Pro-life organizations vindicated in New York

After more than five years of court battles, three religious organizations received a victory in court last week for their pro-life hiring practices. On Thursday, the 2nd U.S. Circuit Court of Appeals reinstated the organizations’ expressive association claims, affirming that employees are a key part of promoting the organizations’ messages. The First Amendment–derived doctrine of expressive association protects individuals’ and organizations’ rights to join with others to communicate a similar message.

New York pregnancy center CompassCare, First Bible Baptist Church in Hilton, N.Y., and the National Institute of Family and Life Advocates, an association of pro-life pregnancy centers, filed the 2019 complaint. The three contend that a New York law violates their First Amendment rights.

Passed in 2019, the state law prohibits employers from hiring based on the “reproductive health decision-making” of a potential employee. It essentially forces organizations to hire employees who don’t share their beliefs regarding “abortion, contraception, and the impropriety of sexual relations outside the context of a marriage between a man and a woman,” according to the complaint.

CompassCare argued that hiring employees who share its pro-life, religious values is critical to its mission. The nonprofit has locations in three New York cities where it provides healthcare for women who have unplanned pregnancies.

If CompassCare refused to follow the law, the nonprofit could face fines and prosecution for its faith-based hiring preferences.

In their lawsuit, the three organizations contend that the law violates multiple rights. It “intentionally and by design sacrifices the associational, speech, and religious freedom of employers in New York State … to the government’s desire to promote abortion rights by gutting the ability of pro-life employers to hire to their pro-life missions,” the complaint said.

The law also forbids employers from requiring employees to sign a statement of faith that involves these beliefs.

While the state argued that it passed the law to combat discrimination, the lawsuit contends that “[the law’s] legislative history contains not one documented instance of employment discrimination based upon employee reproductive health decisions.”

However, a lower district court ruled against the nonprofit’s claims in 2020 and 2022. The judge who issued both rulings found that the organizations’ actions did not warrant expressive association protections nor did the law treat them unfairly.

The groups appealed this decision in 2022 to the 2nd Circuit.

While the 2nd Circuit dismissed the nonprofits’ free speech and free exercise claims, it ruled in favor of their expressive association claims. It vacated the district court’s ruling on expressive association and sent the case back to the lower court where a federal judge will have to re-evaluate the claim.

The three-judge panel determined that the lower court must consider if the New York law “threatens [the nonprofits’] very mission not only in a vague and generalized sense, but in the context of a specific employment decision.”

The court said that its decision in the 2023 case, Slattery v. Hochul, shows how organizations can have valid expressive associational claims if a law “forces [the employer] to employ individuals who act or have acted against the very mission of its organization.”

The appeals court ruling confirms that religious organizations can’t be forced to hire or retain employees that violate their mission, said Kevin Theriot, senior counsel for Alliance Defending Freedom, which represents the nonprofits.

“This would be similar to forcing, for instance, a Democrat candidate to hire a Republican speechwriter,” he said.

While Theriot said he disagrees with the judges’ dismissal of the free speech and free exercise claims, he said that expressive associational rights are still a subset of First Amendment rights.

“Bottom line: This is a free speech case,” Theriot said. “This law … threatens their ability to live by their beliefs, and that’s just something that has no place in our free society.” Religious organizations have a right to hire like-minded people and state laws cannot impede this, he added.

Faith-based organizations are facing similar legal challenges across the country.

In Washington state, Yakima Union Gospel Mission has struggled to hire religious employees due to a similar state anti-discrimination law that requires the mission to hire anyone, including those who do not subscribe to its Biblical beliefs. In November, a judge temporarily blocked the state from enforcing this law against the nonprofit.

In Oregon, the state stripped a youth ministry nonprofit of several of its grants in 2023 because of its religious hiring practices. Youth 71Five Ministries argued it has a right to hire staff and volunteers who hold Biblical beliefs before the 9th U.S. Circuit Court of Appeals in November. A ruling is still pending.

Multiple cases support religious hiring rights, Theriot explained, including the Supreme Court’s 2000 ruling in Boy Scouts of America v. Dale. In Dale, the scouting organization revoked assistant scoutmaster James Dale’s membership due to his LGBTQ activism and stance.

The high court found that the Boy Scouts couldn’t be forced to retain Dale because he hindered their right to expressive association and their ability to convey their organizational message, Theriot said.

“As an organization, as a citizen, we have free speech rights that include associational rights,” Theriot said. “When we are conveying a message to the public, we can associate with people that will amplify that message, not undermine it. That’s a basic principle—[a] First Amendment free speech principle.”