Union Gospel Mission of Yakima Washington v. Ferguson

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 12 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNION GOSPEL MISSION OF YAKIMA No. 23-2606

WASHINGTON, D.C. No.

1:23-cv-03027-MKD

Plaintiff - Appellant,

v. MEMORANDUM*

ROBERT FERGUSON, in his official

capacity as Attorney General of Washington

State; ANDRETA ARMSTRONG, in her

official capacity as Executive Director of

the Washington State Human Rights

Commission; DEBORAH COOK, in her

official capacity as Commissioner of the

Washington State Human Rights

Commission; GUADALUPE GAMBOA, in

her official capacity as Commissioner of the

Washington State Human Rights

Commission; JEFF SBAIH, in his official

capacity as Commissioner of the

Washington State Human Rights

Commission; HAN TRAN, in his official

capacity as Commissioner of the

Washington State Human Rights

Commission,

Defendants - Appellees.

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

Appeal from the United States District Court

for the Eastern District of Washington

Mary K. Dimke, District Judge, Presiding

Argued and Submitted July 19, 2024

San Francisco, California

Before: M. SMITH, BENNETT, and JOHNSTONE, Circuit Judges.

The Washington Law Against Discrimination (“WLAD”) prohibits

discrimination in employment because of sexual orientation. Wash. Rev. Code

§ 49.60.030(1)(a). The WLAD gives the Washington State Human Rights

Commission (“WSHRC”) the power to investigate “unfair practices,” as defined in

§ 49.60.180 of the WLAD. Id. § 49.60.120(4). The Washington Attorney General

represents the WSHRC in administrative hearings. See Cases, Washington State

Office of the Attorney General, https://perma.cc/47T5-4SQT. In addition, private

individuals may sue employers, including to enjoin violations of the WLAD. Id.

§ 49.60.030(2).

As enacted, the WLAD exempted religious nonprofit organizations from its

definition of “employer.” Id. § 49.60.040(11). In 2021, however, the Washington

Supreme Court held in Woods v. Seattle’s Union Gospel Mission, 481 P.3d 1060

(Wash. 2021), cert. denied, 142 S. Ct. 1094 (2022), that while this religious-

employer exemption was facially constitutional under the Washington constitution,

it might be constitutionally invalid as applied to the plaintiff, a bisexual job

applicant. Id. at 1063, 1065, 1070. In doing so, the court narrowed the religious-

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employer exemption to correspond to the ministerial exception under the U.S.

Supreme Court’s First Amendment jurisprudence. See id. at 1069–70.

The Union Gospel Mission of Yakima, Washington (“YUGM”), a Christian

ministry, sued the Washington Attorney General and other state officials

(collectively, “State”). YUGM asked the district court to declare multiple sections

of the WLAD unconstitutional in light of Woods. YUGM alleged that its

employment policies require that all its employees sign and agree to YUGM’s

“Statement of Faith” and core values, which require them to agree in belief and

adhere to a Christian lifestyle and behavior, including certain beliefs on marriage

and sexuality. In the complaint, YUGM referenced the Washington Attorney

General’s Office’s (“AGO”) prior investigation into Seattle Pacific University

(“SPU”). There, the AGO sent a letter to SPU, requesting that SPU submit four

categories of documents and stating that SPU’s employment policies are possibly

discriminatory and may violate the WLAD. That investigation resulted in a recent

Ninth Circuit opinion in Seattle Pacific University v. Ferguson (“SPU”), 104 F.4th

50 (9th Cir. 2024).1

The State moved to dismiss. YUGM moved for a preliminary injunction to

prohibit enforcement of the WLAD. The district court granted the State’s motion to

1 The complaint alleged that the Attorney General made clear in SPU that “the

WLAD now prohibits religious organizations from considering sexual orientation

in hiring their non-ministerial employees.”

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dismiss for lack of Article III standing and denied YUGM’s motion for a preliminary

injunction as moot.

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand.

1. We review the district court’s dismissal pursuant to Federal Rule of

Civil Procedure 12(b)(1) for lack of standing de novo. Banks v. N. Tr. Corp., 929

F.3d 1046, 1049 (9th Cir. 2019). To establish standing, YUGM must meet well-

established requirements: “injury in fact, causation, and a likelihood that a favorable

decision will redress [YUGM’s] alleged injury.” Lopez v. Candaele, 630 F.3d 775,

785 (9th Cir. 2010). The parties contest injury-in-fact and redressability.

A. Injury-in-Fact

In Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), the Supreme Court

provided a three-prong framework for determining when a plaintiff could bring a

pre-enforcement suit: “[A] plaintiff could bring a pre[-]enforcement suit when he

‘has alleged [(1)] an intention to engage in a course of conduct arguably affected

with a constitutional interest, but [(2)] proscribed by a statute, and [(3)] there exists

a credible threat of prosecution thereunder.’” Id. at 160 (emphasis added) (quoting

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). YUGM’s

allegations satisfy all three Driehaus prongs.

On the first prong, YUGM has alleged that its religious belief-based hiring

policies and practices mandate that all employees, including those in positions such

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as IT technician and operations assistant, adhere to its religious beliefs, which

encompass those concerning its view of sexual morality. The complaint further

alleges that YUGM will continue to adhere to these hiring practices, and nothing in

the record suggests otherwise. See SPU, 104 F.4th at 59 (holding that the first prong

was satisfied because SPU, “[i]n the face of faculty and student pressure to change

its policies, the [SPU] Board voted to retain the existing employee conduct policy

prohibiting same-sex marriage and intimacy”).

On the second prong, we only require that YUGM’s intended future conduct

be “arguably . . . proscribed by [the] statute” it wishes to challenge. Driehaus, 573

U.S. at 160 (emphasis added) (quoting Babbitt, 442 U.S. at 298). YUGM challenges

the WLAD’s sections with respect to employment discrimination. On this challenge,

SPU directly controls, as YUGM has similar, if not the same, employment practices

and policies as SPU. See SPU, 104 F.4th at 60 (holding that the allegations that

“SPU has and will continue to apply its sexual conduct policies to . . . ministers and

non-ministers alike” satisfied the second Driehaus prong because “[t]hese policies

arguably violate the WLAD” as interpreted by the AGO).

YUGM also challenged two additional sections of the WLAD: Wash. Rev.

Code §§ 49.60.180(4) (employment advertisement), 49.60.208(1) (disclosure of

religious affiliation). YUGM’s intended conduct—including regarding its Religious

Hiring Statement and its requirement that employees and prospective employees

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disclose their sincerely held religious affiliations or beliefs—arguably also violates

these sections of the WLAD.

On the third prong, we apply the three-factor test articulated in Thomas v.

Anchorage Equal Rights Commission, 220 F.3d 1134 (9th Cir. 2000) (en banc). As

we recently clarified:

The final Driehaus prong requires [p]laintiffs to show a “credible

threat of prosecution.” To evaluate the threat of prosecution, we

consider: (1) whether the plaintiff has a “concrete plan” to violate the

law, (2) whether the enforcement authorities have “communicated a

specific warning or threat to initiate proceedings,” and (3) whether

there is a “history of past prosecution or enforcement.”

Isaacson v. Mayes, 84 F.4th 1089, 1099 (9th Cir. 2023) (quoting Thomas, 220 F.3d

at 1139); see also Tingley v. Ferguson, 47 F.4th 1055, 1067 (9th Cir. 2022), cert.

denied, 144 S. Ct. 33 (2023).2

Applying this three-factor test, we find that the third Driehaus prong is also

satisfied. The first Thomas factor favors standing. A plaintiff need not specify

“when, to whom, where, or under what circumstances” it plans to violate the law.

Tingley, 47 F.4th at 1068 (quoting Thomas, 220 F.3d at 1139). Instead, a plaintiff

need only allege that it “intend[s] to engage in conduct arguably proscribed by” the

2 Thomas first articulated this framework to analyze the ripeness of a plaintiff’s

claimed injury. See Thomas, 220 F.3d at 1138–39. Tingley applied the framework

to determine injury-in-fact. Tingley, 47 F.4th at 1067. But as Thomas noted,

constitutional ripeness—unlike prudential ripeness—“is often treated under the

rubric of standing and, in many cases, ripeness coincides squarely with standing’s

injury in fact prong.” Thomas, 220 F.3d at 1138.

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challenged statute. Isaacson, 84 F.4th at 1099. As discussed above, YUGM has

sufficiently alleged that it intends to engage in conduct arguably proscribed by

multiple sections of the WLAD.

We “have taken a broad view” of the second Thomas factor, id. at 1100, and

have “interpreted the government’s failure to disavow enforcement of the law as

weighing in favor of standing,” Tingley, 47 F.4th at 1068 (emphasis omitted). We

may also find in favor of standing when the government is “only one of the many

enforcers of” the challenged statute. Isaacson, 84 F.4th at 1100–01. Here, not only

did the State repeatedly refuse to disavow enforcement to the extent that YUGM

seeks to hire non-ministerial employees, see generally Oral Arg., but the State is

only one enforcer of the WLAD, see Wash. Rev. Code § 49.60.030(2). “And in the

context of pre-enforcement challenges to laws on First Amendment grounds, a

plaintiff ‘need only demonstrate that a threat of potential enforcement will cause him

to self-censor.’” Tingley, 47 F.4th at 1068 (quoting Protectmarriage.com-Yes on 8

v. Bowen, 752 F.3d 827, 839 (9th Cir. 2014)). YUGM has sufficiently alleged that

the WLAD has forced it to self-censor its conduct and its speech.

We need not decide whether the AGO’s letter to SPU constitutes a history of

past enforcement under the third Thomas factor because this factor “carries ‘little

weight’ when the challenged law is ‘relatively new’ and the record contains little

information as to enforcement.” Id. at 1069 (quoting Cal. Trucking Ass’n v. Bonta,

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996 F.3d 1044, 653 (9th Cir. 2021)). The WLAD, as interpreted by the Washington

Supreme Court in Woods in 2021, is relatively new.

Therefore, we find that the third Driehaus prong is also satisfied under the

Thomas test. Because we find that all three Driehaus prongs are satisfied, we hold

that the district court erred in its injury-in-fact analysis.

B. Redressability

The State next argues that YUGM’s claims are not redressable. Our

conclusion that SPU’s similar claims were redressable directly controls in this

instance. See SPU, 104 F.4th at 61–63. We thus hold that the district court also

erred in its redressability analysis.

Because we find that YUGM has alleged Article III standing, we reverse the

district court’s order granting the State’s motion to dismiss.

2. Because the district court granted the State’s motion to dismiss on

injury-in-fact and redressability grounds, it did not address the State’s argument on

prudential ripeness. We thus remand to the district court to consider prudential

ripeness in the first instance. See id. at 66 (“Because the district court did not rule

on th[e] issue [of prudential ripeness] below, . . . we remand to the district court to

consider the issue in the first instance.”).

3. The district court denied YUGM’s motion for a preliminary injunction

as moot. We remand to the district court to decide YUGM’s motion for a

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preliminary injunction in the first instance. See, e.g., Evans v. Shoshone-Bannock

Land Use Pol’y Comm’n, 736 F.3d 1298, 1307 (9th Cir. 2013) (noting that whether

to grant a preliminary injunction “is a matter committed to the discretion of the trial

judge” (quoting Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421

(9th Cir. 1984))); Planned Parenthood of Greater Wash. & N. Idaho v. U.S. Dep’t

of Health & Hum. Servs., 946 F.3d 1100, 1111 (9th Cir. 2020) (“A district court is

usually best positioned to apply the law to the record.”); Fed. R. Civ. P. 65(d) (listing

the required factual determinations in any order granting a preliminary injunction).

REVERSED AND REMANDED.

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