Can the government force a religious ministry to hire staff that would subvert the mission of the organization?

That is the question percolating in the legal system of Washington state. The U.S. Supreme Court last week denied review to Seattle’s Union Gospel Mission v. Woods, a case that deals with whether a nonprofit Christian organization is required by state anti-discrimination laws to hire an employee that does not share its religious beliefs.

In denying certiorari, the Court is allowing the case to move to a resolution in the Washington state court system before it considers hearing it.

However, Justices Samuel Alito and Clarence Thomas, both of whom agreed that the case had not developed sufficiently to warrant the Court’s review, said the Court may be looking into this issue in the future. Alito wrote: “The day may soon come when we must decide whether the autonomy guaranteed by the First Amendment protects religious organizations’ freedom to hire co-religionists without state or judicial interference.”

The case dates back to 2017, when a volunteer attorney at Seattle’s Union Gospel Mission, Matt Woods, inquired whether he could apply for a job as a staff attorney even though he was bisexual and in a same-sex relationship. (The ministry, which serves 1,000 low-income and homeless people a day through its soup kitchen, mobile showers, and recovery programs, also provides legal aid to its clients, ranging from how to obtain IDs to dealing with court costs.)

The director of the mission told Woods his application would be turned down because he didn’t meet the religious stipulations outlined in the organization’s handbook, to wit: abiding by the mission’s understanding of the Bible and refraining from “[a]cts or language which are considered immoral or indecent according to traditional biblical standards,” including “extra-marital affairs, sex outside of marriage, [and] homosexual behavior.”

Woods applied anyway to protest the mission’s employment policy and in hopes of changing its religious practices. The application also required him to be an active member of a church and to provide a pastor’s recommendation. Woods was unable to comply with either requirement.

His application was rejected, and he sued. The state trial court agreed with the mission, noting that the mission “put applicants on notice” that employees must “accept the Mission’s Statement of Faith” and that the staff attorney’s duties would “extend beyond legal advice to include spiritual guidance and praying with the clients.” The nonprofit religious organization was exempt from state anti-discrimination laws because of First Amendment religious exercise considerations.

The state supreme court reversed that ruling and sent the case back to the lower court, asking that body to determine whether a staff lawyer has sufficient religious duties in the course of his job to qualify as a minister. Instead of retrying the case, the Alliance Defending Freedom, representing the mission, appealed to the highest court in the land. But because the case is not sufficiently resolved, SCOTUS denied certiorari.

What Is at Stake?

The Supreme Court, in two big church-state cases in the last 10 years, has ruled that religious groups have total discretion over the hiring and firing of ministers. In Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission, in 2012, the Court endorsed by a 9-0 vote a “ministerial exception” to federal, state, and local laws banning almost all manner of discrimination. More recently, in 2020, in Our Lady of Guadalupe School v. Morrissey-Berru, the Court reaffirmed the ministerial exception, as it ruled that a Catholic school in California had the right to release two schoolteachers who, although not ordained ministers, were intimately involved in teaching religion to their students.

Both cases established a solid foundation for the right of a congregation or religious organization to choose, without government interference, personnel that present its religious message. Indeed, in the former case, the justices were incredulous that the Obama administration sought to challenge such a bedrock principle of American jurisprudence.

However, in Hosanna-Tabor and Our Lady of Guadalupe, the Court left slightly ajar the door to discrimination suits. In a footnote to the former ruling, Chief Justice Roberts wrote: “District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception,” which some have interpreted as giving courts leeway to decide whether the ministerial exception applies in each case. (READ MORE: The Supreme Court to Hear Important Prayer Case)

Justice Clarence Thomas, while agreeing with the decision in Hosanna-Tabor, lamented that the ruling did not go far enough. In his concurring opinion, he said the right of a religious group to choose ministers

would be hollow . . . if secular courts could second-guess the organization’s sincere determination that a given employee is a “minister” under the organization’s theological tenets. . . .  Judicial attempts to fashion a civil definition of “minister” through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the “mainstream” or unpalatable to some. Moreover, uncertainty about whether its ministerial designation will be rejected, and a corresponding fear of liability, may cause a religious group to conform its beliefs and practices regarding “ministers” to the prevailing secular understanding.

Allowing secular courts to make theological determinations is what is happening in the Seattle case. In sending the case back to the lower court, the Washington Supreme Court said: “It is best left to the trial court to determine whether staff attorneys can qualify as ministers and, consequently, whether Woods’ discrimination claim under [the state anti-discrimination statute] must be barred.”

The lower court will be digging into the status and activities of the mission’s legal advisers: How much religious training have they had? Are they ordained? Do they proselytize? Does their job involve core religious functions?

In short, secular judges will be telling a Christian group who is and who is not a minister in their organization.

Jake Warner, of the Alliance Defending Freedom, said, “Like all employees, staff attorneys talk about their faith, often pray with clients, and tell them about Jesus. . . . They also participate in regular Mission worship services, prayer meetings, staff meetings (including prayer and devotionals), trainings, and other events.”

He continued: “If one person is living inconsistently with the beliefs of the organization, it undermines their message. All the lawyers who work for the mission are expected to not only agree with the mission’s religious beliefs but to communicate them with those they are serving.”

In his concurrence joining the Court’s decision to deny certiorari to Seattle’s Union Gospel Mission v. Woods, Alito wrote:

To force religious organizations to hire messengers and other personnel who do not share their religious views would undermine not only the autonomy of many religious organizations but also their continued viability. If States could compel religious organizations to hire employees who fundamentally disagree with them, many religious non-profits would be extinguished from participation in public life—perhaps by those who disagree with their theological views most vigorously.

Warner, in his pleading that the Supreme Court take up the case, said: “Unless this Court intervenes, anyone will be able to demand a job while contradicting a religious organization’s core beliefs, and faith-based nonprofits will lose their autonomy to freely associate without state interference.”