Washington rescue mission will return to court for a do-over

Scott Thielen likely thought he’d won a three-year legal fight after a federal appeals court earlier this year upheld his ministry’s right to hire only applicants who subscribed to its statement of faith. But after the full appeals court set aside that ruling last Thursday, it’s not clear what comes next for the ministry.

Thielen is CEO of Washington state’s Yakima Union Gospel Mission, which has ministered to the homeless since 1936. But since 2023, it’s been locked in a battle with state officials over an anti-discrimination law it contends would force it to hire those of another religion—or none at all—or who hold and practice different beliefs on gender, sexuality, and other matters.

Both a U.S. District Court in 2024 and a unanimous three-judge federal appeals court panel earlier this year ruled in favor of the mission. But on Thursday, a majority of the circuit judges on the 9th U.S. Circuit Court of Appeals granted a rehearing in the case—casting doubt on the mission’s hiring practices.

Last week’s order vacated the January panel ruling, temporarily leaving in effect the District Court’s ruling that also allowed the mission to continue its hiring of co-religionists. Following general practice, the order does not indicate how individual judges voted, yet at least three judges—those on the panel that previously ruled in favor of the mission—disagreed.

In a sharply worded dissent that other panel judges joined, Circuit Judge Patrick Bumatay, a President Donald Trump appointee, lamented the court’s “alarming trend” of “relegat[ing] religious liberty to a second-class right.”

“In what is likely a foregone conclusion, our court steps toward endorsing the view that States can force a religious organization to hire individuals who openly flout its religious beliefs and teachings,” Bumatay predicted.

Carl Esbeck, a law professor at the University of Missouri who has written extensively on church autonomy, told me in an email that he is “not surprised” by the court’s decision to rehear the case. “Church autonomy doctrine has never covered non-ministerial employees,” he said.

But Esbeck pointed out that the panel ruling said nothing about the free exercise clause or freedom of association claims that the District Court weighed and the three-judge appeals panel ignored—claims he believes are better grounded.

“When sincerely practiced, granting an allowance for these zealous operations of a pervasively religious charity is going to draw considerable empathy,” Esbeck writes in a forthcoming article in the Notre Dame Law Review. He notes that the ministry’s free exercise claim will likely hold out against the state’s anti-discrimination interest. “It is a winning argument, but it is a win under the Free Exercise Clause—not church autonomy,” he concludes.

Esbeck also said that the mission’s attorneys may have been too quick to abandon an argument that the ministerial exception doctrine covered all of the ministry’s employees. The First Amendment–derived doctrine provides immunity to religious employers for claims involving employees who serve religious functions. He pointed to last year’s 9th Circuit panel ruling that applied the doctrine to a World Vision customer service representative who manned a switchboard and merely talked with supporters of the evangelical relief agency.

While disappointed with the decision to rehear the case, Jeremiah Galus, an Alliance Defending Freedom attorney who represented the mission, was optimistic. “We remain confident that the court will recognize the government cannot dictate who is qualified to express the Mission’s Christian message, spread the gospel, or disciple others,” said Galus. “Under the First Amendment, religious organizations must have the freedom to hire individuals who share and live out their beliefs—a principle that is fundamental to religious liberty.”

New oral arguments are scheduled for the week of Sept. 28. A ruling may come before the end of the year.