Washington Ministerial Exception Cases Continue Slow March To the Supreme Court

From Becket Law

We told you just a few weeks ago that the Ninth Circuit heard oral arguments concerning the ministerial exception.  That exception stands for the proposition that religious organizations cannot be required by anti-discrimination laws to hire as "religionists" people who do not adhere to the organization's religious doctrine. The Catholic Church can't be forced by anti-discrimination laws to hire a gay Bishop. The Washington cases making their way to the Supreme Court involve whether the exception permits discrimination against "co-religionists" who do not live by or adhere to the organizations' religious beliefs.  Co-religionists are people who work as part of an organization's non-religious staff rather than as part of the ministerial staff.  An IT Director, an administrative assistant, a facilities manager or even a faculty member teaching math or a foreign language at a religious school or university, for example. Does the ministerial exception allow religious organizations to discriminate against a lesbian IT director whose job requirements have nothing to do with the doctrine?  The two Washington cases involve Christian ministries who assert the right to limit their hiring of all staff, not just ministerial staff, to people who adhere to the ministries' religious doctrine.  Those organizations want to extend the exception to co-religionists.  At least two justices -- Alito and Thomas -- are eager to hear the cases.  

When the Washington AG sent letters of inquiry to both organizations regarding whether they complied with state anti-discrimination laws, the organizations filed suit seeking to block the inquiries.  The lower courts dismissed the suits for lack of standing, pointing out that the AG had not yet instituted enforcement actions.  The Ninth Circuit reversed the first of those two dismissals in an opinion issued June 7 so it was pretty much a fait accompli that it would do the same in the second case argued just a few weeks ago.  And sure enough it did in an unpublished opinion issued Monday.  

Both cases revolved around "pre-enforcement" standing and both come to the same sensible result granting standing. Here is an excerpt from the latest of the two cases, Union Gospel Mission of Yakima Washington v. Ferguson:   

A. Injury-in-Fact

In Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), the Supreme Court provided a three-prong framework for determining when a plaintiff could bring a pre-enforcement suit: “[A] plaintiff could bring a pre[-]enforcement suit when he ‘has alleged [(1)] an intention to engage in a course of conduct arguably affected with a constitutional interest, but [(2)] proscribed by a statute, and [(3)] there exists a credible threat of prosecution thereunder.’” Id. at 160 (emphasis added) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). YUGM’s allegations satisfy all three Driehaus prongs.

On the first prong, YUGM has alleged that its religious belief-based hiring policies and practices mandate that all employees, including those in positions such as IT technician and operations assistant, adhere to its religious beliefs, which encompass those concerning its view of sexual morality. The complaint further alleges that YUGM will continue to adhere to these hiring practices, and nothing in the record suggests otherwise. See SPU, 104 F.4th at 59 (holding that the first prong was satisfied because SPU, “[i]n the face of faculty and student pressure to change its policies, the [SPU] Board voted to retain the existing employee conduct policy prohibiting same-sex marriage and intimacy”).

On the second prong, we only require that YUGM’s intended future conduct be “arguably . . . proscribed by [the] statute” it wishes to challenge. Driehaus, 573 U.S. at 160 (emphasis added) (quoting Babbitt, 442 U.S. at 298). YUGM challenges the WLAD’s sections with respect to employment discrimination. On this challenge, SPU directly controls, as YUGM has similar, if not the same, employment practices and policies as SPU. See SPU, 104 F.4th at 60 (holding that the allegations that “SPU has and will continue to apply its sexual conduct policies to . . . ministers and non-ministers alike” satisfied the second Driehaus prong because “[t]hese policies arguably violate the WLAD” as interpreted by the AGO).

On the third prong, we apply the three-factor test articulated in Thomas v. Anchorage Equal Rights Commission,220 F.3d 1134 (9th Cir. 2000) (en banc). As we recently clarified:

The final Driehaus prong requires [p]laintiffs to show a “credible threat of prosecution.” To evaluate the threat of prosecution, we consider: (1) whether the plaintiff has a “concrete plan” to violate the law, (2) whether the enforcement authorities have “communicated a specific warning or threat to initiate proceedings,” and (3) whether there is a “history of past prosecution or enforcement.”

Isaacson v. Mayes, 84 F.4th 1089, 1099 (9th Cir. 2023) (quoting Thomas, 220 F.3d at 1139); see also Tingley v. Ferguson, 47 F.4th 1055, 1067 (9th Cir. 2022), cert. denied, 144 S. Ct. 33 (2023).

The Court found that Union Gospel Mission met all the conditions for pre-enforcement standing, noting that the AG's failure to disavow future enforcement action was tantamount to a specific threat or warning and that there need not be a real history of past prosecution or enforcement when a statute has only recently been enacted or interpreted to prohibit the activity that might lead to prosecution.  So we can expect that these cases are just one step closer to the Supreme Court.  

darryll k. jones