Christian mission fights to keep religious hiring exemption intact

SEATTLE (CN) — Whether a Washington church can keep an order preventing the state from enforcing an anti-discrimination law came before a three-member panel of the Ninth Circuit Court of Appeals on Tuesday, as the state argued for the court to toss the injunction.

“They want to be able to discriminate in hiring for any position, whether ministerial or nonministerial,” argued Cynthia Alexander, deputy solicitor with the Washington Attorney General’s Office.

The Union Gospel Mission of Yakima sued then-Washington Attorney General Bob Ferguson and other state representatives in 2023, arguing that its First Amendment rights were violated under the Washington Law Against Discrimination that prevents religious employers from exclusively hiring employees of a certain faith for nonministerial positions.

The federal court initially dismissed the suit, with U.S. District Judge Mary Dimke finding that the Yakima mission lacked standing and concluding that the action was a “veiled attempt to seek appellate review” of the state Supreme Court’s 2021 decision in  Woods v. Seattle’s Union Gospel Mission , in which it found that a Christian organization had improperly denied a man a staff attorney job after discovering he was in a same-sex relationship. However, the Ninth Circuit disagreed with the lower court and remanded the case after concluding that the Yakima mission had standing.

Back in the lower court, Dimke declined to dismiss the Yakima mission’s suit against the state and shortly thereafter enjoined the state from enforcing its anti-discrimination law against the Yakima mission, prompting Washington to return to the Ninth Circuit.

That preliminary injunction “ fundamentally misapplies free exercise law,” Alexander argued before the panel on Tuesday.

“For all practical purposes, it would immunize religious organizations from having to comply with any state or federal law that contains a small business exception, or really any categorical exception, including those like the one at issue here that applies it identically to religious and secular organizations,” Alexander said.

The state argued that the Ninth Circuit should turn to its recent decision in Olympus Spa, et al. v. Armstrong, et al. , in which the court held that the state’s discrimination law is neutral and generally applicable, to form an opinion in this case.

The state also argued that the Yakima mission doesn’t have the standing to obtain a preliminary injunction because the state has stipulated that it won’t enforce the anti-discrimination law against it regarding its hiring practices.

U.S. Circuit Judge Johnnie B. Rawlinson, a Bill Clinton appointee, and U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, both appeared skeptical about the nature of the state’s promise not to pursue enforcement regarding particular open positions for which the Yakima mission is hiring.

“The real implied threat there is ‘We’re gonna enforce it against other positions,’” Bumatay said.

Alexander argued that the Yakima mission wasn’t even on the attorney general’s radar until it filed the lawsuit, “frankly out of the blue.”

Rawlinson noted that the state originally had an exemption in its anti-discrimination law for religious nonprofit organizations, and Alexander clarified that the exemption was removed in Woods when the state Supreme Court determined it would violate the Privileges and Immunities Clause as a matter of state law.

“It’s true that the First Amendment gives special solicitude to the rights of religious organizations, but here, the district court’s ruling goes so far beyond free exercise law that it’s error — it’s abuse of discretion,” Alexander said.

U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, questioned why the Yakima mission autonomy doctrine doesn’t apply in this instance.

“What is a church supposed to do? If somebody applies and says, ‘I just strongly disagree with the church’s religious beliefs,’ would we say they have, nonetheless, a state law right, to be able to be considered irrespective of that?” Bress asked. “That would seem to be a major intrusion on the church.”

The Yakima mission urged the panel to leave the lower court’s injunction in place. The Union Gospel Mission of Yakima operates a homeless shelter, recovery program and thrift store and provides meal services to those in need, it argued it should have the freedom to hire those who live the values of its faith — such as abstaining from “sexual immorality, including adultery, non-married cohabitation, and homosexual conduct” — when it hires employees.

“The First Amendment does not allow the government to force a religious organization to hire someone who rejects its faith,” argued Jeremiah Galus, attorney with the Alliance Defending Freedom representing the Yakima mission.

Galus conceded that the positions in question in the case are non-ministerial.

“That’s why the protection here is incredibly important, and the recognition that church autonomy can still protect a hiring decision that is what pretty much all religious organizations do, which is to ask those who work for them to share and live out their beliefs,” Galus said.

As for the limits of the exceptions, Bress questioned whether the line of logic could be extended to religious organizations that are not strictly ministerial, like a hospital.

Galus noted that one would have to look into the sincerity of the organization’s religious beliefs and justify the importance of why employees should share their faith.

“ Once it’s done that, then I don’t see how the government could come in and second-guess it,” Galus said.

Before the exemption was removed, the Yakima mission would ask job applicants about their religious beliefs during the hiring process, Galus said. Now, it refrains from doing so but intends to return to that practice.

“What we’re seeking here really is a partial exemption where they’re just asking to be allowed to hire those who share and live out their faith, willing to comply with other aspects of the [Washington Law Against Discrimination],” Galus said.

Plus, the Yakima mission argued that the law already has an exemption for small businesses that employ eight or fewer people.

“Here, the government’s asserted interest is in the elimination and prevention of discrimination, and if you go through these exemptions, that interest is being undermined,” Galus said.

The Ninth Circuit panel did not indicate when it would rule.