Seattle Pacific University v. Robert Ferguson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEATTLE PACIFIC UNIVERSITY, No. 22-35986

Plaintiff-Appellant,

D.C. No.

v. 3:22-cv-05540-

RJB

ROBERT FERGUSON, in his official

capacity as Attorney General of

Washington, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Washington

Robert J. Bryan, District Judge, Presiding

Argued and Submitted November 16, 2023

Seattle, Washington

Filed June 7, 2024

Before: M. Margaret McKeown and Ronald M. Gould,

Circuit Judges, and Richard D. Bennett,* District Judge.

Opinion by Judge McKeown

*

The Honorable Richard D. Bennett, United States District Judge for the

District of Maryland, sitting by designation.

2 SEATTLE PAC. UNIV. V. FERGUSON

SUMMARY**

First Amendment/Standing

The panel affirmed in part and reversed in part the

district court’s dismissal of an action brought by Seattle

Pacific University (“SPU”) alleging First Amendment

violations arising from the Washington Attorney General’s

investigation under the Washington Law Against

Discrimination (“WLAD”) into the University’s

employment policies and history.

SPU is a religious university that prohibits employees

from engaging in same-sex intercourse and marriage. After

receiving complaints, the Washington Attorney General sent

SPU a letter requesting documents related to the University’s

employment policies, employee complaints, and employee

job descriptions. In response, SPU filed suit against the

Washington Attorney General to enjoin the investigation and

any future enforcement of WLAD. The district court

dismissed the suit on the basis of lack of redressability and

Younger abstention.

Affirming in part, the panel held that SPU failed to allege

a cognizable injury in fact for its retrospective claims

alleging that the Attorney General’s investigation and

request for documents chilled its religious exercise. The

Attorney General’s request for documents carried no stick

because SPU would not face sanctions for ignoring it.

Moreover, although inquiring into the employment

conditions of ministers may offend the First Amendment, an

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SEATTLE PAC. UNIV. V. FERGUSON 3

inquiry into which employees are ministerial is fair game

because the ministerial exception’s status as an affirmative

defense makes some threshold inquiry necessary.

Reversing in part, the panel held that SPU had standing

for its prospective pre-enforcement injury claims. SPU

evidenced a sufficient intention to continue employment

practices that are arguably proscribed by WLAD, the

Attorney General has not disavowed its intent to investigate

and enforce WLAD against SPU, and SPU’s injury is

redressable. Younger abstention is not warranted because

there are no ongoing enforcement actions or any court

judgment. The panel remanded the district court to consider

prudential ripeness in the first instance.

COUNSEL

Lori H. Windham (argued), Joseph C. Davis, Daniel D.

Benson, Laura W. Slavis, and Daniel M. Vitagliano, and

Rich Osborne, The Becket Fund for Religious Liberty,

Washington, D.C.; Nathaniel L. Taylor, Abigail St. Hilaire,

and Daniel J. Ichinaga, Ellis Li & McKinstry PLLC, Seattle,

Washington; for Plaintiff-Appellant.

Daniel J. Jeon (argued), David Ward, and Patricio A.

Marquez, Assistant Attorneys General; Robert W. Ferguson,

Washington Attorney General; Office of the Washington

Attorney General, Civil Rights Division, Seattle,

Washington; for Defendant-Appellee.

Matthew T. Nelson, Conor B. Dugan, and Katherine G.

Boothroyd, Warner Norcross & Judd LLP, Grand Rapids,

Michigan, for Amicus Curiae Constitutional Law Scholars

Elizabeth A. Clark, Carl H. Esbeck, and Robert J. Pushaw.

4 SEATTLE PAC. UNIV. V. FERGUSON

OPINION

McKEOWN, Circuit Judge:

INTRODUCTION

The merits of this lawsuit involve yet another clash

between a state anti-discrimination law and the First

Amendment. But this appeal presents an antecedent

question—whether the federal courts may pass on this

important issue before the Attorney General commences an

enforcement action. Seattle Pacific University (“SPU”) is a

religious university that prohibits employees from engaging

in same-sex intercourse and marriage. After receiving a slew

of complaints, the Washington Attorney General sent SPU a

letter alerting it to an investigation under the Washington

Law Against Discrimination (“WLAD”) and requesting

documents related to employment policies, employee

complaints, and employee job descriptions. In response,

SPU filed suit against the Washington Attorney General to

enjoin the investigation and any future enforcement of the

WLAD. The question is whether the district court has

jurisdiction to hear this case. Based on a lack of

redressability and Younger abstention, the district court

granted the Attorney General’s motion to dismiss. We

affirm in part and reverse in part. We conclude that SPU has

standing to bring certain claims and that Younger abstention

does not bar the court from considering those claims.

FACTUAL AND PROCEDURAL BACKGROUND

The WLAD declares a “right to be free from

discrimination because of . . . sexual orientation.” Wash.

Rev. Code § 49.60.030. The Washington State Human

Rights Commission, created under the WLAD, is charged

SEATTLE PAC. UNIV. V. FERGUSON 5

with investigating and adjudicating complaints of

discriminatory practices. Id. § 49.60.120. In addition, the

Attorney General and private individuals may sue employers

for discriminatory practices. Id. §§ 49.60.030(2), 49.60.350.

The WLAD exempts religious nonprofit organizations

from its definition of “employer.” Id. § 49.60.040(11). In

2021, however, the Washington Supreme Court determined

that the WLAD’s exemption of all religious nonprofit

employers may violate Article I, Section 12 of the

Washington State Constitution as applied to particular

individuals. See Woods v. Seattle’s Union Gospel Mission,

481 P.3d 1060, 1070 (Wash. 2021) (en banc), cert. denied,

142 S. Ct. 1094 (2022). That provision of the state

constitution provides, “No law shall be passed granting to

any citizen, class of citizens, or corporation other than

municipal, privileges or immunities which upon the same

terms shall not equally belong to all citizens, or

corporations.” WASH. CONST. art. I, § 12. According to the

Washington Supreme Court, the WLAD’s differential

treatment of religious organizations chafes against this

clause. Woods, 481 P.3d at 1065–67. At the same time, the

court recognized that the First Amendment of the United

States Constitution includes special protections for religious

employers with regard to ministerial employees. Id.1067–

69. Analyzing the interplay between these competing

principles, the court narrowed the WLAD’s religious

employer exemption to be coextensive with the ministerial

exception recognized under federal law. Id. at 1069–70.

SPU is a private Christian university “under the auspices

of the Free Methodist Church.” Free Methodists believe

“sexual intimacy is a gift from God and is a great blessing in

the sanctity of marriage between one man and one woman.”

In the spirit of this tenet, SPU “requires all of its regular

6 SEATTLE PAC. UNIV. V. FERGUSON

faculty and staff (other than student employees and

temporary employees) . . . to abide by certain lifestyle

expectations in keeping with the University’s religious

beliefs.” Employees are prohibited from engaging in sexual

intimacy outside of marriage, with marriage only recognized

between one man and one woman.

In January 2021, a faculty applicant sued SPU alleging

sexual orientation discrimination. The case settled, but it

sparked debate within the university. Some students and

faculty called on the Board of Trustees to change its policies,

attracting media coverage. After forming a working group

to study the issue, the Board rebuffed the calls for reform,

voting to retain the existing employee conduct policy.

The Attorney General has received hundreds of

complaints against SPU related to its employment policy.

Shortly after the Board’s decision, the Attorney General sent

SPU a letter announcing a probe into SPU’s employment

policies and history. The letter requested (1) information

regarding hiring, discipline, and employment policies, (2) a

description of instances when the sexual orientation policies

have been implemented, (3) any complaints from

prospective, current, or former employees, and (4) the job

descriptions for all employees. In addition, the Attorney

General requested the retention of all documents relevant to

the investigation.

SPU responded to the letter, seeking clarification on the

scope of the probe and the Attorney General’s interpretation

of state and federal law. In reply, the Attorney General

objected to SPU’s lack of compliance with the request.

Instead of tendering the requested documents, SPU filed this

lawsuit. The Attorney General then issued a press release

denouncing SPU’s “illegal discrimination” and soliciting

SEATTLE PAC. UNIV. V. FERGUSON 7

more complaints. The Attorney General also filed a motion

to dismiss the lawsuit arguing that SPU failed to allege an

injury, that any alleged injuries would not be redressable,

that SPU’s claims were not ripe, and that Younger abstention

required dismissal. After SPU filed a First Amended

Complaint (the “Complaint”), the Attorney General refiled

its motion to dismiss on the same grounds.

The Complaint alleged that the Attorney General’s probe

and future enforcement of the WLAD violated the First

Amendment. Specifically, SPU characterizes the Attorney

General’s actions as retaliation for constitutionally protected

activities, an interference with church autonomy, selective

enforcement of Washington law, and a denominational

preference. Counts II, VI, VII, IX, and X are prospective

pre-enforcement claims challenging the impending

enforcement of the WLAD; Counts I, III, IV, V, and VIII,

and XI are retrospective claims challenging the Attorney

General’s investigation so far.

At oral argument, the district court questioned the

Attorney General’s counsel on the repercussions of SPU

ignoring the inquiry letter. Counsel replied, “[T]here are no

legal consequences to ignoring our letter. . . . There are no

other consequences.” The district court, ruling from the

bench, dismissed the Complaint. Assuming without

deciding an injury in fact, the court found that the injury was

not redressable and Younger abstention required dismissal.

ANALYSIS

I. Standing

We review de novo an order granting a motion to dismiss

for lack of standing, and we rest our analysis on the

Complaint’s allegations, which we accept as true at the

8 SEATTLE PAC. UNIV. V. FERGUSON

pleading stage. See Southcentral Found. v. Alaska Native

Tribal Health Consortium, 983 F.3d 411, 416–17 (9th Cir.

2020); Carrico v. City & Cnty. of San Francisco, 656 F.3d

1002, 1006 (9th Cir. 2011). To establish standing, SPU must

meet the well-established requirements: “injury in fact,

causation, and a likelihood that a favorable decision will

redress the plaintiff’s alleged injury.” Lopez v. Candaele,

630 F.3d 775, 785 (9th Cir. 2010). Here, only injury in fact

and redressability are contested.

A. Investigatory Probe—Injury in Fact

Six of SPU’s claims allege an injury based on the

Attorney General’s probe to date—Counts I, III, IV, V, VIII,

and XI. SPU contends that the Attorney General’s request

for documents chilled religious exercise, both because SPU

was targeted for retaliation and because the probe intruded

on religious autonomy. This retrospective theory requires us

to disregard any threat of future enforcement and focus on

the Attorney General’s past actions—namely, the request

letter and the general investigation so far. We conclude that

SPU failed to state an injury in fact, and hence these counts

were properly dismissed.

In a strikingly similar case, Twitter alleged that a Civil

Investigative Demand (“CID”) from the Texas Office of the

Attorney General had a chilling effect on its free speech

rights. Twitter, Inc. v. Paxton, 56 F.4th 1170, 1172 (9th Cir.

2022). We held that Twitter’s vague assertions of chilled

speech were insufficient to establish an injury. Id. at 1175.

Crucially, the CID was non-self-executing: the Texas

Attorney General must petition a court to enforce a CID if

the recipient refuses to comply. Id. at 1176. We concluded,

“[T]o complain about the CID in this posture is to speculate

about injuries that have not and may never occur.” Id.

SEATTLE PAC. UNIV. V. FERGUSON 9

Although we grounded the decision on ripeness, we noted

that the ripeness inquiry is “synonymous with the injury-in-

fact prong of the standing inquiry.” Id. at 1173 (cleaned up).

Like the CID in Twitter, the Attorney General’s request

for documents carries no stick: SPU would not face

sanctions for ignoring it. SPU endeavors to cast its injury as

more concrete than that of Twitter, but we are not convinced.

SPU alleges that the Attorney General’s actions “require[d]

[SPU] to make decisions about employment under a cloud

of government investigation and impending penalties” and

that SPU “believes that if it does not comply with the

unconstitutional probe, then it will face serious penalties and

litigation against Constitutionally protected actions.” These

allegations mirror Twitter’s claim that its “ability to freely

make its own decisions as to what content to include on its

platform is impeded by the persistent threat that government

actors who disagree with those decisions may wield their

official authority to retaliate, such as by issuing a

burdensome CID or commencing an intrusive

investigation.” Twitter, 56 F.4th at 1175. SPU’s allegations

are no more concrete.

As we know, not all First Amendment rights stand on

equal footing. In Twitter, the claimed injury was chilled

speech, not the intrusion into church autonomy. The

Supreme Court has stressed that “the very process of

inquiry” by the government may impinge the rights

guaranteed by the Religion Clauses. NLRB v. Catholic

Bishop of Chicago, 440 U.S. 490, 502 (1979). Although this

wrinkle distinguishes SPU’s appeal from Twitter, it turns out

to be a distinction without a difference.

SPU cites a string of cases emphasizing the firewall

between secular employment standards and religious

10 SEATTLE PAC. UNIV. V. FERGUSON

organizations. But none of those cases stand for the

proposition that SPU asks us to endorse. In each case, the

question was unquestionably ripe: the agency or judicially

supervised investigation was exercising its coercive power.

See, e.g., Rayburn v. Gen. Conf. of Seventh-Day Adventists,

772 F.2d 1164, 1171 (4th Cir. 1985) (“Church personnel and

records would inevitably become subject to subpoena,

discovery, cross-examination, the full panoply of legal

process designed to probe the mind of the church in the

selection of its ministers.”).1 SPU’s Complaint proclaims,

“Church autonomy also forbids the ‘forced disclosure’ of

religious organizations’ ‘internal communications.’” But

here, there is no “forced disclosure.” SPU asks us to

judicially shield it from a request for documents that could

simply be ignored. As the Attorney General acknowledges,

there are “no legal consequences” or “other consequences”

flowing from the request. Nothing in the Religion Clauses

transforms the Attorney General’s request into an injury.

Nor can it be that any investigation into a religious

organization’s employment practices creates a First

Amendment injury. As SPU’s own authorities make clear,

inquiring into the employment conditions of ministers may

offend the First Amendment, but an inquiry into which

employees are ministerial is fair game: “The ministerial

exception’s status as an affirmative defense makes some

threshold inquiry necessary. At the same time, discovery to

determine who is a minister differs materially from

discovery to determine how that minister was treated . . . .”

1

See also Duquesne Univ. of the Holy Spirit v. NLRB, 947 F.3d 824, 827

(D.C. Cir. 2020) (challenging an NLRB order to bargain); Whole

Woman’s Health v. Smith, 896 F.3d 362, 366–67 (5th Cir. 2018) (raising

a motion to quash a subpoena).

SEATTLE PAC. UNIV. V. FERGUSON 11

Demkovich v. St. Andrew the Apostle Par., 3 F.4th 968, 983

(7th Cir. 2021) (citing Hosanna-Tabor Evangelical

Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 195 n.4

(2012)).

This distinction is sensible. If the First Amendment

barred any inquiry into religious employers, including an

inquiry into which employees are ministers, the ministerial

exception would be elevated from an affirmative defense to

affirmative immunity, and the Attorney General would have

no point of entry for an investigation of non-ministerial

employees. A religious employer is not given carte blanche

with respect to all employees, ministerial and non-

ministerial alike. As the Supreme Court has made clear,

“[t]his does not mean that religious institutions enjoy a

general immunity from secular laws, but it does protect their

autonomy with respect to internal management decisions

that are essential to the institution’s central mission.” Our

Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct.

2049, 2060 (2020). SPU’s sweeping interpretation of the

ministerial exception would give religious organizations a

vast buffer zone, tantamount to a free pass, protecting far

more than just the “central mission” of the religious

institution. Id. To the contrary, First Amendment

protections serve as a sieve, not a lid.2

B. Pre-Enforcement Injury In Fact

A separate framework applies to SPU’s claims asserting

pre-enforcement standing—Counts II, VI, VII, IX, and X.

Pre-enforcement standing injuries are predicated on the

2

Nor does it matter that the inquiry came from a government probe rather

than from a suit brought by an individual employee. The scope of the

ministerial exception does not fluctuate based on the identity of the

challenging party.

12 SEATTLE PAC. UNIV. V. FERGUSON

anticipated enforcement of the challenged statute in the

future and the resulting chilling effect in the present. Put

simply, pre-enforcement standing hinges on whether a party

has “alleged a sufficiently imminent injury for the purposes

of Article III.” Susan B. Anthony List v. Driehaus, 573 U.S.

149, 151 (2014). In Driehaus, the Supreme Court offered up

three benchmarks to determine whether there is “a credible

threat of enforcement”: (1) a plaintiff must allege “an

intention to engage in a course of conduct arguably affected

with a constitutional interest,” (2) a plaintiff’s intended

future conduct must be “arguably . . . proscribed by [the]

statute” it wishes to challenge, and (3) the threat of future

enforcement must be “substantial.”3 Id. at 161–62, 164

(quoting Babbitt v. Farm Workers, 442 U.S. 289, 298

(1979)). Under this framework, we conclude that SPU has

alleged a pre-enforcement injury in fact.

1. Course of Conduct Affecting a Constitutional

Interest

The first Driehaus prong requires that the plaintiff has

“an intention to engage in a course of conduct arguably

affected with a constitutional interest.” Id. at 161 (quoting

Babbitt, 442 U.S. at 298). As a religious university with

specific parameters undergirding its employment practices,

SPU’s employment decisions are plainly affected with First

Amendment interests. See Our Lady of Guadalupe, 140 S.

Ct. at 2060. The real question is whether SPU has sufficient

intention to act.

3

See Peace Ranch, LLC v. Bonta, 93 F.4th 482, 486–87 (9th Cir. 2024),

for a synopsis of the evolution of Ninth Circuit caselaw on pre-

enforcement standing.

SEATTLE PAC. UNIV. V. FERGUSON 13

The Attorney General posits that “[i]n the absence of any

fact allegation by SPU of how it plans to refuse to hire, fire,

or otherwise discriminate against non-ministerial employees

because of their sexual orientation, SPU fails to show that it

intends to act in a course of conduct proscribed by the

WLAD.” But the Attorney General misunderstands the

inquiry. To be sure, bare bones pleadings merely asserting

that the plaintiffs are subject to the challenged law are not

enough. See Carrico, 656 F.3d at 1006–07. Some of our

precedents suggest that pre-enforcement standing requires

the “when, to whom, where, or under what circumstances”

the plaintiff plans to violate the law. See Unified Data

Servs., LLC v. FTC, 39 F.4th 1200, 1211 (9th Cir. 2022)

(quoting Lopez, 630 F.3d at 787). When, however, a

plaintiff has previously engaged in conduct that would

violate the challenged law, we have relaxed the requisite

level of detail. See Tingley v. Ferguson, 47 F.4th 1055, 1068

(9th Cir. 2022) (“[W]e do not require plaintiffs to specify

‘when, to whom, where, or under what circumstances’ they

plan to violate the law when they have already violated the

law in the past.” (citation omitted)).

SPU has evidenced a sufficient intention to continue its

employment practices. In the face of faculty and student

pressure to change its policies, the Board voted to retain the

existing employee conduct policy prohibiting same-sex

marriage and intimacy. SPU further alleges that it “would

be automatically disaffiliated from the Free Methodist

Church” if it permitted employment of “Christians in same-

sex marriages.” These allegations suffice to meet the

requirement of “an intention to engage in a course of

conduct” that intersects with the claimed First Amendment

interest. Driehaus, 573 U.S. at 161 (citation omitted).

14 SEATTLE PAC. UNIV. V. FERGUSON

2. Conduct Arguably Proscribed by Washington

Law

SPU’s employment practices are arguably proscribed by

Washington law, which prohibits employment

discrimination on the basis of sexual orientation. The

Attorney General essentially agrees but counters that,

because the WLAD does not affect ministerial employees,

SPU’s hiring practices are not proscribed. But that argument

is circular: it is tantamount to saying that so long as SPU is

not violating the WLAD, the WLAD does not prohibit its

hiring practices. This reasoning, of course, collapses on

itself in this situation. The Complaint is crystal clear that

SPU has applied and will continue to apply its sexual

conduct policies to all regular faculty and staff, ministers and

non-ministers alike. These policies arguably violate the

WLAD, even according to the Attorney General. In its letter

requesting documents, the Attorney General stated that

SPU’s employment policies are “possibl[y] discriminatory”

and “may violate the Washington Law Against

Discrimination.” Even more pointed, in a press release after

SPU filed its initial Complaint, the Attorney General

denounced SPU’s “illegal discrimination” and solicited

more complaints. Thus, SPU’s course of conduct is arguably

proscribed by the WLAD.

3. Substantial Threat of Enforcement

The final Driehaus factor requires a substantial threat of

enforcement, which is often linked to the enforcing

authority’s willingness to disavow enforcement. See LSO,

Ltd. v. Stroh, 205 F.3d 1146, 1154–56 (9th Cir. 2000)

(“While we cannot go so far as to say that a plaintiff has

standing whenever the Government refuses to rule out use of

the challenged provision, failure to disavow ‘is an attitudinal

SEATTLE PAC. UNIV. V. FERGUSON 15

factor the net effect of which would seem to impart some

substance to the fears of [plaintiffs].’” (quoting Am.-Arab

Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501,

508 (9th Cir. 1991))). Here, the Attorney General has not

disavowed its intent to investigate and enforce the WLAD

against SPU. Instead, in a press release responding to this

lawsuit, the Attorney General affirmatively solicited more

complaints of “possible employment discrimination by

Seattle Pacific University.”

The letter requesting documents and a litigation retention

hold is also a clear sign of a substantial threat. See Spokane

Indian Tribe v. United States, 972 F.2d 1090, 1092 (9th Cir.

1992) (upholding jurisdiction when the United States

Attorney’s Office sent a letter informing the tribe that its

“Pick 6” lotto violated state and federal law and requesting

discontinuation). Without doubt, the Attorney General’s

letter caused SPU to have a “real and reasonable

apprehension that [it] will be subject to liability.” Id.

(quoting Hal Roach Studios, Inc. v. Richard Feiner & Co.,

896 F.2d 1542, 1555 (9th Cir. 1990)). The letter stated that

“[t]he AGO has recently learned about possible

discriminatory employment policies and practices by Seattle

Pacific University that may violate the Washington Law

Against Discrimination” and informed SPU that “the AGO

is opening an inquiry to determine whether the University is

meeting its obligations under state law.” The letter further

enclosed a “certification regarding the retention of

documents” and requested that SPU “maintain in their

current forms all records, documents, files, and

electronically stored material that may be relevant to this

investigation.” Thus, the letter clearly raises the specter of

potential administrative or judicial proceedings. This course

of conduct is hardly without consequence.

16 SEATTLE PAC. UNIV. V. FERGUSON

Taken as a whole, the allegations in the Complaint

satisfy the Driehaus test and establish an injury with respect

to Counts II, VI, VII, IX, and X.

C. Redressability

For an injury to be redressable, it must be “likely, as

opposed to merely speculative, that the injury will be

redressed by a favorable decision.” Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992) (cleaned up). Here, the

redressability of SPU’s alleged injury is plain:

When the suit is one challenging the legality

of government action or inaction, the nature

and extent of facts that must be averred (at the

summary judgment stage) or proved (at the

trial stage) in order to establish standing

depends considerably upon whether the

plaintiff is himself an object of the action (or

forgone action) at issue. If he is, there is

ordinarily little question that the action or

inaction has caused him injury, and that a

judgment preventing or requiring the action

will redress it.

Id. at 561–62. SPU is challenging the future enforcement

action of a state actor, and the court has the power to enjoin

the action or issue relief through a declaration of rights. See

e.g., Ted Cruz for Senate v. FEC, 542 F. Supp. 3d 1, 5–6

(D.D.C. 2021) (invalidating and enjoining the enforcement

of Section 304 of the Bipartisan Campaign Reform Act of

2002), aff’d sub nom., FEC v. Cruz, 596 U.S. 289 (2022).

The district court, however, rejected redressability for

three reasons: (1) the prohibition on advisory opinions bars

SEATTLE PAC. UNIV. V. FERGUSON 17

declaratory relief, (2) a federal court cannot change state

law, and (3) an injunction would impermissibly entangle the

court with a religious institution. As we explain, none of the

rationales defeat redressability.

1. Declaratory Relief

The Declaratory Judgment Act provides that, “[i]n a case

of actual controversy within its jurisdiction . . . any court of

the United States . . . may declare the rights and other legal

relations of any interested party seeking such declaration,

whether or not further relief is or could be sought.” 28

U.S.C. § 2201(a). Decades ago, the Supreme Court anointed

the Declaratory Judgment Act as constitutional. Aetna Life

Ins. Co. of Hartford v. Haworth, 300 U.S. 227, 240–41

(1937).

The district court, however, eschewed its power to issue

declaratory relief. It correctly noted that Article III courts

“don’t issue advisory opinions,” but then jumped to the

conclusion that the court cannot grant declaratory relief in

this case. To be sure, “[t]here was a time” when the courts

“harbored doubts about the compatibility of declaratory-

judgment actions with Article III’s case-or-controversy

requirement.” MedImmune, Inc. v. Genentech, Inc., 549

U.S. 118, 126 (2007). But the Supreme Court has long since

“dispelled” such doubts. Id. Declaratory relief does not

necessarily translate into an advisory opinion. See e.g.,

Skyline Wesleyan Church v. Cal. Dep’t of Managed Health

Care, 968 F.3d 738, 749 (9th Cir. 2020) (holding that

declaratory relief could redress the alleged injury); Clark v.

City of Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001), as

amended (Aug. 15, 2001) (“If a plaintiff has standing to seek

injunctive relief, the plaintiff also has standing to seek a

declaratory judgment.”).

18 SEATTLE PAC. UNIV. V. FERGUSON

At the edges, there may be some ambiguity as to which

declaratory-judgment actions are justiciable under Article

III. But this ambiguity generally arises with respect to injury

in fact or ripeness, and in any event, this is not an edge case.

In MedImmune, the Supreme Court took up the ripeness of a

case in which a “plaintiff’s self-avoidance of imminent

injury is coerced by threatened enforcement action of a

private party rather than the government.” 549 U.S. at 130.

The Court began with the “recognition” that “where

threatened action by government is concerned, we do not

require a plaintiff to expose himself to liability before

bringing suit to challenge the basis for the threat—for

example, the constitutionality of a law threatened to be

enforced.” Id. at 128–29. Indeed, it is not uncommon for

plaintiffs with pre-enforcement injuries to seek declaratory

relief. See, e.g., Driehaus, 573 U.S. at 154; Steffel v.

Thompson, 415 U.S. 452, 475 (1974); Peace Ranch, LLC v.

Bonta, 93 F.4th 482, 486 (9th Cir. 2024); LSO, 205 F.3d at

1150. Thus, there is a wealth of precedent supporting the

redressability of pre-enforcement injuries with declaratory

relief. SPU requests a declaratory judgment that the First

Amendment protects its employment decisions and that the

Attorney General cannot target SPU in a retaliatory or non-

neutral manner—a request that falls well within traditional

declaratory relief.

2. Changing State Law

We do not read SPU’s claims as an effort for us to rewrite

state laws. The district court saw it otherwise, stating, “[A]

careful examination of [SPU’s requests for injunctive relief]

indicates that plaintiffs are asking for a change to the state

law against discrimination, or for limits to it, and also,

possibly, limits on the state attorney general’s investigatory

authority. This Court doesn’t have the power to change the

SEATTLE PAC. UNIV. V. FERGUSON 19

state law.” Obviously, federal courts do not have the power

to rewrite or change state statutes with a red pen, but our

decisions may properly delineate constitutional limits on

state statutes.

The pre-enforcement posture of this appeal does not alter

our conclusion. In Tingley v. Ferguson, a licensed therapist

sought to enjoin the enforcement of a Washington state law

prohibiting the practice of conversion therapy on children.

47 F.4th at 1063. We held that, although the plaintiff’s

claims were ultimately without merit, he had standing to

seek injunctive relief. Id. at 1091. Similarly, in Wolfson v.

Brammer, the Ninth Circuit clarified:

These defendants have the power to

discipline Wolfson and, if they are enjoined

from enforcing the challenged provisions,

Wolfson will have obtained redress in the

form of freedom to engage in certain

activities without fear of punishment. . . . It is

true that Wolfson cannot obtain revision of

the Code from these defendants, but Wolfson

may nevertheless obtain a form of effective

redress in this action.

616 F.3d 1045, 1056–57 (9th Cir. 2010).

The fact that private parties remain free to sue SPU does

not undercut redressability. Private enforcement is simply

an additional available remedy. It is true that the

redressability prong of standing cannot be met when redress

depends on “the unfettered choices made by independent

actors.” ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989).

But that is not the circumstance here. Potential declaratory

or injunctive relief would directly redress the injury

20 SEATTLE PAC. UNIV. V. FERGUSON

stemming from the Attorney General’s threat of

enforcement. That private actors could also seek to enforce

the WLAD does not defeat the court’s ability to redress

harms specific to the Attorney General.

In short, we have the authority to address the

constitutionality of the Washington law as applied to SPU.

3. Entanglement with Religion

The district court also found SPU’s injury non-

redressable because injunctive relief would force the court

to violate the Religion Clauses. The court framed the issue

as a catch-22: if the court does nothing, then the Attorney

General may be entangled with religion; but if the court

enjoins the action, then the court must become entangled

with religion. This is a false dilemma.

As already noted, neither the court nor the Attorney

General would violate the Religion Clauses by inquiring into

which employees are ministerial. As a consequence, issuing

a limited injunction would not necessarily entangle the court

in religion. More fundamentally, redressability should not

be conflated with the merits. SPU need only show that the

court could fashion an injunction that could redress its

injuries. Wolfson, 616 F.3d at 1056 (“A plaintiff meets the

redressability requirement if it is likely, although not certain,

that his injury can be redressed by a favorable decision.”).

The scope of any injunctive relief—such as a narrow

injunction related to ministerial employment—hinges on a

merits determination, not redressability. For example, if the

court were to find some aspects of SPU’s First Amendment

claims to be meritorious, the court could enjoin certain

aspects of the investigation or enforcement of the WLAD

against SPU. See, e.g., id. at 1057.

SEATTLE PAC. UNIV. V. FERGUSON 21

An evaluation of SPU’s specific injunctive requests is

unnecessary at this stage. The district court has discretion to

fashion its own equitable relief. As Justice Douglas wrote:

The essence of equity jurisdiction has been

the power of the Chancellor to do equity and

to mould each decree to the necessities of the

particular case. Flexibility rather than

rigidity has distinguished it. The qualities of

mercy and practicality have made equity the

instrument for nice adjustment and

reconciliation between the public interest and

private needs as well as between competing

private claims.

Hecht Co. v. Bowles, 321 U.S. 321, 329–30 (1944). It may

be, as the litigation unfolds, that declaratory relief redresses

the injury and injunctive relief is unnecessary. Alternatively,

it may be appropriate for the court to proactively narrow the

scope of potential subpoenas. Or, of course, it may be that

SPU’s claims are without merit and no remedy is warranted.

The range of remedies underscores that the district court has

the power to redress the alleged injury.

II. Younger Abstention

We next consider whether the case should have been

dismissed under Younger v. Harris, 401 U.S. 37 (1971), an

issue we review de novo. See Bristol-Myers Squibb Co. v.

Connors, 979 F.3d 732, 735 (9th Cir. 2020). In Younger, the

Supreme Court declared a “national policy forbidding

federal courts to stay or enjoin pending state court

proceedings except under special circumstances.” 401 U.S.

at 41. We invoke a “five-prong test” to determine whether a

civil case is Younger-eligible: “Younger abstention is

22 SEATTLE PAC. UNIV. V. FERGUSON

appropriate only when the state proceedings: (1) are

ongoing, (2) are quasi-criminal enforcement actions or

involve a state’s interest in enforcing the orders and

judgments of its courts, (3) implicate an important state

interest, and (4) allow litigants to raise federal challenges.”

Rynearson v. Ferguson, 903 F.3d 920, 924–25 (9th Cir.

2018) (quoting ReadyLink Healthcare, Inc. v. State Comp.

Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014)). Because there

are no ongoing enforcement actions or any court judgment,

abstention under Younger is not warranted.

To begin, there is no state court proceeding here. Nor is

there an administrative proceeding or other enforcement

action. And clearly, a prosecuting or enforcing entity’s

investigation alone is neither a “quasi-criminal enforcement

action[]” nor an enforcement action at all. See Rynearson,

903 F.3d at 924–25. The Attorney General has no

independent authority to sanction SPU under the WLAD.

Wash. Rev. Code §§ 46.60.240, 46.60.250, 46.60.340. As a

result, the investigation “cannot be said to have been brought

‘to sanction the federal plaintiff . . . for some wrongful act,’

which is the quintessential feature of a Younger-eligible

‘civil enforcement action.’” Applied Underwriters, Inc. v.

Lara, 37 F.4th 579, 589 (9th Cir. 2022) (quoting Sprint

Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 79 (2013)).

Faced with these obvious problems, the Attorney

General attempts another route to Younger abstention—the

district court properly abstained because the investigation is

an extension of soon-to-be-initiated state court proceedings,

even though no complaint has yet been filed. Under this

theory, however, the state court proceedings are not

“ongoing.”

SEATTLE PAC. UNIV. V. FERGUSON 23

The Attorney General’s threat of enforcement in this

case is sandwiched between pre-enforcement standing and

the initiation of state proceedings. It has long been

established that the mere threat of state enforcement is

insufficient to justify federal court abstention. See

Steffel, 415 U.S. at 454, 462 (holding that Younger does not

prevent federal declaratory relief “when a state prosecution

has been threatened, but is not pending”). Indeed, if there

were no daylight between the invocation of pre-enforcement

standing and the start of Younger abstention, then litigants

would have virtually no opportunity to seek federal review

of state laws infringing on constitutional rights.

Prior to a threat of enforcement, no Article III standing

exists. After state proceedings commence, Younger

abstention prohibits federal court intervention for the

duration of the proceedings. After state proceedings have

concluded, the Rooker-Feldman doctrine would likely bar

federal courts from reviewing the state court decision with

narrow exceptions. See Johnson v. De Grandy, 512 U.S.

997, 1005–06 (1994). And so, the question of what space

exists between the start of pre-enforcement standing and the

start of “ongoing” state proceedings may dictate many

litigants’ opportunity to seek a federal remedy at all. See

Telco Commc’ns, Inc. v. Carbaugh, 885 F.2d 1225, 1229

(4th Cir. 1989) (“[T]he period between the threat of

enforcement and the onset of formal enforcement

proceedings may be an appropriate time for a litigant to bring

its First Amendment challenges in federal court. Indeed, if

this time is never appropriate, any opportunity for federal

adjudication of federal rights will be lost.”).

The Attorney General points to precedent establishing

that state court proceedings can be “ongoing” in the

investigation stage. True, but these cases are inapposite

24 SEATTLE PAC. UNIV. V. FERGUSON

because proceedings were actually initiated. See Partington

v. Gedan, 961 F.2d 852, 861 (9th Cir. 1992), as amended

(July 2, 1992) (“[The claim] is based in part on the Rule 2

disciplinary investigation. In that regard, it clearly seeks

relief with respect to a pending state proceeding.”); see also

San Jose Silicon Valley Chamber of Com. Pol. Action

Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir.

2008) (“The state-initiated proceeding in this case—the

Elections Commission’s investigation of Plaintiffs’

activities—is ongoing.”), abrogated on other grounds by

Sprint Commc’ns, 571 U.S. 69. A state supreme court

disciplinary proceeding and an election commission

investigation are exceptional and not comparable to a run-

of-the-mill Attorney General investigation to determine if

further action is warranted.

More specifically, in those cases applying Younger

abstention in the investigation stage, the investigative entity

had independent authority to sanction or discipline the

target. See Partington, 961 F.2d at 861; San Jose Silicon

Valley Chamber, 546 F.3d at 1089. In other words, there

was no need to file with a separate adjudicative body. This

understanding comports with the Supreme Court’s guidance

that the proceeding must be “judicial in nature.” See Ohio

C.R. Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619,

627 (1986) (“Because we found that the administrative

proceedings in Middlesex were ‘judicial in nature’ from the

outset, it was not essential to the decision that they had

progressed to state-court review by the time we heard the

federal injunction case.” (citation omitted)). An

investigation alone is not enough, but when the entity is

vested with enforcement or adjudicatory power, then the

investigation may signal an ongoing quasi-judicial

proceeding. Put differently, when the investigative entity

SEATTLE PAC. UNIV. V. FERGUSON 25

and the adjudicative entity are separate, “ongoing”

proceedings begin with the first filing with the adjudicative

body; but when the adjudicative body also has investigatory

responsibilities, a functional approach governs.

The Attorney General, unlike the Washington State

Human Rights Commission and Washington administrative

law judges, cannot independently sanction SPU. Wash. Rev.

Code §§ 46.60.240, 46.60.250, 46.60.340. Rather, the

Attorney General must file a lawsuit in state court to enforce

the WLAD, something he has yet to do. See Wash. Rev.

Code § 49.60.350. This ends the Younger inquiry. The

district court should not have abstained under Younger.

III. Prudential Ripeness

Finally, we consider whether, at the Attorney General’s

instigation, we should affirm the district court on prudential

ripeness grounds, although the district court did not address

this issue.4 Prudential ripeness is discretionary. Thomas v.

Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1142 (9th

Cir. 2000) (en banc). “[T]wo overarching considerations”

animate the doctrine: “the fitness of the issues for judicial

review and the hardship to the parties of withholding court

consideration.” Id. at 1141 (quoting Abbott Laboratories v.

Gardner, 387 U.S. 136, 149 (1967)). The first consideration

gives credence to the principle that “a court cannot decide

constitutional questions in a vacuum.” Alaska Right to Life

Pol. Action Comm. v. Feldman, 504 F.3d 840, 849 (9th Cir.

2007); see also Thomas, 220 F.3d at 1141 (“The record

4

The Attorney General also argues that SPU has failed to allege

constitutional ripeness. The analysis for constitutional ripeness and pre-

enforcement injury is the same. See Thomas, 220 F.3d at 1138. As

discussed above, SPU has established a pre-enforcement injury;

therefore, SPU has established constitutional ripeness.

26 SEATTLE PAC. UNIV. V. FERGUSON

before us is remarkably thin and sketchy, consisting only of

a few conclusory affidavits. A concrete factual situation is

necessary to delineate the boundaries of what conduct the

government may or may not regulate.” (internal quotation

marks and citation omitted)). The second consideration

weighs the hardships to the parties—particularly, plaintiffs

who have already demonstrated a constitutional injury.

“Evaluating whether withholding judicial review presents a

hardship requires looking at whether the challenged law

‘requires an immediate and significant change in the

plaintiffs’ conduct of their affairs with serious penalties

attached to noncompliance.’” Tingley, 47 F.4th at 1070–71

(quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1126 (9th

Cir. 2009)).

We note that the Supreme Court in dictum has

questioned the “continued vitality” of prudential ripeness

doctrine: “To the extent respondents would have us deem

petitioners’ claims nonjusticiable on grounds that are

prudential, rather than constitutional, that request is in some

tension with our recent reaffirmation of the principle that a

federal court’s obligation to hear and decide cases within its

jurisdiction is virtually unflagging.” Driehaus, 573 U.S. at

167 (cleaned up). The Court appears to have walked up to

the line but stopped short of abrogating the doctrine.

Because the district court did not rule on this issue

below, and instead granted the motion to dismiss on standing

and Younger abstention grounds, we remand to the district

court to consider the issue in the first instance.

CONCLUSION

We affirm the district court’s dismissal of Counts I, III,

IV, V, VIII, and XI, because we determine that SPU failed

to allege a cognizable injury in fact for its retrospective

SEATTLE PAC. UNIV. V. FERGUSON 27

claims. In contrast, we conclude that SPU has standing for

its prospective pre-enforcement injury claims—Counts II,

VI, VII, IX, and X—and therefore reverse the dismissal of

those claims. Younger abstention does not support dismissal

of SPU’s Complaint. We remand to the district court to

consider prudential ripeness.

Each party shall pay its own costs on appeal.

AFFIRMED IN PART AND REVERSED IN PART.