Washington defends religious hiring law before full Ninth Circuit

It's not the first time the Ninth Circuit has taken on the Union Gospel Mission of Yakima's claims that a state antidiscrimination law prevented it from hiring only those who believed in its mission.(CN) — An en banc Ninth Circuit panel on Tuesday reconsidered whether Washington had the right to enforce its antidiscrimination law after a church raised a constitutional challenge to it.“In this case, the plaintiffs are asking you to adopt a radically different rule that no court has ever endorsed, giving religious employers carte blanche to discriminate in hiring for any position,” Noah Purcell, Washington Solicitor General. “This court should reject that invitation.”The Union Gospel Mission of Yakima sued then-Washington Attorney General Bob Ferguson and other state representatives in 2023, arguing its First Amendment rights were violated under the Washington Law Against Discrimination. The law prevents religious employers from exclusively hiring employees of a certain faith for nonministerial positions.The church argued it was prevented from hiring for two open positions for an IT technician and an operations assistant because the law would require it to hire “non-believers,” which it said violated its religious rights.The federal court initially dismissed the suit; however, the Ninth Circuit revived and remanded it last year. The lower court then blocked the state from enforcement, prompting Washington to return to the Ninth Circuit.In January, the Ninth Circuit rejected that attempt, finding the state can’t override the First Amendment’s church autonomy doctrine. The state then petitioned for a rehearing en banc, prompting the hearing before an 11-judge panel.“In the name of religious liberty, they are asking you to adopt a rule that would actually allow more discrimination against religious people,” Purcell argued.But the judges weren’t completely convinced.“Generally speaking, your argument doesn’t make any sense to me that, like that somehow it’s bad that some religious organization would wanna keep out other religions,” said U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee. “That seems to be inherent in the concept of having religious organizations at all.”U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, noted the court’s hesitancy to second-guess the church’s motivation, and fellow Obama appointee U.S. Circuit Judge Michelle Friedland questioned whether the church even had standing to sue since the state had never tried to enforce the law against it.To the standing issue, the state agreed. Much of the discussion centered on whether small positions within the church — say a janitor — were ministerial.“The key point is that what an organization cannot do is just have an across-the-board status-based rule for any position, no matter how few religious duties it has,” Purcell said.The state argued the rule the church is seeking would allow a religious organization to discriminate in hiring for any role, no matter how tangential it is to the mission. It also clarified that the antidiscrimination law only prevents discrimination based on status; it wouldn’t prevent an employer from enacting consequences if an employee was actively trying to undermine the mission of an organization.As it stands, Washington’s policy is that there is no exemption to the antidiscrimination law beyond the ministerial exemption for any employer with more than eight employees.The church maintained its argument that inhibiting its hiring inherently violates its religious autonomy.“It is difficult to imagine a decision that is more central to a religious organization than who is religiously qualified to carry out its religious mission,” said Kristen Waggoner with Alliance Defending Freedom.The panel had questions about the crux of the conflict, considering the state had never enforced the law against the church and had stated it believes the church is exempt.“Is it the case that your organization is essentially so suffused with religiosity that everyone is a minister under the ministerial exception, and so maybe you’re ultimately all on the same page?” asked U.S. Circuit Judge Daniel Collins, a Trump appointee.VanDyke noted there didn’t seem to be that great a difference between the church’s position and the state’s position; Friedland agreed.“There’s this ‘ships passing in the night’ problem here that I can’t untangle,” Friedland said. “It’s very befuddling.”The church admitted that not every position it wishes to hire for would be considered ministerial and therefore exempt from the law, though the panel noted that some of the job descriptions expressly state the duties require the employees to serve as a minister of Christ.“Do you feel like you’re between a rock and a hard place?” asked U.S. Circuit Judge Kim Wardlaw, a Bill Clinton appointee. “Because you’re acting like it.”The church clarified it believed the three-judge panel had correctly determined the church autonomy doctrine applied.“It’s not up to the court to determine what is central to the mission. It’s up to the religious organization,” Waggoner argued.Chief U.S. Circuit Judge Mary Murgia, an Obama appointee, and U.S. Circuit Judges Johnnie B. Rawlinson and Ronald Gould, both Clinton appointees, along with Mark Bennett, a Trump appointee, and Joe Biden appointees Lucy Koh and Ana de Alba rounded out the en banc court, which did not indicate when it would rule.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads