FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE MARCH 4, 2021
SUPREME COURT, STATE OF WASHINGTON
MARCH 4, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MATTHEW S. WOODS, an individual, )
) No. 96132-8
Appellant, )
)
v. )
) En Banc
SEATTLE’S UNION GOSPEL MISSION, )
a Washington nonprofit, )
)
Respondent. ) Filed: March 4, 2021
_______________________________________)
MADSEN, J.—We begin with the proposition that the legislature is entitled to
legislate. WASH. CONST. art. II, § 1. It is entitled to make distinctions and to carve out
exceptions in its assessments of proper public policy, within the constraints of the state
and federal constitutions. See, e.g., WASH. CONST. art. I, § 12. One constraint on
legislative power is that it may not treat differently persons who are similarly situated
unless a rational basis exists to do so and that it may not give persons immunity or
No. 96132-8
privilege without a reasonable basis when a fundamental right is at stake. Id.; U.S.
CONST. amend. XIV.
The issue in this case is whether the legislature extended a privilege or immunity
to religious and other nonprofit, secular employers and whether, in providing the
privilege or immunity, the legislature affected a fundamental right without a reasonable
basis for doing so. Lawmakers enacted Washington’s Law Against Discrimination
(WLAD), ch. 49.60 RCW, to protect citizens from discrimination in employment, and
exempts religious nonprofits from the definition of “employer.” RCW 49.60.040(11). In
enacting WLAD, the legislature created a statutory right for employees to be free from
discrimination in the workplace while allowing employers to retain their constitutional
right, as constrained by state and federal case law, to choose workers who reflect the
employers’ beliefs when hiring ministers. Consequently, we must balance under law
these competing interests, and we look to both our state and federal constitutions for
guidance—specifically article I, section 12; article I, section 11; the First Amendment;
and, the United States Supreme Court decision in Our Lady of Guadalupe School v.
Morrissey-Berru, ___ U.S. ___, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020).
Here, Matthew Woods brought an employment discrimination action against
Seattle’s Union Gospel Mission (SUGM). At trial, SUGM successfully moved for
summary judgment pursuant to RCW 49.60.040(11)’s religious employer exemption.
Woods appealed to this court, contesting the constitutionality of the statute. SUGM now
argues that RCW 49.60.040(11)’s exemption applies to its hiring decisions because its
employees are expected to minister to their clients. Under Our Lady of Guadalupe, a
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No. 96132-8
plaintiff’s employment discrimination claim must yield in a few limited circumstances,
including where the employee in question is a minister. Whether ministerial
responsibilities and functions discussed in Our Lady of Guadalupe are present in Woods’
case was not decided below.
For the following reasons, we hold that RCW 49.60.040(11) does not violate
article I, section 12 on its face but may be constitutionally invalid as applied to Woods.
Accordingly, we reverse and remand the case to the trial court to determine whether
SUGM meets the ministerial exception.
BACKGROUND
SUGM is a nonprofit, evangelical Christian organization providing services to
Seattle’s unsheltered homeless population. In 1999, SUGM opened its legal aid clinic,
Open Door Legal Services (ODLS), to address its guests’ many legal issues and facilitate
the SUGM’s gospel rescue work.
Woods, a professed Christian, signed SUGM’s statement of faith when he began
volunteering at the ODLS clinic as a law student. Later, as a lawyer, Woods inquired
about the ODLS staff attorney position that became available in October 2016, disclosing
that he was in a same-sex relationship. SUGM informed Woods that it was contrary to
biblical teaching for him to engage in a same-sex relationship. Woods challenged this
interpretation and applied for the position. The ODLS director notified Woods there
would be no change to its policy. SUGM did not hire Woods for the staff attorney
position.
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No. 96132-8
In November 2017, Woods filed a complaint against SUGM, alleging it had
violated his right to be free from discriminatory employment under WLAD. Clerk’s
Papers (CP) at 1-7. Woods claimed that RCW 49.60.040(11)’s exemption is
unconstitutional as applied to him because the staff attorney job duties were “wholly
unrelated to [SUGM’s] religious practices or activities.” CP at 6. SUGM argued that the
religious exemption to WLAD applied under RCW 49.60.040(11), which excludes
religious and sectarian nonprofit organizations from the definition of “employer.”
SUGM successfully moved for summary judgment, and Woods sought direct review,
which this court granted.
ANALYSIS
Standard of review
At issue is whether RCW 49.60.040(11) validly exempts SUGM from WLAD
provisions under the facts of this case. This court reviews questions of statutory
interpretation and constitutionality de novo. State v. Evergreen Freedom Found., 192
Wn.2d 782, 789, 432 P.3d 805, cert. denied, 139 S. Ct. 2647 (2019). Our primary
objective in interpreting a statute is to ascertain and give effect to the legislature’s intent
as manifested by the statute’s language. See In re Marriage of Schneider, 173 Wn.2d
353, 363, 268 P.3d 215 (2011). This court also reviews summary judgment de novo.
Wash. Educ. Ass’n v. Dep’t of Ret. Sys., 181 Wn.2d 233, 241, 332 P.3d 439 (2014).
WLAD
“WLAD is a regulatory law enacted under the legislature’s police power to
promote the health, peace, safety, and general welfare of the people of Washington.”
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No. 96132-8
Ockletree v. Franciscan Health Sys., 179 Wn.2d 769, 773 n.2, 317 P.3d 1009 (2014)
(plurality opinion) (citing RCW 49.60.010). Enacted in 1949, WLAD was promulgated
with the “purpose of ending discrimination by employers ‘on the basis of race, creed,
color, or national origin.’” Id. at 773 (quoting Griffin v. Eller, 130 Wn.2d 58, 63, 922
P.2d 788 (1996)). The legislature has expanded WLAD to bar discrimination on the basis
of age, sex, sexual orientation, and disability, and to incorporate a private right of action
for employees and persons who use public accommodations. Id. (citing RCW
49.60.040).
As originally enacted, WLAD exempted from the definition of “employer” “any
religious, charitable, educational, social or fraternal association or corporation, not
organized for private profit.” LAWS OF 1949, ch. 183, § 3(b). 1 The legislature rewrote
WLAD’s definition of “employer” in 1957 to include secular nonprofit organizations,
exempting only small employers and religious nonprofits. LAWS OF 1957, ch. 37, § 4.
That definition is currently found in RCW 49.60.040(11), which provides, “‘Employer’
includes any person acting in the interest of an employer, directly or indirectly, who
employs eight or more persons, and does not include any religious or sectarian
organization not organized for private profit.”
1
WLAD was modeled on a New York measure entitled the “Law Against Discrimination,”
which was enacted in 1945. Frank P. Helsell, The Law Against Discrimination in Employment,
25 WASH. L. REV. & ST. B.J. 225, 225 (1950) (citing 1945 N.Y. Laws 457). The New York law,
as in WLAD, originally excluded religious nonprofit associations from the definition of
“employer.” 1945 N.Y. Laws 458; see also Morroe Berger, The New York State Law Against
Discrimination: Operation and Administration, 35 CORNELL L.Q. 747, 750 (1949). The term
“employer” in the New York law was “strictly defined” to avoid constitutional inhibitions. See
Current Legislation, 19 ST. JOHN’S L. REV. 170, 171-72 (1945).
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No. 96132-8
We are asked to review whether the religious employer exemption violates article
I, section 12 of the Washington State Constitution.
Constitutionality of RCW 49.60.040(11)
We presume statutes are constitutional, and the party challenging constitutionality
bears the burden of proving otherwise. Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 215,
143 P.3d 571 (2006), overruled in part by Chong Yim v. City of Seattle, 194 Wn.2d 682,
451 P.3d 694 (2019). “‘[A]n as-applied challenge to the constitutional validity of a
statute is characterized by a party’s allegation that application of the statute in the specific
context of the party’s actions or intended actions is unconstitutional.’” City of Seattle v.
Evans, 184 Wn.2d 856, 862, 366 P.3d 906 (2015) (alteration in original) (internal
quotation marks omitted) (quoting State v. Hunley, 175 Wn.2d 901, 916, 287 P.3d 584
(2012)). “‘Holding a statute unconstitutional as-applied prohibits future application of
the statute in a similar context, but the statute is not totally invalidated.’” Id. (internal
quotation marks omitted) (quoting Hunley, 175 Wn.2d at 916). A facial challenge must
be rejected unless there is “no set of circumstances in which the statute[, as currently
written,] can constitutionally be applied.” In re Det. of Turay, 139 Wn.2d 379, 417 n.27,
986 P.2d 790 (1999) (quoting Ada v. Guam Soc’y of Obstetricians & Gynecologists, 506
U.S. 1011, 1012, 113 S. Ct. 633, 121 L. Ed. 2d 564 (1992) (Scalia, J., dissenting)). When
determining whether a law is facially invalid, courts must be careful not to exceed the
facial requirements and speculate about hypothetical cases. Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 449-50, 128 S. Ct. 1184, 170 L. Ed. 2d 151
(2008).
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No. 96132-8
Facial claims are generally disfavored. State v. McCuistion, 174 Wn.2d 369, 389,
275 P.3d 1092 (2012). They often rest on speculation and “‘run contrary to the
fundamental principle of judicial restraint that courts should neither anticipate a question
of constitutional law in advance of the necessity of deciding it nor formulate a rule of
constitutional law broader than is required by the precise facts to which it is to be
applied.’” Id.
We have previously considered and upheld WLAD’s religious employer
exemption from a facial constitutional challenge in Ockletree. In that case, an African-
American security guard at a Catholic hospital was terminated after he suffered a stroke.
He sued the hospital for, among other things, a violation of WLAD, asserting that his
termination was the result of illegal discrimination on the basis of race and disability.
Ockletree, 179 Wn.2d at 772. The hospital moved to dismiss Larry Ockletree’s WLAD
claim, arguing that the hospital was exempt as a nonprofit religious organization under
RCW 49.60.040(11). This court issued three opinions in a 4-4-1 split. The lead opinion
held that RCW 49.60.040(11) was not facially unconstitutional under article I, section
12’s privileges and immunities clause. Id. at 788-89 (Johnson, J., lead opinion). The
concurrence agreed that RCW 49.60.040(11) is not facially unconstitutional but said it
would have held that the provision is unconstitutional as applied to Ockletree. Id. at 805
(Wiggins, J., concurring in part in dissent). Thus, five justices agreed that RCW
49.60.040(11)’s religious employer exemption is not facially invalid. Id. at 772
(Johnson, J., lead opinion), 805 (Wiggins, J., concurring in part in dissent).
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No. 96132-8
Because Woods challenges the religious employer exemption under WLAD as it
relates specifically to his case, he advances an as-applied challenge, and we review it as
such. 2
Article I, section 12
Article I, section 12 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.” The
purpose of article I, section 12 is to limit the type of favoritism that ran rampant during
Washington State’s territorial period. Ockletree, 179 Wn.2d at 775 (citing ROBERT F.
UTTER & HUGH D. SPITZER, THE WASHINGTON STATE CONSTITUTION: A REFERENCE
GUIDE 26-27 (G. Alan Tarr ed., 2002)).
Though Washington courts have, at times, analyzed article I, section 12 as
equivalent to the federal equal protection clause, this court also recognized that the text
and aims of the constitutional provisions differed. Id. at 775-76. Article I, section 12
was intended to prevent favoritism and special treatment to the few while disadvantaging
others, and the Fourteenth Amendment was intended to prevent discrimination against
disfavored individuals or groups. Id. at 776 (citing State v. Smith, 117 Wn.2d 263, 283,
2
We do not opine on the effect of this decision on every prospective employee seeking work
with any religious nonprofit such as universities, elementary schools, and houses of worship.
See Ockletree, 179 Wn.2d at 777 (noting employers covered under RCW 49.60.040(11) include
Catholic Community Services, Jewish Family Services, CRISTA Ministries, YMCA, YWCA,
Salvation Army, and St. Vincent De Paul, as well as churches, synagogues, and mosques).
Woods does not prove and we do not hold that no set of circumstances exist under which the
religious employer exemption can be constitutionally applied.
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814 P.2d 652 (1991) (Utter, J., concurring)). Due to these distinctions, our state’s
privileges and immunities clause can support an analysis independent of the Fourteenth
Amendment. Id. at 776 (citing Grant County Fire Prot. Dist. No. 5 v. City of Moses
Lake, 150 Wn.2d 791, 83 P.3d 419 (2004)).
We apply a two-pronged test to determine the constitutionality of the religious
employer exemption under our article I, section 12: (1) whether RCW 49.60.040(11)
granted a privilege or immunity implicating a fundamental right and (2) if a privilege or
immunity was granted, whether the distinction was based on reasonable grounds.
Schroeder v. Weighall, 179 Wn.2d 566, 573, 316 P.3d 482 (2014).
Two of Woods’ fundamental rights are present in the current case: the right to an
individual’s sexual orientation and the right to marry. See Lawrence v. Texas, 539 U.S.
558, 577-78, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003); Bowers v. Hardwick, 478 U.S.
186, 215-20, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) (Stevens, J., dissenting), overruled
by Lawrence, 539 U.S. 558; Obergefell v. Hodges, 576 U.S. 644, 663-65, 135 S. Ct.
2584, 192 L. Ed. 2d 609 (2015). In Lawrence, the Supreme Court struck down criminal
convictions of persons engaged in same-sex conduct, holding that a liberty interest exists
in a person’s private, intimate conduct. 539 U.S. at 577-78. In so holding, the Court
observed that persons in same-sex relationships enjoy the same liberty as those in
heterosexual relationships to make intimate and personal choices central to their personal
dignity and autonomy. Id.; see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 851, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (“At the heart of liberty is the right
to define one’s own concept of existence, of meaning, of the universe, and of the mystery
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No. 96132-8
of human life.”). Lawrence endorsed Justice Stevens’ dissenting opinion in Bowers,
explaining that this liberty extends to unmarried as well as married persons. Lawrence,
539 U.S. at 574, 577-78.
In Obergefell, the Supreme Court concluded the fundamental right to marry
includes same-sex couples and is protected by due process and equal protection clauses
of the Fourteenth Amendment. 576 U.S. at 672-74; see also State v. Warren, 165 Wn.2d
17, 34, 195 P.3d 940 (2008) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388,
71 L. Ed. 2d 599 (1982) (plurality opinion); Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct.
1817, 18 L. Ed. 2d 1010 (1967) (stating that the right to marriage is fundamental)); see
also State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902) (identifying as a fundamental
right of state citizenship the right “to enforce other personal rights” (emphasis added));
Corfield v. Coryell, 6 F. Cas. 546, 551-52 (C.C.E.D. Pa. 1823) (No. 3230) (listing the
right “to pursue and obtain happiness and safety” as a fundamental right).
As Lawrence, Obergefell, and Justice Stevens’ dissent in Bowers contemplate,
individuals possess the fundamental rights to their sexual orientation and to marry
whomever they choose. See Lawrence, 539 U.S. at 574, 577-78; Obergefell, 576 U.S. at
651-52 (“The Constitution promises liberty to all within its reach, a liberty that includes
certain specific rights that allow persons, within a lawful realm, to define and express
their identity.” (emphasis added)), 664 (identifying and protecting fundamental rights
requires “courts to exercise reasoned judgment in identifying interests of the person so
fundamental that the State must accord them its respect”); Bowers, 478 U.S. at 216
(Stevens, J., dissenting) (“[I]ndividual decisions by married persons, concerning the
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intimacies of their physical relationship, even when not intended to produce offspring, are
a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.
Moreover, this protection extends to intimate choices by unmarried as well as married
persons.” (citation omitted)). 3
Here, Woods informed SUGM that he was involved in a same-sex relationship and
voiced a desire to someday marry a man. E.g., CP at 135 (Woods’ cover letter to SUGM
stated he could see “marrying and starting a family with another man.”); see also CP at
114 (Decl. of Matt Woods) (stating Woods informed SUGM “that [he] had a boyfriend,
and that [he] could see marrying a man”). Though this case also implicates the
fundamental right to marry whomever one chooses, it is not limited to this context. Also
implicated is the concomitant fundamental right to sexual orientation. Woods has
invoked these fundamental rights, satisfying the first prong of the article I, section 12 test.
Schroeder, 179 Wn.2d at 573.
Turning to the second prong of that test, we hold that reasonable grounds exist for
WLAD to distinguish religious and secular nonprofits. RCW 49.60.040(11) itself is
evidence of reasonable grounds. Courts routinely rely on statutory language to ascertain
and carry out legislative goals when construing statutory and constitutional provisions.
3
The fundamental right to sexual orientation does not appear to stem from just the federal
constitution but from our state constitution as well. See WASH. CONST. art. I, §§ 3, 7, 12; see
also State v. Jackson, 150 Wn.2d 251, 259, 76 P.3d 217 (2003) (“It is now settled that article I,
section 7 is more protective than the Fourth Amendment.”); State v. Bartholomew, 101 Wn.2d
631, 639, 683 P.2d 1079 (1984) (“[W]e have repeatedly noted that the Supreme Court’s
interpretation of the Fourteenth Amendment does not control our interpretation of the state
constitution’s due process clause.”).
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See, e.g., Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4
(2002); Wash. Water Jet Workers Ass’n v. Yarbrough, 151 Wn.2d 470, 477, 90 P.3d 42
(2004) (citing Anderson v. Chapman, 86 Wn.2d 189, 191, 543 P.2d 229 (1975)).
Meaning is discerned from the language itself, the context and related provisions in
relation to the subject of the legislation, the nature of the act, the general object to be
accomplished, and the consequences that would result from construing a statute in a
particular way. Burns v. City of Seattle, 161 Wn.2d 129, 146, 164 P.3d 475 (2007). We
find no persuasive reason not to examine and rely on statutory language when engaging
in the context of article I, section 12’s reasonable grounds analysis.
RCW 49.60.040(11) was originally included in the 1949 enactment of WLAD.
Even when lawmakers rewrote the definition of “employer” in 1957, the statute
continued to exempt religious nonprofits. This exemption has remained, despite the
expansion of WLAD’s protections. See LAWS OF 1957, ch. 37, § 1 (adding prevention of
discrimination in employment in places of public resort, accommodation, or amusement);
LAWS OF 2006, ch. 4 (expanding WLAD’s protection against discrimination based on
sexual orientation). RCW 49.60.040(11)’s inclusion in the enacting legislation and its
continued existence demonstrate that the legislature plainly intended to include the
exemption in WLAD.
Our state’s protection of religion also explains the religious employer exemption.
RCW 49.60.040(11); WASH. CONST. art. I, § 11. Ockletree noted the critically important
distinction between religious and secular nonprofits: religious organizations have the
right to religious liberty. 179 Wn.2d at 783-84 (citing WASH. CONST. art. I, § 11). The
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No. 96132-8
greater protection offered by article I, section 11 than that of the First Amendment is
evidence for treating religious nonprofits differently. Id. at 784; see also First Covenant
Church v. City of Seattle, 120 Wn.2d 203, 224, 840 P.2d 174 (1992) (noting article I,
section 11 of Washington’s constitution is “stronger than the federal constitution”).
In addition, the United States Supreme Court has upheld the exemption for
religious organizations from federal discrimination suits in order to avoid state
interference with religious freedoms. Ockletree, 179 Wn.2d at 784 (discussing Corp. of
Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327,
336, 107 S. Ct. 2862, 97 L. Ed. 2d 273 (1987)). As five justices agreed in Ockletree,
article I, section 11 and avoidance of state interference with religion constitute real and
substantial differences between religious and secular nonprofits, making it “reasonable
for the legislature to treat them differently under WLAD.” Id. at 783, 806 (Wiggins, J.,
concurring in part in dissent).
Though we also conclude reasonable grounds exist to RCW 49.60.040(11) as a
matter of facial constitutionality, the exemption may still be unconstitutional as-applied
to Woods. See Ockletree, 179 Wn.2d at 789 (Stephens, J., dissenting), 806 (Wiggins, J.,
concurring in part in dissent). Woods has identified fundamental rights of state
citizenship: the right to one’s sexual orientation as manifested as a decision to marry.
The first requirement of our article I, section 12 analysis is therefore satisfied. See
Schroeder, 179 Wn.2d at 573. To determine whether reasonable grounds exist to support
a constitutional application of RCW 49.60.040(11)(a)’s exemption in this case, we look
to the ministerial exception outlined by the United States Supreme Court.
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Ministerial exception
Because WLAD contains no limitations on the scope of the exemption provided to
religious organizations, we seek guidance from the First Amendment as to the
appropriate parameters of the provision’s application. The Supreme Court’s recent
decision in Our Lady of Guadalupe, 140 S. Ct. at 2055, is instructive based on SUGM’s
argument that all of its employees are expected to minister to their clients.
In Our Lady of Guadalupe, the Court reviewed and clarified the ministerial
exception it previously outlined in Hosanna-Tabor Evangelical Lutheran Church & Sch.
v. Equal Emp’t Opportunity Comm’n, 565 U.S. 171, 132 S. Ct. 694, 181 L. Ed. 2d 650
(2012). The Hosanna-Tabor Court addressed an employee’s claims of wrongful
termination under the Americans with Disabilities Act (ADA) of 1990 and state law. 4
The employer, a Lutheran church and school, moved for summary judgment arguing that
the teacher’s suit was barred by the First Amendment because the claims at issue
concerned the employee relationship between a religious institution and one of its
ministers. According to the employer, the employee teacher was a minister and was fired
for a religious reason. Id. at 180.
The trial court granted summary judgment for the employer. It ruled that the facts
surrounding the teacher’s employment in a religious school with a sectarian mission
4
The employee teacher exerted claims for unlawful retaliation under both the ADA, 104 Stat.
327, 42 U.S.C. §§ 12101-12213 (1990), and the Michigan Persons with Disabilities Civil Rights
Act, MICH. COMP. LAWS § 37.1602(a). See Hosanna-Tabor, 565 U.S. at 179-80.
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No. 96132-8
supported the employer’s characterization of the teacher as a minister, and the court
inquired no further into the teacher’s claims of retaliation. Id. at 180-81.
The Sixth Circuit Court of Appeals vacated the ruling, directing the trial court to
proceed to the merits of the teacher’s retaliation claims. Id. at 181. The Supreme Court
reversed and reinstated summary judgment for the employer, observing, “The First
Amendment provides, in part, that ‘Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.’” Id. The Court
acknowledged that while “there can be ‘internal tension . . . between the Establishment
Clause and the Free Exercise Clause,’” id. (alteration in original) (quoting Tilton v.
Richardson, 403 U.S. 672, 677, 91 S. Ct. 2091, 29 L. Ed. 2d 790 (1971) (plurality
opinion)), there was no such tension in the matter at hand. “Both Religion Clauses bar
the government from interfering with the decision of a religious group to fire one of its
ministers.” Id.
Our Lady of Guadalupe revisited the ministerial exception. In that case, two
teachers at Catholic primary schools were terminated and sued their employers for
discrimination. 140 S. Ct. at 2057-59. Both trial courts granted summary judgment for
the school employers based on the Hosanna-Tabor exception. Id. at 2058. The Ninth
Circuit reversed, noting that while the respective teachers had “‘significant religious
responsibilities,’” their duties alone were not dispositive under Hosanna-Tabor: they did
not have the formal title of minister, had limited formal religious training, and did not
hold themselves out to the public as religious leaders or ministers. Id.
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The Supreme Court disagreed with the Ninth Circuit, concluding the ministerial
exception applied and foreclosed the teachers’ employment claims. The Court observed
that the First Amendment precludes the government from interfering with the right of
religious entities to decide matters of “faith and doctrine.” Id. at 2060. Similarly,
religious institutions are insulated from government intrusion on matters of “church
government,” which includes religious entities’ internal management decisions, such as
the selection of individuals who play key roles. Id. The ministerial exception, based on
this notion, protects the freedom of religious institutions to choose and remove ministers
without government interference. Id. at 2060-61.
Whether a position falls within the ambit of the ministerial exception depends on a
“variety of factors.” Id. at 2063. Importantly, the Court clarified that the factors
discussed in Hosanna-Tabor were not meant to be a “checklist.” Id. at 2067. The
“recognition of the significance of those factors . . . did not mean that they must be met—
or even that they are necessarily important—in all other cases.” Id. at 2063. For
example, the title of minister is not itself dispositive, especially considering some
religions do not use the title or are not even formally organized. Id. at 2063-64.
Ultimately, what matters “is what an employee does.” Id. at 2064.
As explained below, Our Lady of Guadalupe and Hosanna-Tabor should guide
our analysis here. Woods cites Hosanna-Tabor as supporting his contention that an
inquiry into the secular nature of the attorney work performed by SUGM staff attorneys
is permissible. He correctly notes that the Supreme Court performed such an inquiry in
Hosanna-Tabor, and more recently in Our Lady of Guadalupe, to conclude that the
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No. 96132-8
ministerial exception applied and barred the discrimination claims of the complaining
employee teachers. 565 U.S. at 190.
Both cases recognize that a plaintiff’s employment discrimination claim must
yield where the employee in question is a minister. The claimant teacher in Hosanna-
Tabor was determined to be a minister, which turned in part on how the church and the
teacher held herself out to the world as a minister of the church. The organization
“issued [the teacher] a ‘diploma of vocation’ according her the title ‘Minister of Religion,
Commissioned.’” Id. at 191. The receipt of such title “reflected a significant degree of
religious training followed by a formal process of commissioning.” Id. The teacher had
to complete eight college-level courses in subjects such as biblical interpretation and
church doctrine, obtain the endorsement of her local church, and pass an oral examination
by a faculty committee at a Lutheran college. Id. She was then commissioned as a
minister only upon election by the congregation and such status could be rescinded only
upon a supermajority vote of the congregation. Id. Further, she claimed a special
housing allowance on her taxes available only to employees earning their compensation
in the exercise of the ministry. Id. at 192.
As for the teacher’s job duties, she was charged with nurturing the Christian
development of the students at her Lutheran school. In addition to secular subjects, she
taught religion classes four days a week, led her students in prayer three times a day, took
her students to weekly chapel services, and conducted such services herself twice a year.
She also led her fourth graders in daily morning devotionals. Id. In short, the teacher
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“performed an important role in transmitting the Lutheran faith to the next generation.”
Id.
The Court made clear in Our Lady of Guadalupe that the above circumstances
were important to consider, but not “essential” to qualifying as a minister. 140 S. Ct. at
2062-63. “What matters, at bottom, is what an employee does.” Id. at 2064. To that
end, the Court concluded the Catholic school teachers at issue performed vital religious
duties: guiding the faith lives of their students, providing instruction on subjects that
included religion, praying and attending religious services with students, and preparing
students for other religious activities. Id. at 2064-65. In short, though the teachers did
not carry the official title of “minister,” their “core responsibilities as teachers of religion
were essentially the same.” Id. at 2066. The teachers therefore qualified for Hosanna-
Tabor’s ministerial exemption. Id.
Recognizing the need for a careful balance between the religious freedoms of the
sectarian organization and the rights of individuals to be free from discrimination in
employment, the Supreme Court has fashioned the ministerial exception to the
application of antidiscrimination laws in accord with the requirements of the First
Amendment. See id. at 2060-66; Hosanna-Tabor, 565 U.S. at 188-196. Here, Woods
seeks employment as a lawyer with SUGM. SUGM has rejected his application because
it maintains that all employees’ first duty is to minister. In order to balance Woods’
fundamental rights with the religious protections guaranteed to SUGM, we hold that
article I, section 12 is not offended if WLAD’s exception for religious organizations is
18
No. 96132-8
applied concerning the claims of a “minister” as defined by Our Lady of Guadalupe and
Hosanna-Tabor.
This approach balances the competing rights advanced by Woods and SUGM. On
one hand, Woods’ sexual orientation and his right to marry are within his fundamental
rights of citizenship. Obergefell, 576 U.S. at 656-60, 663-65; Lawrence, 539 U.S. at 574,
577-78; Warren, 165 Wn.2d at 34. On the other hand, SUGM has the right to exercise its
religious beliefs, and central to this freedom is the messenger of those beliefs. WASH.
CONST. art. I, § 11; Hosanna-Tabor, 565 U.S. at 201 (Alito, J., concurring) (“When it
comes to the expression and inculcation of religious doctrine, there can be no doubt that
the messenger matters.”). The First Amendment “gives special solicitude to the rights of
religious organizations.” Hosanna-Tabor, 565 U.S. at 189. Article I, section 11 of the
Washington State Constitution offers even more robust protections. See First Covenant
Church of Seattle, 120 Wn.2d at 224 (noting article I, section 11 of Washington’s
constitution is “stronger than the federal constitution”). The ministerial exception,
recognized by the United States Supreme Court, every circuit court, and 12 other state
supreme courts, 5 provides a fair and useful approach for determining whether application
of RCW 49.60.040(11) unconstitutionally infringes on Woods’ fundamental right to his
sexual orientation and right to marry.
5
Douglas Laycock, Hosanna-Tabor and the Ministerial Exception, 35 HARV. J.L. & PUB. POL’Y
839, 846 (2012) (noting all 12 geographic circuits and 12 state supreme courts recognize the
existence of the ministerial exception).
19
No. 96132-8
Whether ministerial responsibilities and functions equivalent to those discussed in
Our Lady of Guadalupe and Hosanna-Tabor are present in Woods’ case that would
similarly render an employment discrimination claim under WLAD unavailable is an
open factual question that the trial court did not decide. While some of the criteria noted
in Our Lady of Guadalupe and Hosanna-Tabor are present here, other criteria are not.
Justice Yu’s concurring opinion is helpful in this regard. See concurrence at 3-6.
Whether an employee qualifies as a “minister” is a legal question and the title a legal
term. Hosanna-Tabor, 565 U.S. at 190. 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
20
No. 96132-8
Hosanna-Tabor. 6 See concurrence at 6 (citing Hosanna-Tabor, 565 U.S. at 191). It is
best left to the trial court to determine whether staff attorneys can qualify as ministers
and, consequently, whether Woods’ discrimination claim under WLAD must be barred.
CONCLUSION
We conclude that RCW 49.60.040(11) does not facially violate article I, section 12
of our state constitution. However, we recognize that the provision may still be
unconstitutional as applied to Matthew Woods. To properly balance the competing rights
advanced by Woods and SUGM, we apply the federal ministerial exception test
established in Hosanna-Tabor and clarified in Our Lady of Guadalupe. A material
question of fact remains concerning whether the SUGM staff attorneys qualify as
ministers. Accordingly, we reverse and remand to the trial court to answer this open
factual question.
6
Justice Yu’s concurring opinion also reviews the ethical constraints specific to lawyers.
Concurrence at 4-7 (discussing relevant Rules of Professional Conduct). These considerations
also serve to distinguish lawyers from ministers under Hosanna-Tabor and Our Lady of
Guadalupe.
21
No. 96132-8
___________________________________
WE CONCUR:
_______________________________ ________________________________
_______________________________ ________________________________
_______________________________ ________________________________
_______________________________ ________________________________
Wiggins, J.P.T.
22
Woods v. Seattle’s Union Gospel Mission, No. 96132-8
(Yu, J., concurring)
No. 96132-8
YU, J. (concurring) — I concur with the court’s determination that the
legislature’s decision to exempt religious employers from the right to be free from
discrimination is subject to a careful balance of rights under our state constitution,
the First Amendment to the United States Constitution, and United States Supreme
Court decisions. I am cognizant of the evolving legal landscape at the national
level and agree that a limited “as applied” approach is an appropriate exercise of
judicial restraint and a prudent way to resolve this case.
Our court’s decision today is not a carte blanche license to discriminate
against members of the LGBTQ+ community who are employed by religious
institutions. Rather it recognizes the statutory prohibitions against discrimination
while also recognizing a limited and narrow ministerial exception required to
alleviate a substantial and concrete burden on the free exercise of religious
freedom. As noted by the majority and the dissent (Justice Stephens dissenting in
Woods v. Seattle’s Union Gospel Mission, No. 96132-8
(Yu, J., concurring)
part and concurring in part), we utilize a two pronged analysis to determine
whether a statutory provision violates article I, section 12 of the Washington
Constitution. We ask: Does the statute grant a privilege or immunity and if so, are
there reasonable grounds for such privilege or immunity? (see majority at 9;
dissent in part at 11). I would hold that there are no reasonable grounds to afford
the privilege of the WLAD exemption to 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.
Our state law protects the right to employment free from discrimination on
the basis of LGBTQ+ status (as well as on the basis of race, gender, etc.). The law
also protects the right of religious institutions to choose their ministers. Thus, I
agree with the majority that a religious institution, such as a church, has the
freedom to discriminate on the basis of LGBTQ+ status when choosing its
ministers in accordance with its religious doctrines. I also agree with the majority
that this license to discriminate belongs only to religious institutions and not to
other entities such as legal, medical, or commercial institutions. It is also
important to point out that this license to discriminate exists only with respect to
2
Woods v. Seattle’s Union Gospel Mission, No. 96132-8
(Yu, J., concurring)
the institution’s choice of ministers (not with respect to its choice of nonministers)
and that this freedom to discriminate is not a mandate to do so.
Given our state’s long-standing commitment to eradicating discrimination
and to fostering a diverse workforce, it is my greatest hope that religious
institutions will recognize and embrace the choice to limit the “ministerial
exception” to those employees for whom such an exception is absolutely necessary
and grounded in sound reason and purpose. After all, the right to exclude the
LGBTQ+ community from ministerial employment by religious institutions is not
a right that must be exercised. Rather, it is a choice by that religious institution
and it is a choice that is not governed by an external judicial doctrine but rather one
carved out by the religious entity itself. Religious institutions making such a
choice should be forewarned that today’s decision bars redefining every aspect of
work life as “ministerial.” This court, like the United States Supreme Court, will
insist that trial courts carefully evaluate claims that a particular employee who is
not a traditional minister should nevertheless be reclassified, in hindsight, as a
minister. In the case of lawyers licensed by the state, subject to the Rules of
Professional Conduct, and obligated to let the client define the goal of the
representation, such a claim will likely be difficult to prove.
3
Woods v. Seattle’s Union Gospel Mission, No. 96132-8
(Yu, J., concurring)
Because this case is remanded for further proceedings, I write to offer
guidance on the application of the “ministerial exception” as outlined in Hosanna-
Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity
Commission, 565 U.S. 171, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012), and further
developed in Our Lady of Guadalupe Sch. v. Morrissey-Berru, ___ U.S. ___, 140
S. Ct. 2049, 207 L. Ed. 2d 870 (2020).
The task of reviewing whether any specific job falls within the ministerial
exception remains an important judicial function; a charge that will require
scrutiny of the actual job functions and the religious institution’s explanation of the
role. See Our Lady of Guadalupe Sch., 140 S. Ct. at 2066. The United States
Supreme Court “called on courts to take all relevant circumstances into account
and to determine whether each particular position implicated the fundamental
purpose of the exception.” Id. at 2067 (citing Hosanna-Tabor, 565 U.S. at 190).
And the fundamental purpose of the exception is to respect matters of faith and
doctrine, or ecclesiastical governance, so that we do not meddle or undermine the
independence of religious institutions.
The ministerial exception, required by both religion clauses of the First
Amendment, is a guide that will help courts “stay out of employment disputes
involving those holding certain important positions with churches and other
religious institutions.” Id. at 2060. Whether a particular employment position
4
Woods v. Seattle’s Union Gospel Mission, No. 96132-8
(Yu, J., concurring)
qualifies as “ministerial” is a question of law, and in this context, “minister” is a
legal term, rather than a religious one, because the ministerial exception prohibits
“government interference with an internal church decision that affects the faith and
mission of the church itself.” Hosanna-Tabor, 565 U.S. at 190. A person does not
have to be “the head of a religious congregation” to qualify for the ministerial
exception, but there is no “rigid formula” for determining when the exception
applies. Id. Instead, we must consider “all the circumstances” of the employment
position at issue. Id.
Here, some of the circumstances weigh in favor of finding the ministerial
exception applies. Seattle’s Union Gospel Mission (SUGM) describes Open Door
Legal Services (ODLS) as a “ministry” that operates with an “evangelical
purpose,” and ODLS staff attorneys “show the love of God by loving the client
holistically, not just attending to legal needs.” Clerk’s Papers (CP) at 371-73.
However, as SUGM has acknowledged, there is “a difference between being
engaged in the ministry of a church and being a minister” for purposes of the
ministerial exception. Wash. Supreme Court oral argument, Woods v. Seattle’s
Union Gospel Mission, No. 96132-8 (Oct. 10, 2019), at 28 min., 21 sec., video
recording by TVW, Washington State’s Public Affairs Network,
http://www.tvw.org.
5
Woods v. Seattle’s Union Gospel Mission, No. 96132-8
(Yu, J., concurring)
On the other hand, most of the circumstances of an ODLS staff attorney
weigh against finding that such a position qualifies for the ministerial exception.
Unlike the employer in Hosanna-Tabor, SUGM does not hold a staff attorney “out
as a minister, with a role distinct from that of most of its members.” 565 U.S. at
191. To the contrary, to the extent ODLS staff attorneys are tasked with furthering
SUGM’s religious mission, the same is true of “every Mission employee.” CP at
64; see also id. at 699. Also unlike the employment position in Hosanna-Tabor,
the ODLS staff attorney position does not require “a significant degree of religious
training followed by a formal process of commissioning” as a minister. Hosanna-
Tabor, 565 U.S. at 191. There is also no evidence that any ODLS staff attorney
has held themselves out as a minister by claiming “a special housing allowance on
[their] taxes that [is] available only to employees earning their compensation ‘in
the exercise of the ministry,’” or that staff attorneys were ever expected or required
to do so. Id. at 192 (internal quotation marks omitted).
As noted by the majority, the Supreme Court has further clarified the inquiry
by cautioning against the use of titles as an exclusive test since “what matters, at
bottom, is what an employee does.” Our Lady of Guadalupe Sch., 140 S. Ct. at
2064. And unlike the teachers at issue in Hosanna-Tabor and Our Lady of
Guadalupe School, the ODLS staff attorneys practice law first and foremost. They
practice law in a context “primarily serving the homeless and others in great need.”
6
Woods v. Seattle’s Union Gospel Mission, No. 96132-8
(Yu, J., concurring)
CP at 64. It is this court that has final authority over the practice of law and legal
ethics in Washington, and attorneys are required to comply with the Washington
Rules of Professional Conduct (RPCs). There is no dispute that ODLS staff
attorneys are required to comply with the RPCs. 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 RPCs.
Without question, the RPCs do not prohibit religious considerations from
being a factor in legal practice because “[i]n rendering advice, a lawyer may refer
not only to law but to other considerations such as moral, economic, social and
political factors, that may be relevant to the client’s situation.” RPC 2.1.
However, in Washington, a lawyer must be guided by the client’s interests, not the
lawyer’s (or their employer’s) interests because the client has “the ultimate
authority to determine the purposes to be served by legal representation.” RPC 1.2
cmt. 1. Thus, “[c]oncurrent conflicts of interest can arise from . . . the lawyer’s
own interests.” RPC 1.7 cmt. 1.
In the particular context of a legal aid organization serving the needs of
vulnerable populations, the likelihood of concurrent conflicts of interest would be
enormous if an attorney attempted to act as a minister and a lawyer at the same
time. This conflict is likely if the necessary legal advice conflicts with the
7
Woods v. Seattle’s Union Gospel Mission, No. 96132-8
(Yu, J., concurring)
religious message of the lawyer. SUGM provides legal counsel to clients
regardless of clients’ own religious views, creating a high risk of conflict between
SUGM’s religious mission and the client’s goals for representation. And because
SUGM is providing desperately needed civil legal aid to vulnerable populations,
the likelihood that a client would feel coerced into acquiescing to SUGM’s
religious purposes would be very high if an ODLS staff attorney attempted to
simultaneously play the dual roles of lawyer and minister. To provide just one
example, if a same-sex couple had the goal of facilitating an adoption, a lawyer
would be required to provide the clients with legal advice for achieving their goal,
while a minister promoting SUGM’s religious beliefs may be required to
discourage the clients from pursuing such an adoption. When ODLS staff
attorneys are faced with such situations, they properly respond as lawyers, not as
ministers, because, as the ODLS director confirmed, “[o]ur legal advice is our legal
advice.” CP at 149-50.
Thus, in the particular context presented here, if SUGM raises the ministerial
exception as an affirmative defense on remand, the facts asserted in this record
strongly support a conclusion that an ODLS staff attorney cannot qualify for the
ministerial exception as a matter of law. Unlike the educators in Our Lady of
Guadalupe School, these staff attorneys are not charged with the responsibility of
elucidating or teaching the tenets of the faith. They are first and foremost charged
8
Woods v. Seattle’s Union Gospel Mission, No. 96132-8
(Yu, J., concurring)
with providing objective legal advice that may, in fact, conflict with the employing
entity’s religious doctrine. A religious organization that chooses to employ an
attorney in order to provide civil legal aid cannot control the legal advice by
requiring the attorney to serve as minister and attorney at the same time.
I concur.
_______________________________
9
Woods v. Seattle’s Union Gospel Mission
(Stephens, J., dissenting in part and concurring in part)
No. 96132-8
STEPHENS, J. (dissenting in part and concurring in part)—Matthew Woods
applied for an attorney position at Open Door Legal Services (ODLS), a legal aid
clinic of Seattle’s Union Gospel Mission (SUGM). Though Woods had volunteered
at the clinic for about three years starting in law school, SUGM rejected his
employment application because Woods is bisexual. As a condition of employment,
SUGM requires employees to obey a biblical moral code that excludes
‘“homosexual behavior.’” Clerk’s Papers (CP) at 4 (quoting SUGM’s Employee
Code of Conduct). Woods sued, alleging SUGM violated Washington’s Law
Against Discrimination (WLAD), ch. 49.60 RCW. The superior court granted
SUGM’s motion for summary judgment and dismissed Woods’s suit based on RCW
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
49.60.040(11). That statute categorically exempts “any religious or sectarian
organization not organized for private profit” from WLAD’s definition of
“employer.” RCW 49.60.040 (11). In other words, the court ruled that WLAD
grants religious nonprofits a statutory privilege or immunity from WLAD liability
for employment discrimination. We granted review to determine whether this
statutory exemption is unconstitutional.
In my view, we should hold RCW 49.60.040(11) violates our state
constitutional privileges and immunities clause because it favors religious nonprofits
over all other employers without reasonable grounds for doing so. While both the
state and federal constitutions afford protections for religious freedom, those
protections extend to employers only in the narrow context of ministerial
employment and do not provide reasonable grounds for the categorical exemption
from WLAD liability. 1
1
As explained below, whether the ministerial exception applies to the facts here is
not before us on review but may be considered on remand. See generally Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. Equal Emp’t Opportunity Comm’n., 565 U.S. 171,
188, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012) (holding that the First Amendment to the
United States Constitution’s religion clauses contain a ministerial exception that prevents
government from interfering with a religious group’s employment practices related to
ministerial or ecclesiastical offices); see also Our Lady of Guadalupe Sch. v. Morrissey-
Berru, ___ U.S. ___, 140 S. Ct. 2049, 2069, 207 L. Ed. 2d 870 (2020) (determining the
First Amendment’s ministerial exception precluded two parochial school teachers from
suing for alleged employment discrimination).
-2-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
On this basis, I dissent from the majority’s holding under article I, section 12
of the Washington State Constitution, though I concur in the result to reverse the
superior court’s order granting summary judgment. I would hold the religious
nonprofit exemption under RCW 49.60.040(11) violates article I, section 12’s
antifavoritism principles, and remand for further proceedings to give SUGM the
chance to brief and argue its affirmative defense to WLAD liability based on the
ministerial exception.
FACTS
SUGM incorporated in 1939 for the purpose of “preaching . . . the gospel of
Jesus Christ by conducting rescue mission work in the City of Seattle.” CP at 72.
Its mission “is to serve, rescue and transform those in greatest need through the grace
of Jesus Christ.” Id. at 118. Its articles of incorporation provide, “[A]ny phase of
the work other than direct evangelism shall be kept entirely subordinate and only
taken on so far as seems necessary or helpful to the spiritual work.” Id. at 72. In
November 1943, the Internal Revenue Service (IRS) recognized SUGM as exempt
from federal income tax under 26 U.S.C. § 501(c)(3). The IRS classified SUGM
under 26 U.S.C. §§ 509(a)(1) and 170(b)(1)(A)(i) as a publicly supported church or
a convention or association of churches. In other words, SUGM is a religious
nonprofit organization.
-3-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
Woods is Christian. After entering law school, he decided to volunteer with
SUGM’s legal clinic, ODLS. As part of his volunteer service, Woods willingly
signed SUGM’s statement of faith, which requires, among other things, agreement
that the Bible is the infallible word of God. SUGM belongs to the Association of
Gospel Rescue Missions, a group of roughly 300 evangelical Christian ministries.
All member associations must comply with a similar evangelical Christian statement
of faith for their volunteers and employees. The statement of faith Woods signed
did not mention sexual orientation.
As a volunteer, Woods helped ODLS clients resolve various legal issues
involving divorce, child support, and immigration issues, and he represented his
clients at administrative hearings. Woods found satisfaction in his volunteer work,
which aligned with his faith. He hoped to someday obtain paid, full-time
employment with SUGM. In 2014, shortly after Woods was admitted to practice
law in Washington State, a staff attorney position with ODLS opened, and Woods
received an e-mail encouraging him and other volunteers to apply. ODLS employs
a managing attorney, two staff attorneys, and an administrative assistant/interpreter.
The job description listed several essential job duties and required knowledge, skills,
and abilities, many of which had religious aspects. The application also required
answers to several questions about the applicant’s religious beliefs.
-4-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
Woods is bisexual. Unsure whether SUGM would accept his sexual
orientation, he reached out to a friend and colleague at ODLS whom he had known
since they were undergraduates together. He asked her if she thought his sexual
orientation might pose a problem. At first, she did not think so, but she later found
a policy in SUGM’s employee handbook that gave her pause. The handbook stated,
“‘All staff members are required to sign the doctrinal standard of Seattle’s Union
Gospel Mission. All staff members are expected to live by a Biblical moral code
that excludes . . . homosexual behavior.’” CP at 4 (alteration in original) (quoting
SUGM’s Employee Code of Conduct). She suggested that Woods ask the ODLS
director, David Mace, for more information.
Woods e-mailed Mace and disclosed his bisexuality. He informed Mace that
he had a boyfriend and that he could see himself marrying a man someday. He asked
if that would impact his chances of employment. Mace told him that he could not
apply given SUGM’s code of conduct and confirmed the employee handbook
prohibited “homosexual behavior.” 2 Id. at 226. Woods applied anyway and, in his
2
SUGM’s chief program officer stated, “[T]he Mission’s sincerely held religious
belief is that the Bible calls Christians to abstain from any sexual activity outside of
heterosexual marriage, including abstaining from homosexual behavior. This belief is
based, in part, on passages such as Romans 1:26-27, 1 Corinthians 6:9, and Matthew 19:4.
The Mission further believes that a Mission employee who publicly rejects this teaching
undermines the Mission’s ability to carry out its religious purpose. For example, because
Mission employees model this surrender for our clients, we believe it is very difficult for
-5-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
cover letter, he asked SUGM to reconsider its policy. SUGM refused to consider
him for employment.
Woods sued under WLAD, alleging SUGM engaged in discriminatory
employment practices by refusing to hire him because of his sexual orientation. He
directly challenged the constitutionality of RCW 49.60.040(11), WLAD’s religious
nonprofit exemption, arguing it violates our state privileges and immunities clause,
article I, section 12. SUGM stipulated it would be facing a prima facie case of sexual
orientation discrimination if it were a secular employer. But because SUGM is a
religious nonprofit exempt from WLAD under RCW 49.60.040(11), it moved for
summary judgment on the ground that it is not an employer subject to WLAD
liability.
The superior court issued a letter ruling and order granting SUGM’s motion
for summary judgment. It found that SUGM qualifies as a religious nonprofit
employer and that the staff attorneys’ job duties extend beyond providing legal
counsel, to include providing spiritual guidance. The court ruled it would be
impermissible to “determine . . . the relative merits of different religious beliefs.”
CP at 171. It concluded a trial would improperly focus on which activities within
an employee to urge a recovering addict to surrender his or her life to God when the
employee publicly rejects well-known Christian teaching.” CP at 65.
-6-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
SUGM are secular and which are religious, observing “societal tensions between
religion and LGBTQ disputes ‘must be resolved with tolerance [and] without undue
disrespect to sincere religious beliefs.’” Id. (alteration in original) (quoting
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, ___ U.S. ___, 138 S. Ct.
1719, 1732, 201 L. Ed. 2d 35 (2018)). As a result, the superior court dismissed
Woods’s claims with prejudice. The court did not address the ministerial exception
or any constitutional defenses to WLAD liability raised by SUGM.
We granted direct review.
ANALYSIS
The majority frames the issue in this case as whether RCW 49.60.040(11)’s
religious nonprofit exemption can be constitutionally applied under the ministerial
exception, but this approach evades the constitutional question actually before us.
Woods contends the exemption violates article I, section 12 of the Washington State
Constitution on both legislative favoritism grounds and equal protection grounds.
Our state privileges and immunities clause requires that we consider the statutory
exemption as it exists—not as we might rewrite it. Moreover, whether SUGM could
successfully assert a constitutional affirmative defense to WLAD liability for acts of
discrimination involving its ministers does not answer whether the (much broader)
religious nonprofit exemption violates article I, section 12. Addressing the
-7-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
constitutionality of the exemption as it was actually applied here, I would hold
exempting SUGM from WLAD liability based on its status as a religious nonprofit
violates article I, section 12 antifavoritism principles. I would also reject SUGM’s
asserted defenses under the First Amendment to the United States Constitution
except insofar as it can prove the ministerial exception applies to Woods’s
employment.
A. The Religious Nonprofit Exemption Violates Article I, Section 12
Antifavoritism Principles
Article I, section 12 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.”
In years past, we interpreted article I, section 12 like the federal equal
protection clause. Schroeder v. Weighall, 179 Wn.2d 566, 571, 316 P.3d 482 (2014).
But over time “[o]ur cases . . . recognized that the text and aims of article I, section
12 differ from that of the federal equal protection clause.” Ockletree v. Franciscan
Health Sys., 179 Wn.2d 769, 775-76, 317 P.3d 1009 (2014) (lead opinion). Congress
passed the Fourteenth Amendment after the Civil War in part to prevent states from
denying any person equal protection under the law. See State v. Smith, 117 Wn.2d
263, 283, 814 P.2d 652 (1991) (Utter, J., concurring). The framers of our privileges
-8-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
and immunities clause, in contrast, “intended to prevent people from seeking certain
privileges or benefits to the disadvantage of others.” Id. The clause aims to prevent
“favoritism and special treatment for a few.” Id. For this reason, we now apply an
independent analysis from the federal equal protection clause in cases involving
legislative favoritism. E.g., Ass’n of Wash. Spirits & Wine Distribs. v. Wash. State
Liquor Control Bd., 182 Wn.2d 342, 359, 340 P.3d 849 (2015) (citing Grant County
Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 805, 811, 83 P.3d 419
(2004)). Still, this independent, antifavoritism analytical framework “did not
overrule our long line of article I, section 12 cases addressing laws that burden
vulnerable groups” on state equal protection grounds. Schroeder, 179 Wn.2d at 577.
Under the antifavoritism framework, the terms “privileges” and “immunities”
“pertain alone to those fundamental rights which belong to the citizens of the state
by reason of such citizenship.” State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902).
The threshold question in our antifavoritism analysis is whether the challenged
statute implicates or encroaches on a fundamental right of state citizenship.
Schroeder, 179 Wn.2d at 572.3
3
If a statutory benefit does not first encroach on a fundamental right of state
citizenship, this constitutional inquiry ends. See, e.g., Grant, 150 Wn.2d at 814;
Ventenbergs v. City of Seattle, 163 Wn.2d 92, 102-05, 178 P.3d 960 (2008) (determining
that while the constitutional inquiry under article I, section 12 must end because the right
at issue there was not a fundamental right, courts would still analyze the disputed law under
-9-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
As for the threshold question, the majority holds the fundamental rights
implicated here are the right to an individual’s sexual orientation and the right to
marry. Majority at 9. But it locates these rights exclusively in federal due process
cases that erroneously tie (and thereby limit) principles of antidiscrimination
recognized as fundamental in Washington. 4 Majority at 9-11 (citing Lawrence v.
Texas, 539 U.S. 558, 577-78, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003); Bowers v.
Hardwick, 478 U.S. 186, 215-20, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) (Stevens,
J., dissenting); Obergefell v. Hodges, 576 U.S. 644, 663-65, 135 S. Ct. 2584, 192 L.
Ed. 2d 609 (2015)). Whether a statute violates due process is distinct from whether
a general rubric of reasonableness because the legislature must exercise its police power in
a reasonable way).
4
To be clear, I would welcome the recognition of marriage and the right to live free
from discrimination based on sexual orientation as fundamental rights of state citizenship.
But that is not what today’s majority does. The majority recognizes those rights as
fundamental rights under federal constitutional principles and subtly distances fundamental
rights of state citizenship, concluding only that there may be “the right to one’s sexual
orientation as manifested as a decision to marry.” Majority at 13. Importantly, the majority
does not address Andersen v. King County, 158 Wn.2d 1, 30-31, 138 P.3d 963 (2006)
(plurality opinion) (rejecting marriage equality as a fundamental right), overruled by
Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). The result
is a “fundamental right to marry” and a “fundamental right to sexual orientation” under the
due process clause of the federal constitution, but if the majority intends to protect these
rights under our state constitution, it should explicitly hold they are fundamental to state
citizenship.
-10-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
a statute grants a privilege or immunity. The majority’s analysis is plainly built on
the wrong constitutional foundation. 5
Worse, after positing fundamental due process rights to open the door to a
privileges and immunities analysis, the majority promptly abandons them and
minimizes the import of WLAD. I would hold WLAD implicates a right we have
long recognized as a fundamental right of state citizenship—the civil right to seek
redress for discrimination. Ockletree, 179 Wn.2d at 794-97 (Stephens, J.,
dissenting) (recognizing that protection from discrimination is a “personal,” civil
right redressable at common law), see id. at 806 (Wiggins, J., concurring in part in
dissent) (“I agree with the dissent that the exemption of religious and sectarian
organizations in RCW 49.60.040(11) is subject to scrutiny under the privileges and
immunities clause of article I, section 12 of the Washington Constitution.”); see also
5
We have never equated fundamental rights guaranteed by the federal due process
clause with the fundamental rights of state citizenship protected under article I, section 12.
Those two categories of fundamental rights are distinct—they protect different rights for
different reasons. It would be anachronistic for the framers of Washington’s constitution
in 1889 to have intended to safeguard rights that would not be protected under federal due
process for a generation. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L.
Ed. 1042 (1923). Moreover, fundamental rights of state citizenship are not necessarily
fundamental federal constitutional rights. See Ockletree, 179 Wn.2d at 793 (Stephens, J.,
dissenting) (collecting cases and noting we have applied a standard less stringent than strict
scrutiny to cases involving the fundamental right to sell cigars, animal feed, and eggs).
-11-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
Cotten v. Wilson, 27 Wn.2d 314, 317-20, 178 P.2d 287 (1947) (holding the right to
sue in negligence is a privilege of state citizenship protected by article I, section 12).
We should recognize Woods enjoys a fundamental right of state citizenship to seek
redress for employment discrimination and proceed under our two part privileges
and immunities analysis. Schroeder, 179 Wn.2d at 572-73. “First, we ask whether
a challenged law grants a ‘privilege’ or ‘immunity’ for purposes of our state
constitution.” Id. at 573 (quoting Grant, 150 Wn.2d at 812). “If the answer is yes,
then we ask whether there is a ‘reasonable ground’ for granting that privilege or
immunity.” Id. (quoting Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake,
145 Wn.2d 702, 731, 42 P.3d 394 (2002)).
As to the first question, we must consider the religious nonprofit exemption
as it was written and how it was actually applied in this case. The exemption
categorically exempts religious nonprofits from WLAD, thereby creating a status-
based privilege to discriminate in employment (or stated differently, an immunity
from WLAD liability for employment discrimination). It operates solely on the basis
of the employer’s status as a religious nonprofit. Ockletree, 179 Wn.2d at 797
(Stephens, J., dissenting), 806 (Wiggins, J., concurring in part in dissent); cf. Farnam
v. CRISTA Ministries, 116 Wn.2d 659, 672-81, 807 P.2d 830 (1991) (holding that
RCW 49.60.040 categorically exempts religious nonprofits, including subsidiaries
-12-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
of larger religious nonprofit entities, no matter if the subsidiary itself has an
independent religious purpose). Because the exemption grants religious nonprofits
a privilege or immunity within the meaning of article I, section 12, we next consider
whether reasonable grounds exist for granting such a privilege.
The majority offers several justifications for a WLAD exemption that respects
employers’ religious freedoms. It describes the religious employer exemption as
balancing the “statutory right for employees to be free from discrimination” against
religious employers’ “constitutional right . . . to choose workers who reflect the
employers’ beliefs when hiring ministers.” 6 Majority at 2. But, this description is
both counter-factual and inconsistent with the majority’s own fundamental rights
analysis.
Contrary to the majority’s description, the religious employer exemption
reflects no balancing of interests based on an employer’s exercise of religious
6
Today’s majority repeats the rejected view of the lead opinion in Ockletree, which
had insisted that “protection from discrimination in private employment is a creature of
statutory enactment.” 179 Wn.2d at 780. However, both the concurrence and dissent in
Ockletree held that the statutory exemption implicates a fundamental right and is thus
subject to scrutiny for reasonable grounds under article I, section 12. Id. at 806 (Wiggins,
J., concurring in part in dissent), 794-97 (Stephens, J., dissenting). Indeed, given WLAD’s
recognition of the “civil right” to “obtain and hold employment without discrimination,”
RCW 49.60.030(1)(a), the dissent in Ockletree observed, “It is simply incredible for the
lead opinion to suggest that Washington citizens enjoyed no state common-law remedy for
discrimination until 1973⸺and that even today they must rely on state and federal
legislative grace to vindicate their rights.” 179 Wn.2d at 796.
-13-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
freedoms. It applies only to religious nonprofits and, as observed in Farnam, it
applies to all activities of such nonprofits regardless of whether they are religious
activities. 116 Wn.2d at 676-77. Thus, a secular employer exercising protected
religious rights cannot claim the exemption, while a religious nonprofit enjoys the
legislatively granted immunity carte blanche. The majority, under the guise of an
as-applied challenge, imagines an exemption that does not exist—and that was not
applied here. It is undisputed that SUGM claimed, and was granted, the exemption
based on its status as a religious nonprofit, period.
Moreover, the majority’s characterization of Woods’s right to be free from
discrimination as merely a statutory right contradicts its conclusion under the first
part of its privileges and immunities analysis. There, the majority concluded
Woods’s claim implicates the fundamental constitutional rights to marriage and
sexual orientation. Majority at 9. While I disagree with the majority’s grounding of
the relevant rights in the federal due process clause, it is true that Woods has a
fundamental right to be free from discrimination based on sexual orientation. Under
the majority’s own framework, it is Woods’s constitutional rights that we must
balance against the religious employers’ statutory privilege, not the other way
around. The majority’s failure to properly weigh the rights at issue in this case
-14-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
undermines its subsequent determination that reasonable grounds support the
religious employer exemption.
“The article I, section 12 reasonable grounds test is more exacting than
rational basis review. Under the reasonable grounds test a court will not hypothesize
facts to justify a legislative distinction.” Schroeder, 179 Wn.2d at 574. Instead, we
“scrutinize the legislative distinction to determine whether it in fact serves the
legislature’s stated goal.” Id. The distinction must depend on “real and substantial
differences bearing a natural, reasonable, and just relation to the subject matter of
the act.” State ex rel. Bacich v. Huse, 187 Wash. 75, 84, 59 P.2d 1101 (1936),
overruled on other grounds by Puget Sound Gillnetters Ass’n v. Moos, 92 Wn.2d
939, 603 P.2d 819 (1979). Put differently, “[t]he distinctions giving rise to the
classification must be germane to the purposes contemplated by the particular law.”
Id. We “do not extend the legislature permission to ‘proceed incrementally,’ instead
[we] tak[e] a statute as [we] find it.” Ockletree, 179 Wn.2d at 797 (Stephens, J.,
dissenting) (quoting Jonathan Thompson, The Washington Constitution’s
Prohibition on Special Privileges and Immunities: Real Bite for “Equal Protection”
Review of Regulatory Legislation?, 69 TEMPLE L. REV. 1247, 1278-79 (1996)).
RCW 49.60.010 states the legislature’s goal or purpose:
This chapter shall be known as the “law against discrimination.” It is an
exercise of the police power of the state for the protection of the public
-15-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
welfare, health, and peace of the people of this state, and in fulfillment of the
provisions of the Constitution of this state concerning civil rights. The
legislature hereby finds and declares that practices of discrimination against
any of its inhabitants because of race, creed, color, national origin,
citizenship or immigration status, families with children, sex, marital status,
sexual orientation, age, honorably discharged veteran or military status, or
the presence of any sensory, mental, or physical disability or the use of a
trained dog guide or service animal by a person with a disability are a matter
of state concern, that such discrimination threatens not only the rights and
proper privileges of its inhabitants but menaces the institutions and
foundation of a free democratic state.
In the context at issue, WLAD’s stated goal is quite simply the “elimination and
prevention of discrimination in employment.” Id.
While legislatures sometimes include blanket exemptions for religious
organizations in various statutes, and such exemptions may reflect legislative
attempts to safeguard free exercise rights, see State v. Arlene’s Flowers, Inc., 193
Wn.2d 469, 520, 441 P.3d 1203 (2019), there is no evidence of that here. Contrary
to the majority’s characterization, WLAD’s stated goal or purpose does not
encompass safeguarding the free exercise of religion (or avoiding excessive
entanglement with religion). See generally RCW 49.60.010. And we are not free to
infer or “hypothesize” such a goal simply because the exemption exists. See
Schroeder, 179 Wn.2d at 574 (“Under the reasonable ground test a court will not
hypothesize facts to justify a legislative distinction.”). Doing so risks the reasonable
-16-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
grounds standard—a heightened standard of review—devolving into rational basis
review.
Indeed, the majority’s reasoning appears to be circular by gleaning the
legislature’s goal or purpose from the legislative distinction itself. See majority at
11 (noting that “RCW 49.60.040(11) itself is evidence of reasonable grounds”). But
we do not analyze reasonable grounds as a syllogism (i.e., legislative distinctions
encompass legislative goals; the religious nonprofit exemption here is a legislative
distinction; thus, the religious nonprofit exemption encompasses a legislative goal).
The reasonable grounds test would be a pointless exercise if that were the case, a
tautology. Instead, we look at the broader goal or purpose of the statutory scheme.
State ex rel. Bacich, 187 Wash. at 84 (determining the distinction must bear a true
“relation to the subject matter of the act” (emphasis added)). Here, the law against
discrimination’s goal or purpose is just that: antidiscrimination. See generally RCW
49.60.010. The question thus becomes whether exempting religious nonprofits in
fact serves the legislature’s antidiscrimination goal. It does not. The legislative
distinction here is antithetical to WLAD’s stated goal or purpose because it gives
religious nonprofits carte blanche to discriminate in employment.
-17-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
Despite bearing no relationship to WLAD’s purpose, the majority argues
Ockletree held the religious nonprofit exemption rests on reasonable grounds.
Majority at 13. I disagree.
The Ockletree court could not agree on a common line of reasoning
establishing reasonable grounds for the exemption so it establishes no precedent on
that point of law. The lead opinion and Justice Wiggins agreed reasonable grounds
existed but neither accepted the other’s reasoning. See Ockletree, 179 Wn. 2d. at
783-86 (lead opinion), 806 (Wiggins, J., concurring in part in dissent). The dissent
determined, on the other hand, no reasonable grounds existed. Id. at 797-800
(Stephens, J., dissenting).
Accordingly, Ockletree did not hold WLAD’s stated goal or purpose
encompasses fostering free exercise or avoiding entanglement with religion.
Whether reasonable grounds ultimately justify the religious nonprofit employer
exemption remains an open question.
To answer this question, we must focus on the exemption as it actually exists
and was applied in this case. The majority errs by instead aligning the statutory
exemption with the ministerial exception developed under First Amendment
doctrine. See majority at 13 (“To determine whether reasonable grounds exist . . .
in this case, we look to the ministerial exception outlined by the United States
-18-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
Supreme Court.”). But the United States Supreme Court’s jurisprudence
recognizing a limited constitutional privilege to discriminate has no bearing on
whether the Washington legislature articulated reasonable grounds for granting
religious employers a categorical privilege in RCW 49.60.040(11). This is
particularly true given that the Supreme Court did not recognize the ministerial
exception until 2012, fully 63 years after our legislature created WLAD’s religious
employer exemption. See Hosanna-Tabor, 565 U.S at 188-89 (first recognizing the
ministerial exception); LAWS OF 1949, ch. 183, § 3(b) (exempting religious
nonprofits from the definition of employer). 7
Taking the religious employer exemption as we find it—a requirement for
reasonable grounds review under article I, section 12—I would hold the categorical
exemption of religious nonprofits from WLAD’s definition of employer grants an
unconstitutional privilege to a favored class of employers. By its plain terms, the
exemption categorically carves out religious nonprofits from WLAD, no matter if
their activities have any religious purpose. RCW 49.60.040(11); Farnam, 116
7
To be fair, lower federal courts had recognized the ministerial exception well
before the United States Supreme Court. See McClure v. Salvation Army, 460 F.2d 553,
558 (5th Cir. 1972). But even this earliest articulation of the ministerial exception came
23 years after the Washington legislature exempted religious nonprofits from WLAD. The
Washington State legislature could not have relied on this theory of federal constitutional
law to provide reasonable grounds for its decision to exempt religious nonprofits from
WLAD in 1949.
-19-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
Wn.2d at 672-81 (holding that the legislature categorically exempted all religious
nonprofits entities from liability under WLAD, including subsidiaries not engaged
in religious activities). Even if we were to impermissibly hypothesize that the
exemption expresses a legislative intent to foster free exercise, it favors the free
exercise rights of religious nonprofits over all other employers who might also hold
sincere religious beliefs. That act of legislative favoritism unconstitutionally
violates our state privileges and immunities clause because it does not rest on
reasonable grounds—it does not serve WLAD’s stated goals. See, e.g., Schroeder,
179 Wn.2d at 574.8
Recognizing that the religious nonprofit exemption violates article I, section
12 does not mean employers like SUGM stand defenseless to assert religious
freedoms against allegations of discrimination under WLAD. The First
8
The majority fundamentally misunderstands the reasonable grounds analysis under
article I, section 12 when it suggests we should not reach the question of facial invalidity
as to the religious nonprofit exemption. See majority at 7-8. We are not at liberty to rewrite
RCW 49.60.040(11), and that exemption categorically removes religious nonprofits from
the definition of “employer” based solely on their status. Even framing the question as
whether any circumstances exist under which the exemption can stand, it must fail because
religious nonprofit status is not reasonable grounds for discrimination. The majority would
collapse into its reasonable grounds analysis the separate⸺and as yet
unaddressed⸺defense that SUGM may raise to application of WLAD based on the
ministerial exception recognized under the First Amendment and article I, section 11. We
cannot assume the existence of SUGM’s unproven as-applied challenge to WLAD liability
in order to rewrite the statute and then put the burden to Woods to challenge it. I would
hold the categorical exemption that is actually before us is unconstitutional.
-20-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
Amendment’s ministerial exception may still serve as a constitutional defense to
suits brought under antidiscrimination laws. But it must remain just that—a
constitutional defense. We should refuse to rewrite an unconstitutional statute. See
City of Redmond v. Moore, 151 Wn.2d 664, 668-69, 91 P.3d 875 (2004). By
erroneously applying Hosanna-Tabor in the context of article I, section 12, my
colleagues risk endorsing government entanglement with religion, not to mention
prematurely reaching constitutional claims that are not before us. SUGM does not
advance any specific argument on direct review claiming that the ministerial
exception applies and it does not explicitly argue its lawyers are ministers under
Hosanna-Tabor. SUGM correctly recognizes, “[I]n Hosanna-Tabor, it was the
employer who put the job role at issue as a constitutional, affirmative defense to a
generally applicable law.” Br. of Resp’t at 25. That is not the posture of the case
before us. Doctrinally speaking, courts consider Hosanna-Tabor’s reasoning when
raised as a constitutional defense to WLAD under the First Amendment—not to
construct reasonable grounds for the exemption under article I, section 12. Since
SUGM asserted the ministerial exception as an affirmative defense in its answer, CP
at 16, I would remand for further proceedings and allow the parties to brief and argue
about the applicability of that defense in the superior court. See, e.g., Erdman v.
Chapel Hill Presbyterian Church, 175 Wn.2d 659, 665-66, 286 P.3d 357 (2012)
-21-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
(plurality opinion) (remanding Title VII of the Civil Rights Act of 1964 claim for
further proceedings to establish whether the ministerial exception applies).
A remaining question is whether SUGM should also be able to pursue other
defenses grounded in claims of religious freedoms. Specifically, SUGM broadly
asserts application of WLAD to its employment decisions would violate its free
exercise rights under the First Amendment and article I, section 11 of the
Washington State Constitution. As discussed next, this assertion is inconsistent with
established law interpreting these constitutional provisions. WLAD liability
generally applies to religious nonprofits for discriminatory employment practices
except in the narrow context of ministerial employment.
B. WLAD—A Neutral Law of General Applicability—Does Not Violate
SUGM’s Right to Free Exercise under the First Amendment Absent a
Showing the Ministerial Exception Applies
SUGM argues that allowing it to be held liable under WLAD by invalidating
the religious nonprofit exemption violates its free exercise rights under the First
Amendment. But WLAD is a neutral law of general applicability that survives
constitutional scrutiny. Courts may apply WLAD to a religious employers’ alleged
employment discrimination except in the narrow context of ministerial employment.
“The First Amendment provides, in part, that ‘Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof.’”
-22-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
Trinity Lutheran Church of Columbia, Inc. v. Comer, ___ U.S. ___, 137 S. Ct. 2012,
2019, 198 L. Ed. 2d 551 (2017). The free exercise clause applies to the states
through the Fourteenth Amendment. Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 531, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993) (citing
Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed. 1213
(1940)). But “[n]ot all burdens on religion are unconstitutional,” and “[t]he state
may justify a limitation on religious liberty by showing that it is essential to
accomplish an overriding governmental interest.” United States v. Lee, 455 U.S.
252, 257-58, 102 S. Ct. 1051, 1055, 71 L. Ed. 2d 127 (1982).
We apply two levels of scrutiny to laws that allegedly burden religion under
the free exercise clause. Arlene’s Flowers, 193 Wn.2d at 519. We apply rational
basis review to neutral laws of general applicability. Id. And we apply strict scrutiny
to “laws that discriminate against some or all religions (or regulate conduct because
it is undertaken for religious reasons).” Id.
“A law is not neutral for purposes of a First Amendment free exercise
challenge if ‘the object of [the] law is to infringe upon or restrict practices because
of their religious motivation.’” Id. (alteration in original) (quoting Lukumi Babalu
Aye, 508 U.S. at 533). The object of WLAD in the context at issue here is the
“elimination and prevention of discrimination in employment.” RCW 49.60.010.
-23-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
The legislature did not intend WLAD to infringe on or restrict employment decisions
because of their religious motivation. SUGM has not shown, for example, that the
legislature enacted WLAD to burden religious employers’ employment practices or
to specifically target them based on their creeds. I would hold WLAD is neutral
under First Amendment free exercise doctrine. The next question is whether WLAD
is a law of general applicability.
A law generally applies if it does not selectively “impose burdens only on
conduct motivated by religious belief.” Lukumi Babalu Aye, 508 U.S. at 543. As
currently drafted, WLAD generally applies to all employers except “any religious or
sectarian organization not organized for private profit.” RCW 49.60.040(11).
WLAD does not seek to selectively burden religiously motivated conduct. Holding
the religious nonprofit exemption unconstitutional under our state privileges and
immunities clause does not change the general applicability of the statute. Without
the unconstitutional exemption, WLAD applies to all employers except religious
employers that raise and prove an affirmative defense based on the ministerial
exception. I would therefore construe WLAD as a law of general applicability.
Because I would construe WLAD as a neutral law of general applicability, I
would apply rational basis review. See Arlene’s Flowers, 193 Wn.2d at 519, 523
(“WLAD is a neutral, generally applicable law subject to rational basis review.”).
-24-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
WLAD easily meets that standard because it is rationally related to the government’s
legitimate interest in the “elimination and prevention of discrimination in
employment.” RCW 49.60.010.
That said, “the Religion Clauses ensure[] that the [government has] . . . no
role in filling ecclesiastical offices.” Hosanna-Tabor, 565 U.S. at 184. “Both
Religion Clauses bar the government from interfering with the decision of a religious
group” on the employment of its “ministers.” Id. at 181. Because “there is a
ministerial exception grounded in the Religion Clauses of the First Amendment,” id.
at 190, WLAD cannot constitutionally apply in the context of ministerial or
ecclesiastical employment. “This 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. And a component of this autonomy is the selection of the individuals who
play certain key roles.” Our Lady of Guadalupe, 140 S. Ct. at 2060.
Application of WLAD to SUGM’s discriminatory employment practices does
not violate SUGM’s free exercise rights under the First Amendment with reference
to nonministerial positions. But that holding does not preclude SUGM or any
religious employer from arguing a constitutional affirmative defense under the First
Amendment’s religion clauses based on the ministerial exception. See generally id.;
-25-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
Hosanna-Tabor, 565 U.S. 171. Whether SUGM’s lawyers are ministers is not
before us on review and remains to be addressed on remand. I next turn to SUGM’s
state constitutional claim that article I, section 11 shields SUGM from liability under
the statute—it does not.
C. WLAD Does Not Violate SUGM’s Right to “Absolute Freedom of
Conscience in All Matters of Religious Sentiment, Belief and Worship”
under Article I, Section 11 except in the Narrow Context of Ministerial
Employment
Besides asserting its First Amendment rights, SUGM argues holding it liable
under WLAD would violate article I, section 11 of the Washington State
Constitution.
Article I, section 11 provides, in part, “Absolute freedom of conscience in all
matters of religious sentiment, belief and worship, shall be guaranteed to every
individual, and no one shall be molested or disturbed in person or property on
account of religion.” “[W]e have specifically held [in some contexts] . . . that article
I, section 11 is more protective of religious free exercise than the First Amendment
is.” Arlene’s Flowers, 193 Wn.2d at 527 (“‘[O]ur state constitutional and common
law history support a broader reading of article [I], section 11, than of the First
Amendment.’” (second alteration in original) (quoting First Covenant Church of
Seattle v. City of Seattle, 120 Wn.2d 203, 224, 840 P.2d 174 (1992))). SUGM did
-26-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
not provide an independent state constitutional analysis, and neither party addresses
what level of scrutiny should apply under article I, section 11. But even assuming
without deciding strict scrutiny applies, SUGM’s article I, section 11 argument fails.
Generally, “we have applied the same four-pronged analysis in an article I,
section 11 challenge: where a party has (1) a sincere religious belief and (2) the
exercise of that belief is substantially burdened by the challenged law, the law is
enforceable against that party only if it (3) serves a compelling government interest
and (4) is the least restrictive means of achieving that interest.” Id. (citing City of
Woodinville v. Northshore United Church of Christ, 166 Wn.2d 633, 642, 211 P.3d
406 (2009)).
I do not question whether SUGM based its employment decision on a sincere
religious belief that “‘[a]ll staff members are expected to live by a Biblical moral
code that excludes . . . homosexual behavior,’” CP at 4 (alteration in original)
(quoting SUGM’s Employee Code of Conduct), and I assume WLAD substantially
burdens the exercise of that belief by preventing employment discrimination based
on sexual orientation. See RCW 49.60.030(1)(a). So the question becomes whether
WLAD serves a compelling governmental interest and is the least restrictive way to
achieve that interest. Arlene’s Flowers, 193 Wn.2d at 527.
-27-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
In the context of racial discrimination in employment, the United States
Supreme Court has held, “The Government has a compelling interest in providing
an equal opportunity to participate in the work force without regard to race, and
prohibitions on racial discrimination are precisely tailored to achieve that critical
goal.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 733, 134 S. Ct. 2751, 189
L. Ed. 2d 675 (2014). The same result applies here. Preventing employment
discrimination based on sexual orientation is a compelling governmental interest just
like preventing employment discrimination based on race is. See, e.g., Telescope
Media Grp. v. Lucero, 936 F.3d 740, 777 (8th Cir. 2019) (“If eradicating
discrimination based on race or sex is a compelling state interest, then so is
Minnesota’s interest in eradicating discrimination based on sexual orientation.”). 9
Discrimination against protected classes “menaces the institutions and foundation of
a free democratic state.” RCW 49.60.010. WLAD serves a compelling
9
Jurists across the country have reached similar conclusions. See, e.g., Gay Rights
Coal. of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 32 (D.C. 1987)
(concluding that the eradication of sexual orientation discrimination is a compelling
governmental interest of the highest order that may override legitimate claims to free
exercise of religion); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 355 (7th Cir.
2017) (Posner, J., concurring) (recognizing “[t]he compelling social interest” against
discrimination based on sexual orientation under Title VII “as a sensible deviation from
the literal or original meaning of the statutory language”).
-28-
Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
governmental interest—it safeguards the right of protected classes to obtain and hold
employment without discrimination. See RCW 49.60.030(1)(a).
Although “[t]he least-restrictive-means standard is exceptionally
demanding,” Hobby Lobby, 573 U.S. at 728, there is no less restrictive means
available here to satisfy the government’s compelling interest in eliminating and
preventing employment discrimination based on sexual orientation. Our recent
decision in Arlene’s Flowers reveals this truth. There, a flower shop owner
discriminated based on sexual orientation by refusing to provide custom floral
arrangements for a same-sex wedding. 193 Wn.2d at 483-84. We concluded “public
accommodations laws do not simply guarantee access to goods or services. Instead,
they serve a broader societal purpose: eradicating barriers to the equal treatment of
all citizens in the commercial marketplace. Were we to carve out a patchwork of
exceptions for ostensibly justified discrimination, that purpose would be fatally
undermined.” Id. at 531 (footnote omitted). We unanimously held WLAD survives
strict scrutiny in an article I, section 11 challenge. Id. at 528-32.
The reasoning in Arlene’s Flowers applies equally here because employment
and public accommodation antidiscrimination laws serve the same purpose—
“eradicating barriers to the equal treatment of all citizens.” See id. at 531. Providing
ad hoc exemptions for sincere religious beliefs would frustrate WLAD’s goal of
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Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
“elimination and prevention of discrimination in employment.” RCW 49.60.010;
see Masterpiece Cakeshop, 138 S. Ct. at 1727 (noting that if the Court did not
confine the refusal to provide goods and services to ministers who object to LGBTQ
lifestyles on moral and religious grounds, “then a long list of persons who provide
goods and services . . . might refuse to do so for gay persons, thus resulting in a
community-wide stigma inconsistent with the history and dynamics of civil rights
laws that ensure equal access to goods, services, and public accommodations”).
Allowing religious employers to discriminate against LGBTQ persons outside the
context of ministerial employment would likewise lead to “a community-wide
stigma” that WLAD aims to eliminate. See Masterpiece Cakeshop, 138 S. Ct. at
1727.
More to the point, like the court in Arlene’s Flowers, I cannot locate “any case
invalidating an antidiscrimination law under a free exercise strict scrutiny analysis.”
See 193 Wn.2d at 530-31 (collecting cases in which antidiscrimination laws have
survived strict scrutiny). I would therefore hold that SUGM’s broadly asserted
defense under article I, section 11 fails, even assuming strict scrutiny applies. See
id. at 528-32. On remand, SUGM may seek to establish a narrow affirmative defense
based on the ministerial exception, but that defense is not part of our article I, section
12 analysis and is not before us on review.
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Woods v. Seattle’s Union Gospel Mission, 96132-8
(Stephens, J., dissenting in part and concurring in part)
CONCLUSION
RCW 49.60.040(11)’s exemption of religious nonprofits from WLAD’s
definition of employer violates our state privileges and immunities clause on
antifavoritism grounds. Applying reasonable grounds review, I would invalidate the
categorical exemption as it was actually applied here—to categorically exempt
SUGM from Woods’s claims of employment discrimination. While I believe this is
the correct holding under article I, section 12, such a holding does not deny
employers like SUGM religious freedoms. Though broadly asserted claims of free
exercise fail, the narrow ministerial exception may be asserted as a defense to
WLAD liability. I would remand to the superior court so that SUGM may seek to
prove that applying WLAD to its decision not to hire Woods violates its right under
the federal and state religion clauses based on the ministerial exception.
Accordingly, while I dissent from the majority’s analysis and conclusion under
article I, section 12, I concur in the result.
_____________________________
Fairhurst, J.P.T.
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