Amicus Curiae Brief — Seattle's Union Gospel Mission, Petitioner v. Matthew S. Woods
Supreme Court briefAug 31, 2021
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No. 21-144
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------SEATTLE’S UNION GOSPEL MISSION,
Petitioner,
v.
MATTHEW S. WOODS,
Respondent.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The Supreme Court Of Washington
---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE 20 CURRENT AND
FORMER WASHINGTON STATE LEGISLATORS
IN SUPPORT OF PETITIONER
---------------------------------♦--------------------------------STEVEN T. O’BAN
Counsel of Record
1575 S. Seashore Drive
Tacoma, WA 98465
(213) 312-1688
stevenoban@gmail.com
THOMAS BREJCHA
PETER BREEN
THOMAS MORE SOCIETY
309 W. Washington Street
Suite 1250
Chicago, IL 60606
(312) 782-1680
CHARLES S. LIMANDRI
PAUL M. JONNA
JEFFREY M. TRISSELL
LIMANDRI & JONNA LLP
P.O. Box 9120
Rancho Santa Fe, CA 92067
(858) 759-9930
cslimandri@limandri.com
Counsel for Amici Curiae
Washington State
Legislators
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE .........................
1
SUMMARY OF ARGUMENT ..............................
4
ARGUMENT ........................................................
6
A.
American legislatures have a long history
of accommodating citizens whose religious
convictions were at odds with government
mandates ...................................................
6
1. Military Service and National Security ...
6
2. Swearing of Oaths ...............................
7
3. Medical Treatment ..............................
8
4. Medical Providers ................................
9
5. Civil Rights .......................................... 10
6. The WLAD Religious Organization
Exemption ........................................... 11
B.
The Washington Legislature exempted religious organizations to shield them from
burdensome laws which interfere with
their constitutional rights ......................... 14
1. The exemption protects the religious
freedoms guaranteed by Washington’s
Constitution and the First Amendment ..................................................... 14
2. The exemption protects the limited resources of religious nonprofits, such as
homeless shelters and private schools,
which derive much of their funding
from coreligionists ............................... 19
ii
TABLE OF CONTENTS—Continued
Page
C.
The religious nonprofit exemption is consistent with the policy behind other exemptions that shield the majority of
Washington employers from the burdens
of state and federal anti-discrimination
laws ............................................................ 22
D.
Unless the Court intervenes, every Washington religiously-affiliated school and social service organization is exposed to the
risks of intrusive forays into their religious decision-making ............................... 24
CONCLUSION..................................................... 25
iii
TABLE OF AUTHORITIES
Page
CASES
Bolling v. Superior Ct. for Clallam Cty.,
16 Wash. 2d 373 (1943) ...........................................15
Corp. of Presiding Bishop of Church of Jesus
Christ of Latter-Day Saints v. Amos,
483 U.S. 327 (1987) ........................................... 15, 16
First Covenant Church v. Seattle,
120 Wash. 2d 203 (1992) ................................... 15, 16
Griffith v. Schnitzer Steel Indus., Inc.,
128 Wash. App. 438 (2005) ......................................17
Hosanna-Tabor Evangelical Lutheran
Church and Sch. v. EEOC,
565 U.S. 171 (2012) ........................................... 13, 24
In re Marriage of Jensen-Branch,
78 Wash. App. 482 (1995) ........................................14
Jones v. Kitsap Cty. Sanitary Landfill, Inc.,
60 Wash. App. 369 (1991) ........................................17
Kedroff v. St. Nicholas Cathedral of
Russian Orthodox Church in N. Am.,
344 U.S. 94 (1952) ...................................................13
Mitchell v. Helms,
530 U.S. 793 (2000) .................................................18
N.L.R.B. v. Cath. Bishop of Chicago,
440 U.S. 490 (1979) .................................................17
Our Lady of Guadalupe Sch. v.
Morrissey-Berru,
140 S. Ct. 2049 (2020) .............................................24
iv
TABLE OF AUTHORITIES—Continued
Page
Rice v. Offshore Sys., Inc.,
167 Wash. App. 77 (2012) ........................................17
Roberts v. United States Jaycees,
468 U.S. 609 (1984) .................................................13
Roe v. Wade,
410 U.S. 113 (1973) ...................................................9
Sellsted v. Washington Mut. Sav. Bank,
69 Wash. App. 852 (1993) ........................................17
Spencer v. World Vision, Inc.,
633 F.3d 723 (9th Cir. 2011) ....................................17
Woods v. Seattle’s Union Gospel Mission,
197 Wash. 2d 231 (2021) ..................................... 5, 24
CONSTITUTIONAL PROVISIONS
U.S. Const. art. II, § 1 ...................................................8
U.S. Const. art. VI, § 3...................................................8
Wash. Const. art. I, § 11..............................................15
STATUTES & RULES
1949 Wash. Laws, ch. 183, § 3(b) ................................12
2006 Wash. Laws, ch. 4 ...............................................12
2012 Wash. Laws, ch. 3, § 1 ........................................12
42 U.S.C. § 2000e(1)(a) (2000) ....................................11
42 U.S.C. § 2000e(j) (2000) ..........................................10
42 U.S.C. § 2000e-2(a) (2000) .....................................10
v
TABLE OF AUTHORITIES—Continued
Page
42 U.S.C. § 300a-7(b) (2000) .........................................9
42 U.S.C. § 300a-7(c)(1) (2000) .....................................9
42 U.S.C. § 2000e(b) ....................................................22
Supreme Court Rule 37.6 .............................................1
Wash. Rev. Code § 49.60.040(11) ................................22
LAW REVIEW ARTICLES
James E. Ryan, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 VA. L. REV. 1407 (1992) ..............................6
Mark Rienzi, The Constitutional Right Not to
Kill, 62 EMORY L.J. 121 (2012) ...................... 7, 10, 11
Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990)..................... 6, 7
REPORTS & TREATISES
J.G. RANDALL & RICHARD NELSON CURRENT, LINCOLN THE PRESIDENT: LAST FULL MEASURE
(1991) .........................................................................7
LOUIS FISCHER, CONGRESSIONAL PROTECTION OF
RELIGIOUS LIBERTY (2003) .........................................6
ROBERT D. PUTNAM & DAVID E. CAMPBELL, AMERICAN GRACE: HOW RELIGION DIVIDES AND UNITES
US (2012) .................................................................18
SEATTLE’S UNION GOSPEL MISSION, 2020 ANNUAL
REPORT (2021) ..........................................................20
vi
TABLE OF AUTHORITIES—Continued
Page
LEGISLATIVE & ADMINISTRATIVE MATERIALS
119 CONG. REC. 9595 (daily ed. Mar. 27, 1973) ............9
EEOC COMPLIANCE MANUAL § 12: Religious Discrimination (Jan. 15, 2021) .....................................10
Fin. B. Rep. HB 2661 (Wash. 2006) ............................12
ONLINE SOURCES
Arthur C. Brooks, Religious Faith and Charitable Giving, POLICY REVIEW, Oct. & Nov. 2003,
https://www.hoover.org/research/religious-faithand-charitable-giving ..............................................18
Brian J. Grim, Religion may be bigger business
than we thought. Here’s why, WORLD ECONOMIC
FORUM (Jan. 5, 2017), https://www.weforum.org/
agenda/2017/01/religion-bigger-business-thanwe-thought ..............................................................22
Guttmacher Inst., State Laws and Policies: Refusing to Provide Health Services (Aug. 1,
2021), https://www.guttmacher.org/state-policy/
explore/refusing-provide-health-services .................9
Nat’l Conf. of State Legislatures, Discrimination—Employment Laws (Jul. 27, 2015), https://
www.ncsl.org/research/labor-and-employment/
discrimination-employment.aspx ............................11
vii
TABLE OF AUTHORITIES—Continued
Page
Nat’l Conf. of State Legislatures, States with Religious and Philosophical Exemptions from
School Immunization Requirements (Apr. 30,
2021), http://www.ncsl.org/research/health/
school-immunization-exemption-state-laws.
aspx ............................................................................8
Nat’l All. to End Homelessness, Faith-Based
Organizations: Fundamental Partners in
Ending Homelessness (May 2017), https://
endhomelessness.org/resource/faith-basedorganizations-fundamental-partners-in-endinghomelessness/ ..........................................................21
Press Release, U.S. Census Bureau, Public
School Spending Per Pupil Increases by
Largest Amount in 11 years (May 18, 2021),
https://www.census.gov/newsroom/press-releases/
2021/public-school-spending-per-pupil.html .............21
Small Bus. & Entrepreneurship Council, Facts
& Data on Small Business and Entrepreneurship, https://sbecouncil.org/about-us/facts-anddata/ (last viewed Aug. 14, 2021) ............................23
The Wash. State Board of Educ., Private Schools,
https://www.sbe.wa.gov/our-work/private-schools
(last viewed Aug. 14, 2021) .....................................21
1
INTEREST OF AMICI CURIAE1
Amici Curiae are 20 current and former members
of the Washington State Legislature, which enacted
the Washington Law Against Discrimination and the
exemption accommodating the right of religious employers, inter alia, to hire coreligionists, invalidated by
the Washington State Supreme Court.
Senator Mike Padden was first elected to the legislature in 1980 and represents the 4th Legislative
District. He is the Ranking Member of the Law and
Justice Committee.
Senator Jim Honeyford was elected to the legislature in 1994 and represents the 15th Legislative District. He is the Assistant Ranking Member of the Ways
and Means Committee.
Senator Mark Schoesler was first elected to the
legislature in 1995 and represents the 9th Legislative
District. The former Majority Leader, he now serves on
the Ways and Means and Labor, Commerce and Tribal
Affairs Committees.
Senator Judy Warnick was elected to the legislature in 2007 and represents the 13th Legislative
1
All parties were given timely notice and have consented to
the filing of this amicus brief. In accordance with Rule 37.6, counsel affirms that no counsel for any party authored this brief in
whole or in part and that no person or entity other than amici or
its counsel made a monetary contribution intended to fund the
preparation and submission of this brief.
2
District. She is the Ranking Member of the Agriculture, Water and Natural Resources and Parks Committee.
Senator Shelly Short was first elected to the legislature in 2009 and represents the 7th Legislative District. She is the Assistant Ranking Member of the
Housing and Local Government Committee.
Senator Doug Ericksen was first elected to the legislature in 1998 and represents the 42nd Legislative
District. He is the Ranking Member of the Environment, Energy and Technology Committee.
Senator Jim McCune was first elected to the legislature in 1998 and represents the 2nd Legislative District. He is the Assistant Ranking Member of the Law
and Justice Committee.
Senator Phil Fortunato was first appointed to the
legislature in 2017 and represents the 31st Legislative
District. He is the Ranking member of the Housing &
Local Government Committee.
Former Senator Steve O’Ban was first elected to
the legislature in 2013 and represented the 28th Legislative District. He was the Chair of the Human Services Committee.
Representative Paul Harris was first elected to the
legislature in 1990 and represents the 17th Legislative
District. He is the Caucus chair and serves on the
Health Care & Wellness Committee.
3
Representative Chris Corry was first elected to the
legislature in 2019 and represents the 14th Legislative
District. He is the Assistant Ranking Member on Appropriations.
Representative James Walsh was first elected to
the legislature in 2016 and represents the 19th Legislative District. He is the Ranking Member on the Civil
Rights and Judiciary Committee.
Representative Cyndy Jacobsen was first elected
to the legislature in 2020 and represents the 25th Legislative District. She is the Assistant Ranking Member
of the College and Workforce Development Committee.
Representative Robert J. Sutherland was first
elected to the legislature in 2019 and represents the
39th Legislative District. He is a Member of College
and Workforce Development Committee.
Representative Ed Orcutt was first elected to the
legislature in 2002 and represents the 20th Legislative
District. He is the Ranking Member the Finance Committee.
Representative Matt Boehnke was first elected to
the legislature in 2019 and represents the 8th Legislative District. He is the Ranking Member of the Community and Economic Development Committee.
Representative Brad Klippert was first elected to
the legislature in 2008 and represents the 8th Legislative District. He is the Assistant Ranking member on
the Public Safety Committee.
4
Representative Jenny Graham was first elected to
the legislature in 2018 and represents the 6th Legislative District. She is the Assistant Ranking member of
the Civil Rights and Judiciary Committee.
Representative Robert Chase was first elected to
the legislature in 2020 and represents the 4th Legislative District. He is a member of the Finance Committee.
Representative Bob McCaslin was first elected to
the legislature in 2014 and represents the 4th Legislative District. He is the Assistant Ranking Minority
Member of the House Children, Youth & Families Committee.
Amici Curiae 20 Current and Former Washington
State Legislators submit this brief to assist the Court
in understanding the importance of legislative accommodations intended to protect the right of individuals
and religious organizations to self-define and carry out
their religious purposes.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
Throughout the history of our nation, colonial,
state, and federal legislatures have enacted accommodations to protect individual conscience and the autonomy of religious organizations. Protecting religious
freedom is in our nation’s DNA. Shielding religious institutions from government interference has allowed
coreligionists to pool their resources and talents and
5
form religious associations to pursue charitable missions that have made enormous contributions to American society. In that tradition, in 1949 the Washington
State Legislature adopted the religious organization
exemption at the same time it adopted one of the very
first anti-discrimination laws.
Ignoring this rich tradition, the Washington State
Supreme Court mischaracterized the exemption as a
“license to discriminate,”2 displaying shocking antireligious animus, and struck down the exemption on
dubious state constitutional grounds. Religious social
service organizations, private K-12 schools, and even
houses of worship are left without legal protection
from intrusive and potentially ruinous employmentrelated enforcement actions and lawsuits. Amici Curiae Washington State Legislators urge this Court to
accept review, set aside the lower court’s judgment, and
hold that the First Amendment protects the right of
Washington religious nonprofits to hire coreligionists.
---------------------------------♦---------------------------------
2
App.25a; Woods v. Seattle’s Union Gospel Mission, 197
Wash. 2d 231, 253 (2021) (Yu, J., concurring) (“I also agree with
the majority that this license to discriminate belongs only to religious institutions and . . . only with respect to the institution’s
choice of ministers.”); id. at 252 (Maj. Opn.) (“Justice Yu’s concurring opinion is helpful in this regard.”).
6
ARGUMENT
A. American legislatures have a long history of
accommodating citizens whose religious
convictions were at odds with government
mandates.
The Washington State Legislature’s religious
employer exemption is within the well-established
tradition of American legislative bodies exempting
conscience from the mandates of important policy objectives. One commentator has catalogued over 2,000
federal and state laws accommodating religious activity.3 Several examples underscore the wide range of religious activity protected even when such protections
were regarded as incompatible with important and
popular policy objectives.
1. Military Service and National Security
Starting with Quakers in the late 1600’s, the
rights of conscientious objectors were recognized by
the majority of colonial legislative bodies, and later the
Continental Congress.4 With the future of the Union
and the American democratic experiment hanging in
the balance, President Lincoln protected conscience
3
James E. Ryan, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 VA. L. REV. 1407, 1445
(1992).
4
Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409,
1468 (1990); LOUIS FISCHER, CONGRESSIONAL PROTECTION OF RELIGIOUS LIBERTY 11–12 (2003).
7
during the Civil War.5 Remarkably, through the great
20th Century conflicts of World War I, World War II,
and the Cold War,6 Congress protected conscience, despite a national consensus that the totalitarian enemies of those wars posed direct existential threats to
the nation.
2. Swearing of Oaths
Oaths have been regarded as essential for ensuring the loyalty and fidelity of citizens and elected officials. Local, state, and federal government officials,
judges, and military personnel take an oath to uphold
the U.S. Constitution. Oaths have also been viewed as
critically important for the effective functioning of judicial systems to solemnize the importance of providing truthful testimony and deter perjury.
Yet Quakers, many Moravians, Mennonites, and
other faith traditions have had religious objections to
taking oaths. Even with little or no political influence,
by 1710, many American colonies allowed Quakers to
use affirmations instead of oaths, and by the Founding
era, all states permitted Quakers and other religious
minorities to affirm rather than swear.7 Thus by the
time of the Constitutional Convention in 1787, the
5
J.G. RANDALL & RICHARD NELSON CURRENT, LINCOLN THE
PRESIDENT: LAST FULL MEASURE 172–75 (1991).
6
See generally Mark Rienzi, The Constitutional Right Not
to Kill, 62 EMORY L.J. 121 (2012), https://scholarlycommons.law.
emory.edu/elj/vol62/iss1/2/.
7
McConnell, supra note 4, at 1467–68.
8
drafters of the U.S. Constitution permitted all officeholders and justices “by oath or affirmation” to support
the U.S. Constitution. See U.S. Const. art. II, § 1; id. art.
VI, § 3.
3. Medical Treatment
As medical knowledge improved during the 19th
century, particularly with respect to the efficacy and
safety of vaccines, government vaccine mandates followed. On religious grounds, some refused the vaccinations. As our country and the world battle a new
pandemic, it is not difficult to imagine the intensity of
the argument for vaccine mandates and against religious objections to the mandates.
Advocates of vaccinations contended that deadly
rubella, rotavirus, diphtheria, smallpox, hepatitis A
and B, and the crippling polio virus necessitated
mandates to protect both the health of the individuals vaccinated and to deter the spread of the disease.
Legislatures in all 50 states enacted laws requiring
specified vaccines for students attending school, and
yet 44 states and Washington D.C. granted exemptions
for parents with religious objections.8
8
See Nat’l Conf. of State Legislatures, States with Religious
and Philosophical Exemptions from School Immunization Requirements (Apr. 30, 2021), http://www.ncsl.org/research/health/
school-immunization-exemption-state-laws.aspx.
9
4. Medical Providers
Perhaps even more contentious over the past halfcentury is the right to an abortion and the refusal of
medical providers to participate in the procedure. Despite abortion becoming a constitutionally protected
right, Congress and nearly every state legislature enacted laws protecting medical providers who by reason
of conscience decline to participate in abortions.9
Just weeks after Roe v. Wade, 410 U.S. 113 (1973), Congress overwhelmingly passed the Church Amendment,
which prohibits the government from requiring anyone to assist in an abortion.10 In arguing in favor
of these protections, Senator Frank Church (D–ID)
stated:
[N]othing is more fundamental to our national birthright than freedom of religion. Religious belief must remain above the reach of
secular authority. It is the duty of Congress to
fashion the law in such a manner that no Federal funding of hospitals, medical research, or
medical care may be conditioned upon the violation of religious precepts.11
The Church amendment has been joined by many
other federal laws expanding the right.12 It has also
been joined by conscience protections in forty-seven
9
Guttmacher Inst., State Laws and Policies: Refusing to Provide Health Services (Aug. 1, 2021), https://www.guttmacher.org/
state-policy/explore/refusing-provide-health-services.
10
42 U.S.C. § 300a-7(b), (c)(1) (2000).
11
119 CONG. REC. 9595 (daily ed. Mar. 27, 1973).
12
Rienzi, supra note 6, at 147–52 (collecting examples)
10
states, many of which provide full exemptions to any
health care practitioner who conscientiously refuses
to “participate,” “refer,” “assist,” “arrange for,” “accommodate,” or “advise” in an abortion.13
5. Civil Rights
Legislators have passed laws to protect religious
citizens from discrimination by both private and governmental entities. Most prominently, Title VII of the
Civil Rights Act of 1964, as amended, prohibits employers with more than 15 employees from (among
other things) refusing to hire because of their religion.
The statute also requires private businesses to make
“reasonable accommodations” for their employees’ or
potential employees’ sincerely held religious convictions unless the accommodation would create an undue hardship for the employer.14
Yet, the Congress that passed Title VII recognized
that some religious distinction is required and protected by the First Amendment. Accordingly, it crafted
an accommodation to Title VII that permits religious
institutions to make employment decisions on the basis of religion. Specifically, “a religious corporation, association, educational institution, or society” is exempt
“with respect to the employment of individuals of a
13
Id. at 152.
42 U.S.C. § 2000e-2(a) (2000); 42 U.S.C. § 2000e( j) (2000).
For a general overview how Title VII protects religious Americans,
see EEOC COMPLIANCE MANUAL § 12: Religious Discrimination
(Jan. 15, 2021), http://www.eeoc.gov/policy/docs/religion.html.
14
11
particular religion to perform work connected with the
carrying on by such corporation, association, educational institution, or society of its activities.”15 In other
words, the Title VII exemption protects the First
Amendment right of religious employers to hire only
coreligionists.
Nearly all state legislatures when enacting their
own anti-discrimination laws, accommodated the First
Amendment interests of religious organizations to
make employment decisions based on religion.16 Washington State was no exception when the Legislature
enacted its own Washington Law Against Discrimination (WLAD) and simultaneously accommodated the
First Amendment interests of religious organizations
and exempted them from the WLAD.
6. The WLAD Religious Organization Exemption
The Washington State Legislature clearly determined that the religious organization exemption did
not frustrate the objectives of the WLAD, even years
later when it added sexual orientation as a protected
15
42 U.S.C. § 2000e(1)(a) (2000). Religious liberty concerns
prompted Congress to similarly carve out religious institutions
from the mandates of the Fair Housing Act, the Americans with
Disabilities Act, and Title IX of the Educational Amendments Act
of 1972.
16
See Nat’l Conf. of State Legislatures, Discrimination—Employment Laws (Jul. 27, 2015), https://www.ncsl.org/research/
labor-and-employment/discrimination-employment.aspx.
12
class, and later extended civil marriage laws to same
sex couples.
The religious employer exemption has existed,
unchanged, since the WLAD was enacted in 1949.
1949 Wash. Laws, ch. 183, § 3(b). The WLAD has been
amended seventeen times, including to add sexual orientation as a protected class in 2006 when the Washington State Legislature passed ESHB 2661. 2006
Wash. Laws, ch. 4. The religious employer exemption
was explicitly mentioned in the final bill report, Fin. B.
Rep. HB 2661, at 1 (Wash. 2006) (“non-profit religious
or sectarian organizations are exempt from this law.”).
The Washington State Legislature extended civil
marriage to same sex couples. Not only did it keep the
religious entity exemption intact, but legislators also
created additional protections for religious organizations. 2012 Wash. Laws, ch. 3, § 1.
There is little evidence that the foregoing accommodations, and hundreds of other accommodations,
granted to individuals and religious entities harmed
the nation or significantly undermined important policy objectives. On the contrary, legislators, such as
Washington State Legislators, erected these protections against overzealous government regulators and
intrusive lawsuits because they would undermine the
ability of religious institutions to govern themselves,
appeal to coreligionists for support, and pursue their
charitable missions. Addressing the significant threat
of anti-discrimination litigation to self-governance,
13
Justice Samuel Alito, joined by Justice Elena Kagan,
wrote:
Throughout our Nation’s history, religious
bodies have been the preeminent example of
private associations that have “act[ed] as critical buffers between the individual and the
power of the State.” Roberts v. United States
Jaycees, 468 U.S. 609, 619, 104 S.Ct. 3244, 82
L.Ed.2d 462 (1984). In a case like the one now
before us—where the goal of the civil law in
question, the elimination of discrimination
against persons with disabilities, is so worthy—it is easy to forget that the autonomy of
religious groups, both here in the United
States and abroad, has often served as a
shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a
private sphere within which religious bodies
are free to govern themselves in accordance
with their own beliefs.
Hosanna-Tabor Evangelical Lutheran Church and
Sch. v. EEOC, 565 U.S. 171, 199 (2012) (Alito, J., concurring) (citing Kedroff v. St. Nicholas Cathedral of
Russian Orthodox Church in N. Am., 344 U.S. 94, 116
(1952)).
14
B. The Washington State Legislature exempted
religious organizations to shield them from
burdensome laws which interfere with their
constitutional rights.
The Washington State Legislature enacted the religious employer exemption to the WLAD for two reasons: first, to preserve the broad religious freedoms
guaranteed under the Washington State Constitution
and the First Amendment of the U.S. Constitution; and
second, to increase the availability of charitable and
social services to Washington citizens by minimizing
the burdens on religious nonprofits that rely predominantly on donations or tuition from coreligionists.
1. The exemption protects the religious
freedoms guaranteed by Washington’s
Constitution and the First Amendment.
The exemption properly accommodates the broad
protections to religious sentiment, belief, and practice
afforded by Washington’s Constitution. In re Marriage
of Jensen-Branch, 78 Wash. App. 482, 491 (1995) (citing
First Covenant Church v. Seattle, 120 Wash. 2d 203,
226 (1992)). The Washington State Legislature gave effect to these greater protections by choosing to avoid
potential entanglements between the state and religion through the enactment of the WLAD exemption.
Under the Washington Constitution, “[a]bsolute
freedom of conscience in all matters of religious sentiment, belief and worship” are “guaranteed,” and the
provision even “bars conduct that merely ‘disturbs’
15
another on the basis of religion.” First Covenant
Church, 120 Wash. 2d at 224 (quoting Wash. Const. art.
I, § 11). This constitutional guaranty of free exercise is
“of vital importance.” Bolling v. Superior Ct. for Clallam
Cty., 16 Wash. 2d 373, 381 (1943). The conduct prohibited by article I, section 11, is not religious activity that
“disturbs” others, but other actions that disturb another person “on account of [his or her] religion.” First
Covenant Church, 120 Wash. 2d at 226. Judicial and
government enforcement of the WLAD is the intrusive
foray into the religiously-based decision-making of
nonprofits that is the type of conduct the Washington
State Legislature sought to avoid by enacting the exemption.
The Washington State Legislature, by enacting
the exemption to the WLAD, made a policy choice to
avoid the potential pitfalls of secular bureaucrats and
courts trying to reconcile Washington’s ever-growing
list of protected categories—many with an arguably religious aspect—with a myriad of religious belief systems.
Similarly, the exemption advances an important
state interest—protecting the autonomy of religious
freedom by avoiding state interference with religious
practice. In Amos, Justice White, writing for a unanimous court, succinctly explained the chilling effect of
narrow exemptions on religious organizations when
they are left to wonder what is and is not considered
“religious”:
16
Nonetheless, it is a significant burden on a religious organization to require it, on pain of
substantial liability, to predict which of its activities a secular court will consider religious.
The line is hardly a bright one, and an organization might understandably be concerned
that a judge would not understand its religious tenets and sense of mission. Fear of
potential liability might affect the way an organization carried out what it understood to
be its religious mission.
Corp. of Presiding Bishop of Church of Jesus Christ of
Latter-Day Saints v. Amos, 483 U.S. 327, 336 (1987)
(emphasis added). Eliminating this fear was one of the
primary reasons the Washington State Legislature enacted the exemption.
For religious nonprofits like Petitioner Seattle’s
Union Gospel Mission (SUGM), predicting which of
their activities the Washington State Human Rights
Commission or a secular court will consider religious
creates an actual chilling effect. Secular bureaucrats,
judges and juries in discrimination litigation would
weigh the sincerity of a religious employer’s belief and
the credibility of its application as the basis for an employer’s decision to discharge an employee.
This is because once a plaintiff makes out a prima
facie case of discrimination, the burden shifts to the
employer to provide a legitimate, non-discriminatory
basis for the dismissal. If the employer carries this
burden, the employee must put on evidence that the
employer’s non-discriminatory reason is unworthy of
17
belief or pretextual. Griffith v. Schnitzer Steel Indus.,
Inc., 128 Wash. App. 438, 447 (2005); Jones v. Kitsap
Cty. Sanitary Landfill, Inc., 60 Wash. App. 369, 371
(1991). An employee can show that the employer’s proffered reason is pretextual in several ways: (1) the company’s reasons have no basis in fact; or (2) if they have
a basis in fact, by showing that they were not really
motivating factors; or (3) if they are factors, by showing
they were insufficient to motivate the adverse employment decision. Rice v. Offshore Sys., Inc., 167 Wash.
App. 77, 90 (2012); Sellsted v. Washington Mut. Sav.
Bank, 69 Wash. App. 852, 859 n.14 (1993).17
The Ninth Circuit concurs with this reasoning,
having held that it was not just the potential adverse
result that infringed on First Amendment rights of religious organizations, but also discovery and trial: “It
is not only the conclusions that may be reached which
may impinge on rights guaranteed by the Religion
Clauses, but also the very process of inquiry leading to
findings and conclusions.” Spencer v. World Vision, Inc.,
633 F.3d 723, 731 (9th Cir. 2011) (quoting N.L.R.B. v.
Cath. Bishop of Chicago, 440 U.S. 490, 502 (1979))
(alterations, except emphasis, omitted). “Inquiry into
religious views is not only unnecessary but also offensive. It is well established that courts should refrain
from trolling though a person’s or institution’s religious beliefs.” Spencer, 633 F.3d at 731 (brackets and
17
Summary judgment in favor of employers is often inappropriate in employment discrimination cases. Sellsted, 69 Wash.
App. at 860.
18
ellipses omitted) (quoting Mitchell v. Helms, 530 U.S.
793, 828 (2000)).
Accordingly, because of the evidentiary standards
for discrimination claims, the Washington State Legislature concluded that religious organizations should be
shielded from the burden of requiring them, on pain of
substantial liability, to predict when their religious beliefs would be regarded as sufficient justification for a
hiring or discharge decision.
The exemption also accommodates the unique associational nature of religious organizations. Religious
organizations routinely make employment decisions
based on religious criteria. For these organizations and
their employees, religious faith is expressed through
their employment and is not limited to service attendance on sabbath days. By exempting religious nonprofits, the Washington State Legislature provided them
the freedom to hire coreligionists who can more effectively appeal to the religious beliefs of like-minded donors and volunteers. One study estimated that more
than 90 percent of those who attend weekly worship
services donate to charity, and nearly 70 percent volunteer for charitable causes.18 Permitting religious
18
Arthur C. Brooks, Religious Faith and Charitable Giving,
POLICY REVIEW, Oct. & Nov. 2003, https://www.hoover.org/
research/religious-faith-and-charitable-giving. Similar statistics
are found in Harvard University’s Faith Matters Survey 2006, as
cited in ROBERT D. PUTNAM & DAVID E. CAMPBELL, AMERICAN
GRACE: HOW RELIGION DIVIDES AND UNITES US (2012).
19
nonprofits to hire coreligionists builds needed social
capital.
The necessity of protecting the associational rights
of religious nonprofits is illustrated by the litigation
objectives of Respondent Matthew Woods. He candidly
admitted that he sought to “protest,” contradict and
change SUGM’s religious beliefs. App.127a.
2. The exemption protects the limited resources of religious nonprofits, such as
homeless shelters and private schools,
which derive much of their funding from
coreligionists.
The Washington State Legislature exempted religious nonprofits like SUGM because of the enormous
contributions they make to the common good, by allowing them to devote their limited resources to some of
the most vulnerable and consequently lessen the burden on governmental assistance programs and public
education.
Litigation costs are significant for any employer;
they are potentially ruinous for many, if not most, religious nonprofits. Even for those that obtain liability insurance, there are significant costs incurred in these
situations prior to a claim being filed and most policies
have a substantial retention, requiring religious nonprofits to expend tens of thousands of dollars before insurance coverage is triggered.
20
Donations to cover these new expenses would necessarily divert resources from the work of these religious organizations. As charitable operations that rely
mostly on donations from coreligionists, the organizations could not price these increased expenses into the
cost of the “goods” they provide. For every dollar spent
on compliance, defense, and judgment costs, one fewer
dollar is available for services.
The Washington State Legislature is cognizant
that the State benefits directly from the exemption because its financial burden is reduced by the services
that Washington nonprofits provide. For example, in
2020 alone, SUGM served 733,012 meals to Seattle’s
12,000 homeless, provided 137,837 nights of safe shelter, engaged and learned the names of 3,300 homeless,
distributed 27,110 blankets, provided 4,474 free legal
hours to shelter residents and others, and delivered
over 1,000 mobile hot showers. Ninety four percent of
SUGM’s revenue was derived from individuals,
churches, and other private sector sources.19
Like SUGM, other faith-based homeless shelters
serve tens of thousands of clients and provide hundreds of thousands of shelter-nights and more than
two million meals per year to vulnerable residents. According to the National Alliance to End Homelessness,
homelessness will not be ended without faith-based
19
SEATTLE’S UNION GOSPEL MISSION, 2020 ANNUAL REPORT
6–7 (2021), available at https://issuu.com/seattles_ugm/docs/sugm_
mission_annual_report_2020_issuu.
21
organizations such as SUGM which provide at least 30
percent of all shelter beds.20
The Washington State Legislature enacted the
exemption to preserve the limited resources of faithbased social service organizations like SUGM instead
of those resources being redirected towards litigation
costs and increased premiums for liability insurance,
leaving the State to fill the gap at a time it can least
afford to do so.
The Washington State Legislature also recognizes
the enormous savings in education expenses by nonprofit religious schools. There are nearly 500 private
schools in Washington State,21 the vast majority of
which are religiously-affiliated schools. These private
schools enrolled over 80,000 Washington State students who would otherwise be part of the public school
system. Based on the $14,000 average expenditure per
student in Washington State,22 private school students
represent a savings of nearly $1.12 billion to the
state. The State benefits enormously by not incurring expenses for these students, while simultaneously
20
Nat’l All. to End Homelessness, Faith-Based Organizations: Fundamental Partners in Ending Homelessness (May 2017),
https://endhomelessness.org/resource/faith-based-organizationsfundamental-partners-in-ending-homelessness/.
21
The Wash. State Board of Educ., Private Schools, https://
www.sbe.wa.gov/our-work/private-schools (last viewed Aug. 14,
2021).
22
Press Release, U.S. Census Bureau, Public School Spending Per Pupil Increases by Largest Amount in 11 years (May 18,
2021), https://www.census.gov/newsroom/press-releases/2021/
public-school-spending-per-pupil.html.
22
collecting revenue from their parents through the general taxes that support Washington’s schools.23
The Washington State Legislature concluded that
the religious nonprofit exemption provides significantly greater benefits to the people of Washington
State than exposing religious organizations to increased employment practices liability and hindering
them from appealing to coreligionists for employees,
donors, and volunteers.
C. The religious nonprofit exemption is consistent with the policy behind other exemptions that shield the majority of Washington
employers from the burdens of state and
federal anti-discrimination laws.
The small business exemptions to the WLAD and
Title VII both exhibit similar policy choices in a secular
context, providing relief from those statutes for organizations that provide a valuable social benefit but are
the least likely to be able to bear the costs of compliance. The WLAD exempts all employers with seven
or fewer employees. Wash. Rev. Code § 49.60.040(11).
Title VII exempts all employers with fourteen or fewer
employees. 42 U.S.C. § 2000e(b).
23
One study concluded that religious organizations and
their members provide more than $1.2 trillion, annually, in socioeconomic value to the U.S. economy. Brian J. Grim, Religion may
be bigger business than we thought. Here’s why, WORLD ECONOMIC
FORUM (Jan. 5, 2017), https://www.weforum.org/agenda/2017/01/
religion-bigger-business-than-we-thought.
23
The exemptions from the WLAD and Title VII for
businesses based on the number of employees reflect
legislative judgments that the employment opportunities provided by smaller businesses outweigh the benefits of imposing compliance on these employers. The
majority of businesses in both Washington State and
the nation are exempted by these provisions. As of
2018—the latest year employment figures are available from the U.S. Census Bureau—at least 59 percent
of Washington employers are completely exempted
from the WLAD and at least 78.4 percent of employers
nationwide are completely exempted from Title VII.24
The exemption of religious nonprofits without regard to their size is no less rational, and no more a
“license to discriminate,” than the exemption of
smaller, for-profit businesses. In each case, the Washington State Legislature determined that such organizations provide benefits to society that are important
enough to refrain from interfering with their hiring
practices.
24
Small Bus. & Entrepreneurship Council, Facts & Data
on Small Business and Entrepreneurship, https://sbecouncil.org/
about-us/facts-and-data/ (last viewed Aug. 14, 2021).
24
D. Unless the Court intervenes, every Washington religiously-affiliated school and social service organization is exposed to the
risks of intrusive forays into their religious
decision-making.
The Washington Supreme Court’s decision not
only struck down the exemption enacted over 50 years
ago, but it also precludes the Washington State Legislature from attempting to enact an even narrower exemption to protect against lawsuits such as this one.
Tens of thousands of Washington religious organizations, including houses of worship, have no protection
against the invasive enforcement actions of government bureaucrats and secular courts where a plaintiff
asserts a fundamental right of citizenship and the employment position does not implicate the ministerial
exemption. App.20a; Woods, 197 Wash. 2d at 251 (“The
ministerial exception, recognized by the United States
Supreme Court . . . provides a fair and useful approach
for determining whether application of [the religious
organization exemption] unconstitutionally infringes
on Woods’ fundamental right to his sexual orientation
and right to marry.”) (citing Hosanna-Tabor, 565 U.S.
171; Our Lady of Guadalupe Sch. v. Morrissey-Berru,
140 S. Ct. 2049 (2020)).
The chilling effect of the lower court’s decision has
been felt across the state by nearly every religious organization. The Court should accept review and rule
that the First Amendment protects the autonomy of
25
religious organizations to make hiring decisions with
respect to coreligionists.
---------------------------------♦---------------------------------
CONCLUSION
Rather than a “license to discriminate,” as it is
pejoratively described by the Washington Supreme
Court, the religious employer exemption is a legislative
accommodation to shield donation-dependent religious
nonprofits from the extraordinary costs and risks of
the WLAD, and to protect their federal and state constitutional rights to be free of state interference so that
they may pursue their religious missions undisturbed.
The exemption must be seen in the context of the long
line of statutory accommodations to citizens and religious institutions since before the founding of the nation.
The Court should accept review, reverse the Washington Supreme Court, and restore the coreligionist
accommodation guaranteed by the First Amendment.
Respectfully submitted,
STEVEN T. O’BAN
Counsel of Record
1575 S. Seashore Drive
Tacoma, WA 98465
(213) 312-1688
stevenoban@gmail.com
26
CHARLES S. LiMANDRI
PAUL M. JONNA
JEFFREY M. TRISSELL
LIMANDRI & JONNA LLP
P.O. Box 9120
Rancho Santa Fe, CA 92067
(858) 759-9930
THOMAS BREJCHA
PETER BREEN
THOMAS MORE SOCIETY
309 W. Washington Street
Suite 1250
Chicago, IL 60606
(312) 782-1680
Counsel for Amici Curiae
August 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.