The U.S. Court of Appeals for the Ninth Circuit will hear a case over whether a religious ministry can limit who it hires to people who share its beliefs, in the latest hotly contested test of religious liberty, which could make its way to the Supreme Court.
The full bench of the federal appeals court agreed to an appeal in a lawsuit brought by Yakima Union Gospel Mission against a Washington law that would have restricted their ability to limit hiring to people who share their religious beliefs, arguing the law is a violation of their First Amendment religious freedom. A three-judge panel on the Ninth Circuit previously sided with the ministry, and the judge who wrote the opinion for that panel offered a sharp criticism of the rest of the bench for deciding to review the case.
The lawsuit centers on the Washington Law Against Discrimination, which prevents employment discrimination of various kinds, including on the basis of sexual orientation, and how it would affect the religious ministry’s ability to only hire employees who share and uphold the same religious beliefs as the ministry. The WLAD allows a religious exemption for non-ministerial employees, but the Yakima Union Gospel Mission argued that it unconstitutionally prevents the religious organization from limiting hiring of roles, such as in the IT department, to those who share its religious views.
A federal district court sided with the religious ministry, leading the state to appeal to a three-judge panel on the Ninth Circuit, which also sided with the Yakima Union Gospel Mission.
“Hiring based on religious criteria may conflict with laws prohibiting employment decisions based on protected characteristics. Ordinarily, even religious institutions must follow generally applicable employment law,” U.S. Circuit Judge Patrick Bumatay, an appointee of President Donald Trump, said in the ruling for the three-judge panel. “But if state law were to prevent religious institutions from employing only co-religionists, those institutions could be forced to hire employees who openly flout and disagree with their religious principles.”
“This, the First Amendment doesn’t tolerate. Because who a religious organization hires may go to the very character of its religious mission, the church autonomy doctrine protects the decision to hire co-religionists for nonministerial roles if that decision is based on the organization’s sincerely held religious beliefs,” he added.
The decision by the full bench of the Ninth Circuit to review the case vacates the three-judge panel’s ruling, and it is unusually an indication that the full court disagrees with the panel’s decision. Bumatay, issuing a dissenting opinion from the full bench’s decision to rehear the case, tore into the Ninth Circuit’s “alarming trend” of not safeguarding religious freedom rights.
“The Ninth Circuit has relegated religious liberty to a second-class right. In case after case, our court has condoned governmental interference with the rights of the religious to practice their faith as they believe. And our failure to guard against intrusions on religious liberty has not gone unnoticed,” Bumatay wrote.
The appeals court judge cited various cases where the Ninth Circuit sided against religious institutions on being allowed to only hire like-minded employees, a coach praying after football games, and a fireman who was allegedly fired over his religious beliefs, among other cases.
“Now, with this en banc vote, we continue down this disturbing path. In what is likely a foregone conclusion, our court steps toward endorsing the view that States can force a religious organization to hire individuals who openly flout its religious beliefs and teachings. As a matter of constitutional first principles and precedent, that’s wrong,” Bumatay wrote. “Perhaps I’m wrong, in which case I will celebrate the win for the First Amendment. But given our court’s track record, I have doubts.”
Bumatay’s dissent was joined by U.S. Circuit Judges Lawrence VanDyke and Eric Tung, who were also appointed by Trump.
The case will be another key test for religious liberty, which could make its way up to the Supreme Court, where religious liberty cases have been a frequent issue before the justices in recent terms. The high court’s most recent ruling on religious liberty came in Chiles v. Salazar, where the justices sided with a religious counselor over Colorado’s law, which had prohibited her from trying to dissuade children from changing their gender identities or sexual orientations.