Religious School’s Beef With State AG Tests Coreligionist Policy

The Ninth Circuit on Thursday will explore what may be the next frontier in the workplace clash between religious and LGBTQ+ rights when it hears Seattle Pacific University’s bid to shut down an investigation by the Washington attorney general’s office.

The school, which is associated with the evangelical Protestant Free Methodist Church, sued after receiving a letter from Attorney General Bob Ferguson (D) seeking information pertaining to its employees and hiring practices to determine whether it’s meeting its obligations under state anti-discrimination law. The probe violated—or risks violating—its First Amendment right to employ only coreligionists because, under state anti-bias law as reinterpreted by the Washington Supreme Court in 2021, religious freedom in hiring is seen by the AG as limited to just “ministers,” Seattle Pacific said in its opening brief.

An attorney for Seattle Pacific says the right of religious organizations to pursue their religious mission is at stake, but civil rights advocates see the lawsuit as part of a push by conservative religious groups to gain freedoms from anti-discrimination laws beyond what’s permitted by the US Constitution.

Regardless of what the US Court of Appeals for the Ninth Circuit decides, the issue isn’t expected to go away and appears destined for the US Supreme Court, attorneys who spoke with Bloomberg Law said. That the justices may weigh in on this case could be supported by a statement justices Samuel Alito and Clarence Thomas issued when the high court declined to review the state supreme court’s 2021 decision in Woods v. Seattle’s Union Gospel Mission, they said.

The justices “have yet to confront whether freedom for religious employers to hire their co-religionists is constitutionally required,” Alito wrote. “But the day may soon come when we must decide” that issue, he said.

Novel Case

The state AG asked the Seattle Pacific to produce an enormous amount of material, including confidential employee information, and is “unprecedented,” Lori Windham of the Becket Fund for Religious Liberty said. Becket is representing the school.

Federal and state laws have long recognized the right of religious employers to hire according to their religious mission and it’s not right for a state to say that a religious employer can’t hire on that basis, Windham said. Existing case law shows there are real First Amendment entanglement problems with a state claiming that sort of authority over hiring at religious schools, she said.

Lambda Legal’s Jenny Pizer also sees the situation as unprecedented, but she pointed to the lawsuit itself.

The school is taking a “novel, assertive, aggressive” position in arguing that it shouldn’t have to produce evidence to show all of its workers are exempt from the sexual orientation provisions of Washington’s Law Against Discrimination, Pizer said. The lawsuit was premature, she said.

Seattle Pacific is taking the stance that “you’ll just have to take our word for it” on whether its hiring violates anti-discrimination law, and that religious freedom means the state can’t inquire at all, Pizer said. But there are all sorts of situations where religious organizations “have engaged in inappropriate, harmful actions where scrutiny” was proper, she said.

School Sought Clarification

The AG said its letter seeking information from the university was prompted by “hundreds” of complaints his office received in the midst of a student and faculty protest from Washingtonians over Seattle Pacific’s hiring policy.

Under that policy, “regular faculty and staff” are prohibited “from marrying a spouse of the same sex or engaging in sexual intimacy outside of a marriage between a man and a woman,” Ferguson said.

The district court properly dismissed Seattle Pacific’s lawsuit, following a bench ruling, because the university lacked standing to sue and a legal doctrine prohibiting federal courts from interfering with state proceedings under state law also warranted dismissal, he said.

The case is a bit unusual factually, Kenneth Upton of Americans United for Separation of Church and State said. There ordinarily is a firing or other employment action affecting a specific employee, but here there was no discrimination claim made against Seattle Pacific, Upton said.

The university responded to the AG’s letter with one of its own. It sought clarification regarding the probe’s scope and raised constitutional challenges, according to Seattle Pacific.

The attorney general’s office dismissed the school’s concerns as “rhetorical questions,” Windham said. Seattle Pacific sued because there would be no “independent judge” to assess its First Amendment concerns during the course of the probe, she said.

‘Second Step’

Americans United’s Upton sees Seattle Pacific’s lawsuit as the “second step” in an “overall strategy” by Becket Fund and similar groups to expand the scope of freedoms religious employers sometimes enjoy from job bias laws.

The first step was getting the ministerial exception extended to workers other than clergy, Upton said. Now they’re trying to expand the issue to “when” they can assert the exception, he said.

They seem to be “trying to put the burden on the government” to show the ministerial exception doesn’t apply, Upton said. The exception is a defense, on which the employer bears the burden of proof, he said.

But Becket Fund’s Windham pointed to the breadth of the AG’s inquiry. The office wants information on every job at the school and employment and hiring records going back five years, she said.

The lawsuit isn’t seeking to change Washington state’s job bias law or the state supreme court’s interpretation of it in Woods, Windham said. It instead seeks to protect First Amendment rights to hire according to religion, she said.

Windham said she was unaware of any other situation “where a state AG has launched this sort of an inquiry.” What typically happens is that a specific worker files a claim with a state agency, and then there’s an investigation, she said.

Standing to sue exists “because the AG is trying to limit the right” of religious employers to ask employees “to align with” the employer’s religious mission, Windham said. If that right is lost for Seattle Pacific, it will be lost for religious groups throughout the state, she said.

Justices’ Take Expected

Lambda Legal’s Pizer said “we can see before our eyes that the law on standing seems to be expanding,” as well as a potential change in how courts are looking at the issue in cases where the party suing hasn’t faced much, if any, enforcement activity by the government.

“What quantum of harm is needed?” Pizer asked. “I don’t think we know.” And now the issue may soon be in the hands of the new Supreme Court conservative super-majority, she said.

“With this Supreme Court, we have seen” conservative religious groups winning, but the justices stopping short of issuing the broad rulings sought, Pizer said. That approach has just spawned more litigation, making it harder to predict where the lines will be drawn in the future, she said.

The Woods decision “created constitutional problems that are an outlier nationwide,” Windham said. “We’re going to continue to see cases until those constitutional problems are resolved,” she said.

‘No Slam-Dunk’

As for predicting the outcome before the Ninth Circuit, Upton said he’s “always hesitant to take a position” on standing issues.

“The truth is that there is so much soft edge for a court to find standing if it wants to,” so it it’s going to depend on the composition of the Ninth Circuit panel, he said.

There are so many ways to look at the risk or threat of prosecution or enforcement, Upton said.

Becket Fund is trying to push the boundary a little by referring in the suit to the First Amendment generally without distinguishing between speech and religion, Upton said. The standing analysis is generally more relaxed when freedom of speech is implicated, because there’s “a higher value on free speech” than almost anything else, he said.

“Religious organizations are finding speech is a better theory for them,” Upton said.

Attorney Nonnie Shivers said the AG launching a probe doesn’t really give the university a leg in establishing standing. These sorts of things play out all the time without being challenged through lawsuits, she said, citing Equal Employment Opportunity Commission investigations as an example. The Phoenix-based Shivers is a shareholder in Ogletree, Deakins, Nash, Smoak & Stewart PC.

Upton had a different take. It could be that the existence of the probe is found to show a legitimate anticipation of government enforcement, he said.

“I don’t think the case is a slam-dunk” for either side, Upton said.

Shivers said Seattle Pacific might have been on better footing if it had challenged the AG’s jurisdiction to investigate. A critical point for employers is that “all avenues should be considered” when faced with an unwarranted or overbroad agency probe, especially jurisdictional challenges, she said.

Ellis Li & McKinstry PLLC also represents the university.

The case is Seattle Pacific Univ. v. Ferguson, 9th Cir., No. 22-35986, oral argument 11/16/23.