Religious liberty and hiring rights

MARY REICHARD, HOST:It’s Tuesday the 12th of November.

You’re listening to WORLD Radio and we’re glad to have you along today. Good morning! I’m Mary Reichard.

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

First up on The World and Everything in It: Good news for Christian nonprofits.

This month, a federal district court in Washington state ruled in favor of a Christian ministry to the homeless.

Yakima Union Gospel Mission has operated there for almost 90 years.

The legal question is whether the mission can require its employees and all new hires to be Christians … despite a state anti-discrimination law?

REICHARD: Joining us now to talk about it is WORLD’s religious liberty beat reporter, Steve West.

Steve, good morning.

STEVE WEST: Good morning, Mary.

REICHARD: Well, let’s start with some background. What led up to the mission’s day in court?

WEST: Mary, it’s probably more accurate to point to the mission’s days in court, as this case is on its second go round in the district court after an initial unfavorable ruling that was overturned on appeal.

But the bottom line is that this ministry did its work without state opposition for over eight decades, as it provided all sorts of needed services: a homeless shelter, addiction-recovery program, outreach, meals, and medical and dental clinics. The state’s anti-discrimination law contained an exemption for religious organizations. That meant they could hire those who had the same religious beliefs—that is, until 2021, when the state’s Supreme Court limited the exemption to employees covered by the ministerial exception. So, at the time the lawsuit was filed in 2023, the mission had 14 positions it couldn’t fill because the state threatened fines for discrimination in hiring.

REICHARD: The term, “ministerial exception,” may not be a familiar one to everyone. I know you’ve spoken many times with the mission’s lawyer in this case—how does he describe it?

WEST: Alliance Defending Freedom attorney Ryan Tucker says the term “minister” does include pastors and clergy in the religious sense, but he believes it's much broader than that.

TUCKER: About 12 years ago, there was a case that made its way to the U.S. Supreme Court where this individual had been fired and brought discrimination complaints against its religious employer, a school, and the school said, wait a second, this individual was a teacher. She taught the faith. She had a title. She had these other responsibilities within the organization, and we as an organization should have the right to discipline, to hire, to fire these individuals, and the government, or anyone really coming in and saying, ‘We can second guess you there’ — that should be a violation of the First Amendment. And so the Supreme Court looked at that case and decided the right to hire-fire-discipline ministers was embedded in the First Amendment.

WEST: So Mary, after that case was decided, there were a handful of others that followed where the courts had to figure out what that meant…the parameters. Does it just protect the pastor? Is it just for the school teacher? How far does it go?”

REICHARD: I know that some ministries believe that all employees are ministers—they all have to be prepared to share the gospel, to minister to those they serve—from the IT person to the receptionist to ministry heads. That leads me to think they are all covered by the ministerial exception. Am I right?

WEST: That’s exactly the question I had for Tucker.

TUCKER: As a believer myself, I understand that argument, but secular courts haven't gotten to that, to that level or to that point, and I don't know if they will. So then the question is, what do you do with those individuals that courts deem to be “non-ministerial employees?”

REICHARD: So, Steve, where did the court land on that issue?

WEST: The judge did not directly address the co-religionist argument. That’s the argument that says churches and other religious organizations have a First Amendment right to employ only those who are like-minded on faith and practice. That they have a high degree of autonomy. What the judge ruled was that the state’s application of its law violated the First Amendment because it treated comparable secular organizations more favorable than religious organizations.

REICHARD: What would be an example of that?

WEST: The example the court used is the state completely exempted small businesses—those with eight employees or less—from the anti-discrimination law. But it did not exempt non-ministerial employees of religious organizations. And if there’s one thing the Supreme Court has made very clear in recent years it’s that governments cannot treat religious organizations less favorably than comparable secular organizations unless there is a very compelling reason and no less restrictive alternative.

REICHARD: So what now? Is there more to come?

WEST: Likely yes. State Attorney General Bob Ferguson—who is also governor-elect—has been very aggressive about enforcing the anti-discrimination law. And it appears the state will appeal the case, returning to the 9th Circuit. It’s the same court that in 2023 upheld the right of a Fellowship of Christian Athletes student group at a high school in San Jose, California, to require that its leaders be Christians. And it’s the same court that earlier this year said that the mission had standing to proceed on its claim. It means this case could also eventually wind up at the Supreme Court.

REICHARD: I want to ask about that in just a minute but first…Does this ruling affect other Christian nonprofits…or just the Yakima mission?

WEST: This ruling binds only Yakima Union Gospel Mission. Even another judge in the same district could rule differently. But it might have a persuasive effect on other courts in the state and around the country. And if it goes up on appeal, a ruling there would be binding—would be the law—in seven western states, Alaska, and Hawaii. Those make up the Ninth circuit.

REICHARD: Back to the Supreme Court. I know the justices have sidestepped this issue before…what do you think will happen if it reaches the Supreme Court?

WEST: If they take this case or another like it, I think the majority would side with religious organizations. ADF lawyer Ryan Tucker says “it’s just common sense.”

TUCKER: The mission has the right to hire, fire, discipline these employees. Because, look, if a religious organization doesn't have the right to do that, and they are forced to take in individuals that disagree with them, well, guess what's going to happen? Those organizations are going to become unraveled from the inside out.

WEST: And in fact, that’s exactly what Justice Samuel Alito said back in 2022, when the court declined to review a similar case involving Seattle’s Union Gospel Mission. He said, “If States could compel religious organizations to hire employees who fundamentally disagree with them, many religious non-profits would be extinguished from participation in public life—perhaps by those who disagree with their theological views most vigorously.

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

WEST: There’s no bullet-proof way to do it, 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. Demonstrate how every employee and volunteer follows the Gospel imperative to minister in word and deed. As an organization, you may know that, but spell it out. That matters if you find yourself in a courtroom one day.

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.

Steve, thanks so much!

WEST: My pleasure.

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