Challenge to Washington’s Limited “Ministerial Exception” Fails on Standing Again

We have previously blogged about the “ministerial” exception to anti-discrimination laws prohibiting even churches and other worship entities from discriminating on the basis of race, gender, or orientation.  Bob Jones and now Students for Fair Admission makes what’s going on in Washington State relevant for tax exemption.  We noted that in a concurrence to the denial of certiorari in Seattle’s Union Gospel Mission v. Woods, Justice’s Alito and Thomas made it pretty clear that forcing religious organizations to hire a gay person despite its beliefs regarding human sexuality, even for non-ministerial positions, is unconstitutional.  The justices are clearly uncomfortable with the Washington State Supreme Court’s limitation of the exception to hiring of ministers and other proselytizers.  Not to hiring plain old staff positions in an organization’s administrative machinery; an in-house accountant, for example. They agreed that Seattle’s Union Gospel Mission lacked standing but they pretty much invited other missions to sue again so that the exception could be given wider application. 

Union Gospel Mission of Yakima accepted the invitation and filed a “pre-enforcement” suit, claiming that Washington’s anti-discrimination statute violates its First Amendment rights.  The Yakima Mission sought an injunction against enforcement, claiming that it could not hire IT and other non ministerial staff for fear of violating the law.  But in Union_Gospel_Mission_of_Yakima a district court granted the State’s motion to dismiss for lack of “pre enforcement” standing:  

YUGM has sufficiently pled that it has an intention to engage in a course of conduct arguably affected with a constitutional interest that is proscribed by statue. YUGM has failed to demonstrate that the three Thomas factors weigh in favor of a credible threat of prosecution by the WSHRC. YUGM has provided the Court with no evidence that the WSHRC has made a specific warning or threat to it, nor has it demonstrated that the WSHRC has a history of enforcing the WLAD. YUGM pleadings establish that AG Ferguson’s failure to disavow is a sufficient specific warning or threat. However, YUGM cannot demonstrate a sufficient history of past enforcement of the WLAD by AG Ferguson. Taken together, the Court finds that YUGM has failed to demonstrate a credible threat of prosecution by AG Ferguson. YUGM has not met its burden to establish an injury in fact. This is sufficient cause to grant Defendants’ motion. However, the Court will analyze the other requisites of Article III standing, assessing each in turn.

The District Court rather pointedly rejected what it viewed as the Mission’s attempt to force the issue back to the U.S. Supreme Court:

Defendants contend that YUGM’s request is really a veiled attempt to seek appellate review from Woods. The Court agrees. YUGM seeks the Court’s determination regarding the constitutionality of the Washington Supreme Court’s interpretation of RCW 49.60.040(11) ‘s employer exemption. Specifically, YUGM seeks the Court’s declaration “that the recent narrowed interpretation” of RCW 49.60.040(11) ‘s employer exemption by the Washington Supreme Court, and Defendants’ potential enforcement of that interpretation, to be unconstitutional under the First Amendment.  YUGM does not characterize this action as an appeal of the Woods decision. However, Defendants contend that this action is essentially the “de factor equivalent.

Seems like a problem “capable of repetition but evading review.”

darryll k. jones