Laying off religious liberty

MARY REICHARD, HOST: It’s Tuesday, December 5th, 2023. This is The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

First up, a setback for the religious liberty of Christian nonprofits.

Last week, a district court in Seattle ruled against the Christian aid group World Vision. The legal issue was whether World Vision violated Title VII of the Civil Rights Act and state law by making employment decisions based on religious principles, particularly on sexuality and marriage. The judge decided that the conduct of World Vision back in 2021 did violate those laws.

REICHARD: What does this mean for other Christian nonprofits that want employees to follow codes of conduct?

Joining us now to explain is WORLD’s religious liberty beat reporter, Steve West.

Good morning, Steve.

STEVE WEST: Good morning, Mary.

REICHARD: Some background: what led up to World Vision’s day in court?

WEST: Back in late 2020, the ministry advertised a customer service representative position. That’s someone who would spend most of their time fielding calls from donors and supporters. A woman by the name of Aubry McMahon applied and got the job. But before she came on board, she sent an email to the ministry asking about maternity leave, mentioning that she and her wife were having a baby. That’s when the ministry rescinded the job offer, as McMahon couldn’t comply with the ministry's standards of conduct because she was in a same-sex marriage. Some months later, she sued, alleging discrimination based on sex, sexual orientation, and marital status.

REICHARD: You discovered that the judge flip-flopped from an initial ruling to the one he just handed down. What did that change involve and how did he explain it?

WEST: Initially the judge dismissed the lawsuit based on the church autonomy doctrine. That’s a principle courts have derived from the First Amendment that limits court second-guessing of theological or ecclesiastical issues. But then when he reversed course six weeks later, he didn’t spend time explaining why he had the change of heart. Last week, he just reaffirmed that ruling, rejecting all of World Vision’s remaining arguments. He just said the doctrine didn’t apply because the policy discriminated based on sexual orientation. It’s as if that claim is a trump card even over a constitutionally-derived doctrine.

REICHARD: What recourse does World Vision have?

WEST: They can appeal to the 9th U.S. Circuit Court of Appeals—historically very liberal but less so in recent years. That’s the same court that earlier this year upheld the right of a Fellowship of Christian Athletes student group to require that its leaders be Christians. The case could also eventually wind up at the Supreme Court.

REICHARD: Does this ruling affect other Christian nonprofits or just World Vision?

WEST: This ruling binds only World Vision in regard to Aubry McMahon. Even another district court judge in the same district could rule differently. But it can have a persuasive effect on other courts around the country, and it’s almost certain that similar claims will be brought by existing employees in same-sex relationships or applicants.

REICHARD: How does Supreme Court precedent inform this situation?

WEST: A majority of the court would likely rule in favor of World Vision if the case makes it there. Last year the Supreme Court declined to hear a very similar case involving Seattle United Gospel Mission, but Justices Samuel Alito and Clarence Thomas said the day would soon come when the court had to address the issues the case presented. Back in 2020, in the Our Lady of Guadalupe School case, the court upheld the right of a Catholic elementary school to fire two teachers based on the ministerial exception defense. It said the teachers performed a vital religious function—even though they didn’t teach religion. They prayed with the classes and modeled Christian living. That precedent bodes well for a ruling in World Vision’s favor.

REICHARD: What can Christian non-profits do now to protect their organizations?

WEST: There’s no silver bullet, but religious nonprofits can make sure that job titles, descriptions, and to the extent practical, employees’ actual work is imbued with the organization’s religious character and mission. Here, the court pointed to a job description which sounded like one any secular organization could have. In practice, as ministry representatives testified, people in these positions were the face of the organization. They were encouraged to pray for donors where appropriate, lead team devotions, and even chapel services. These folks are an important, outward facing part of any nonprofit.

REICHARD: Steve West is a legal reporter for WORLD, and you can keep up with stories like this in his weekly Liberties newsletter. We’ve included a link in today’s show notes.

Thank you, Steve!

WEST: Thank you, Mary.

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