The opinion
FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 18 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNION GOSPEL MISSION OF YAKIMA No. 24-7246
WASHINGTON, D.C. No.
1:23-cv-03027-MKD
Plaintiff - Appellee, Eastern District of Washington,
Yakima
v.
ORDER
NICK BROWN, 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 - Appellants.
MURGUIA, Chief Judge:
Dissent by Judge Bumatay
Upon the vote of a majority of nonrecused active judges, it is ordered that
this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 40(c)
and Circuit Rule 40-3. The three-judge panel opinion is vacated.
2 24-7246
FILED
JUN 18 2026
Union Gospel Mission of Yakima Washington v. Brown, et al. 24-7246 MOLLY C. DWYER, CLERK
BUMATAY, Circuit Judge, joined by VANDYKE and TUNG, Circuit Judges, U.S. COURT OF APPEALS
dissenting from the grant of rehearing en banc:
We face an alarming trend on this court. It goes without saying that the First
Amendment’s protection of religious liberty is among our most fundamental and
cherished rights. Simply, the freedom of religion is central to our freedom. Indeed,
our nation was formed in part to break from government oppression of the religious.
So this right is “a peculiarly American conception”—“one that emphasizes the
integrity and diversity of religious life rather than the secularism of the State.”
Michael W. McConnell, The Origins and Historical Understanding of Free Exercise
of Religion, 103 Harv. L. Rev. 1409, 1416 (1990).
Despite this, the Ninth Circuit has relegated religious liberty to a second-class
right. In case after case, our court has condoned governmental interference with the
rights of the religious to practice their faith as they believe. See, e.g., Kennedy v.
Bremerton Sch. Dist., 4 F.4th 910, 945 (9th Cir. 2021) (R. Nelson, J., dissenting from
the denial of reh’g en banc); Hittle v. City of Stockton, 101 F.4th 1000, 1019 (9th Cir.
2024) (VanDyke, J., dissenting from denial of reh’g en banc); Olympus Spa v.
Armstrong, 169 F.4th 817, 862 (9th Cir. 2026) (Tung, J., dissenting from denial of
reh’g en banc); Woolard v. Thurmond, 170 F.4th 701, 710 (9th Cir. 2026) (Bumatay,
J., dissenting from denial of reh’g en banc); Detwiler v. Mid-Columbia Medical Ctr.,
172 F.4th 1072, 1072 (9th Cir. 2026) (Forrest, J., dissenting from denial of reh’g en
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banc). And our failure to guard against intrusions on religious liberty has not gone
unnoticed. See Mirabelli v. Bonta, 607 U.S. 492, 496–97 (2026).
Now, with this en banc vote, we continue down this disturbing path. 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. As a matter of constitutional first principles and precedent,
that’s wrong. See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732,
746 (2020). Perhaps I’m wrong, in which case I will celebrate the win for the First
Amendment. But given our court’s track record, I have doubts.
The Constitution exists for a reason. It enshrines enduring principles. Those
principles must be protected against all—even against encroachment by popular
causes. But the Ninth Circuit has made clear that it will subordinate religious
liberty—that precious American principle—whenever its judges decide that the right
simply isn’t worth it.
We are better than this.
I respectfully dissent from the grant of rehearing en banc.
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