SEATTLE (CN) — Seattle Pacific University asked the Ninth Circuit to revive its First Amendment claims against Washington state Attorney General Bob Ferguson on Thursday, arguing that a federal judge improperly dismissed its challenge to Ferguson’s investigation over its hiring practices regarding LGBTQ individuals.
The appeal hearing arrived roughly a year after U.S. District Judge Robert Bryan dismissed the private Christian university’s lawsuit against Ferguson for a lack of redressability. The lawsuit, filed in July 2022, accused the attorney general of launching an unconstitutional investigation of the school’s hiring practices after receiving complaints about the school’s policy that prohibits employees from same-sex sexual activity.
Ferguson’s investigation specifically sought to determine whether the university’s employment policies discriminate on the basis of sexual orientation in violation of the Washington Law Against Discrimination. His office requested five years of information regarding the school’s internal religious matters, hiring practices, communication between ministerial employees and the selection of the school leadership positions.
Seattle Pacific argued the investigation violated its First Amendment rights by interfering with its relationship with the Free Methodist Church, which established the school in 1891. The school’s claims also included First Amendment retaliation, interference with church autonomy and other violations of the free exercise and establishment clauses of the First Amendment — ultimately seeking a declaration that it is constitutionally free to make its hiring and doctrine decisions and that the state cannot apply its anti-discrimination law to the school.
But in light of how Ferguson’s notice to Seattle Pacific did not require mandatory compliance or any determination that it had broken Washington state law, Bryan determined that any injury to the school could not be remedied without changing state law and limiting the powers of Ferguson’s office.
On Thursday, Seattle Pacific attorney Lori Windham argued that Bryan incorrectly ruled that the district court could not redress the school’s claims, stating that Seattle Pacific never disagreed with how the Washington Supreme Court interpreted the state’s constitution.
“We’re asking a separate question: Does the WLAP, as authoritatively interpreted and applied by the state Supreme Court violate SPU First Amendment rights,” Windham said. “That is a federal question that federal courts can entertain.”
Windham added that Seattle Pacific sought declaratory and injunctive relief specific to this question regarding how the law affects its relationship with ministerial versus non-ministerial employees.
“We have those claims, the district court failed to even consider those,” Windham said. “And that alone is reason to reverse and remand because this court has said that standing is assessed with regard to each claim and each separate from of relief that is sought.”
U.S. Circuit Judge Margaret M. McKeown agreed that there appeared to be some blending of redressability with the merits by the district court. However, the Clinton appointee didn’t exactly agree with Seattle Pacific’s view that Ferguson’s inquiry represented an institution-wide fishing expedition, later noting that the school seems to be jumping to conclusions over what Ferguson’s office will do with the information it has.
To this point, Washington state Assistant Attorney General Daniel Jeon argued there is no factual information for a federal court to justify blocking Ferguson from prosecuting Seattle Pacific or making a basic inquiry into whether its employment practices comply with state civil rights law.
“The university is asking, essentially, for a blank check to apply the law however it sees fit with respect to all of its employees,” said Jeon. “That’s the only way that it would get the redress that it is asking for here.”
“It may or may not be able to do that,” McKeown said. “But why wouldn’t that be a question after discovery for the court to determine whether it had the factual or legal foundation to issue such an injunction or declaratory judgment?”
U.S. Circuit Judge Mark J. Bennet, a Trump appointee, made similar observations during Jeon’s argument, pivoting back to Windham’s point of how Ferguson’s defense collapses the pre-enforcement challenge’s merits into the standing analysis.
After a brief rebuttal from Windham, U.S. Circuit Judge Ronald M. Goud, another Clinton appointee, adjourned the hearing. The panel did not indicate how they would rule.
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