In Wood v. Seattle’s Union Gospel Mission, Washington Supreme Court reversed a summary judgment in favor of Union Gospel in an employment discrimination dispute. The plaintiff, Wood, had been a volunteer at Union Gospel for some time and, following graduation from law school, applied for an open position as a staff attorney. He was denied the position after he disclosed that he was in a relationship with another man and that he hoped one day to marry. When Woods first began work with Union Gospel as a volunteer, he had signed a statement of faith affirming that his commitment to upholding biblical values. The primary state law applicable to the case is Washington’s Law Against Discrimination (WLAD), chapter 49.50 of the Revised Code. WLAD exempts religious nonprofits from the definition of “employer”. On that basis the trial court granted Union Gospel summary judgment. The Washington Supreme Court accepted Woods’ appeal to address whether the exemption of religious nonprofits was unconstitutional on its face, or, if not, is its application to Woods invalid. The Court reviews the history of the statute and the applicable state and federal caselaw, with extended discussion of Our Lady of Guadalupe. The upshot is that the Washington Supreme Court adopted the analysis of Our Lady of Guadalupe, which limited a religious exception to anti-discrimination employment laws to positions which involve a significant ministerial function. The exception is upheld against a facial challenge. But then the question, which is sent back to the trial court to consider, is whether Woods’ potential role as a staff attorney is sufficiently intertwined with religious teaching and ministerial activities, to be within the exception of religious nonprofits from the reach of WLAD. In other words, the district court will need to consider the factors and analysis of Our Lady of Guadalupe to make a judgment about the religious nature (or lack) of staff attorney for Union Gospel.
One gets a sense, however, that the Supreme Court, notwithstanding that teh issue had not been addressed below, is inclined to the conclusion that Woods should win in the end:
WOODS acknowledges that all SUGM employees are expected to evangelize, but there is no evidence that staff attorneys had titles as ministers or training in religious matters comparable to Hosanna-Tabor’s teacher. And while staff attorneys are expected to share their faith with clients as opportunities arise, there is no evidence that they are expected to nurture their converts’ development in the Christian faith similar to the job duties performed by the teachers in Our Lady of Guadalupe and Hosanna-Tabor. Further, neither SUGM nor ODLS is a church or religious entity principally responsible for the spiritual lives of its members. SUGM employees are expected to be active members of local churches; SUGM employment alone does not appear to be sufficient religious affiliation. Employees held to be ministers in Our Lady of Guadalupe and Hosanna-Tabor led faith groups and taught religious doctrine. The record indicates that these duties occur outside SUGM, in local churches for SUGM employees. Moreover, WOODS sought employment with SUGM as a lawyer specifically, not as a religious minister or teacher, and there is no indication that religious training is necessary for the staff attorney position, unlike the teachers in Hosanna-Tabor. (¶41)
Maybe that is an accurate account of the record: Maybe Union Gospel made no real effort to show the religious aspects of the staff attorney position. But, as the Court itself says earlier in the opinion, the issue was not litigated below. The Court’s views also come out in the concurrence. “I would hold that there areno reasonable grounds to afford the privilege of the Washington Law Against Discrimination, ch. 49.60 RCW, exemption to Seattle’s Union Gospel Mission (SUGM) because SUGM cannot enjoy a free exercise right to discriminate against an employee who performs nonreligious duties, such as a staff attorney. However, because there are factual questions regarding the duties of the staff attorney, I ultimately concur in the court’s decision to remand.” (¶44) These two sentences are in some tension. Justice Yu first says staff attorney position are nonreligious (so no exemption applies) and then says, second, that there are factual questions about the duties of staff attorneys. The first strikes as more sincere than the second. Or consider the following two paragraphs, which are a short lecture directed at religious institutions that they really would be better changing their doctrinal commitments, e.g., to marriage as one man and one woman, or prohibitions on extramarital sex. Not much room there for minority views of what conscience demands. To be sure, the concurrence recognizes that Union Gospel’s claim is not frivolous, there are “some circumstances” weighing in its favor: it describes the legal service as a ministry that operates with an evangelical purpose. But, of course but, Union Gospel does not hold the attorneys out as ministers, and does not require a significant degree of religious training. “And in the context of a nonprofit legal aid organization serving the civil legal needs of vulnerable populations, I believe it is simply not possible to simultaneously act as both an attorney and a minister while complying with the [Rules of Professional Conduct].” (¶52) Religious consideration are not prohibited, that much is conceded. (¶53.) At least, clients are permitted religious conscience. For lawyers, it is quite unclear whether Justice Yu thinks attorneys are permitted a conscience, nor, in the event the lawyer has moral reservations about a client’s requests the lawyer is permitted to withdraw or is instead required to elide their moral concerns. I wonder if, in Washington, Union Gospel can require its employees to be Christian, or is it required not to inquire into religious beliefs, or their absence? That would be discrimination on the basis of creed, which WLAD bars. Or is the analysis limited to discrimination related to fundamental rights, marriage and sexual orientation, and religious commitment is no so connected to a fundamental right?
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