Breaking Bob Jones’ Unruly Horse: Religious Freedom, Tax Exemption, and LGBTQ Discrimination
Public Policy is an unruly horse, the saying goes. But the horse might soon be broken. There is a difficult and fascinating case brewing out in Yakima that could spell the death of Bob Jones. Last year, the Washington Supreme Court held that a religious organization could discriminate on the basis of sexual orientation, but only regarding hiring of its religious ministers. In Seattle’s Union Gospel Mission v. Woods, a bisexual law student interned for a local religious mission that helped the down and out. When he graduated he sought full-time employment, disclosing his sexual orientation in his application. The mission declined to hire him because his sexuality violated the Mission’s requirement that employees refrain from “[a]cts or language which are considered immoral or indecent according to traditional biblical standards,” including “extra-marital affairs, sex outside of marriage, [and] homosexual behavior.” Washington has an anti-discrimination in employment law, known as WLAD, but that law provides an exemption for religious organization hiring. The applicant sued under WLAD and a year ago, the Washington Supreme Court held that the exception allows religious organizations to discriminate in hiring people to proselytizing or otherwise spread their religious beliefs ( the “ministers exception”) but it did not apply to a religious organization’s hiring non-religious personnel (like staff attorneys, maybe). The Court remanded with instructions to determine whether the staff attorney position was covered by the ministers exception. A whole bunch of religious organizations, and nearly 20 state attorneys general filed briefs in support of the petition for cert. The briefs are available, by the way, on Westlaw at 142 S.Ct. 1094, if are doing some deep research on this topic and want to see what practicing scholars are saying.
The U.S. Supremes denied cert, preferring instead to await a final ruling on whether a staff attorney at the Mission is a “minister.” I could not find what happened in that case after the Supremes denied cert., but the case may have been dismissed because Matt Woods, the young law student now attorney, has moved on with his life and now works for the Northwest Justice Project, an exempt law firm in Seattle. Here is what Justice Alito, joined by Justice Thomas said regarding the denial of cert:
The First Amendment gives “special solicitude to the rights of religious organizations” to operate according to their faith without government interference. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 189 (2012). In certain contexts, this autonomy requires courts to “stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.” Our Lady of Guadalupe School v. Morrissey-Berru, 591 U. S. ___, ___ (2020) (slip op., at 11). Consistent with this constitutional principle, Congress has long exempted religious employers from federal employment laws that would otherwise interfere with their ability “to define and carry out their religious missions” by imposing “potential liability” for hiring practices that favor co-religionists. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 335–336 (1987); see also id., at 342–343 (Brennan, J., concurring) (“a religious organization should be able to require that only members of its community perform those activities” that “constitute part of a religious community’s practice”).
Because of such federal statutory exemptions and their state analogs, we have yet to confront whether freedom for religious employers to hire their co-religionists is constitutionally required, though the courts of appeals have generally protected the autonomy of religious organization to hire personnel who share their beliefs. See, e.g., Little v. Wuerl, 929 F. 2d 944 (CA3 1991); Kennedy v. St. Joseph’s Ministries, Inc., 657 F. 3d 189 (CA4 2011); EEOC v. Mississippi College, 626 F. 2d 447 (CA5 1980); Hall v. Baptist Mem. Health Care Corp., 215 F. 3d 618 (CA6 2000); Killinger v. Samford Univ., 113 F. 3d 196 (CA11 1997).
But in this case the confrontation may be inevitable, as it involves an employment dispute between a religious employer and an applicant who was not hired because he disagreed with that employer’s religious views. The Washington Supreme Court expressly declined to apply its state employment law exemption for religious entities to this dispute. Instead, it held that if that state exemption applied to employment decisions beyond those involving church ministers, such an exemption would violate the Washington State Constitution’s protection for other individual rights and could become a “license to discriminate.” Because of the interlocutory posture of this case, I concur in the denial of certiorari at this time. But the day may soon come when we must decide whether the autonomy guaranteed by the First Amendment protects religious organizations’ freedom to hire co-religionists without state or judicial interference.
It looks like judgment day may be here sooner than later. Earlier this week, the Union Gospel Mission in Yakima filed suit against the State of Washington, seeking declaratory relief that the WLAD, as interpreted in Seattle’s Union, is unconstitutional, and an injunction against enforcement. Union Gospel offers food, shelter, and addiction counseling for downtrodden souls but states that “to avoid being penalized by the state, the mission recently removed an online employment posting for an IT technician, refrained from posting an operations assistant position, and has paused hiring for those two positions. ” Meanwhile, Seattle Pacific University’s complaint along the same lines was dismissed for lack of standing in an earlier action. SPU also has a policy against hiring LGBTQ people.
The Union Gospel complaint might allow the court to sidestep Bob Jones, but Seattle Pacific University seems on all fours with Bob Jones except the discrimination is based on orientation rather than race. If either case gets to the Supreme Court, I can’t see how the Court avoids Bob Jones. SPU’s President asserts pretty much the same argument Bob Jones made in defense of its asserted right to discriminate against African Americans:
Pete Menjares, interim president of Seattle Pacific, expressed similar sentiments. “The government should not interfere with our ability to operate out of our sincerely held religious beliefs,” Menjares said in a statement. “We are disappointed with today’s ruling, but the court did not decide whether the state can investigate our university’s internal affairs. We will continue to defend ourselves from unlawful interference with our Christian mission.”
Its all depressingly familiar. Yesterday, I posted that Church tax exemption could not be constrained on the basis of politics, speech, or the manner in which a house of worship carries out its religious mission. Churches can just about do whatever they want with their tax exemption. I didn’t mention Bob Jones and I should have. But these cases will likely result in Court’s limiting Bob Jones to racial discrimination, if it doesn’t overrule Bob Jones altogether. We humans ought to stop being cops for God, and let God sort it out when we get there.
darryll jones