District Court Preliminarily Expands Ministerial Exception

A federal district court granted a preliminary injunction last Friday, prohibiting Washington from enforcing an anti-discrimination law affecting churches and other religious organizations. The “Washington Law Against Discrimination” (WLAD), as interpreted by the Washington Supreme Court, prohibits religious organizations from discriminating in their hiring of non-ministerial employees. Plaintiffs assert that WLAD is federally unconstitutional and the District Court preliminarily agreed.  There aren’t any factual disputes in the case so it’s a pretty safe bet that Washington will lose upon final adjudication. This will be the first time the ministerial exception is applied to allow religious organizations to discriminate in the hiring of non-ministerial staff.  Here is a brief recap from an earlier post:

We told you just a few weeks ago that the Ninth Circuit heard oral arguments concerning the ministerial exception.  That exception stands for the proposition that religious organizations cannot be required by anti-discrimination laws to hire people who do not adhere to the organization’s religious doctrine. But so far, the exception applies only to an organization’s hiring of ministerial staff – people who teach or proselytize.  The Catholic Church can’t be forced by anti-discrimination laws to hire a gay Bishop. The Washington cases making their way to the Supreme Court involve whether the exception permits discrimination in the hiring of non-ministerial staff.  An IT director, an administrative assistant, a facilities manager or even a faculty member teaching math or a foreign language at a religious school or university, for example. Does the ministerial exception allow religious organizations to discriminate against a lesbian IT director whose job requirements have nothing to do with the organization’s religious doctrine?  The two Washington cases involve Christian ministries who assert the right to limit their hiring of all staff, not just ministerial staff, to people who adhere to the ministries’ religious doctrine.  Those organizations want to extend the exception to non-ministerial staff and at least two justices — Alito and Thomas — are eager to hear the cases.  

The District Court found that the religious organizations will likely succeed because the law fails strict scrutiny analysis:

Plaintiff is likely to succeed on the merits of its Free Exercise claim. The Free Exercise Clause provides that “Congress shall make no law . . . prohibiting the free exercise” of religion. U.S. Const. amend. I. The Supreme Court “has held the Clause applicable to the States under the terms of the Fourteenth Amendment.” Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 524 (2022) (citing Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)). “A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).

. . .

Defendants address strict scrutiny as follows: “Preventing discrimination is a compelling government interest, and the best way to prevent discrimination is to prohibit it while honoring the ministerial exception from the First Amendment as set forth by the U.S. Supreme Court. The WLAD does exactly that.” However, as Plaintiff correctly observes, “[f]or over 70 years Washington advanced its interests while exempting nonprofit religious organizations.” see Woods, 481 P.3d at 1064 (“As originally enacted, WLAD exempted from the definition of ‘employer’ ‘any religious, charitable, educational, social or fraternal association or corporation, not organized for private profit.’”) Because there is a “less restrictive measure” to advancing Defendants’ interest, the WLAD likely fails the “tailoring prong of the strict scrutiny test.” Fellowship of Christian Athletes, 82 F.4th at 694.

darryll k. jones