious beliefs” regarding homosexuality32 and that the School “pun­ished” him for expressing them, or other­wise burdened the exercise of those views. Additionally, Harper argues that the School “attempted to change” his religious views and that this effort violated both the Free Exercise Clause and the Establish­ment Clause.

The Free Exercise Clause of the First Amendment provides that Congress shall make no law “prohibiting the free exercise” of religion. U.S. Const, amend. I. The Clause prohibits the government from “compelling] affirmation of religious belief, punish[ing] the expression of reli­gious doctrines it believes to be false, im­posing] special disabilities on the basis of religious views or religious status, or lending] its power to one or the other side in controversies over religious authority or dogma.” Employment Div., Dep’t of Hu­man Res. of Oregon v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (internal quotation marks and cita­tions omitted).

In Sherbert v. Vemer, the Su­preme Court held that governmental ac­tions that substantially burden a religious belief or practice must be justified by a compelling state interest and must be nar­rowly tailored to serve that interest. 374 U.S. 398, 402-03, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). The Sherbert test was later largely discarded in Smith, which held that the “right of free.exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ” 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (citation omitted). The Court held that a neutral law of general applica­bility need not be supported by a compel­ling governmental interest even though it has the incidental effect of burdening reli­gion. See id. at 885, 110 S.Ct. 1595; see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).33 The Court noted, however, that a “hybrid claim,” ie., a claim that involves “not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech,” merits application of strict scrutiny: the law or action must be nar­rowly tailored to advance a compelling government interest. Smith, 494 U.S. at 881, 110 S.Ct. 1595; see also Miller v. Reed, 176 F.3d 1202, 1207 (9th Cir.1999) (same). Although it did not say so ex­pressly, in Smith the Court preserved the Sherbert test for use in hybrid-rights cases. In order, however, “to assert a hybrid-rights claim, a free exercise plain­tiff must make out a colorable claim that a companion right has been violated — that is, a fair probability or a likelihood, but not a certitude, of success on the merits.” Miller, 176 F.3d at 1207 (internal citation and quotation marks omitted).

Harper does not contend that the School’s prohibition against his wearing his T-shirt was motivated by other than secu­lar reasons or that it was applied to him because of his religious views. Nor is there anything in the record to suggest that other students wearing T-shirts simi­larly demeaning of gay and lesbian mem­bers of the student body would be treated differently, Christians or not.34 Under Smith, Harper’s claim would surely fail. Harper asserts, however, that we should apply Sherbert’s strict scrutiny test to his free exercise claim because his is a “hy­brid” claim involving the Free Exercise Clause in conjunction with other constitu­tional claims.35 The School disagrees, ar­guing that the district court properly ap­plied rational basis review under Smith because its prohibition of Harper’s speech involved a “valid and neutral [rule] of gen­eral applicability.”36 Smith, 494 U.S. at 879, 110 S.Ct. 1595.

We seriously doubt that there is “a fair probability or a likelihood” that Harper’s claim that a companion right — free speech — has been violated will succeed on the merits, as required by Miller. 176 F.3d at 1207 (internal quotation marks omitted).37 In fact, we are fairly confident that it will not, for the reasons we have explained supra Part V.l. Nevertheless, we need not decide whether Harper’s free exercise claim is properly deemed a “hy­brid” claim, because, whether or not Sher­bert’s strict scrutiny test applies, Harper cannot prevail here. “Under the Sherbert test, governmental actions that substan­tially burden a religious practice must be justified by a compelling governmental in­terest.” 38 Smith, 494 U.S. at 883, 110 S.Ct. 1595. In this case, Harper flunks the test in every respect.

Assuming that Sherbert applies, we must first consider whether the School’s actions “substantially burden” a religious practice or belief. The record simply does not demonstrate that the School’s restriction regarding Harper’s T-shirt imposed a sub­stantial burden upon the free exercise of Harper’s religious beliefs. There is no evidence that the School “compelled] affir­mation of a repugnant belief,” “penalize[d] or discriminate^] against [Harper] be­cause [he] hold[s] religious views abhor­rent to the authorities,” or “conditioned] the availability of benefits upon [Harper’s] willingness to violate a cardinal principle of [his] religious faith.” Sherbert, 374 U.S. at 402, 406, 83 S.Ct. 1790. Nor did the School “lend its power to one or the other side in controversies over religious author­ity or dogma,” or “punish the expression of religious doctrines it believes to be false.” Smith, 494 U.S. at 877, 110 S.Ct. 1595.

Despite Harper’s allegation that the School “punished” him for expressing his religious views, the record demonstrates the contrary: the School did not punish Harper at all. It simply prohibited him from wearing the offensive and disruptive shirt and required him to refrain from attending class for a portion of a day, if he insisted on.continuing to wear it. Nor did the restriction imposed on Harper’s wear­ing of the T-shirt constitute a substantial limitation on his right to express his reli­gious views. No one has the right to proclaim his views at all times in all man­ners in all places, regardless of the circum­stances, and Harper does not contend that his religion suggests otherwise. Harper remains free to express his views, whatev­er their merits, on other occasions and in other places. The prohibition against the wearing of a T-shirt in school does not constitute a substantial burden on the ex­ercise of his religious beliefs.

Even if a religious creed, or an individual’s interpretation of that creed, could be said to require its adherents to proclaim their religious views at all times and in all places, and to do so in a manner that interferes with the rights of others, the First Amendment would not prohibit the state from banning such disruptive conduct in certain circumstances, including on a high school campus. The Constitu­tion does not authorize one group of per­sons to force its religious views on others or to compel others to abide by its pre­cepts. Nor does it authorize individuals to engage in conduct, including speech, on the grounds of public schools, that is harmful to other students seeking to obtain a fair and equal education — even if those individ­uals hold a sincere belief that the princi­ples of their religion require them to dis­criminate against others, or to publicly proclaim their discriminatory views when­ever they believe that “evil” practices are being condoned. See Sherbert, 374 U.S. at 403, 83 S.Ct. 1790 (internal quotation marks omitted) (“[E]ven when the action is in accord with one’s religious convictions, it is not totally free from legislative restric­tions”). Schools may prohibit students and others from disrupting the educational process or causing physical or psychologi­cal injury to young people entrusted to their care, whatever the motivations or beliefs of those engaged in such conduct. Indeed, the state’s interest in doing so is compelling.

Because there is no evidence that the School’s restriction on Harper’s wearing of his T-shirt substantially burdened a reli­gious practice or belief, and because the School has a compelling interest in provid­ing a proper educational environment for its students and because its actions were narrowly tailored to achieve that end,39 it would appear that the district court did not abuse its discretion in finding that Harper failed to demonstrate a likelihood of success on the merits as to his free exercise of religion claim. Before reaching that conclusion, however, we must deal with one final argument that Harper raises as a part of that claim. Harper asserts that the School “attempted to change” his religious views that “homosexuality is harmful to both those who practice it and the community at large.” Specifically, Harper alleges that the school officials’ comments that his shirt was “inflammato­ry,” Detective Hubbert’s questioning of him, and Assistant Principal Giles’ state­ment that he leaves his Christian faith in the car when he comes to school, all were attempts by school authorities to change his religious views.

The district court rejected Harper’s con­tention. Indeed, there is no evidence in the record that the school representatives sought to change Harper’s religious be­liefs. Harper’s complaint avers that De­tective Hubbert “proposed to [Harper] that as a member of the Christian faith, he should understand that Christianity was based on love not hate, and that [he] should not be offensive to others.” Hub­bert’s homily did not constitute an attempt to change Harper’s religious views, simply his offensive behavior; at most, it was, as the district court concluded, an “option[] presented to and left with” Harper. The statements that the message on Harper’s shirt was “inflammatory” and would be harmful to the educational environment were merely statements of fact that repre­sented the School’s informed judgment. More important, like Hubbert’s statement, they were designed to affect Harper’s be­havior not his beliefs. As for Giles’ com­ments, his affidavit stated that he did not tell Harper to “leave his own faith in the car,” but explained that, as a school em­ployee, he, Giles, had to leave his own Christian faith in the car when he came to work. While Giles’ statement might also be construed as an attempt to encourage Harper to change his conduct — to refrain, while on campus, from expressing religious views that denigrate others — it cannot be characterized as an attempt to change his views. In fact, rather than tell Harper to change his beliefs, Giles encouraged him to join the campus Bible Club so that he could become part of an “activity that would express his [Christian] opinions in a positive way on campus,” an activity that was wholly consistent with Harper’s reli­gious views. The record thus does not support Harper’s claim that the School violated his free exercise right by “at­tempting to change” his religious views.

Moreover, school officials’ statements and any other school activity intended to teach Harper the virtues of tolerance constitute a proper exercise of a school’s educational function, even if the message conflicts with the views of a par­ticular religion. A public school’s teaching of secular democratic values does not con­stitute an unconstitutional attempt to influ­ence students’ religious beliefs. Rather, it simply reflects the public school’s perform­ance of its duty to educate children re­garding appropriate secular subjects in an appropriate secular manner. As we have reiterated earlier, “the inculcation of fun­damental values necessary to the mainte­nance of a democratic political system” is “truly the ‘work of the schools.’ ” Fraser, 478 U.S. at 681, 683, 106 S.Ct. 3159 (quoting Ambach v. Norwich, 441 U.S. 68, 76-­77, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979); quoting Tinker, 393 U.S. at 508, 89 S.Ct. 733). Public schools are not limited to teaching materials that are consistent with all aspects of the views of all religions. So long as the subject and materials are ap­propriate from an educational standpoint and the purpose of the instruction is secu­lar, the school’s teaching is not subject to a constitutional objection that it conflicts with a view held by members of a particu­lar religion. There is no evidence here that the school officials’ comments were associated with a religious, as opposed to a secular, purpose. Their affidavits demon­strate that the School acted in order to maintain a secure and healthy learning environment for all its students, not to advance religion.

The Constitution does not pre­clude school districts from teaching the essential elements of democracy or other­wise performing their proper educational mission simply because some individuals or groups may assert that their religious views are inconsistent with the lessons taught as a part of that mission. Accord­ingly, we affirm the district court’s deci­sion that Harper was not entitled to a preliminary injunction on the basis of his free exercise claim.

3. Establishment Clause Claim

Finally, we consider the district court’s conclusion that Harper did not demonstrate a likelihood of success on the merits of his claim that the School violated the Establishment Clause by attempting to “coerce” him into changing his religious beliefs that “homosexuality is harmful to both those who practice it and the commu­nity at large.”

Harper’s Establishment Clause claim as presented on appeal appears to be simply a restatement of his Free Exercise claim. In fact, as the Supreme Court has noted, its Establishment Clause cases “for the most part have addressed governmental efforts to benefit religion or particular reli­gions,” and thus allegations of an “attempt to disfavor” a religion, such as Harper’s, are properly analyzed under the Free Ex­ercise Clause. Lukumi, 508 U.S. at 532, 113 S.Ct. 2217 (emphasis added). Howev­er, in the interest of thoroughness, we briefly address Harper’s claim of “coer­cion” under the Establishment Clause.

Harper bases his claim almost entirely on the Supreme Court’s statement in Lee v. Weisman, that “at a minimum, the Con­stitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] reli­gion or religious faith, or tends to do so.’ ”40 505 U.S. 577, 587, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (quoting Lynch v. Donnelly, 465 U.S. 668, 678, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)). Here, there is no evidence that the School’s actions were based on anything other than an entirely secular and legitimate aim of pro­tecting the rights of students and promot­ing a tolerant and safe learning environ­ment. There is certainly no evidence (or even allegation) that school authorities sought to coerce or encourage Harper to participate in some other religion or to adopt some state-supported or other reli­gious faith. To reiterate what we ex­plained in the “Free Exercise” section of this opinion, the teaching of secular demo­cratic values does not violate the First Amendment, even if that teaching conflicts in some respect with a sincerely held view that a student or his parents may attribute to the particular religion to which they adhere.

Government conduct does not vio­late the Establishment Clause when (1) it has a secular purpose, (2) its principal and primary effect neither advances nor inhi­bits religion, and (3) it does not foster excessive government entanglement in re­ligion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). For the reasons we have already explained, the record supports the district court’s conclusion that the School’s actions “had a secular purpose, ie., promoting tol­erance, and not advancing or inhibiting religion.” It is also clear from the record that the primary effect of the School’s banning of the T-shirt was not to advance or inhibit religion but to protect and pre­serve the educational environment and the rights of other members of the student body. Nor can there be any question in this case of excessive government entan­glement in religion. Finally, as we have already discussed, there is no evidence in the record that school officials attempted to change Harper’s religious beliefs. A fortiori, there is no evidence that they attempted to coerce Harper into changing his beliefs. For all the above reasons, we hold that the district court did not abuse its discretion in finding that Harper failed to demonstrate a likelihood of success on the merits of his Establishment Clause claim.

4. Other Claims

In addition to the denial of his preliminary injunction motion, Harper asks that we review the district court’s dismissal of his due process and equal protection causes of action, as well as the court’s grant of qualified immunity to the individual defendants, under the doctrine of “pendent appellate jurisdiction.” We may exercise pendent appellate jurisdic­tion “over rulings that are inextricably in­tertwined with or necessary to ensure meaningful review of decisions that are properly before us on interlocutory ap­peal.” Poulos v. Caesars World, Inc., 379 F.3d 654, 668 (9th Cir.2004) (internal quotation marks omitted). In order for pendent issues to be “inextricably inter­twined” they must either “ ‘(a) be so in­tertwined that we must decide the pen­dent issue in order to review the claims properly raised on interlocutory appeal ... or (b) resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue.’ ” Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir.2003) (quoting Cunningham v. Gates, 229 F.3d 1271, 1285 (9th Cir.2000)).

With regard to Harper’s due pro­cess cause of action, it is based on his claim that the School’s dress code is im­permissibly vague in violation of the Due Process Clause. As we have already ex­plained, see supra note 11, we need not consider the validity of the School’s dress code in order to rule on the preliminary injunction. As to Harper’s equal protec­tion contention, as presented on this ap­peal it is simply a restatement of his view­point discrimination. claim which, for the reasons already provided, we have reject­ed. Whether or not there may be other aspects to the claim we do not know with certainty at this point in the proceedings; thus we do not review that claim here. Accordingly, neither the due process nor equal protection claim is one we must de­cide in order to resolve the issue before us, and our resolution of the issue before us does not require us to determine the mer­its of either claim. Whatever the merits of those claims (and we have no cause here to question the district court’s decision as to either), their validity or invalidity is of no consequence here. Finally, the district court’s dismissal of Harper’s damages claims based on a finding of qualified im­munity is not “inextricably intertwined” with the denial of the preliminary injunc­tion motion, Poulos, 379 F.3d at 668, as we need not “decide the [qualified immunity] issue in order to review the claims proper­ly raised on interlocutory appeal.... ” Bat­zel, 333 F.3d at 1023 (quoting Cunning­ham v. Gates, 229 F.3d 1271, 1284 (9th Cir.2000)).

VI. Conclusion

We hold that the district court did not abuse its discretion in denying the prelimi­nary injunction. Harper failed to demon­strate that he will likely prevail on the merits of his free speech, free exercise of religion, or establishment of religion claims. In fact, such future success on Harper’s part is highly unlikely, given the legal principles discussed in this opinion. The Free Speech Clause permits public schools to .restrict student speech that in­trudes upon the rights of other students. Injurious speech that may be so limited is not immune from regulation simply be­cause it reflects the speaker’s religious views. Accordingly, we affirm the district court’s denial of Harper’s motion for a preliminary injunction.

AFFIRMED; REMANDED for further proceedings consistent with this opinion.

Exhibit A

Exhibit A

[[Image here]]

1

. These background facts are based on the limited record before us which includes five declarations by school officials, and declara­tions from Harper, his father, Ron Harper, and a fellow student, Joel Rhine.

2

. In his complaint, Harper alleges that he believes "the true purpose” of the "Day of Silence” was "to endorse, promote and en­courage homosexual activity.”

3

. On the "Day of Silence,” participating stu­dents wore duct tape over their mouths to symbolize the silencing effect of intolerance upon gays and lesbians; these students would not speak in class except through a designat­ed representative. Some students wore black T-shirts that said "National Day of Silence” and contained a purple square with a yellow equal sign in the middle. The Gay-Straight Alliance, with the permission of the School, also put up several posters promoting aware­ness of harassment on the basis of sexual orientation.

4

.A copy of a photograph of the T-shirt is attached as Exhibit A.

5

. In his affidavit, Harper characterized these conversations with other students as "peace­ful discussions wherein differing viewpoints were communicated.”

6

. We note that conflicts over homosexuality at Poway High School have not been limited to the incidents surrounding a "Day of Silence.” Two former students recently won a suit against the School for failing to protect them from students who harassed them because they are gay. See Dana Littlefield, Two Gay Students Were Harassed, Jury Finds, San Die­go Union-Trib., June 9, 2005, at B2. During the trial, one of the students testified that Poway "students repeatedly called him names, shoved him in the hallways, threw food at him and spit on him,” and "that he heard other students make disparaging re­marks about gays and lesbians on a nearly daily basis.” Id.

7

.Hubbert, who is a detective with the San Diego County Sheriff, was on campus that day because someone, purporting to be a par­ent, had called the School that morning com­plaining about the School's “condoning” the "Day of Silence” and stated that “he and several other parents had 'had it' and 'would be doing something about it.’ ” Concerned about safety, Principal Fisher had requested Hubbert’s presence on campus on that day.

8

. The district court dismissed with prejudice only Harper’s due process challenge.

9

. We note that on November 17, 2004, thir­teen days after the district court rendered its decision and two days prior to filing his No­tice of Appeal with this court, Harper filed a First Amended Verified Complaint adding his sister, Kelsie, who is a freshman at Poway High School, as a plaintiff. On February 23, 2005, the district court granted in part and denied in part the School’s motion to dismiss the First Amended Complaint. Because the amended complaint is not before this court on appeal, we limit our review to Harper.

10

. The district court concluded that "balanc­ing the needs of the School to keep all their students safe coupled with the foreseeable vision that other students may feel free to exhibit these types of expressions that would interfere with the work of the school and violate the rights of others against [Harper's] interests does not tip the scales sharply in [Harper's] favor.” As our analysis of Tinker below illustrates, not only does the balance of hardships not tip sharply in Harper's favor, but it does not tip in his favor at all.

11

. We need not rule upon the validity of the School’s dress code or other anti-harassment policies in order to determine whether the district court abused its discretion in denying the preliminary injunction. Harper’s motion for a preliminary injunction sought only to enjoin school officials "from continuing their violation of the constitutional rights of Plain­tiff Tyler Chase Harper.” The only violation alleged was that Harper was precluded from wearing his T-shirt with its demeaning mes­sage while at school. The motion did not seek to enjoin the enforcement of the School’s dress code or any other school poli­cies against any and all students, but sought only to stop the violation of Harper’s purport­ed constitutional right to wear his T-shirt. Our affirmance of the district court order does not depend upon the existence of a valid school policy or code. Under Tinker, the School is permitted to prohibit Harper’s con­duct, with or without a valid anti-harassment or other policy, if it can demonstrate that the restriction was necessary to prevent either the violation of the rights of other students or substantial disruption of school activities. The record is clear that even though Harper’s teacher and Vice Principal Antrim stated that the T-shirt violated the dress code, the school officials made plain to Harper that the reason he could not wear the T-shirt was because of its effect upon other students and its disrup­tive effect upon the educational environment, rather than because it was prohibited by a dress code. The district judge apparently concluded that the validity of the School’s anti-harassment policies was not before him, or that it was not necessary to decide that question, and we cannot say that his determi­nation was unreasonable. Finally, we would prefer not to make even a preliminary judg­ment as to the constitutionality of the School’s dress code or anti-harassment poli­cies without the district court first having considered the question. Of course, follow­ing remand, the district court may do so at the appropriate time or upon the appropriate motion. In contrast, our dissenting colleague would have us engage on appeal in a sweep­ing examination ab initio of the validity of a complicated series of policies' — an examina­tion that would cause us to discuss prema­turely a number of controversial constitution­al issues. See dis. op. at 1201 - 1207. We see no need for such an exercise of our juris­diction on this appeal.

12

. As of the fall of 2005, approximately eighty-eight percent of elementary and sec­ondary students in the United States attended public schools. See Digest of Education Statis­tics, 2004, Nat’l Ctr. for Educ. Statistics (2004), available at http://nces.ed.gov/pro­grams/diges1/d04/. Most of the rest attended religious schools. See Stephen p. Broughman & Kathleen W. Pugh, Characteristics of Private Schools in the United States: Results From the 2001 — 2002 Private School Universe Survey (U.S. Department of Education, National Cen­ter for Education Statistics) (2005).

13

. Although Harper correctly points out that California law provides greater protection for student speech than federal law, see Cal. Educ.Code § 48950(a), he did not raise a state law claim in his preliminary injunction motion before the district court. Nor did he question, as he does in his brief to us, the constitutionality of the correlative provisions of the California Education Code that provide greater protection than federal law against harassment of students on the basis of sexual orientation. See Cal. Educ.Code §§ 200, 201, 220. Accordingly, we do not rely on or re­solve any state law questions here.

14

. Because we decide Harper's free speech claim on the basis of Tinker, we need not consider whether his speech was "plainly of­fensive” under Fraser.

15

. Neither party here claims that Harper's speech is "school-sponsored” and thus gov­erned by Hazelwood.

16

. In Tinker, the Supreme Court held that a public school could not ban students from wearing black armbands protesting the Viet­nam war where the "silent, passive expres­sion of opinion [was] unaccompanied by any disorder or disturbance,” and there was no evidence that the display "collided] with the rights of other students to be secure and to be let alone.” 393 U.S. at 508, 89 S.Ct. 733.

17

. The first part of our colleague’s dissent is devoted to a discussion of whether there was sufficient evidence that the wearing of Har­per's T-shirt caused substantial disruption, the Tinker prong on which the district court relied but which is not relevant to our hold­ing. See dis. op. at 1192-1196. The last part of the dissent also deals with a subject we need not and do not address: what the dissent terms the School's "harassment poli­cy.” Id. at 1201 - 1207; see also supra n. 11. Oddly, the dissent spends only a relatively minor part of its discussion on the determina­tive issue here, the impermissible intrusion on the rights of gay and lesbian students. Id. at 1197 - 1201. Even more oddly, in its Conclu­sion the dissent suggests that speech that is fundamentally offensive to minority students may be constitutionally limited and quarrels only with whether such a limitation is consis­tent with the wording of Tinker. Id. at 1207. It also suggests that the Supreme Court might properly modify Tinker and validate our hold­ing. Id. at 1207. We disagree that any modi­fication of Tinker is required or desirable. All that is necessary is a fair reading of its plain language, as we explain in the following sec­tion.

18

. There is nothing in Tinker that remotely supports the dissent's contention that the rights to "be secure and to be let alone” are limited to rights such as those that protect against "assault, defamation, invasion of pri­vacy, extortion and blackmail.” Dis. op. at 1198. Security and privacy entail far more than freedom from those torts. Nor does the dissent offer any reason why the rights to security and privacy do not include freedom from verbal assaults that cause psychological injury to young people.

19

. California law provides that “[a]ll pupils have the right to participate fully in the edu­cational process, free from discrimination and harassment.” Cal. Educ.Code § 201(a). The dissent expostulates on the meaning of the term "harassment” and speculates as to whether the California statute may be con­trary to the First Amendment, all of which is irrelevant here because we do not rely on the statute in reaching our decision. See dis. op. at 1197-1198.

20

. In fact, California schools like Poway High are required by law “to minimize and elimi­nate a hostile environment on school grounds that impairs the access of pupils to equal educational opportunity.” Cal. Educ.Code § 201(f).

21

. Saxe considered the validity of a school district's anti-harassment policy, a question we do not address here. See supra n. 11. Although in its discussion of a provision re­garding "hostile environment,” Saxe briefly alludes to the "interference with the rights of others” prong of Tinker, it appears to conflate that prong with the "substantial disruption” prong and to suggest, perhaps inadvertently, that injurious slurs may not be prohibited unless they also cause substantial disruption. See Saxe, 240 F.3d at 217. That clearly is not the case. The two Tinker prongs are stated in the alternative. See Tinker, 393 U.S. at 508, 89 S.Ct. 733. We agree, however, with Saxe's conclusion that "it is certainly not enough that the speech is merely offensive to some listener.” Saxe, 240 F.3d at 217.

22

. As noted supra, California law explicitly recognizes the right of students to be free from harassment on the basis of sexual orien­tation. See Cal. Educ.Code § 200, 201. These provisions were enacted not in a vacu­um, but out of a recognition on the part of the state legislature of "an urgent need to prevent and respond to acts of hate violence and bias-­related incidents that are occurring at an in­creasing rate in California’s public schools.” Id. at § 201(d). We also observe that federal law provides public school students some pro­tection against harassment and discriminato­ry treatment based on sexual orientation. For example, in Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134-35 (9th Cir.­2003), we held that the Equal Protection Clause protects against school districts' indif­ference to certain kinds of negative speech aimed at gay students. See also Mayes, supra, at 643 (observing that harassment based on sexual orientation may be actionable under Title IX as harassment based on sex).

23

. There is much literature to this effect. See supra pp. 1178-1179. Our dissenting col­league's notion of "evidence” appears to be rather odd. It seems to consist largely of motion pictures and television shows. The dissent draws conclusions that it is "not un­usual in a high school classroom for students to be 'off-task' ” and that politics and other subjects "are the ordinary subjects of dis­course in high school corridors” on the basis of our colleague’s viewing of a number of popular entertainment features. See dis. op. at 1194 n. 2 & 1194 n. 3. Perhaps he would prefer us to cite Brokeback Mountain (Para­mount Pictures 2005) or The Matthew Shepard Story (2002), as evidence of the harmful ef­fects of anti-gay harassment rather than sim­ply stating that which, to anyone familiar with or in any way sensitive to, the history or effect of discrimination, is a self-evident fact.

24

. We should point out that we are consider­ing here whether to reverse a denial of a preliminary injunction. The extent to which a self-evident proposition must be established in order to avoid such a reversal under an abuse of discretion standard is not necessarily the same as may be required at a trial on the merits, although we express no view on the latter question.

25

. Although we do not rely on the California statute to support our holding, we note that the Legislature, in the California Schools Hate Violence Reduction Act of 1995, de­clared: "Harassment on school grounds di­rected at an individual on the basis of person­al characteristics or status creates a hostile environment and jeopardizes equal education­al opportunity as guaranteed by the California Constitution and the United States Constitu­tion.” Cal. Educ.Code. § 201(c) (emphasis added).

26

.For example, in the late 19th century, James G. Blaine ran for President in a cam­paign that is remembered for its slogan of "Rum, Romanism and Rebellion.” See Rich­ard G. Bacon, Rum, Romanism and Romer, 6 Del. L.Rev. 1, 39-40 (2003); see also Joseph P. Viteritti, Davey’s Plea: Blaine, Blair, Witters, and the Protection of Religious Freedom, 27 Harv. J.L. & Pub. Pol’y 299, 311 (2003) (cita­tion omitted) (observing that Blaine's cam­paign for the Republican nomination "was built around his (and the party's) opposition to 'Rum, Romanism, and Rebellion.' ”).

27

. The dissent suggests that our decision might somehow allow a school to restrict student T-shirts that voice strongly-worded opposition to the war in Iraq. See dis. op. at 1197. That is not so. Our colleague ignores the fact that our holding is limited to injuri­ous speech that strikes at a core identifying characteristic of students on the basis of their membership in a minority group. The anti­war T-shirts posited by the dissent constitute neither an attack on the basis of a student's core identifying characteristic nor on the ba­sis of his minority status.

28

. We do not consider here whether remarks based on gender warrant similar treatment, preferring to leave that question to another time. We recognize, however, that problems of gender discrimination remain serious and that they exist throughout learning institu­tions, from the public and religious schools to institutions of higher learning, not excluding the most prominent institutions in the nation.

Our dissenting colleague worries that offen­sive words directed at majority groups such as Christians or whites will not be covered by our holding. See dis. op. at 1201. There is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a pre­ferred social, economic and political status. Growing up as a member of a minority group often carries with it psychological and emo­tional burdens not incurred by members of the majority. In any event, any verbal assault targeting majorities that might justify some form of action by school officials is more likely to fall under the "substantial disrup­tion” prong of Tinker or under the Fraser rule permitting schools to prohibit "plainly offen­sive” speech. 478 U.S. at 683, 106 S.Ct. 3159; cf. Frederick v. Morse, 439 F.3d 1114, 1122 n. 44 (9th Cir.2006) (observing that Fra­ser "only enables schools to prevent the sort of vulgar, obscene, lewd or sexual speech that, specially with adolescents, readily pro­motes disruption”). We do not exclude, how­ever, the possibility that some verbal assaults on the core characteristics of majority high school students would merit application of the Tinker "intrusion upon the rights of other students” prong. That question is not pres­ently before us.

29

. Our recent decision in Frederick v. Morse, 439 F.3d 1114 (9th Cir.2006), is in no respect inconsistent with this opinion. In Frederick, we held that a public high school's suspension of a student for displaying off campus, during the running of the Winter Olympics Torch Relay, a banner that read "Bong Hits 4 Je­sus,” violated Tinker. Frederick differs from the present case in four fundamental ways. First and foremost, Frederick did not address the "intrudes upon the rights of others” prong of Tinker, the ground upon which we base our holding here. Rather, the only issue in Fred­erick was whether the other Tinker prong'— "substantial disruption” — was applicable. Second, in Frederick we concluded that the school's actions did not meet the "substantial disruption” prong because the school officials conceded that they punished the student’s dis­play of the banner not out of "concern that it would cause disruption” but because "the speech promotes a social message contrary to the one favored by the school.” Id. at 1117-­18. Here, although in view of our holding, we need not (and do not) consider the "sub­stantial disruption” prong of Tinker, the School presented evidence that it restricted Harper’s wearing of the T-shirt because it expected that his doing so would cause sub­stantial disruption. Third, Frederick involved punishing student speech that took place "outside the classroom, across the street from the school, during a non-curricular activity that was only partially supervised by school officials.” Id. at 1123. By contrast, Harper wore the offending T-shirt not only on cam­pus, but inside the classroom. Finally, in the case before us, the School adopted the least restrictive means of curing the injury; it sim­ply forbade the wearing of the garment. In Frederick, in contrast, the school authorities punished the student harshly for the purport­ed (but non-existent) offense by suspending him for ten days. Id. at 1116.

30

. The cases on which Harper relies to sup­port his viewpoint discrimination claim in­volve the entirely different question whether schools may deny student groups access to school resources on the basis of their reli­gious viewpoint. See Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 386-87, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (school allowed use of school facilities for private groups, but prohibited "meetings for religious purposes”); Prince v. Jacoby, 303 F.3d 1074, 1090 (9th Cir.2002) (school al­lowed student clubs access to school facilities but excluded student Bible club). Those cases are not relevant here.

31

. We note, incidentally, that the incident in question occurred on the day after the “Day of Silence,” and not on the day itself.

32

. We do not, of course, consider whether Harper’s views are consistent with his reli­gion, nor do we ask whether his religion truly encourages homophobic conduct. Similarly, we do not consider whether the- isolated ex­cerpt from the New Testament, Romans 1:27, is representative of Christian doctrine gener­ally. All such inquiries are beyond the judi­ciary’s authority. See Hernandez v. C.I.R., 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) ("It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of par­ticular litigants’ interpretations of those creeds.”)

33

. "A law is one of neutrality and general applicability if it does not aim to 'infringe upon or restrict practices because of their religious motivation,’ and if it does not 'in a selective manner impose burdens only on conduct motivated by religious belieff.]’ ” San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1031 (9th Cir.2004) (quoting Luku­mi, 508 U.S. at 546, 113 S.Ct. 2217).

34

. Harper does not argue that the School's ban on his wearing the injurious and demean­ing T-shirt was arbitrary or capricious, only that it violated the First Amendment rights discussed herein.

35

. Although Harper refers to "other constitu­tional claims" and even "numerous constitu­tional claims,” the only claim that has the potential to justify his invoking of "hybrid” status is the free speech claim.

36

. The district court determined that, "with­out the free speech claim, plaintiff's free exer­cise claim does not require strict scrutiny.” It then ignored the free speech claim, appar­ently because it had already found that it was unlikely to succeed. Applying rational basis review, the court concluded that the School’s action was rationally based on a legitimate pedagogical concern, and that Harper failed to demonstrate that it was irrational or wholly arbitrary.

37

.We note that the School conceded in es­sence that the free speech claim was "color-­able” for purposes of Harper's establishing "irreparable harm” — one of the factors that may in combination with others justify issu­ance of a preliminary injunction. See supra pp. 1173-1174. We need not consider, how­ever, whether "colorable” has different mean­ings for purposes of irreparable harm under Sammartano, and for purposes of a hybrid claim under Miller, as we assume here that Harper’s free speech claim is colorable for the latter purpose as well.

38

. We have described the Sherbert test as re­quiring the weighing of three factors: (1) how much the state action interferes with the exer­cise of religious beliefs; (2) whether there is a compelling state interest justifying a burden on religious beliefs; and (3) whether accom­modating those beliefs would unduly interfere with the fulfillment of the government inter­est. N.L.R.B. v. Hanna Boys Center, 940 F.2d 1295, 1305 (9th Cir.1991).

39

. As discussed earlier, the School did no more than necessary to further its compelling interest in protecting the rights of students and maintaining a healthy learning environ­ment. It merely prohibited Harper from wearing the T-shirt at school, and did not even take the additional step of suspending or otherwise punishing him.

40

. The only other case upon which Harper relies for his coercion claim is Peloza v. Capis­trano Unified Sch. Dist., in which this court observed that "[t]o permit [a teacher] to dis­cuss his religious beliefs with students during school time on school grounds would violate the Establishment Clause.” 37 F.3d 517, 522 (9th Cir.1994). Like Lee, the case is inappo­site as it involves the entirely different issue of school-sanctioned religious speech which "would have the primary effect of advancing religion, and would entangle the school with religion.” Id.

KOZINSKI, Circuit Judge,

dissenting:

While I find this a difficult and troubling case, I can agree with neither the majori­ty’s rationale nor its conclusion. On the record to date, the school authorities have offered no lawful justification for banning Harper’s t-shirt and the district court should therefore have enjoined them from doing so pending the outcome of this case. Harper, moreover, raised a valid facial challenge to the school’s harassment poli­cy, and the district court should have en­joined the policy as well.

The T-shirt

As the majority correctly notes, school speech falls into three categories, each governed by its own standard. The first category involves school-sponsored speech, which is governed by Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 270-­71, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). The second involves vulgar or plainly of­fensive speech, and it is governed by Be­thel School District No. 403 v. Fraser, 478 U.S. 675, 683-85, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). All other speech falls into the third category and is governed by Tinker v. Des Moines Independent Com­munity School District, 393 U.S. 503, 511-­14, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).

Harper’s t-shirt was clearly not school sponsored, so the Hazelwood standard— highly deferential to school authorities— does not apply. Until recently, it was a closer question whether Harper’s t-shirt involved plainly offensive speech, which may be banned by the school under Fra­ser. See Scott v. School Bd. of Alachua County, 324 F.3d 1246, 1249 (11th Cir.­2003) (per curiam) (upholding ban on Con­federate flag under both Tinker and Fra­ser ). But our recent opinion in Frederick v. Morse, 439 F.3d 1114 (9th Cir.2006), puts this issue to rest, explaining that “plainly offensive” under Fraser is deter­mined by the language used, not the idea conveyed. See id. at 1119-21. Since there was nothing offensive about the language of Harper’s t-shirt, the school authorities here cannot rely on Fraser.1

If the school’s ban of the shirt is to be upheld, then, it must be because it “mate­rially disrupts classwork or involves sub­stantial disorder or invasion of the rights of others.” Tinker, 393 U.S. at 513, 89 S.Ct. 733.

1. School authorities may ban student speech based on the existence of “any facts which might reasonably [lead] school au­thorities to forecast substantial disrup­tion.” Id. at 514, 89 S.Ct. 733. While we do not require school officials to be certain that disruption will occur, see LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir.2001), they must present “evidence that [the ban] is necessary to avoid materi­al and substantial interference with schoolwork or discipline.” Tinker, 393 U.S. at 511, 89 S.Ct. 733 (emphasis added).

The school authorities here have shown precious little to support an inference that Harper’s t-shirt would “materially dis­rupt] classwork.” One teacher, David LeMaster, said that several students in class were “off-task talking about [the] content of ‘Chase’s shirt’ when they should have been working.” LeMaster decl. at 2. Surely, however, it is not unusual in a high school classroom for students to be “off-­task.” The scene á faire of high school students bored or distracted in class is a cliché.2 LeMaster gives no indication that the distracted students refused to get back on task once they were admonished, or that the t-shirt caused a commotion or otherwise materially interfered with class activities. As this is the only evidence that Harper’s t-shirt interfered with class­room learning, I find it ludicrously weak support for banning Harper’s t-shirt on the ground that it would “materially dis­rupt] classwork.” Tinker, 393 U.S. at 513, 89 S.Ct. 733.

The remaining two pieces of evidence presented by the defendants do not involve disruption of classwork, and thus must be judged by the “substantial disorder” stan­dard. Id. School authorities have far less latitude to ban speech that does not inter­fere with learning situations. Between classes, students are free — indeed encour­aged — to engage in discussions that are not strictly school related. Politics, sports, movies, music and personal matters are the ordinary subjects of discourse in high school corridors and lunch rooms.3 Occa­sionally such discussions can become heat­ed, but so long as they don’t escalate into violence or the threat of violence, and do not otherwise interfere with school opera­tions, they cause no disruption of the school environment.

Defendants point to Harper’s own re­port that “he [had been] involved in a tense verbal conversation with a group of students” earlier that day, but this is hard­ly the stuff of which substantial disorder is made. Fisher decl. at 3. People — judges even^ — often have strong views and their discussions will naturally reflect this inten­sity of feeling. There is nothing at all wrong with that, and it normally does not lead to substantial disorder. There is no indication that Harper’s discussion turned violent or disrupted school activities. There is no evidence that it involved shout­ing or threats, or that it interfered with the passage of students to and from class. The discussion, tense though it may have been, did not have to be broken up by school authorities; rather, it seems to have come to a peaceful conclusion. The best proof that this “tense verbal conversation” did not cause substantial disorder is that the school authorities knew nothing about the incident until Harper himself reported it. The only thing one can infer from this evidence is that, whatever strong feelings Harper’s t-shirt may have aroused, it did not cause any disruption of school activi­ties, substantial or otherwise.

The second piece of evidence on which the school authorities rely doesn’t involve Harper at all. It consists of surprisingly vague references to some incidents that had occurred a year earlier, “during the days surrounding the Day of Silence be­tween certain gay and straight students.” Fisher decl. at 3. Poway High School Prin­cipal Scott E. Fisher describes the situa­tion as follows: “For example, an alterca­tion had occurred which required me to physically separate the students. Those students were disciplined for their ac­tions.” Id. Assistant Principal Lynell An-­trim has the following description:

The previous year, in April, 2003, the Day [of Silence] brought some volatile behavior between students, and there was an unsanctioned Straight-Pride Day a week or so later. No club organized that Straight Pride Day, but there were store-printed shirts with inflammatory messages and some hand-scripted T-­shirts with derogatory remarks. Some students last year were asked to remove the shirts and did so. Other students had an altercation and were suspended for their actions.

Antrim decl. at 2. Finally, Assistant Princi­pal Edward L. Giles explains as follows:

I told Ron Harper [Chase’s dad] of our concern for the safety of our students when they altered their clothes to carry messages that could be inflammatory or demeaning. I told him we had some situations in the past of physical alterca­tions because someone took exception to a message concerning sexual orientation on another person. I explained to him we did not want messages that carried with them a negative tone.

Giles decl. at 4.

Evidence that derogatory messages on Ushirts had resulted in physical alterca­tions between students in the past certain­ly could be relevant in determining wheth­er Harper’s message would be likely to cause such disruption in the future. Un­fortunately, however, it is not clear from these declarations that the messages on the t-shirts were in any way involved in the previous year’s altercation; Antrim’s declaration seems to say that the students involved in the altercation were different from the students who wore the t-shirts. Only Giles suggests a connection between the t-shirts and the altercations, and then somewhat obliquely.4 More importantly, we are not told how closely the messages in the previous year mirrored that on Har­per’s t-shirt. For all we know, the previ­ous year’s t-shirts contained invective, pro­fanity or epithets; they may have called for violence against homosexuals. Nor do we know whether the altercations in ques­tion were caused by the t-shirts alone, or by a combination of the t-shirts and oral taunts by those wearing the shirts or by those who opposed them. In short, with­out knowing a great deal more about the situation in the previous year — information the school authorities surely had available and could have put into the record — I can­not say that defendants reasonably con­cluded that Harper’s wearing of this t-­shirt was likely to cause substantial dis­ruption.5

There is, in fact, persuasive evidence that it would not. I have already men­tioned the apparently peaceful confronta­tion Harper had with other students that very day; while words were exchanged, the students managed the situation well and without intervention from the school authorities. No doubt, everyone learned an important civics lesson about dealing with others who hold sharply divergent views. Moreover, Harper wore a t-shirt with substantially the same message the entire previous day, yet there was no dis­ruption. See maj. op. at 1171. While I agree that school officials need not wait for students to come to blows, their determi­nation of likely disruption must be reason­able. On this record, I cannot find that it was.

But there is a more fundamental issue here. The record reveals quite clearly that Harper’s t-shirt was not an out-of-the-­blue affront to fellow students who were minding their own business. Rather, Har­per wore his t-shirt in response to the Day of Silence, a political activity that was sponsored or at the very least tolerated by school authorities.6 The Day of Silence is a protest sponsored by the Gay, Lesbian and Straight Education Network (GLSEN). According to a GLSEN press release, the Day of Silence is “an annual, national student-led effort in which partici­pants take a vow of silence to peacefully protest the discrimination and harassment faced by lesbian, gay, bisexual and trans­gender (LGBT) youth in schools.” Press Release, GLSEN, A New Record for the Day of Silence (Apr. 14, 2004), available at http://www.glsen.org/cgi-bin/iowa/all/news/ record/1655.html. The point of this protest, as I understand it, is to promote tolerance toward all students, regardless of their sexual orientation. See Antrim decl. at 2.

Tolerance is a civic virtue,7 but not one practiced by all members of our society toward all others. This may be unfortu­nate, but it is a reality we must accept in a pluralistic society.8 Specifically, tolerance toward homosexuality and homosexual conduct is anathema to those who believe that intimate relations among people of the same sex are immoral or sinful. So long as the subject is kept out of the school environment, these differences of opinion need not clash. But a visible and highly publicized political action by those on one side of the issue will provoke those on the other side to express a different point of view, if only to avoid the implication that they agree. See Robert Bolt, A Man for All Seasons act 2, at 88 (1962) (“The max­im of the law is ‘Silence gives consent.’ ”).

Given the history of violent confronta­tion between those who support the Day of Silence and those who oppose it, the school authorities may have been justified in ban­ning the subject altogether by denying both sides permission to express their views during the school day. See, e.g., West v. Derby Unified, Sch. Dist. No. 260, 206 F.3d 1358, 1361, 1366 (10th Cir.2000) (upholding ban on items that give rise to racial tension such as Confederate flags and Malcolm X t-shirts). I find it far more problematic — and more than a little iron­ic — to try to solve the problem of violent confrontations by gagging only those who oppose the Day of Silence and the point of view it represents. Or, as Judge Rosen put it in Hansen v. Ann Arbor Public Schools, 293 F.Supp.2d 780 (E.D.Mich.­2003), “[t]hat Defendants can say with ap­parent sincerity that they were advancing the goal of promoting ‘acceptance and tol­erance for minority points of view' by their demonstrated intolerance for a viewpoint that was not consistent with their own is hardly worthy of serious comment.” Id. at 801-02.

I cannot imagine that my colleagues would approve this in other situations. Say, for example, one school group — per­haps the Young Republicans — were to or­ganize a day of support for the war in Iraq by encouraging students to wear a yellow armband. And suppose that other stu­dents responded by wearing t-shirts with messages such as “Marines are Murder­ers” and “U.S. Bombs Kill Babies.” If a student whose brother was killed in Iraq assaulted a student wearing one of the anti-war t-shirts, would we approve a school’s response that banned the t-shirts but continued to permit the yellow arm­bands? See R.A.V. v. City of Saint Paul, 505 U.S. 377, 392, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (“[The government] has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensber­ry rules.”). Not to worry, says the majori­ty, because students can still sport t-shirts that criticize “the President, his adminis­tration, or his policies, or otherwise invite political disagreement or debate.” Maj. op. at 1182. But acceptance of homosexu­ality is a political disagreement and de­bate. It’s not at all clear to me how one can criticize public officers and their poli­cies without also addressing the controver­sial policies they adopt. For example, in 2004, San Francisco mayor Gavin Newsom issued marriage licenses to nearly 4,000 gay and lesbian couples. While some peo­ple view this as a courageous and princi­pled action, others consider it an abomina­tion. It’s not at all clear to me how those in the latter camp could go about express­ing their vehement disagreement with Mayor Newsom’s policy without also ex­pressing disdain for those who turned out at City Hall to take advantage of the poli­cy-

Of the possible measures a school might take to deal with substantial disruption of the school environment, those involving viewpoint discrimination would seem to me to be the least justifiable. To quote Judge Rosen once again, “no matter how well-­intentioned the stated objective, once schools get into the business of actively promoting one political or religious view­point over another, there is no end to the mischief that can be done in the name of good intentions.” Hansen, 293 F.Supp.2d at 803.

2. Tinker does contain an additional ground for banning student speech, name­ly where it is an “invasion of the rights of others.” 393 U.S. at 513, 89 S.Ct. 733. The school authorities suggest that Har­per’s t-shirt violates California Education Code § 201(a), which provides that “[a]ll pupils have the right to participate fully in the educational process, free from discrim­ination and harassment.” Defendants cite no California case holding that the passive display by one student of a message anoth­er student finds offensive violates this pro­vision, and I am reluctant to so conclude on my own. The interaction between harassment law and the First Amendment is a difficult and unsettled one because much of what harassment law seeks to prohibit, the First Amendment seems to protect. See Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206-10 & n. 6 (3d Cir.2001). Certainly, state law cannot trump the First Amendment by defining “harassment” as any conduct that another person finds offensive; far too much core First Amendment speech could thus be squelched. See Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L.Rev. 1791 (1992), available at http://wwwl.law.ucla.edu/vo­lokh/harass/substanc.htm in updated form.

Harassment law might be reconcilable with the First Amendment, if it is limited to situations where the speech is so severe and pervasive as to be tantamount to con­duct. See Saxe, 240 F.3d at 204-10. I need not consider whether section 201(a) is susceptible to such a narrowing construc­tion because it is quite clear that Harper’s lone message was not sufficiently severe and pervasive to meet the standard articu­lated in Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Rather, it seems more like the “simple acts of teasing and name-calling,” described by the Supreme Court as non-actionable in Davis v. Mon­roe County Board of Education, 526 U.S. 629, 652, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). The “rights of others” language in Tinker can only refer to traditional rights, such as those against assault, defamation, invasion of privacy, extortion and black­mail, whose interplay with the First Amendment is well established. Surely, this language is not meant to give state legislatures the power to define the First Amendment rights of students out of exis­tence by giving others the right not to hear that speech.9 Otherwise, a state leg­islature could effectively overrule Tinker by granting students an affirmative right not to be offended. To the extent that state law purports to prohibit such lan­guage in the school context, it is patently unconstitutional.

Nor can I join my colleagues in conclud­ing that Harper’s t-shirt violated the rights of other students by disparaging their ho­mosexual status. As I understand the opinion, my colleagues are saying that messages such as Harper’s are so offensive and demeaning that they interfere with the ability of homosexual students to partake of the educational environment. This is not a position briefed or argued by any of the parties, and no one introduced any evidence in support of, or opposition to, this proposition. The school authorities did not try to justify their actions on this ground; instead, they argued that they can ban any t-shirt derogatory to another individual, a proposition that the majority rejects. See maj. op. at 1182.

Such sua sponte lawmaking raises many problems, the first of which is that it finds no support in the record. What my col­leagues say could be true, but the only support they provide are a few law review articles, a couple of press releases by advo­cacy groups and some pop psychology. Aside from the fact that published articles are hardly an adequate substitute for rec­ord evidence, the cited materials are just not specific enough to be particularly help­ful. None would seem to meet the stan­dard of Daubert v. Merrell Dow Pharma­ceuticals, Inc., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

The first article, written by physicians but apparently not peer-reviewed, makes a general statement to the effect that aca­demic under-achievement and other prob­lems of homosexual youths “are the proba­ble consequence of violence and verbal and physical abuse at school.” Susanne M. Stronski Huwiler & Gary Remafedi, Ado­lescent Homosexuality, 33 Rev. Jur. U.I.P.R. 151, 164 (1999). The article does not explain what the authors mean by “verbal ... abuse,” so it’s not clear that Harper’s t-shirt is even covered by the article’s findings. Nor does the article explain the degree to which statements, as opposed to physical abuse, are responsible for the ill effects it discusses. The second article, written by a lawyer, not a health­care professional, merely points to general problems suffered by gay and lesbian youths during their school years — prob­lems that are reinforced by a variety of school practices and policies. See Thomas A. Mayes, Confronting Same-Sex, Stu­dent-to-Student Sexual Harassment: Recommendations for Educators and Pol­icy Makers, 29 Fordham Urb. L.J. 641, 655-58 (2001). The other articles the ma­jority cites also focus on physical abuse or threats, which the school can and should stamp out in a viewpoint neutral way. See Amy Lovell, “Other Students Always Used to Say, ‘Look At The Dykes’ ”: Protecting Students From Peer Sexual Orientation Harassment, 86 Cal. L.Rev. 617, 625-28 (1998); Courtney Weiner, Note, Sex Edu­cation: Recognizing Anti-Gay Harass­ment as Sex Discrimination Under Title VII and Title IX, 37 Colum. Hum. Rts. L.Rev. 189, 221-25 (2005); Kelli Kristine Armstrong, The Silent Minority Within a Minority: Focusing on the Needs of Gay Youth in Our Public Schools, 24 Golden Gate U.L.Rev. 67, 76-77 (1994). The ma­jority finally resorts to press releases from advocacy groups — hardly a source “whose accuracy cannot reasonably be ques­tioned.” Fed.R.Evid. 201(b). What the materials the majority cites do establish is that the success of gay and lesbian teens in school is a complicated phenomenon, in­fluenced by many factors. Even taking the sources on their own terms, none pro­vides support for the notion that disparag­ing statements by other students, in the context of a political debate, materially in­terfere with the ability of homosexual stu­dents to profit from the school environ­ment.

Nor do I fihd the proposition at the heart of the majority’s opinion — that ho­mosexual students are severely harmed by any and all statements casting aspersions on their sexual orientation — so self-evident as to require no evidentiary support. We take judicial notice of facts that aren’t reasonably subject to dispute — gravity, the temperature at which ice melts, that com­mercial goods cost money, that time flows forward but not backward. But the fact that we can take judicial notice of certain indisputable facts does not mean that all facts are indisputable. Predicting the ef­fect of certain kinds of statements on the learning ability of high school students is simply not the kind of “fact” that is judi­cially noticeable under any fair reading of Federal Rule of Evidence 201. Even the articles that the majority cites admit that the research on these effects is not unani­mous. See, e.g., Lovell, 86 Cal. L.Rev. at 623-24. We have no business assuming without proof that the educational prog­ress of homosexual students would be stunted by Harper’s statement.

I find it significant, moreover, that Har­per did not thrust his view of homosexuali­ty into the school environment as part of a campaign to demean or embarrass other students. Rather, he was responding to public statements made by others with whom he disagreed. Whatever one might think are the psychological effects of un­provoked demeaning statements by one student against another, the effects may be quite different when they are part of a political give-and-take. By participating in the Day of Silence activities, homosexual students perforce acknowledge that their status is not universally admired or accept­ed; the whole point of the Day of Silence, as I understand it, is to dispute views like those characterized by Harper’s t-shirt. Supporters of the Day of Silence may pre­fer to see views such as Harper’s chan­neled into public discourse rather than of­ficially suppressed but whispered behind backs or scribbled on bathroom walls. Confronting — and refuting — such views in a public forum may well empower homo­sexual students, contributing to their sense of self-esteem.

Beyond the question of evidentiary support, I have considerable difficulty un­derstanding the source and sweep of the novel doctrine the majority announces to­day.10 Not all statements that demean other students can be banned by schools; the majority is very clear about this. See maj. op. at 1181 -1182 & n. 27. The new doctrine applies only to statements that demean students based on their “mi­nority status such as race, religion, and sexual orientation.” Id. at 1182-83.11 Is this a right created by state law? By federal law? By common law? And if interference with the learning process is the keystone to the new right, how come it’s limited to those characteristics that are associated with minority status? Stu­dents may well have their self-esteem bruised by being demeaned for being white or Christian, or having bad acne or weight problems, or being poor or stupid or any one of the infinite number of characteristics that will not qualify them for minority status. Under the rule the majority announces today, schools would be able to ban t-shirts with pictures of Mohammed wearing a bomb turban but not those with pictures of a Crucifix dipped in urine — yet Muslim and Chris­tian children, respectively, may have their learning equally disrupted.

Even the concept of minority status is not free from doubt. In defining what is a minority — and hence protected — do we look to the national community, the state, the locality or the school? In a school that has 60 percent black students and 40 per­cent white students, will the school be able to ban t-shirts with anti-black racist mes­sages but not those with anti-white racist messages, or vice versa? Must a Salt Lake City high school prohibit or permit Big Love t-shirts?

And at what level of generality do we define a minority group? If the Pope speaks out against gay marriage, can gay students wear to school t-shirts saying “Catholics Are Bigots,” or will they be demeaning the core characteristic of a reli­gious minority? And, are Catholics part of a monolithic Christian majority, or a mi­nority sect that has endured centuries of discrimination in America? See maj. op. at 1181 n. 26.

Finally, I have considerable difficulty with giving school authorities the power to decide that only one side of a controversial topic may be discussed in the school envi­ronment because the opposing point of view is too extreme or demeaning. As Judge Gilman said in his persuasive dis­sent in Boroff v. Van Wert City Board of Education, 220 F.3d 465 (6th Cir.2000), “school officials are not free to decide that only one side of a topic is open for discus­sion because the other side is too repug­nant or demoralizing to listen to.” Id. at 474 (Gilman, J., dissenting) (citing Tinker, 393 U.S. at 508, 89 S.Ct. 733). I couldn’t have said it better.

The fundamental problem with the ma­jority’s approach is that it has no anchor anywhere in the record or in the law. It is entirely a judicial creation, hatched to deal with the situation before us, but likely to cause innumerable problems in the future. Respectfully, I cannot go along.

The Harassment Policy

I believe we must also address Harper’s claim that he is entitled to an injunction against the school’s harassment policy on grounds of substantial overbreadth. Har­per raised this claim in the district court, see Memorandum of Points and Authori­ties in Support of Plaintiffs’ Motion for Preliminary Injunction at 14-16, but the district judge did not decide it in his other­wise thorough opinion. Harper again rais­es this claim in his brief before us, and the defendants respond in their brief, yet the majority also fails to decide it. The major­ity suggests in a footnote that it need not consider whether the school’s harassment policy is overbroad because it upholds the school’s banning of Harper’s t-shirt re­gardless of the policy. Maj. op. at 1175 n. 11. The policy, however, covers much more than the particular t-shirt Harper wore on the day in question. Given that the majority has effectively upheld the school’s banning of that shirt, it becomes even more important for us to rule on whether and how Harper may express his views in the future.12 To the extent that the harassment policy limits the ways in which Harper may express himself by means other than his t-shirt, he is surely entitled to a ruling as to whether the dis­trict court erred in failing to enjoin the policy.

1.The school’s harassment policy is contained in several documents. One of these is titled “Student Guide to Under­standing and Avoiding Harassment” and contains a list of “actions [that] are prohib­ited for both students and staff.” One such prohibited item is “[n]egative com­ments or behavior based on race, ethnicity, sexual orientation, religion, or gender.” Another publication, addressed to parents, titled “Poway Unified School District Poli­cies & Procedures for Parents Concerning Harassment of Students” contains the fol­lowing admonition: “SPECIFIC HARASSMENT BEHAVIORS THAT ARE NOT TOLERATED IN THE PO-­WAY UNIFIED SCHOOL DISTRICT INCLUDE,” which is followed by a num­ber of items, among them “[n]egative com­ments, slurs, or behaviors based on race, ethnicity, sexual orientation, religion, or gender.”

A document titled “Poway Unified School District Administrative Procedure,” dated July 28, 1997, and subtitled “Hate Behavior,” contains the following defini­tion:

A hate behavior is any act or attempted act to cause physical injury, emotional suffering, or property damage through intimidation, harassment, racial/ethnic slurs and bigoted epithets, vandalism, force or the threat of force, motivated all or in part by hostility to the victim’s real or perceived gender, race, ethnicity, reli­gion, sexual orientation, or mental or physical challenges.

The same document contains a heading titled “Examples of Hate Behavior,” which is followed by a “list providing] examples of hate behavior to assist identifying where and when it may exist.” Among the items listed are the following:

2. The presence of symbols or words considered offensive to persons of a specific gender, race, ethnicity, reli­gion, sexual orientation, or the men­tally or physically challenged, such as graffiti, slurs, or painted swasti­kas.

3. Activities historically associated with threats to persons of a specific gen­der, race, ethnicity, religion, sexual orientation, or the mentally or physi­cally challenged (e.g., burning cross­es, wearing swastikas or white sheets, flying confederate flags, hanging effigies, defacing pink trian­gles).

6. Victim belief that the incident was motivated by bias against him/her as a member of a specific gender, race, ethnicity, religion, sexual orienta­tion, or mentally or physically chal­lenged group.

7. Perpetrator explanation/defense of incident involves exalting- own gen­der, race, ethnicity, religion, sexual orientation, or mental or physical status and/or includes statements demeaning victim group.

Finally, the lengthy Poway High School Student Handbook contains detailed regu­lations as to every aspect of student life. Among the many items listed is a dress code:

Dress: School clothing should be neat, clean, and appropriate for school activi­ties and should follow the standards of common decency. The dress code will be enforced at all school-sponsored ac­tivities. Clothing that violates this stan­dard is unacceptable, and the student in violation will be disciplined appropriate­ly-

Examples of unacceptable dress include “[c]lothing and accessories (including back­packs) that promote or portray ... [vio­lence or hate behavior including derogato­ry connotations directed toward sexual identity.”

Under the heading “Rules of Student Discipline,” there is a long list of prohibit­ed acts, including “Sexual harassment” and “Hate behavior/Violence.” The list is both preceded and followed with the admonition that:

A student will be subject to disciplinary action for the designated acts that are related to school activity and attendance and which occur at any time, including but not limited to any of the following:

• The student is- on school grounds at a time when school is in session or a school-sponsored activity is in prog­ress

• The student is going to or coming from school

• The student is on break or lunch peri­ods whether on or off campus

• The student is going to, coming from or attending a school-sponsored activi­ty.

Following this list, are a series of defini­tions, among them the following:

Discrimination: Discrimination is nega­tive or unfair treatment toward an indi­vidual based on race, ethnicity, sexual orientation, religion or gender. It is against the rules for students to make nasty remarks that embarrass others or make them feel uncomfortable with ac­tions or remarks that are sexual or ra­cial in nature.

Harassment: Harassment is unwanted and unwelcome behavior from other stu­dents or staff members that interferes with another individual’s life. When it is sexual in nature, it is “sexual harass­ment”. When it is racial in nature, it is “hate motivated behavior” or sometimes a “hate crime”.

Hate Behavior: Negative behaviors that target members of a particular gender, race, ethnicity, religion, sexual orienta­tion, or the mentally or physically chal­lenged will not be tolerated. Such be­haviors may include, but are not limited to:

1. Name calling, racial slurs or bigoted epithets.

2. The presence of symbols or words considered offensive to persons of a specific gender, race, ethnicity, reli­gion, sexual orientation or the men- . tally or physically challenged, such as graffiti, slurs or painted swasti­kas.

3. Activities historically associated with threats to persons of a specific gen­der, race, ethnicity, religion, sexual orientation or the mentally or physi­cally challenged (e.g., burning cross­es, wearing swastikas or white sheets, flying confederate flags, hanging effigies, defacing pink trian­gles).

4. The posting or circulation of de­meaning jokes or caricatures, based on negative stereotypes of a specific gender, race, ethnicity, nationality, religion, sexual orientation or mental or physical challenges.

5. The defacing, removal, dr destruc­tion of posted materials, meeting places, memorials, etc. associated with specific gender, race, ethnic, re­ligious, sexual orientation or mental or physical challenges.

6. Victim belief that the incident was motivated by bias against him/her as a member of a specific gender, ra­cial, ethnic, religious, sexual orienta­tion or mentally or physically chal­lenged group.

7. Perpetrator explanation/defense of incident involves exalting own gen­der, race, ethnicity, religion, sexual orientation or mental or physical status and/or includes statements demeaning victim group.

8. The presence of organized hate group literature and/or posters or reference to an organized hate group.

While the parties provide little guidance about how to navigate these not entirely consistent documents, the most plausible way is to treat the two bulletins distribut­ed to parents and students respectively as informal guidance intended to give a sum­mary of the purpose and effect of the formal rules. The Administrative Proce­dure appears to be internal guidance from the school board to school district employ­ees as to the proper way to interpret the formal rules. It is the Student Hand­book — the lengthy and detailed set of reg­ulations applicable to Poway High School' — that contains the binding rules, the violation of which may result in disci­pline. It is to these regulations, then, that we must look in determining the scope of the school’s anti-harassment policy; the remaining three documents can serve merely as guidance in interpreting the reg­ulations.

2. The school’s harassment policy seems to prohibit any student speech, whether it be in the classroom, elsewhere on campus, in connection with any school activity, going to and returning from school and quite possibly at all other times and places, if it is derogatory, intended to be derogatory or believed to be derogatory of other students based on certain charac­teristics — -race, ethnicity, sexual orienta­tion, religion, sex or disability. The prohi­bition extends to jokes or caricatures “based on negative stereotypes,” wearing of clothing that portrays “derogatory con­notations directed toward sexual identity,” name-calling, anything that someone who is a member of one of the protected cate­gories believes was directed against him on account of his status, and any statement by the speaker that exalts his own status in comparison to that of others. The Stu­dent Guide to Understanding and Avoiding Harassment seems to summarize the poli­cy fairly accurately when it explains that “[njegative comments or behavior based on race, ethnicity, sexual orientation, religion, or gender” are prohibited. That is pretty much the position taken by Principal Fish­er in his declaration: “It is my stance that any shirt which is worn on campus which speaks in a derogatory manner towards an individual or group of individuals is not healthy for young people and in violation of school policy.” Fisher decl. at 3.

So interpreted, the school’s harassment policy is substantially overbroad, largely for the reasons articulated by the Third Circuit in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir.2001). The policy here, like that in Saxe, is not limited to speech that is vulgar, as defined by Fraser, or likely to cause substantial disruption under Tinker. Also, as in Saxe, the policy here is not limited to offensive speech that is severe and pervasive, so that the prohibition might be approved under our emerging harassment law juris­prudence. See id. at 217. Rather, the poli­cy prohibits pretty much any speech that any student who is a member of one of the protected groups might take umbrage at.

The policy here is, in fact, much broader than that in Saxe in several important respects. First, the policy in Saxe seems to have been limited to school premises; the Saxe court, at least, treated it as such, noting that if the policy were to cover speech outside of school, it would raise additional constitutional problems. Id. at 216 & n. 11. By contrast, the policy here expressly applies outside school premises, extending to off-campus school activities and to travel to and from school. More­over, the policy expressly states that it may apply elsewhere as well. The policy’s vast and uncertain geographic sweep makes it even more important that its substantive terms be narrowed down and precisely defined, consistent with the First Amendment.

Second, the policy in Saxe was found to be overbroad because it prohibited not merely speech that was actually disruptive, but also speech that had the purpose of disrupting, regardless of whether actual disruption occurred. Id. at 216. The poli­cy here says relatively little about disrup­tion, whether intended or actual. Rather, it prohibits much speech merely because of its “derogatory connotations” or because it “interferes with another individual’s life.” Assuming that a person of ordinary intelli­gence could even understand what these vacuous phrases mean, the policy here cov­ers vastly more territory than permissible under Tinker.

Third, the policy in Saxe at least at­tempted to apply some sort of objective definition of what might be deemed offen­sive or intimidating. Id. at 215 (“[Hjarass­ment under the Policy ‘can include any unwelcome verbal, written or physical con­duct which offends, denigrates or belittles an individual because of any of the charac­teristics described above.’ ”). By contrast, the policy here focuses expressly on what the individual who believes himself to be the target of the speech believes was the motivation of the speaker. Given the pro­pensity of individuals, particularly adoles­cents, to view themselves as the center of the universe, this strikes me as a particu­larly broad and chilling aspect of the poli­cy. See Sypniewski, 307 F.3d at 268-69 (“When policies focus broadly on listeners’ reactions, without providing a basis for limiting application to disruptive expres­sion, they are likely to cover a substantial amount of protected speech.”). After all, who among us has never made what he thought was an innocuous remark only to learn that somebody else took it as mali­ciously pointed at them?

Fourth, the policy here, unlike that in Saxe, covers much of what lies at the core of political and symbolic speech, such as the presence or defacing of political sym­bols, hanging of effigies, flying of flags, etc. I do not dispute that a school can ban certain political symbols based on experi­ence indicating that those symbols may lead to serious disruption or violence. See Sypniewski, 307 F.3d at 257-58; West, 206 F.3d at 1366. But the wholesale banning of the Stars and Bars, swastikas and the like, without any showing of past disrup­tion or likelihood of future disruption, sim­ply to spare the feelings of students who might be offended by them, strikes me as constitutionally impermissible.13 As the Saxe court noted, “[t]he Supreme Court has held time and again, both within and outside of the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it.” Saxe, 240 F.3d at 215 (citing cases).

Last but not least, the policy here (un­like that in Saxe) prohibits not only speech that denigrates others, but also any speech that the student seeks to justify by expressing pride in his own traits. We are taught to take pride in who we are; it is, in a sense, the American way. It seems particularly chilling to free expression to restrain speech that expresses pride in one’s own religion, ethnicity, sexual orien­tation, etc.

The problems posed by the policy here, not only for Harper but for many other students, are not theoretical or trivial. Assuming, as we must, that on the next Day of Silence Harper will not be allowed to wear a t-shirt expressing his interpreta­tion of Romans 1:27, what exactly can he say or wear? Would a t-shirt quoting Romans 1:2714 be permissible, or is it prohibited because a homosexual student might interpret it as “motivated by bias against him/her”? How about a t-shirt with the message “Straight and Proud of It”? Is this a protected “positive” message, or is it the dreaded “exalting own ... sexual orientation” and therefore hate be­havior? Indeed, is there anything at all that Harper and others of his view can say or do to distance themselves from the Day of Silence proceedings without running the risk that another student will take it per­sonally? May Harper have a discussion at lunchtime where he says: “Homosexuality is sinful”? On his way home from school, may he tell another student a joke dispar­aging the movie Brokeback Mountain? Once he gets home, can he post criticism of the Day of Silence on his MySpace page? Given the broad language of the policy, I believe any and all of these could be punished by the school authorities as hate behavior.

Nor is Harper alone. Consider those who participate in the Day of Silence. They, of course, believe they are doing so to promote tolerance and equality. But others — like Harper — might view it as an effort to exalt homosexuality and denigrate their own sexual orientation and religious beliefs. Relying on the same overbroad policy that the school used to ban Harper’s t-shirt, the school could, if it chose, easily ban the Day of Silence activities as de­meaning the sexual orientation of straight students, or the religious beliefs of Chris­tians like Harper.

All manner of other speech, from the innocuous to the laudable, could also be banned or punished under the school’s hate speech policy. May a student wear a Black Pride t-shirt, or does this denigrate white and Asian students? May a student wear a t-shirt saying “I love Jesus,” or will this make Jews, Muslims and Druids feel it’s an attack on their religions? May a student wear a t-shirt saying “Proud to be a Turk,” or will this cause bad vibrations for the Greeks and Armenians in the school? Will a student be disciplined for disruption if, during a lunch-time discus­sion, he argues forcefully that the State of Israel oppresses Palestinians and, when called on it, defends himself, saying: “I said it because I’m proud to be a Mus­lim.”?

The types of speech that could be banned by the school authorities under the Poway High School hate policy are prac­tically without limit. Any speech code that has at its heart avoiding offense to others gives anyone with a thin skin a heckler’s veto — something the Supreme Court has not approved in the past. See, e.g., Reno v. ACLU, 521 U.S. 844, 880, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); Forsyth County v. Nationalist Movement, 505 U.S. 123, 134, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992); Hustler Magazine v. Falwell, 485 U.S. 46, 55-56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). If the policy in Saxe was enjoined as over-­broad, the policy here must be enjoined as well.15

Conclusion

Because the only disputed issue before us is likelihood of success on the merits, I believe we have no choice but to reverse. I think it is highly likely that Harper will succeed on his t-shirt claim, and I have no doubt he will succeed as to his overbreadth challenge.

That having been said, I acknowledge that the school authorities here found themselves in a difficult situation and, in light of the circumstances, acted well. Harper was not disciplined for wearing his t-shirt; the school authorities merely tried to defuse what they saw as a volatile situa­tion.

I also have sympathy for defendants’ position that students in school are a cap­tive audience and should not be forced to endure speech that they find offensive and demeaning. There is surely something to the notion that a Jewish student might not be able to devote his full attention to school activities if the fellow in the seat next to him is wearing a t-shirt with the message “Hitler Had the Right Idea” in front and “Let’s Finish the Job!” on the back. This t-shirt may well interfere with the educational experience even if the two students never come to blows or even have words about it.

Perhaps school authorities should have greater latitude to control student speech than allowed them by Justice Fortas’s Vi­etnam-era opinion in Tinker. Perhaps Justice Black’s concerns, expressed in his Tinker dissent, see Tinker, 393 U.S. at 524-26, 89 S.Ct. 733 (Black, J., dissenting), should have been given more weight, see Karp, 477 F.2d at 174. Perhaps the nar­row exceptions of Tinker should be broad­ened and multiplied. Perhaps Tinker should be overruled. But that is a job for the Supreme Court, not for us. See Bo­roff, 220 F.3d at 475 (Gilman, J., dissent­ing). While I sympathize with my col­leagues’ effort to tinker with the law in this area, I am not convinced we have the authority to do so, which is why I must respectfully dissent.

1

. Reconciling Tinker and Fraser is no easy task. The Supreme Court majority in Fraser seems to have been influenced by the indeco­rousness of Fraser’s comments, which re­ferred to a fellow student in terms that could be understood as a thinly-veiled phallic meta­phor. See Fraser, 478 U.S. at 687, 106 S.Ct. 3159 (Brennan, J., concurring) (quoting Fra­ser’s comments). The curious thing, though, is that Fraser used no dirty words, so his speech could only have been offensive on ac­count of the ideas he conveyed — the ideas embodied in his elaborate double-entendre. So construed, however, Fraser swallows up Tinker, by suggesting that some ideas can be excluded from the high school environment, even if they don't meet the Tinker standard.

Fraser might also be read as dealing with the situation involving a captive audience be­cause the speech was given at a school spon­sored assembly. However, attendance at the assembly was merely expected, not required, so students were perfectly free not to listen to the offensive speech. See Fraser, 478 U.S. at 677, 106 S.Ct. 3159. Then, again, how were students to know that they would hear a sexu­ally offensive speech when they attended an assembly designed to debate the merits of candidates for student political office? Per­haps Fraser is best read as dealing with the situation where the school sponsors the activi­ty in question and invites or encourages stu­dents to attend. By giving its imprimatur to the activity, the school is, in effect, assuring potential attendees that they will not be sub­jected to anything plainly offensive. So read, Fraser is merely a precursor to Hazelwood, and has no application at all to speech that has no school sponsorship at all — like talk in the corridors or messages on t-shirts worn by students.

2

. See, e.g., Ferris Bueller’s Day Off (Para­mount Pictures 1986); J.K. Rowling, Harry Potter and the Half-Blood Prince (2005); Buf­fy the Vampire Slayer; Beverly Hills 90210; The O.C.; Saved by the Bell; Veronica Mars; and zillions more.

3

. This theme too has been mined by screen­writers ad nauseam. See, e.g., The Breakfast Club (Universal Pictures 1985); Clueless (Par­amount Pictures 1995); 10 Things I Hate About You (Touchstone Pictures 1999); Mean Girls (Paramount Pictures 2004); Saved! (United Artists Pictures 2004).

4

. Giles, it will be noted, is swearing only that this is what he told Ron Harper; he is not swearing this is, in fact, what had happened the previous year. It's possible that Giles's statement to Harper was exaggerated or tai­lored to help defuse the situation. As Giles was not then under oath, a little stretching of the truth to jolly along an angry parent might have been perfectly okay. However, when this statement is imported into the litigation as hearsay, I'm not sure we are bound to believe anything more than this is what Giles told Harper.

5

. I must also mention the incongruity of pro­hibiting speech because others respond to it with violence. Assuming that someone in the previous year wore a t-shirt similar to Har­per's, and was physically attacked “because someone took exception to a message con­cerning sexual orientation,” Giles decl. at 4, I'm not prepared to say that this alone would be sufficient to ban the shirt. Maybe the right response is to expel students who attack other students on school premises. But see Karp v. Becken, 477 F.2d 171, 173, 175-76 (9th Cir.­1973) (upholding confiscation of protest ban­ners based on a variety of factors, including threats of violence by other students).

6

. Assistant Principal Antrim in her declara­tion refers to the Straight-Pride Day the pre­vious year as "unsanctioned,” suggesting a contrast with the Day of Silence. The school authorities have a close working relationship with the Gay-Straight Alliance (GSA), the campus club that sponsors the Day of Silence. After last year’s "tension” over the Day of Silence, the principal and the associated stu­dent body director worked with the GSA throughout the year to set "clearer guide­lines” for this year's Day of Silence, and to “problem solve” tension among students about these issues. Antrim decl. at 2.

7

. The majority waxes eloquent about the right of schools "to teach civic responsibility and tolerance as part of its basic educational mis­sion,” while suppressing other points of view. Maj. op. at 1185. But one man's civic re­sponsibility is another man's thought control. For example, respect for the Constitution and support for the military are commonly re­garded as civic virtues. But laws requiring schools receiving federal funding to hold a Constitution Day or to give military recruiters the names, addresses and phone numbers of their students have proved quite controver­sial. See Consolidated Appropriations Act, 2005, Pub.L. No. 108-447, § 111(b), 118 Stat. 2809, 3344 (2004); 20 U.S.C. § 7908; see also Rumsfeld v. Forum for Academic & Insti­tutional Rights, Inc., - U.S. -, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). Having public schools, and those who fund them, define civic responsibility and then ban opposing points of view, as the majority seems willing to do, may be an invitation to group-think.

8

.Indeed, tolerance may not always be a vir­tue. Tolerating wicked conduct, bigotry or malicious gossip, for example, may not be in the least commendable. Then there is the question of whether we should tolerate into­lerance, a question as imponderable as a M5-­bius strip. Whether tolerance is a good or a bad thing may turn on what we think about the thing being tolerated.

9

. It is clear, moreover, that the California legislature did not intend to make inroads into the speech rights of students, since Cali­fornia Education Code § 48950(a) gives stu­dents greater speech rights than they have under federal law. While Harper waived reli­ance on this section as an independent source of authority for his appeal, see maj. op. at 1176 n. 13, we can certainly consider it in deciding how to construe other provisions of California law. Given the broad sweep of section 48950(a), it is simply not tenable to claim, as the majority seems to, that Califor­nia Education Code sections 200 and 201 limit student speech under the "rights of oth­ers” prong of Tinker.

10

. The majority makes a tepid effort to rely on cases from other circuits, but those cases provide virtually no support. West did not purport to announce a generalized right to be left alone that includes the right not to hear viewpoints one finds uncomfortable. See West, 206 F.3d at 1366. The school board in West confronted a long history of racial strife and banned certain political symbols on both sides of the controversy. See id. at 1361-63. West was not a case about psychic damage but about physical security, and whatever stray comments the majority today has plucked out of West are more in the nature of loose language than a holding, or even dicta.

Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243 (3d Cir.2002), on which the majority also relies, involved a school district with a history of racial strife. Even there, the court upheld the policy pro­hibiting racial "abuse and intimidat[ion]” only insofar as it amounted to bullying. Id. at 264. It emphasized, however, that mere name-calling is protected, and found the poli­cy overbroad insofar as the statements in question merely generated ill will against a student on account of race: "But by itself, an idea's generating ill will is not a sufficient basis for suppressing its expression. ‘The mere fact that expressive activity causes hurt feelings, offense, or resentment does not ren­der the expression unprotected.' ” Id. at 264-­65 (quoting R.A.V., 505 U.S. at 414, 112 S.Ct. 2538). Finally, Saxe, which the majority dis­misses in a brief footnote, see maj. op. at 1179-80 n. 21, cuts entirely the other way, for reasons I explain elsewhere, see pp. 1205 - 1206 infra.

11

. The majority equivocates a bit on this point. At one place it states that "[pjublic school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses.'' Id. at 1178. The majority also does not "exclude ... the possibility that some verbal assaults on the core characteristics of majority high school students would merit application of the Tinker 'intrusion upon the rights of other students’ prong.” Id. at 1183 n.28. Read broadly, this would protect students from be­ing disparaged based on any characteristic that two of my colleagues consider to be "core.” Presumably this could include race, nationality, sex, weight class, hair color and religion — but not political affiliation. See id. at 1182. Next, the majority notes that "schools may prohibit the wearing of T-shirts on high school campuses and in high school classes that flaunt demeaning slogans, phrases or aphorisms relating to a core characteristic of particularly vulnerable students and that may cause them significant injuiy.” Id. at 1182 (emphasis added). Later on, however, the opinion limits the new doctrine to core mi­nority characteristics. See id. at 1182 n. 27. I read the majority's last formulation to be the one it intends, else my colleagues would pret­ty much have ripped the heart out of Tinker.

12

. The majority also seems to say that Harper limited his prayer for relief to the wearing of the shirt, but this is plainly not so. In his motion for a preliminary injunction, Harper moves the district court

for a preliminary injunction prohibiting De­fendants from continuing their violation of the constitutional rights of Plaintiff Tyler Chase Harper. Unless such injunction is­sues, Chase will continue to suffer irrepara­ble harm to his free speech right to speak out on matters at school in a nondisruptive manner, even if they are perceived by oth­ers as “negative” or "derogatory.”

Plaintiffs’ Notice of and Motion for Prelimi­nary Injunction at 3.

In his Memorandum of Points and Authori­ties in Support of the Motion, Harper express­ly challenges the school’s Harassment Policy as a whole on overbreadth grounds. See Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Injunction 14-16.

Finally, the majority declines to address the overbreadth argument on the ground that the district judge didn't believe it was before him. See maj. op. at 1175 n. 11. But if Harper properly presented the issue — and I have no doubt he did — he is entitled to a ruling, even if we have to address the issue in the first instance. Were a district judge's failure to rule on an issue dispositive, district judges could buiy a party's claims simply by ignor­ing them.

13

. There is language in the imprecisely writ­ten opinion in Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir.1996), suggest­ing that a school could restrict “speech that could crush a child's sense of self-worth.” Id. at 1539-40. Muller involved elementary-­school children and probably the best way to read this phrase is as adapting the Tinker-­Fraser standard to younger children. Only Judge Rovner’s concurrence is entirely clear on this point. Id. at 1546-47 (Rovner, J., concurring).

14

. "And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompence of their error which was meet.” Romans 1:27 (King James).

15

. Insofar as West v. Derby Unified School District No. 260 reaches a contrary conclusion on this issue — as I'm afraid it probably does, see 206 F.3d at 1367-68—I must respectfully disagree with my Tenth Circuit colleagues.