Seattle Pacific University defends its hiring practices

A Seattle courtroom Thursday served as the latest forum to test the limits of government efforts to press sexual and gender ideology on an institution committed to a Biblical understanding of marriage and sexuality.

Seattle Pacific University, founded in 1891 as a seminary to train Methodist ministers, filed a lawsuit last year in an effort to preempt an investigation by Washington Attorney General Bob Ferguson into the college’s hiring practices.

University attorneys contend that a June 2022 letter to the school by Ferguson demanded that the school turn over half a decade’s worth of employment records about every position at the school.

Ferguson’s investigation came after complaints from some students, faculty, and persons outside the school about the university’s requirement that employees adhere to its Statement on Human Sexuality. Under the policy, employees must “affirm that sexual experience is intended between a man and a woman” within “the covenant of marriage between a man and a woman.”

The Washington Law Against Discrimination bans employers from discriminating based on a wide range of characteristics, including sexual orientation and gender identity. The law’s employment provision exempts “any religious or sectarian organization not organized for private profit,” but in 2021, the Washington Supreme Court severely restricted the exemption, limiting its protection to employees who are “ministers.”

In a complaint filed in July 2022, Seattle Pacific University claimed that the investigation seeking sensitive employee information violated First Amendment guarantees of free speech, religious exercise, and religious assembly. A federal district court sidestepped those issues in an October 2022 ruling from the bench that dismissed the complaint. U.S. District Judge Robert J. Bryan concluded that the court had no jurisdiction to consider the claims because a federal court could not change state law or enjoin an ongoing state investigation.

At Thursday’s hearing before a three-judge panel of the 9th U.S. Circuit Court of Appeals, Becket Fund for Religious Liberty attorney Lori Windham, who represented the school, called out Bryan for not allowing the pre-enforcement challenge to proceed. Without any serious questioning from the panel, Windham argued that the “trolling” of the school’s records itself, with the threat of enforcement, was sufficient injury to allow the case to proceed to the merits.

While the court did not rule, two judges questioned whether Bryan prematurely dismissed the case. When Washington state Assistant Attorney General Daniel Jeon accused the school of wanting a “blank check” to apply the law as it saw fit, Circuit Judge M. Margaret McKeown shot back. “But why wouldn’t that be a question after discovery for the court to determine whether it had the factual or legal foundation to issue such an injunction or declaratory judgment?”

In a post-hearing interview, Windham described the ramifications of allowing the ruling to go uncontested or of not being able to get into court. “If SPU can’t bring this kind of case, that makes it harder for any religious group to go to court to protect its rights,” she said. “You have to wait until a state official has taken some serious enforcement action against you before you can make your First Amendment case.”

To bring a pre-enforcement challenge, a litigant has to demonstrate a “credible threat” that a state law will be enforced against it, Windham said. “Our case is one of the strongest pre-enforcement challenges I’ve seen, because you do have the state attorney general coming in and starting an investigation and making it clear that he wants to take further enforcement actions.”

As school trustees have sought in recent years to better align the school with the Free Methodist Church’s faith and practice, they have faced highly vocal opposition from some students and faculty. In September 2022, sixteen students, faculty, and staff members sued the board of trustees for refusing to retract a longstanding policy of not hiring people who are in same-sex relationships.

A state court judge threw out all but one of the students’ claims in April 2023, concluding that the students had no standing to sue the trustees. Attorneys for the students later voluntarily dismissed the remaining claim.

In an earlier prepared statement, Windham pointed to issues beyond Thursday’s arguments over whether the school gets in the courthouse door to what’s ultimately at stake.

“As a well-known faith-based university for 130 years, Seattle Pacific University has the freedom to have conduct expectations for employees based upon that faith,” she said. “Washington’s attorney general is trying to take that right away from SPU and all other religious institutions in the state that wish to continue following their beliefs. All SPU asks is for the ability to continue to educate students in accordance with its faith without government interference.”