The Ninth Circuit’s Religious Freedom Coup
Last month, the Ninth Circuit weighed in on the ever-heated religious liberty debate. In Union Gospel Mission of Yakima v. Brown, the court addresses the rights of religious institutions dealing with the ever-expanding regime of employment “nondiscrimination” laws. The conflict between employment laws and religious hiring has been one of the most concerning threats to religious freedom in the past decade.
But before parsing the case, let us go back a couple centuries to the foundation of the issues at play: a foundation that’s essential to understanding the current religious liberty landscape.
A Wall of Separation? The Founders’ Intent
In his 1802 letter to the Danbury Baptist Association, Thomas Jefferson coined the now-famous reference to “a wall of separation between Church & State” in America. Various institutions have weaponized that phrase for the past eighty years to justify excluding religion from the public sphere in various ways—from refusing generally available government funding to religious programs, to banning school prayer. Fortunately, recent years have seen a cultural and institutional pushback against this secularizing force, with Supreme Court decisions like Carson v. Makin and Kennedy v. Bremerton beginning to restore a proper understanding of the First Amendment and the role of religion in public life.
But there is something to be learned from Jefferson’s “wall of separation.” First, Jefferson prefaces his famous phrase with a discussion of the limits of government intrusion into religion, not religious intrusion into government. Given the plentiful evidence during the founding era of government-funded religious programs, prayer at government functions and events, and even established state churches, it seems the founders were much more concerned with government interfering with religion than with religion interfering with public life.
The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” From these clauses, and in keeping with the goal of preventing government interference in religious matters, courts have developed a long tradition of deciding cases based on what is called the church autonomy doctrine. In several cases, including the important 1952 case of Kedroff v. St. Nicholas Cathedral, the church autonomy doctrine was articulated to prevent secular courts from making decisions regarding internal church governance. In Kedroff, the Supreme Court proclaimed that a government decision that “determines, in an [sic] hierarchical church, ecclesiastical administration or the appointment of the clergy, or transfers control of churches from one group to another, interferes with the free exercise of religion contrary to the Constitution.” In other words, secular government simply does not have authority over a religious institution’s internal governance.
While a related doctrine, called the ministerial exception, prevents government interference with a religious institution’s choice regarding the employment of ministers, the church autonomy doctrine has usually been limited to decisions regarding church governance and internal operations. The Ninth Circuit’s powerful ruling in Union Gospel has potentially broken new ground in the field of church autonomy in hiring decisions.
The problem with the ministerial exception protecting religious organizations from “nondiscrimination” laws in employment situations, is that the doctrine only covers ministers. The Supreme Court has clarified that a “minister” is not limited to an ordained member of the clergy and may include other positions (such as religious instructors) who play a vital role in carrying out the religious institution’s mission. But not every employee is a minister. So the ministerial exception helps religious organizations make employment decisions about teachers and catechists free from the intrusion of “nondiscrimination” laws. But what about janitors or computer technicians? These are probably not ministerial positions.
Union Gospel and Its Probable Impact
In Union Gospel, Judge Patrick Bumatay wrote an opinion that could change the relationship between religious organizations and employment nondiscrimination laws. While the federal Civil Rights Act and most state employment laws allow religious organizations an exemption from nondiscrimination laws when giving preference to members of the organization’s own religion (often called a “coreligionist” exemption), not all states have such a law. In this case, Washington’s religious exemption was excessively narrow. Judge Bumatay’s opinion paves the way for a constitutional precedent: nondiscrimination laws may not be applied to the employment decisions of a religious organization “when a challenged hiring decision is rooted in a sincerely held religious belief. That is, under the church autonomy doctrine, religious organizations may decide to hire coreligionists to further their religious missions.”
In Union Gospel, the two employment positions at issue were an IT employee and an operations assistant. Neither employee was a “minister.” Regardless of that distinction, the religious organization maintained that, in order to spread the gospel and provide a Christian witness in its work (which includes evangelization as well as various ministries to the poor, the homeless, and people with addictions), every employee of the organization must believe and live the Christian faith. Among the beliefs Union Gospel Mission requires is that all employees hold that sex is only permissible between a man and a woman within marriage. Those who do not agree to this and the other required religious tenets are screened out and not hired. This hiring requirement means that those who support or live in a same-sex relationship (or any sexual relationship outside of marriage) will not be hired, which seems to run into the state law preventing employment discrimination on the basis of sexual orientation.
The Ninth Circuit rejected the argument that, in the absence of a statutory exemption, Union Gospel Mission has no constitutional protection against these nondiscrimination laws. The court held:
If a religious institution sincerely believes that its nonministerial employees must adhere to and live according to its religious principles to accomplish its religious mission, the only way a court could adjudicate a dispute for a plaintiff would be to rule that the religious institution cannot seek that “mission” or that the hiring policy isn’t necessary to that “mission”—inherently religious questions.
Notably, the Court goes on: “Such a ruling would violate the institution’s free exercise rights to ‘shape [its] own faith and mission’ and would improperly establish an ‘ecclesiastical decision’ for the institution.” This articulates what religious freedom advocates have been saying for years: requiring religious organizations to hire without consideration of an applicant’s religious beliefs or lifestyle choices takes away the organization’s ability to create a staff united in its faith commitment. There is no way for a religious organization to effectively witness to the gospel if it is not allowed to require employees to live according to its teachings. Such an imposition of secular nondiscrimination laws on religious organizations is a First Amendment violation.
The Ninth Circuit does not create precedent for the entire country. Also, Judge Bumatay’s opinion imposes some narrowing limits to the decision: “Unlike the ministerial exception,” he writes, “the church autonomy doctrine protects only Union Gospel’s nonministerial hiring decisions based on religious beliefs. Union Gospel cannot discriminate on any other ground.” Additionally, the court stressed that its decision is “limited to religious organizations like Union Gospel” and that it did not consider “the scope of the doctrine on other types of entities run by religious institutions, such as businesses or hospitals.” Thus, the court’s ruling protects the right of certain religious organizations to make hiring decisions based on good-faith religious beliefs about what is required of their employees. How future courts may apply this to different types of religious organizations making different hiring decisions remains unanswered.
Will this Ninth Circuit ruling create a trend of courts applying the church autonomy doctrine to the hiring decisions of religious organizations regarding nonministers? Will the precedent apply to all faith-based nonprofit organizations, or only certain types? Will the Supreme Court weigh in on this issue and declare that state nondiscrimination laws may never prevent religious organizations from making hiring decisions based on the organization’s sincere religious beliefs and practices? Only time will tell. But no matter the long-term outcome, Union Gospel is not simply another religious freedom decision.
For years, perhaps the most serious threat to religious organizations’ freedom to live according to their faith has been the ever-growing specter of nondiscrimination laws. The Ninth Circuit’s decision here offers perhaps the strongest opportunity we have seen yet to affirm the constitutional right of religious organizations to hire according to their faith.