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Alito and Thomas eye bigger carveout for churches to discriminate in hiring

State nondiscrimination laws could be on the chopping block, should the right case come to the court. 

WASHINGTON (CN) — A church accused of discriminating against a bisexual lawyer lost its bid for a Supreme Court hearing but still caught the attention of two conservative justices Monday.

“To force religious organizations to hire messengers and other personnel who do not share their religious views would undermine not only the autonomy of many religious organizations but also their continued viability,” Justice Samuel Alito wrote in In a statement about the case this morning, with Justice Clarence Thomas concurring. “If States could compel religious organizations to hire employees who fundamentally disagree with them, many religious non-profits would be extinguished from participation in public life — perhaps by those who disagree with their theological views most vigorously.” 

The case concerns a lawyer, Matthew Woods, who applied for an open staff attorney position at a legal clinic operated by the Union Gospel Mission in Seattle. Though Woods had been volunteering with the clinic since his first year of law school, continuing such work for three years, he learned that his sexual orientation might be a barrier to him getting the job.

As a volunteer, Woods had signed a statement of faith that did not reference sexual orientation, but the employee handbook prohibits “homosexual behavior.” He asked the clinic's director — who had previously encouraged him to apply — if being bisexual would be a problem, and the director said he would not be able to apply for the position now. Woods applied anyway and his application was rejected. 

In November 2017, Woods sued the clinic under Washington state’s Law Against Discrimination. A trial court dismissed the suit, but the state Supreme Court reversed after balancing the anti-discrimination law's religious exemption against the protections for sexual orientation and same-sex marriage implicit in the Washington Constitution’s Privileges and Immunities Clause.

On remand, the court said the parties would have to demonstrate whether staff attorneys for the mission qualify as ministers to satisfy the ministerial exception. 

Though Alito and Thomas said the case is not the ideal vehicle to expand the ministerial exception, they noted Monday that it "illustrates a serious risk,” speculating that Woods applied for the position only out of protest and with the goal of changing the church’s mission. 

“Driving such organizations from the public square would not just infringe on their rights to freely exercise religion but would greatly impoverish our Nation’s civic and religious life," Alito wrote. 

Alito chided the Washington Supreme Court for construing the religious exemption narrowly to avoid conflict with the Washington Constitution, saying that move "may, however, have created a conflict with the Federal Constitution." 

The justices concurred with the denial because the state court did not address if applying state employment law to require the church to hire someone would infringe on the First Amendment. The Washington Supreme Court’s decision is also not a final judgment.

“The Washington Supreme Court’s decision may warrant our review in the future, but threshold issues would make it difficult for us to review this case in this posture,” Alito wrote.  

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