This Is A Win?

By Deacon Mike Manno

(The Wanderer) – It is hard to understand how a religious liberty case coming from an extremely liberal state supreme court can be rejected by the U.S. Supreme Court, and still be characterized as a win. Yet one of our favorite conservative legal commentators did just that. So I invited her onto our radio program, and she came, and explained.

And I think she is right. Here is the case in a nutshell:

Seattle’s Union Gospel Mission has operated since 1932 and is a tax-exempt organization and recognized as a church equivalent by the Internal Revenue Service. It requires its staff to “affirm its statement of faith which declares ‘the Bible is the inspired, infallible, authoritative Word of God’.” The Mission’s employee handbook requires all employees to abide by traditional biblical principles and to refrain from “[a]cts or language which are considered immoral or indecent according to traditional biblical standards,” including “extramarital affairs, sex outside of marriage, [and] homosexual behavior.”

About six years ago, one Matthew Woods applied for a job in the Mission’s legal aid department. Apparently Mr. Woods was familiar with the Mission, having been a volunteer there in the past. Hearing of an open position in the Mission’s clinic, he contacted the clinic’s staff and inquired about the job. He told the staff that he identified as a bisexual and was in a same-sex relationship. The clinic director, quoting from the staff handbook and Mission’s statement, told Mr. Woods that he was unable to apply.

The director later sent Mr. Woods a legal aid job posting from a secular entity and wished him well.

However, Mr. Woods later applied for the Mission’s job to protest the Mission’s policy. In his application Mr. Woods disclosed that he was not a member of a local religious congregation and thus could not provide a pastor’s recommendation, as the application required. In the cover letter in which he enclosed his application, he asked the Mission to change its policies and practices.

According to the Court: “After he applied, the clinic’s director met Woods for lunch and confirmed that the Mission could not change its theology. He explained that Woods’ employment application was not viable because he did not comply with the Mission’s religious lifestyle requirements, did not actively attend church, and did not exhibit a passion for helping clients develop a personal relationship with Jesus. The Mission hired a co-religionist candidate instead.”

Mr. Woods than filed suit against the Mission alleging that it had violated the Washington State law against employment discrimination. In its answer the Mission cited its protection under the First Amendment’s religion clauses. It also noted that there is an express exemption to the anti-discrimination law which protects “any religious or sectarian organization not organized for private profit.”

The district court agreed with the Mission and dismissed the case. In doing so, it held that the Mission had “put applicants on notice” that employees must “accept the Mission’s statement of faith” and that the staff attorney’s duties “extend beyond legal advice to include spiritual guidance and praying with the clients.”

However, the Washington Supreme Court granted review and reversed the lower court’s decision, holding that: “as applied to Woods’ lawsuit, the [state law] religious exemption would violate protections for sexual orientation and same-sex marriage implicit in the Washington Constitution’s Privileges and Immunities Clause.”

The state’s top court then remanded the case to the district court to determine if the staff attorney’s position qualified as a ministerial position. Under current Supreme Court law, cited in numerous cases, churches and religious bodies are granted a “ministerial exception” which allows them to hire without reference to any claim of discrimination. The catch, of course, is who is to be defined as a minister.

In prior cases teachers at religious schools have been considered as such, but in others unless there is a ministerial aspect of the job, no such exception is recognized. Initially those positions, accorded the ministerial exception, were considered ministers in the traditional way the word was interpreted, which meant that in churches where assistants were called “minister” of this or that were granted the exception regardless of ordination status while those not carrying the title were not so privileged.

In recent years, however, the ministerial exception has been extended to include more positions, as the courts began to look at the specific job descriptions rather than simply looking at titles.

But the Mission appealed to the United States Supreme Court. The hang-up there was, as Justice Samuel Alito, an ardent supporter of religious liberty, pointed out, the case was not finished in the Washington courts. The Supreme Court there had remanded the case back to the district court to make a specific factual finding as to whether or not the legal aid position qualified for the exception. There is a principle in law that discourages the consideration of an appeal before a final judgment has been issued.

The Washington Supreme Court had not issued a final decision in the matter. That would occur when the district court made its determination and the State Supreme Court had ruled on any appeal. Thus, as Justice Alito expressed, the case was not yet ready for U.S. Supreme Court review.

But as my legal expert, Sarah Parshall Perry of the Heritage Foundation’s Meese Center for Legal and Judicial Studies, pointed out, rather than just declining to hear the case on technical grounds, Justice Alito, joined by Justice Clarence Thomas, spelled out what could happen if the case comes back to them.

According to Justice Alito: The reasoning used by the Washington Supreme Court “presumes that the guarantee of church autonomy in the Constitution’s religion clauses protects only a religious organization’s employment decisions regarding formal ministers. But our precedents suggests that the guarantee of church autonomy is not so narrowly confined.”

Perry noted on our Faith On Trial program, “We’re in a state right now where the law in America, the rights to free exercise and religious liberty, is butting-up against nondiscrimination provisions and LGBTQ rights. Now these are sort of preferred rights we are seeing established within the paragon of civil rights law; preferred classes of individuals not based on what they believe or the immutable characteristics that the law has recognized for years but what their sexual preferences and gender identities are and, I think, ultimately we’re going to see this be a significant showdown at the Supreme Court.”

The Court, she said, had to deny review because the state courts had not reached a final decision. But, she said, “When we see Justice Alito write a separate opinion…there are reasons to believe that the Court has set up an inevitable confrontation between whether religious employers can and are protected by their desire to hire coreligionists.”

Thus the Court may be looking for a case, such as this one, to determine that the right of a religious employer should be made without reference to whether the person would be engaged in teaching or some other form of religious instruction.

She expressed hope that Justice Alito’s statement in his concurrence to the denial to hear the case would prove to be correct. He had written: “To force religious organizations to hire messengers and other personnel who do not share their religious views would undermine not only the autonomy of many religious organizations but also their continued viability. If States could compel religious organizations to hire employees who fundamentally disagree with them, many religious nonprofits would be extinguished from participation in public life — perhaps by those who disagree with their theological views most vigorously.”

(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday at 9:30 CT on Faith On Trial on IowCatholicRadio.com.)