Narrow Gay Worker Bias Ruling Risks Harm, Open Issues (Correct)

The largest federal appeals court in the country is expected to rule narrowly for religious employers in the latest battle over whether they have the right to limit hiring to those who fully embrace their beliefs.

The issue before the US Court of Appeals for the Ninth Circuit is whether it should affirm that World Vision Inc. discriminated against Aubry McMahon based on her sex, sexual orientation, and marital status by rescinding its offer to hire her as a customer-service representative after she disclosed her same-sex marriage. Attorneys familiar with the case say the appeals panel will decide the case under the First Amendment-derived “ministerial exception,” which shields religious organizations from some legal claims implicating who serves them as “ministers” of the faith.

A narrow ruling on that issue would leave open whether religious entities can invoke other legal defenses they argue are available in job discrimination laws and the US Constitution when it comes to filling non-ministerial roles. The Ninth Circuit recently embraced the ministerial exception in other cases and other courts have relied on that doctrine rather than address the thorny issues raised by other First Amendment principles and a Title VII of the 1964 Civil Rights Act carveout for religious employers.

US Supreme Court guidance may ultimately be needed.

A limited ruling for the Christian poverty relief organization would be a further sign that the Ninth Circuit seems headed “in a troubling direction” on the ministerial exception’s scope, Americans United for Separation of Church and State’s Jenny Samuels said. Samuels and ACLU’s Michelle Fraling said the facts show McMahon wouldn’t have served as a minister and the appeals court should affirm that the nonprofit’s employee code of conduct on “Biblical marriage” is facially discriminatory and violated McMahon’s rights.

First Liberty Institute’s Stephanie N. Taub and Eric N. Kniffin of the Ethics and Public Policy Center said a ruling that the ministerial exception applies would be supported by the evidence. But even if the court finds McMahon would’ve fallen under the exception, clarity will still be needed on other constitutional protections and the Title VII exemption, they said.

Embracing World Vision’s arguments would give religious employers free reign to discriminate against LGBTQ+ and other marginalized groups, impacting the rights of workers nationwide, Fraling and Samuels said. A finding that the organization’s customer-service workers aren’t ministers risks compromising the important societal role faith-based entities fill, as being forced to employ someone who rejects the entity’s religious convictions could undermine its purpose and mission, Kniffin and Taub said.

Unsurprising and Disappointing

Samuels wasn’t surprised by the panel’s focus on the minister issue, but she was “surprised and disappointed” that at least two judges are seemingly prepared to side with the nonprofit, she said. World Vision’s Title VII exemption and other religious-liberty arguments lack merit, she said.

McMahon wouldn’t have been a minister because the job entailed fundraising, not religious proselytizing, Fraling said. That the duties would’ve included praying isn’t enough, Fraling said.

The exception is supposed to cover “actual ministers” and the totality of a World Vision customer-service worker’s responsibilities show the lower court got it right, the ACLU attorney said.

Taub and Kniffin, on the other hand, cited the panel’s focus on the public nature of the role.

The fact that will drive the Ninth Circuit’s decision is that customer-service representatives are World Vision’s face to the outer world, Kniffin said. Where an employee is trusted to interact with the public, it’s vital that a religious entity can pick someone aligned with its beliefs, he said.

It’s a common idea that spokespeople should be required to “model the message,” Kniffin said.

‘Real’ Damage

The Ninth Circuit has weighed in on the ministerial exception several times since the Supreme Court first recognized it in 2012. One recent ruling is more concerning than another from last year, and a finding that McMahon too was a minister would likewise be troubling, Samuels said.

In a July decision the job—an apprenticeship at a Buddhist center—"seemed a little different,” more religious in nature, the Americans United lawyer said. But the worker—a Kosher food inspector—in a December case sued for unpaid wages and breach of contract. The exception shouldn’t be a get-out-of-jail-free card on those types of claims just because a worker performs some religious functions, she said.

And pretty much anyone employed by a faith-based organization could be said to hold religious duties, Samuels said. That the panel in McMahon’s case didn’t seem too concerned about that “slippery slope” is worrying, she said.

Roughly 1.5 million US workers are employed by religious institutions, Fraling said. The damage to the civil rights of LBGTQ+ and other marginalized groups if the Ninth Circuit sides with World Vision will be “real,” she said.

Clarity Still Needed

Kniffin acknowledged there are important interests on both sides. McMahon’s counsel is correct that not everyone working for a faith-based entity is a minister, he said. That’s why it’s critical for religious employers to continue pressing Title VII exemption and other religious-liberty arguments, the EPPC lawyer said.

The circuits are split on the Title VII question, Taub said. The issue is how that exemption works when a job is non-ministerial, she said.

Some courts say it’s only a defense when the worker suing claims religious discrimination, while others say a religious employer can consider its faith when hiring so it can create a community of like-minded individuals to pursue its goals, the First Liberty attorney said.

Being required to employ workers who don’t share its beliefs could undermine a religious organization’s mission and charitable works, she said.

The ministerial exception is fact-intensive, so clarity on the other defenses is needed, Taub said. The Ninth Circuit wouldn’t be the first court to bypass those issues, and the Supreme Court will probably need to address the Title VII exemption at some point, she said.

The case is McMahon v. World Vision Inc., 9th Cir., No. 24-03259, oral argument 5/21/25.