What happens when the Washington Law Against Discrimination crashes headlong into the 1st Amendment right of religious employers to choose workers who reflect their beliefs? Last week the Washington Supreme Court decided the answer is “it’s complicated.” In Woods v. Seattle Union Gospel Mission, a decision that took a year and a half (yes, that’s a very long time for this court) to release, the court issued 62 pages of opinions with a majority, concurrence, and a dissent in part, and includes two justices who haven’t been on the court for at least a year. Plus, the case features approximately eleventy billion amicus curiae.
Background
Seattle Union Gospel Mission (SUGM), the defendant in this case, is an evangelical organization that serves the homeless community in Seattle, including with a legal aid clinic. Matthew Woods, the plaintiff, is a Christian who started volunteering at the legal aid clinic while in law school. He signed SUGM’s statement of faith (which said nothing about sexual orientation). After he became a lawyer, Woods inquired about an available staff attorney position at the legal aid clinic. He disclosed that he was in a same-sex relationship. SUGM told him that employees had to obey a biblical moral code that excludes “homosexual behavior.” Nevertheless, Woods applied for the position but was not hired.
Woods filed a complaint against SUGM under the Washington Law Against Discrimination (WLAD), which prohibits discrimination on the basis of sex, sexual orientation, and gender (among other things). The WLAD also has an exemption excluding religious and sectarian nonprofit organizations from the definition of employer, meaning the WLAD does not apply at all to religious nonprofits.
Woods sued, claiming the religious exemption was unconstitutional as applied to him, citing article I, section 12 of the Washington State Constitution (the privileges and immunities clause), because the duties of a staff attorney do not involve ministerial duties, and it was therefore unconstitutional for the Legislature to give such a blanket exemption to nonprofit religious organizations.
In 2014, the Washington Supreme Court considered a facial challenge to the constitutionality of the WLAD’s religious exemption. In Ockletree v. Franciscan Health Systems, the plaintiff, who was African American, worked as a security guard at a religiously-affiliated hospital. He was fired and then sued, claiming his termination was the result of racial and disability discrimination. On certification from the Western District of Washington, the court split 4-4-1 in that case with the lead opinion holding the religious exemption was not unconstitutional, the dissent concluding it unconstitutional as applied to the plaintiff, and the concurrence in the dissent agreeing it was not facially unconstitutional, but would have reformulated the certified question and under that question, he would’ve found the religious exemption unconstitutional as applied.
Which sets the stage for the current case.
Majority Opinion
The good news is that this time, there’s a majority opinion with six votes!
Article I, section 12 of the Washington Constitution provides: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” This provision is similar to the federal Equal Protection clause, but its purpose was intended to prevent favoritism and special treatment for a few while the Equal Protection clause was intended to prevent discrimination against disfavored individuals or groups.
To determine the constitutionality of the religious exemption to WLAD under article I, section 12, there is a two-pronged analysis: (1) whether the exemption granted a privilege or immunity implicating a fundamental right, and if so, (2) whether the distinction is based on reasonable grounds.
The majority concluded two fundamental rights are present—the right to an individual’s sexual orientation and the right to marry—by reviewing the US Supreme Court’s recent jurisprudence involving same-sex couples and same-sex conduct, including Justice Stevens dissent in Bowers v. Hardwick, and the majority opinions in Lawrence v. Texas and Obergefell v. Hodges.
As for the second prong, the court held generally speaking, there are reasonable grounds for the WLAD to distinguish religious and secular nonprofits. There are several reasons for this. The religious exemption has been in the statute since it was enacted in 1949. Even as the protections were increased by the Legislature, the religious exemption remained. The Washington Constitution also protects religious liberty and offers greater protections that the US Constitution. The US Supreme Court has upheld the exemption for religious organizations from federal discrimination suits to avoid infringing on religious freedoms.
However, whether reasonable grounds exist to support the application of the religious exemption to this case is a different analysis. The WLAD contains no limitations on the scope of the exemption, so to determine its parameters, the majority looked to US Supreme Court analysis governing the ministerial exception to federal anti-discrimination laws.
The majority noted that in the recent cases of Our Lady of Guadalupe School v. Morrissey-Berru and Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the US Supreme Court concluded that the First Amendment prohibits the government from interfering with the right of religious entities to decide matters of “faith and doctrine“ and “church government” including internal management and employment decisions. There’s a list of factors courts look at to decide whether a particular position falls within the ministerial exception, but the main focus is on what the employee does. So even though teachers at religious school are not given the name of “minister,” their core responsibilities include teaching religion so they serve the same function.
The majority notes that some of the criteria are met here and some are not. While all SUGM employees are expected to evangelize, there is no evidence staff attorneys had training in religious matters or teach religious doctrine. And while staff attorneys are expected to share their faith with clients, there is no evidence they are required to nurture their clients’ Christianity. SUGM is not a church or a religious entity responsible for the spiritual lives of its members. SUGM employment is not sufficient religious affiliation and employees are expected to be active members of local churches. Woods sought employment as a lawyer, not a religious minister or teacher and no religious training is necessary for staff attorneys.
Given this guidance, the court leaves the ultimate decision to the trial court to determine in the first instance whether a staff attorney qualifies as a minister, which would bar Woods’ discrimination claim.
Justice Yu’s Concurrence
While ultimately agreeing with the outcome that there are factual questions regarding the duties of a staff attorney, Justice Yu writes separately to emphasize how narrow the ministerial exception is, which she also refers to as a “license to discriminate” several times. She notes it applies only to religious institutions, such as churches, but not other entities such as legal, medical, or commercial institutions, and only to their ministers.
Justice Yu issues a plea for inclusion:
Given our state’s long-standing commitment to eradicating discrimination and to fostering a diverse workforce, it is my greatest hope that religious institutions will recognize and embrace the choice to limit the “ministerial exception” to those employees for whom such an exception is absolutely necessary and grounded in sound reason and purpose. After all, the right to exclude the LGBTQ+ community from ministerial employment by religious institutions is not a right that must be exercised. Rather, it is a choice by that religious institution and it is a choice that is not governed by an external judicial doctrine but rather one carved out by the religious entity itself.
And then Justice Yu follows the plea with a warning:
Religious institutions making such a choice should be forewarned that today’s decision bars redefining every aspect of work life as “ministerial.” This court, like the United States Supreme Court, will insist that trial courts carefully evaluate claims that a particular employee who is not a traditional minister should nevertheless be reclassified, in hindsight, as a minister.
But the real point of her separate concurrence is to explain why she thinks it will be difficult to classify a lawyer licensed by the state as a minister. Attorneys are required to comply with the Washington Rules of Professional Conduct, one of which requires a lawyer to be guided by the client’s interests, not the lawyer’s or the lawyer’s employer’s interests. She emphasizes how difficult it would be to act as both an attorney and minister while complying with the RPC’s. Attorneys are not teachers of religious doctrine—they are charged with providing objective legal advice that may, in fact, conflict with the religious beliefs of their employer.
Justice Yu was joined in her concurrence by Justice Gonzalez.
Justice Stephens’ Dissent
This is a 31-page dissent, heavy on substantive disagreement with the majority, so buckle in. This could take awhile.
Her dissent is part of an ongoing disagreement on the court about these issues, and her dissent reads to me (I could be wrong) like Justice Stephens is frustrated by the mistakes she sees the majority making. There are several interesting substantive—and pointed—discussions in footnotes that illustrate her frustration and go back to previous cases.
Justice Stephens would hold the religious exemption unconstitutional under the state’s privileges and immunities clause because it is overly broad and categorical by favoring religious nonprofits over all other employers without reasonable grounds for doing so. Therefore Justice Stephens would reverse and remand for further proceedings to allow SUGM to brief and argue an affirmative defense to WLAD liability based on the ministerial exception available under 1st Amendment jurisprudence.
She begins by criticizing the majority for evading the constitutional question actually before the court, which is whether the actual language of the religious exemption violates article I, section 12—and not whether the religious exemption can be narrowed and constitutionally applied by looking to the ministerial exception.
Justice Stephens is especially critical of the majority for locating the fundamental rights exclusively in federal due process case law. As she said, that unnecessarily limits the principles of antidiscrimination that Washington recognizes as fundamental. In footnote 4, she makes clear she would hold the right to live free from discrimination based on sexual orientation as a fundamental right of state citizenship but said the majority failed to do that. And she faults the majority for failing to address Andersen v. King County, the case that infamously found marriage equality was not a fundamental right in 2006. (The lead opinion in Andersen also happens to be written by the author of this case’s majority opinion—something I’m sure that did not escape the notice of Justice Stephens.)
As Justice Stephens explains, the majority used the wrong constitutional foundation because whether a statute violates due process is distinct from whether it grants a privilege or immunity under the state constitution. The court has never before equated fundamental rights protected by federal due process with the fundamental rights of state citizenship protected by article I, section 12. And for good reason. They protect different rights for different reasons.
She goes on to explain that the majority opinion minimizes the effect and importance of the WLAD. She would hold that the WLAD implicates the civil right to seek redress for discrimination as a fundamental right of state citizenship.
With that background, she applies the privileges and immunities analysis, noting that the religious exemption created a status-based privilege to discriminate in employment solely because an organization is a religious nonprofit. This implicates a fundamental state right as noted above.
She rejects the characterization by the majority that this case pits a statutory right to be free from discrimination from a religious employers’ constitutional right to choose workers who reflect their beliefs. As she points out, even under the majority’s analysis it should be the opposite—the worker’s constitutional rights should be balanced against the religious organization’s statutory right to exemption from the WLAD. And as she notes in footnote 6, the right to be free from discrimination is more than just a statutory right; it’s a fundamental state right that was recognized by 5 justices in Ockletree (the dissent and concurrence in dissent). (Perhaps not surprisingly, Justice Stephens was the author of the dissent in Ockletree.)
She would find the religious exemption was not based on reasonable grounds. The reasonable grounds test is more exacting than rational basis scrutiny. So the court will not hypothesize facts to justify the legislation. There must be real and substantial differences bearing a reasonable relation to the subject matter of the law. The court must consider the stated goal or purpose of the legislation and not infer it. In other words, they must take the statute as they find it.
Justice Stephens said the religious exemption was not an attempt by the Legislature to try to balance various rights. It applies only to religious nonprofits, and it applies to all their activities regardless of whether they are religious activities. The exemption does not apply to secular employers who have protected religious rights. The subject matter of the WLAD is anti-discrimination, not the protection of religious rights. By inferring the goal of the WLAD was to balance religious rights with individual rights, they risk the heightened standard of reasonable grounds review devolving into rational basis review.
So the question becomes, is the broader purpose of the statutory scheme served by the religious exemption? The answer to her is obviously no. In fact, the religious exemption works directly against the WLAD’s goal of antidiscrimination by allowing religious employers to discriminate. She finds it nonsensical (my word, not hers) the majority would say this passes the reasonable grounds review.
She’s also critical of the majority’s reliance on the US Supreme Court’s ministerial exception jurisprudence, not because it’s wrong, but because it has no bearing on whether the Washington Legislature articulated reasonable grounds for granting the sweeping exemption. This is especially true since the ministerial exception was not recognized by the US Supreme Court until 2012—63 years after enactment of the WLAD.
In footnote 8, she comes back to a discussion about the majority impermissibly reframing and narrowing the religious exemption. The question is, are there reasonable grounds for the Legislature to have provided an exemption that categorically removes religious nonprofits from the WLAD based solely on their their status? Justice Stephens says no. Instead, the majority has skipped that step and incorporated the analysis of the separate affirmative defense SUGM might raise to the application of the WLAD based on the ministerial exception. As she says, “We cannot assume the existence of SUGM’s unproven as-applied challenge to WLAD liability in order to rewrite the statute and then put the burden to Woods to challenge it.”
The application of the ministerial exception is premature, as SUGM did not argue the ministerial exception applied and it did not argue its lawyers qualify as ministers. Courts consider the ministerial exception as an affirmative defense to a generally applicable law—and not to reconstruct a defective exemption for religious nonprofits.
She would remand to allow SUGM to develop its ministerial exception as an affirmative defense.
She also rejects SUGM’s argument that allowing it to be held liable under WLAD by invalidating the religious nonprofit exemption would violate its free exercise rights. She would find the WLAD is a neutral law of general applicability because the object of the law is to prevent discrimination, not to infringe upon or restrict religious practices and it does not seek to selectively burden religiously motivated conduct. In fact it applies to all employers except religious employers.
Because the WLAD is a neutral law of general applicability, rational basis scrutiny, rather than strict scrutiny, applies. WLAD easily meets this standard because it is rationally related to the government’s legitimate interest in elimination and prevention of discrimination in employment. SUGM may assert the ministerial exception as an affirmative defense to their employment practices in the context of ministerial or ecclesiastical employment—but not to nonministerial positions.
Finally, she addresses SUGM’s argument that article I, section 11 of the Washington Constitution limits its liability under the WLAD. She assumes without deciding that strict scrutiny applies and that SUGM based its employment decision on a sincerely held religious belief and application of the WLAD substantially burdens its religious belief by preventing it from discriminating based on sexual orientation. So the real questions here are does the WLAD serve a compelling governmental interest and is it the least restrictive means to achieve that interest? Quoting Burwell v. Hobby Lobby, “The Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” The same result applies here because preventing discrimination based on sexual orientation is just as much a compelling governmental interest.
Noting that the court recently held unanimously that the WLAD survives strict scrutiny when applied to a flower shop owner who refused to provide custom floral arrangements for a same sex wedding, she would apply that same reasoning here. Employment and public accommodation antidiscrimination laws serve the same purpose, which is eradicating barriers to the equal treatment of all citizens. Exemptions for sincere religious beliefs would frustrate the goal of antidiscrimination.
Justice Stephens was joined in her dissent by former Justice Fairhurst, sitting as a Justice Pro Tem.