Ninth Circuit: En Banc Rehears Washington Religious Hiring Law Challenge

• The Ninth Circuit Court of Appeals is conducting an en banc rehearing to reconsider a challenge to Washington's anti-discrimination law by the Union Gospel Mission of Yakima.
• The mission argues the Washington Law Against Discrimination violates its First Amendment rights by preventing it from hiring only believers for non-ministerial roles like IT technician and operations assistant.
• Washington, now represented by Attorney General Nick Brown and Solicitor General Noah Purcell, contends the law prevents status-based discrimination and that the mission seeks an unprecedented expansion of religious hiring exemptions beyond the ministerial exemption.
• Judges questioned both the state's arguments against religious preference and the mission's standing to sue, as the law had not been enforced against it.
• The outcome will clarify the scope of religious exemptions under anti-discrimination laws for non-ministerial positions for religious employers in the Ninth Circuit.

The outcome of this en banc review is poised to clarify the permissible boundaries of religious exemptions under anti-discrimination statutes for roles not directly involved in religious instruction or leadership.

The full Ninth Circuit Court of Appeals recently convened an en banc panel to re-examine a significant challenge to Washington's anti-discrimination statute, a case that pits religious freedom against state regulatory power. This marks the latest development in a long-running legal battle involving the Union Gospel Mission of Yakima, which asserts that the Washington Law Against Discrimination (WLAD) infringes upon its First Amendment rights by restricting its ability to hire exclusively individuals who share its faith for certain non-ministerial positions. The state, represented by Attorney General Nick Brown and Solicitor General Noah Purcell, urged the court to reject what it characterized as an unprecedented expansion of religious employers' hiring discretion.

The dispute centers on the WLAD's provision that prohibits religious organizations from requiring employees in non-ministerial roles to adhere to a specific faith. The Union Gospel Mission of Yakima initiated its lawsuit in 2023 against then-Washington Attorney General Bob Ferguson, who is now the Governor of Washington, and other state officials, contending that this legal framework prevented it from filling two specific vacancies—an IT technician and an operations assistant—with only "believers," thereby violating its religious autonomy. The mission argues that inhibiting its hiring practices inherently undermines its core religious mission.

The procedural path to this en banc hearing has been complex. Initially, a federal district court dismissed the mission's complaint, but the Ninth Circuit subsequently revived and remanded the case last year. Following this, the lower court issued an injunction preventing the state from enforcing the contested provision. Washington then appealed to the Ninth Circuit, which, in January, ruled that the state could not override the First Amendment’s church autonomy doctrine. This decision prompted Washington to petition for a rehearing before the full 11-judge en banc panel, leading to the current reconsideration.

During the recent en banc proceedings, the State of Washington articulated its position that the WLAD is designed solely to prevent discrimination based on an individual's status, not to preclude employers from addressing actions that actively undermine an organization's mission. Washington Solicitor General Noah Purcell contended that the plaintiffs were seeking an extraordinary legal precedent, one that would grant religious employers "carte blanche" to discriminate in hiring for any role, regardless of its connection to religious duties. He emphasized that Washington's policy provides no exemption to its anti-discrimination law beyond the established ministerial exemption for employers with more than eight employees.

Conversely, Kristen Waggoner, representing the Union Gospel Mission of Yakima through Alliance Defending Freedom, underscored the profound importance of hiring decisions to religious organizations. She argued that few decisions are more central to a religious entity's mission than determining who is religiously qualified to fulfill its objectives. This perspective highlights the tension between a religious organization's perceived right to self-definition and the state's interest in preventing discrimination in employment.

The judges on the panel engaged deeply with these arguments, revealing varied perspectives. U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee, expressed skepticism regarding the state's assertion that it was problematic for a religious organization to prefer members of its own faith, suggesting such a preference might be intrinsic to the concept of religious organizations. Meanwhile, U.S. Circuit Judge Morgan Christen, an appointee of Barack Obama, noted the court's general reluctance to second-guess the motivations of religious institutions. Another Obama appointee, U.S. Circuit Judge Michelle Friedland, raised a fundamental question about the mission's standing to sue, given that the state had never actually attempted to enforce the law against it—a point on which the state ultimately concurred. Much of the discussion also revolved around defining what constitutes a "ministerial" position, with specific examples like a janitor being debated in the context of the ministerial exemption employment law.

The ongoing Ninth Circuit en banc rehearing carries significant weight for religious organizations operating within the circuit, particularly concerning the scope of the Washington religious hiring law. The outcome of this review is poised to clarify the permissible boundaries of religious exemptions under anti-discrimination statutes for roles not directly involved in religious instruction or leadership. Should the court side with the Union Gospel Mission of Yakima, it could broaden the ability of religious employers to impose faith-based hiring requirements for a wider array of positions, potentially impacting numerous non-ministerial roles.

Conversely, a ruling in favor of the State of Washington would reinforce the state's authority to limit such exemptions, maintaining that anti-discrimination protections extend to many positions within religious organizations, especially those with minimal religious duties. This decision will directly influence how religious entities structure their employment policies and manage their hiring processes, particularly for positions like IT technicians or operations assistants, which are typically not considered ministerial. The resolution of this case will provide crucial guidance on the interplay between First Amendment religious freedom and state-level anti-discrimination mandates, shaping future litigation risk and compliance requirements for religious employers across the Ninth Circuit.

Legal counsel for religious organizations in the Ninth Circuit should closely monitor the outcome of this en banc rehearing, as it will clarify the permissible scope of religious exemptions under anti-discrimination laws for non-ministerial positions, impacting hiring policies and potential litigation risk.

Source: Original reporting via Courthouse News.