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On March 4, the Washington Supreme Court issued its decision in Woods v. Seattle Union Gospel Mission.[1] The case has important implications for religious liberty in Washington State, as it addresses the extent to which religious organizations are exempt from the state’s law prohibiting discrimination in employment practices.

The case involves an employment discrimination lawsuit filed against the Seattle Union Gospel Mission (UGM) by Matthew Wood. UGM is an evangelical Christian nonprofit organization that provides services to Seattle’s homeless population. UGM’s legal aid clinic serves its guests and furthers the organization’s gospel mission work.

Prior to applying for a staff attorney position at UGM’s legal aid clinic, Woods informed UGM staff that he was in a same-sex relationship and could foresee entering into a same-sex marriage. UGM informed Wood that his same-sex relationship was contrary to biblical teaching and the ministry’s policy that expected staff members to live by a biblical moral code that excludes certain behaviors, including homosexual behavior. 

Woods filed a lawsuit against UGM, alleging discrimination for its refusal to hire him because of his sexual orientation. The King County Superior Court granted summary judgment in favor of UGM based on the religious employer exception to the Washington Law Against Discrimination (WLAD) that applies to hiring and other employment practices. Under RCW 49.60.040(11), the definition of an “employer” subject to the WLAD “does not include any religious or sectarian organization not organized for profit.” The superior court ruled that UGM qualifies as a religious nonprofit employer and found that the job duties of its staff attorneys include providing spiritual counsel. The superior court determined that a trial would involve improper parsing of which UGM activities are secular and which are religious. The Washington Supreme Court accepted Woods’ petition for direct review.

Woods challenged the constitutionality of the religious exemption and of its application in his case under the state constitution’s Privileges or Immunities Clause. The Washington Supreme Court concluded that RCW 49.60.040(11) does not violate the Washington Constitution’s article I, section 12 Privileges or Immunities Clause. Although the Court rejected Woods’ facial challenge to the statutory exemption for religious employers, it concluded that as-applied challenges to the exemption could still be raised. The Washington Supreme Court has turned to recent federal case law involving the “ministerial exception” as a source of guidance for applying the religious employer exemption under the WLAD. The court therefore reversed and remanded the case to the trial court to determine whether UGM satisfies the First Amendment-based “ministerial exception” recognized by the U.S. Supreme Court.

Article I, section 12 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.”[2] In the opinion for the court, Justice Barbara Madsen wrote that article I, section 12 “was intended to prevent favoritism and special treatment to the few while disadvantaging others.”[3]

The court applied a two-pronged test to determine the constitutionality of the religious employer exemption under article I, section 12: “(1) whether RCW 49.60.040(11) granted a privilege or immunity implicating a fundamental right and (2) if a privilege or immunity was granted, whether the distinction was based on reasonable grounds.”[4]

According to the court, Woods satisfied the first prong because his case implicated two “fundamental rights”: “the right to an individual’s sexual orientation and the right to marry.”[5] The court grounded those rights in Lawrence v. Texas, Obergefell v. Hodges, and Justice John Paul Stevens’ dissent in Bowers v. Hardwick.[6] And in a footnote, the court indicated the fundamental “right to sexual orientation” also stems from the Washington Constitution’s article I, sections 3, 7, and 12.[7]

However, the court concluded that Woods did not satisfy the second prong because “reasonable grounds exist for WLAD to distinguish religious and secular nonprofits.”[8] First, the court viewed the WLAD’s text as evidence for its own reasonableness. It observed that the inclusion of the religious employer exemption in the enacting legislation from 1949 and its continued existence “demonstrate that the legislature plainly intended to include the exemption in WLAD.”[9] Second, the court found that the state’s protection for religious liberty also supported the religious employer exemption. According to the court, article I, section 11 of the Washington Constitution provides greater protection for religious liberty than the U.S. Constitution’s First Amendment.[10] Third, the court acknowledged that the U.S. Supreme Court “has upheld the exemption for religious organizations from federal discrimination suits in order to avoid state interference with religious freedoms.”[11] The court agreed that avoidance of state interference with religion made it reasonable for the legislature to treat religious and secular nonprofit employers differently. 

Despite its rejection of Woods’ facial challenge, the court ruled that as-applied challenges could be raised against the religious employer exemption. And “[b]ecause WLAD contains no limitations on the scope of the exemption provided to religious organizations,” the court sought guidance from the First Amendment “as to the appropriate parameters of the provision’s application.”[12] According to the court, “In order to balance Woods’ fundamental rights with the religious protections guaranteed to SUGM, we hold that article I, section 12 is not offended if WLAD’s exception for religious organizations is applied concerning the claims of a ‘minister’ as defined by Our Lady of Guadalupe and Hosanna-Tabor.”[13]

Summarizing those cases, the court concluded that the proper inquiry does not hinge on the job title of the employee in question or on any specific checklist, but it instead focuses on the functions or duties to be performed by the employee in question. Accordingly, the court deemed it an open factual question “best left to the trial court” as to whether ministerial responsibilities are sufficiently present to qualify UGM staff attorneys as ministers and disallow Woods’ employment discrimination claims. Nonetheless, the court opined that some criteria noted in the two U.S. Supreme Court decisions were present in Woods’ case, while other criteria were not, and it called Justice Mary Yu’s concurring opinion “helpful in this regard.”[14]

In a concurring opinion, Justice Yu reluctantly concurred in the court’s decision to remand “because there are factual questions regarding the duties of the staff attorney.”[15] Justice Yu wrote that religious nonprofits should be “forewarned” that the court’s decision “bars redefining every aspect of work life as ‘ministerial,’” and she pledged the court will insist that trial courts closely review attempts by religious institutions to invoke the ministerial exception.[16]

Furthermore, Justice Yu wrote “to offer guidance” on the ministerial exception’s application to Woods’ case below. Discussing different aspects of the factual record, Justice Yu noted that “some of the circumstances weigh in favor of finding the ministerial exception applies,”[17] but she went on to assert that “the facts asserted in this record strongly support a conclusion that [a UGM] staff attorney cannot qualify for the ministerial exception as a matter of law.”[18]

Justice Yu pointed to the court’s “final authority over the practice of law and legal ethics in Washington” and the requirement that attorneys comply with the Washington Rules of Professional Conduct (RPCs).[19] She added that “[i]n the context of a nonprofit legal aid organization serving the civil legal needs of vulnerable populations, I believe it is simply not possible to simultaneously act as both an attorney and a minister while complying with the RPCs.”[20] In her view, there was a very high risk that a client from a vulnerable population “would feel coerced into acquiescing” to UGM’s religious purposes if its staff attorney tried to “simultaneously play the dual roles of lawyer and minister.”[21]

Justice Deborah Stephens wrote an opinion concurring in part and dissenting in part.[22] She concurred in the reversal of the summary judgment granted by the superior court. But she dissented by concluding that the religious employer exemption violates article I, section 12’s antifavoritism principles because it “favors religious nonprofits over all other employers without reasonable grounds.”[23]

Justice Stephens criticized the majority’s analysis for grounding a “fundamental right to marry” and a “fundamental right to sexual orientation” in the Due Process Clause of the federal Constitution. In her view, the court should have explicitly held those rights are “fundamental to state citizenship” under article I, section 12. According to Justice Stephens, federal due process rights and state citizenship rights are categorically distinct. And she wrote that “[i]t would be anachronistic for the framers of Washington’s constitution in 1889 to have intended to safeguard rights that would not be protected under federal due process for a generation.”[24]

Justice Stephens criticized the majority for minimizing the import of WLAD and its stated goal of antidiscrimination. She rejected the idea that the religious exemption furthered that goal.[25] And she also rejected the majority’s characterization of the statute’s purpose as including the safeguarding of religious free exercise.[26]

According to Justice Stephens, the majority erred by aligning the religious employer exemption with the First Amendment ministerial exception.[27] In her view, the ministerial exception is just a constitutional defense. Although she rejected UGM’s claims that broad application of WLAD to its employment decisions would violate UGM’s free exercise rights under the First Amendment and article I, Section 11 of the Washington State Constitution, Justice Stephens acknowledged that defense applies in “the “narrow context of ministerial employment,” and she maintained that Woods’ case should be remanded to consider it.[28]

[1] ___ Wn.2d ___, 481 P.3d 1060.

[2] WASH. CONST. art. I, § 12.

[3] Woods, 481 P.3d at 1065 (citing Ockletree v. Franciscan Health Sys., 179 Wash. 2d 769, 776, 317 P.3d 1009 (2014) (additional citations omitted). Justice Madsen’s opinion for the court was joined by Justices Charles Johnson, Sheryl Gordon McCloud, Susan Owens, and Mary Yu as well as Justice Pro Tempore Charles Wiggins.

[4] Id. (citing Schroeder v. Weighall, 179 Wn.2d 566, 573, 316 P.3d 482 (2014)).

[5] Id.

[6] Id. (citing Lawrence, 539 U.S. 558, 577-78 (2003); Obergefell, 576 U.S. 644, 663-65 (2015); Bowers, 478 U.S. 186, 215-20 (1986) (Stevens, J., dissenting)).

[7] Id. at 1066 n.3.

[8] Id. at 1066.

[9] Id. at 1067.

[10] Id. (citing Ockletree, 179 Wn.2d at 784; First Covenant Church v. City of Seattle, 120 Wash.2d 203, 224, 840 P.2d 174 (1992) (noting that article I, section 11 of Washington’s constitution is “stronger than the federal constitution”)).

[11] Id. (Ockletree, 179 Wn.2d at 784) (additional citation omitted).

[12] Id.

[13] Id. at 1069 (citing Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp’t Opportunity Comm’n, 565 U.S. 171, 132 S. Ct. 694 (2012)).

[14] Id. at 1070 (citing id. at 1071 (Yu, J., concurring)).

[15] Id. at 1071 (Yu, J., concurring). Chief Justice Stephen González joined Justice Yu’s concurrence.

[16] Id.

[17] Id.

[18] Id. at 1072.

[19] Id.

[20] Id. at 1073.

[21] Id.

[22] Id. at 1073 (Stephens, J., concurring in part and dissenting in part). Justice Pro Tempore Mary Fairhurst joined Justice Stephens’ partial concurrence and dissent.

[23] Id. at 1074.

[24] Id. at 1077 n.5.

[25] Id. at 1078.

[26] Id. at 1079.

[27] Id.

[28] Id. at 1081-84.