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'Shocking animus': SCOTUS urged to overturn Washington ruling against religious employers

Republican attorneys general, lawmakers join Christian, Jewish, Muslim groups to defend Union Gospel Mission's right to hire only "coreligionists."

Published: September 8, 2021 3:41pm

Updated: September 11, 2021 10:18pm

When the Washington Supreme Court gutted protections for religious employers in a state antidiscrimination law, it threw down the gauntlet against both federal law and several federal appeals courts, according to Seattle's Union Gospel Mission (UGM).

The Christian homeless ministry is petitioning the U.S. Supreme Court to review the ruling, and last week several prominent Christian service ministries, Washington state lawmakers, a third of the states and even a Muslim group joined its cause, filing friend-of-the-court briefs.

Bisexual lawyer Matthew Woods sued UGM for not hiring him for its legal aid clinic because he was in a same-sex relationship in violation of its lifestyle rules for employees. The state high court ruled UGM could only apply the rules to "ministerial" employees, not other staff.

Yet the Washington Law Against Discrimination has exempted religious nonprofits since its passage in 1949, and that protection was reaffirmed when sexual orientation was added in 2006, according to a brief by 19 Washington Republican lawmakers, mostly in committee and party leadership.

They cited more than 300 years of religious accommodations in military service, oath-taking, medical treatment, abortion services and civil rights, including the employment-focused Title VII, which recognizes religious employers' First Amendment rights to only hire "coreligionists."

The state high court showed "shocking antireligious animus" against UGM and endangered similar organizations as well as private schools and even houses of worship, who are "left without legal protection from intrusive and potentially ruinous employment-related enforcement actions and lawsuits," the GOP lawmakers said.

These groups will suffer "an actual chilling effect" if they have to predict "which of their activities the Washington State Human Rights Commission or a secular court will consider religious." They cited the controlling precedent of the 9th U.S. Circuit Court of Appeals, which sided with World Vision for firing technical and office employees who rejected the doctrine of the Trinity.

Alabama Attorney General Steve Marshall led his Republican counterparts in Alaska, Arizona, Arkansas, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, Nebraska, South Carolina, Tennessee, Texas, Utah and West Virginia in challenging the Washington court.

The AGs were appalled by the ruling's language, which suggests state lawmakers have statutory authority to regulate constitutional rights. No one argues there was anything "pretextual" about UGM refusing to hire Woods: The case is about whether a religious nonprofit can be forced to hire "those who disagree with — and expressly seek to change — its theology."

Their brief repeatedly accuses the court of botching an "easy case" that "need not even implicate" the ministerial exception formalized by the U.S. Supreme Court nearly 10 years ago. By directing the trial court to determine if UGM attorneys are ministers — a claim the ministry never made — the Washington Supreme Court subjects the group "to further litigation costs and uncertainty over its future," gutting its First Amendment protections.

A concurrence by Justice Mary Yu, approvingly cited by the majority, even claimed that attorneys will violate professional conduct rules if they simultaneously act "as a minister." This is no different than the religious hostility the U.S. Supreme Court observed in the Colorado Civil Rights Commission's ruling against Christian baker Jack Phillips for refusing to make a same-sex wedding cake, the AGs said.

Montana and its top legal officials, including Attorney General Austin Knudsen, filed their own brief emphasizing the congruity of legal and religious responsibilities, countering Yu's concurrence.

Knudsen and his subordinates are "people of faith who believe they have and can continue to fully honor their religious, professional, and civic obligations," the brief said. "Indeed, the practice of law is enriched — not compromised — by the participation of fully integrated lawyers," and the U.S. Supreme Court should reject "even subtle attempts to force ideological conformity upon members of the bar."

The late evangelist Billy Graham's politically outspoken son Franklin makes two appearances in the docket. He's president of relief organization Samaritan's Purse, whose brief emphasized that "ministries of mercy to the most vulnerable and oppressed" are integral to Christianity.

Yet ministries that hold fast to the faith's "moral injunctions — all of them" have recently faced "cancellation" when they tried to serve the sick. New York City's human rights commission investigated Samaritan's Purse when it turned away an activist, who refused to sign its statement of faith, from volunteering in its mobile field hospital to treat COVID-19 patients.

The purpose of the investigation was "to undermine Samaritan's Purse's policy of hiring only Christians who share its beliefs to serve in its Christian ministry," the brief said. The high court's attack on state law would mean that "if tragedy strikes in Seattle, Samaritan's Purse would be turned away."

Franklin Graham also leads the Billy Graham Evangelistic Association. Its brief says the obligation to proclaim the gospel "extends to all of its employees — from accountants to event planners to Rev. Franklin Graham himself — because every employee is a member of the Body of Christ," and "every task is purposed for the furtherance of the Gospel, and accordingly, has eternal significance."

The association was especially alarmed by Justice Yu's concurrence, which characterized its right to hire coreligionists as a "right to discriminate" and urged religious organizations to only use faith in hiring decisions when "absolutely necessary and grounded in sound reason and purpose."

A long line of cases makes clear that "civil courts are not equipped to second-guess a religious organization's determination of whether a given employee or applicant is a coreligionist" without endangering First Amendment rights, the association argues.

A brief by the Islam and Religious Freedom Action Team of the Religious Freedom Institute and Jewish Coalition for Religious Liberty argues that the Washington ruling "will have especially deleterious effects on adherents of minority religious faiths" in service organizations.

Jewish and Muslim organizations "often engage in activities that, in Christian thought, may not appear to be religiously significant or in furtherance of a religious mission" but are "deeply connected" to their religious mission, they said.

"In a country with at least 221 recognized religions," as determined in 2017 by the Defense Department, "it would be impossible for any judge to understand the central tenets, much less the scope of activities, of all those religious groups" for the purpose of determining which activities are religious.