[00:00:00] Speaker 03: Final case on calendar argument. [00:00:01] Speaker 03: Today's union gospel mission of Yakima versus Brown. [00:00:44] Speaker 04: Good morning, Your Honors. [00:00:45] Speaker 04: May it please the Court, I'm Cynthia Alexander from the Washington Attorney General's Office here on behalf of all of the state defendants. [00:00:53] Speaker 04: The district court's preliminary injunction ruling fundamentally misapplies free exercise law and cannot be squared with Supreme Court precedent. [00:01:01] Speaker 04: For all practical purposes, it would immunize religious organizations from having to comply with any state or federal law that contains a small business exception, or really any categorical exception, including those like the one at issue here that applies identically to religious and secular organizations. [00:01:19] Speaker 04: Union gospel mission is seeking a declaratory judgment that it and similar religious organizations Need not comply with the Washington law against discrimination which I'll refer to as the wall ad In hiring this is already the law as far as ministerial employees are concerned, but UGM wants something far broader They want to be able to discriminate in hiring for any position whether ministerial or non-ministerial [00:01:45] Speaker 01: Is that the protection federal law would already give, like under Title VII, that's not a violation? [00:01:51] Speaker 04: Title VII does offer that protection, yes. [00:01:54] Speaker 01: And some states do? [00:01:55] Speaker 04: And some states as well, yes, Your Honor. [00:01:57] Speaker 01: So it seems that what they're asking for, in the name of constitutional law, is to be trued up to that. [00:02:04] Speaker 04: I think that's right, but that is not the law in Washington. [00:02:07] Speaker 04: And the Washington law against discrimination, I think this court's ruling last week in... Olympus law. [00:02:19] Speaker 04: Yes, thank you. [00:02:20] Speaker 04: Olympus Spa. [00:02:22] Speaker 04: I think it answers the questions here, so it makes this an easy case. [00:02:25] Speaker 04: In that case, the court held that the wall ad is neutral and generally applicable, and it's not under-inclusive. [00:02:33] Speaker 04: Nothing in it prohibits religious conduct while permitting secular conduct. [00:02:38] Speaker 00: It's generally applicable because- Counsel, if I could push back on that. [00:02:41] Speaker 00: We looked at that case. [00:02:42] Speaker 00: Olympus Pod does not mention Tandon, the briefing in that case didn't mention Tandon, and Union Gospel is relying all on Tandon in here. [00:02:49] Speaker 00: So that can't be governing this case. [00:02:54] Speaker 04: I think it does govern this case because I think Tandon is not applicable in this case. [00:02:59] Speaker 00: If we were to say that Tandon applies, then Olympus Spa doesn't cover this case. [00:03:05] Speaker 04: It doesn't address the Tandon analysis. [00:03:08] Speaker 04: That's correct, Your Honor. [00:03:09] Speaker 01: What about the church autonomy? [00:03:10] Speaker 01: Does it speak to that? [00:03:14] Speaker 04: I did not involve a church, so that issue was not before the court. [00:03:24] Speaker 04: Before I get too far into the merits, I did just want to discuss briefly justiciability. [00:03:31] Speaker 04: this court found previously that UGM had standing, but things have changed since then. [00:03:38] Speaker 04: More information has become available and the state has disclaimed that it will enforce the wall ad against UGM regarding all of the positions that it has described in its complaint. [00:03:50] Speaker 03: But that's a problem because they just limit it to limiting it to the [00:03:56] Speaker 03: positions described in the complaint leaves the state free to enforce it for future vacancies. [00:04:02] Speaker 03: So that's not sufficient to moot the case, is it? [00:04:06] Speaker 04: Well, it's true that the state has not disavowed enforcement for positions that aren't before the court. [00:04:13] Speaker 04: But that's a different issue. [00:04:15] Speaker 04: That's an issue for another day. [00:04:17] Speaker 04: Why? [00:04:17] Speaker 04: They haven't amended their complaint or attempted to amend their complaint to include these other positions. [00:04:23] Speaker 04: They mentioned 14 other positions that they would like to hire for in a declaration, but they have not tried to amend their complaint to include those positions. [00:04:32] Speaker 00: I don't know, to me it has the opposite effect saying we're not going to enforce it against these positions. [00:04:40] Speaker 00: The real implied threat there is that we're going to enforce it against other positions. [00:04:46] Speaker 00: So it almost heightens the need for this pre-enforcement action. [00:04:50] Speaker 04: Your honor, this is kind of a unique situation in which UGM was not on the radar at all of the Attorney General's office. [00:04:58] Speaker 04: And the Attorney General did not investigate UGM, still has not investigated UGM, and doesn't know that much about its practices or its employment practices, and then was sued by UGM, sort of frankly out of the blue. [00:05:14] Speaker 04: And when the complaint was first filed, we didn't know whether [00:05:18] Speaker 04: these were ministerial positions or not, or whether there was an enforcement role for the attorney general there. [00:05:24] Speaker 04: As the record developed and we got more information, we were comfortable saying that we would not enforce the wall etiquette for those particular positions that... Why not just say the cross were for all the positions? [00:05:36] Speaker 04: Well, because there aren't facts developed for those positions. [00:05:39] Speaker 04: And I think what UGM is asking for is for us, [00:05:43] Speaker 04: not to enforce the wall ad against non-ministerial employees. [00:05:48] Speaker 03: And we don't believe that's the law. [00:05:51] Speaker 03: Council, wasn't there an exemption in the law for religious non-profit organizations? [00:05:58] Speaker 03: In the wall ad previously, you mean? [00:06:00] Speaker 03: Yes, Your Honor, there was. [00:06:01] Speaker 04: So what happened with that? [00:06:03] Speaker 04: Well, what happened with that is that our state Supreme Court just looked at that in light of our Privilege and Immunities Clause in the Washington Constitution and found that that overall exemption would violate the Privilege and Immunities Clause in a particular situation as applied. [00:06:23] Speaker 04: as a matter of Washington law? [00:06:25] Speaker 04: Yes, as a matter of Washington law. [00:06:28] Speaker 04: And so the Supreme Court in Woods decided to use the ministerial exception to balance all of those factors, the requirements of the Washington Constitution, the requirements of the First Amendment, and anti-discrimination laws. [00:06:47] Speaker 04: And that was the balance that was reached. [00:06:49] Speaker 03: It's a tough balance, because the free exercise clause [00:06:53] Speaker 03: The church autonomy clauses are very strong in our jurisprudence. [00:06:57] Speaker 03: And so it's really difficult to use a state law to negate those rights. [00:07:06] Speaker 03: That's a difficult challenge. [00:07:09] Speaker 04: Absolutely, Your Honor. [00:07:10] Speaker 04: It's true that the First Amendment gives special solicitude to the rights of religious organizations. [00:07:16] Speaker 04: But here, the district court's ruling goes so far beyond free exercise law. [00:07:22] Speaker 04: that it's error, it's abusive discretion. [00:07:26] Speaker 04: And I do want to talk about Tandon a bit. [00:07:28] Speaker 04: Yeah, I'd love to talk about that. [00:07:32] Speaker 04: In Tandon, as the court I'm sure is aware, there were COVID restrictions that allowed people to gather in restaurants and movie theaters and hair salons and similar places, but not [00:07:43] Speaker 04: in small gatherings in the home with more than three families. [00:07:48] Speaker 04: And this was found to be, the court decided that was a comparable comparison and that the comparison, that the law treated religious organizations more poorly, treated secular organizations more favorably than the religious organizations. [00:08:03] Speaker 04: And the court, it's really important to remember that the court in tandem still uses the word comparable. [00:08:11] Speaker 04: And I think the district court writes that word out of the opinion. [00:08:17] Speaker 04: And I think what UGM is asking for writes that word out of the opinion. [00:08:20] Speaker 04: What the district court held, and I think what UGM is asking for, is that if any secular employer [00:08:27] Speaker 04: is excluded from a law, then all religious employers should be excluded from the law. [00:08:34] Speaker 04: And that is an extreme that the Supreme Court hasn't gone to. [00:08:38] Speaker 00: I mean, what I think the Supreme Court is saying, if there's an exclusion for some employers and you have to look at what's the interest behind that exclusion, right? [00:08:49] Speaker 00: And then in the case of Tandon, [00:08:51] Speaker 00: The interest in hiding. [00:08:53] Speaker 00: Why would you favor a tattoo artist versus a home Bible study? [00:08:55] Speaker 00: It made no sense. [00:08:56] Speaker 00: That exclusion made no sense. [00:08:58] Speaker 00: Here, I guess you're suggesting the eight, under eight. [00:09:02] Speaker 00: What's the interest in having under eight excluded from discrimination? [00:09:07] Speaker 04: Well, Your Honor, like many other laws, that's an exclusion that protects small businesses from over-regulation. [00:09:16] Speaker 00: So a small business protection [00:09:20] Speaker 00: I mean, that type of interest, I think, doesn't square in the face of the First Amendment, though. [00:09:26] Speaker 04: Well, Your Honor, that exclusion applies equally to religious organizations and non-religious organizations. [00:09:33] Speaker 04: So again, Tandon uses the word comparable. [00:09:37] Speaker 00: You're saying some groups shouldn't be allowed to discriminate, in your view, right? [00:09:42] Speaker 00: And that includes those that are small businesses. [00:09:45] Speaker 00: And as I understand from the briefing, isn't there thousands of small businesses in your state? [00:09:50] Speaker 04: There are, but by far the majority of the employees in the state, almost 90%, work for larger businesses. [00:09:56] Speaker 04: And so it's a small problem. [00:09:58] Speaker 00: How many employees work in small businesses? [00:10:04] Speaker 04: Eighty-seven percent work in large businesses. [00:10:06] Speaker 04: Eighty-seven percent of the workers in our state work in large businesses. [00:10:10] Speaker 04: So, I mean, there are, of course, workers in Washington that work in small businesses. [00:10:15] Speaker 00: And I think, you know, there are all... So the interest is in not over-regulating small business. [00:10:20] Speaker 00: And why couldn't that say... Why wouldn't that interest also apply to religious entities? [00:10:25] Speaker 04: It does. [00:10:25] Speaker 04: Religious institutions with fewer than eight employees are also excluded. [00:10:30] Speaker 00: But the interest is not over-regulating something, right? [00:10:35] Speaker 00: And if you're saying that small businesses are entitled to that exemption, why shouldn't religious entities be subject to that exception? [00:10:44] Speaker 04: Again, they are if they're small. [00:10:46] Speaker 00: Yeah, but that's a different interest. [00:10:48] Speaker 04: Right. [00:10:48] Speaker 04: And I think we're talking about whether it's a comparable, whether they're comparable. [00:10:52] Speaker 04: And in a situation like this where, as the court in Olympus Spa recognized, where the exceptions are categorical and mandatory, they don't treat religious organizations worse than secular organizations. [00:11:08] Speaker 04: And that's what the small business exception is. [00:11:10] Speaker 04: Well, that's a Fulton argument. [00:11:12] Speaker 01: So I mean, the only reason we're really talking about Tandon is because the district court ruled on that basis. [00:11:17] Speaker 01: But it didn't seem that that was even the lead argument below. [00:11:20] Speaker 01: And some of the amicus briefs we've received here don't talk about Tandon. [00:11:24] Speaker 01: They talk about church autonomy, which again seems to have been the lead argument below. [00:11:28] Speaker 01: Why wouldn't the church autonomy doctrine allow a church to hire people based on their religious views, whether they agree with the church's religious views? [00:11:38] Speaker 04: Well, Your Honor, the church autonomy doctrine can't swallow the ministerial exception or it would make no sense to have one. [00:11:45] Speaker 01: So... Well, those are different doctrines, right? [00:11:47] Speaker 01: The ministerial exception gives you... You know, you can be... We don't... You don't have a claim under the ADA or the ADEA. [00:11:56] Speaker 01: Here we're talking about hiring or firing somebody based on their... [00:12:01] Speaker 01: alliance with the church's religious views. [00:12:03] Speaker 01: That doesn't say anything about age discrimination or things like that. [00:12:06] Speaker 01: It's just saying if you want to come work at the church, you need to agree with these specific religious tenets which we have. [00:12:12] Speaker 01: Why wouldn't that be covered by the church autonomy doctrine? [00:12:15] Speaker 04: Well, it may be covered by the Church Autonomy Doctrine, but it's not a doctrine that the Supreme Court has recognized, or that this Court has recognized, to that extent. [00:12:24] Speaker 01: Right, but I think the reason for that is because statutory law would typically protect this, right? [00:12:30] Speaker 01: And so the question hasn't been presented because federal law and most state laws would give the Church this kind of protection. [00:12:36] Speaker 01: Washington has gone a different route, which presents the question, but I think that's the reason why it's novel. [00:12:41] Speaker 04: Well, Your Honor, the church autonomy doctrine, I mean, for one thing, the way that this case has been presented, UGM is arguing, it is arguing that, but it's also arguing in its complaint that these two positions that are discussed in the complaint, but also the 14 positions that they mentioned in declarations, they describe them as having these ministerial functions, you know, praying with other people and evangelizing and having some functions like that. [00:13:11] Speaker 04: So I think if the court believes that there is a cognizable free exercise claim, then the next question is whether these are ministerial employees. [00:13:22] Speaker 01: Well, I don't know about that, right? [00:13:23] Speaker 01: I mean, I'm not sure they are ministerial employees, but I think they would say that doesn't matter. [00:13:27] Speaker 01: If we want to hire a receptionist, we want to hire a janitor who agrees with our religious beliefs, that's our right to do that. [00:13:34] Speaker 04: Well, church autonomy, it just isn't the law that church autonomy, a doctrine of church autonomy, or I guess in the sense that it's sort of an associational right, can swallow the ministerial exception and the important government interest in preventing discrimination that underlies the Washington law against discrimination. [00:13:56] Speaker 04: I mean, that's an important [00:13:58] Speaker 01: I mean, what is a church supposed to do, right, if somebody applies and says, I just strongly disagree with the church's religious beliefs? [00:14:06] Speaker 01: Would we say they have, nonetheless, a state law right to be able to be considered irrespective of that? [00:14:12] Speaker 01: I mean, that would seem to be a major intrusion on the church. [00:14:15] Speaker 04: I mean, if the church autonomy doctrine does let them make decisions based on internal church policies and those kinds of things. [00:14:24] Speaker 04: And so there is a sense in which they can, if it's a ministerial employee, they can make decisions like that. [00:14:35] Speaker 03: Well, even if it's not a ministerial employee, if a person comes in [00:14:39] Speaker 03: and talks against the key tenants of the religion and starts to proselytize other people in the workplace against the tenants of that religion. [00:14:50] Speaker 03: You're saying that the church still has to employ them? [00:14:55] Speaker 03: Your Honor, I think if the person is proselytizing and that's part of the role, then that is... No, that's not their role, but they come in as a janitor or as an administrative assistant. [00:15:08] Speaker 03: whatever position, IT person, but they bring reproach on the views of the church that are deeply held tenants of the church. [00:15:22] Speaker 03: You're saying that nevertheless, those people have to be hired. [00:15:27] Speaker 03: Well, I mean, what you're describing as someone who has been hired and who is undermining the mission of the... Right, but if they don't ascribe to the attendance of the church, that's what you're saying, that even though these people [00:15:44] Speaker 03: don't agree with the tenants of the church, they still have to be hired. [00:15:49] Speaker 04: I mean that is that is one of the one of the managing the church's internal [00:16:00] Speaker 04: policies and procedures and what it does to further the church's mission is something that the Church Autonomy Doctrine does apply to. [00:16:08] Speaker 04: So I think it's not the case that there's nothing that UGM or another religious... So they're saying that all these workers do have that function. [00:16:17] Speaker 00: Even though we don't call them ministers, they do pray with the homeless people that use their services and things of that nature. [00:16:23] Speaker 00: So you would agree that if that's true, then the Church Autonomy Doctrine applies. [00:16:28] Speaker 04: No, Your Honor, I would agree that if that's true, the ministerial exception would apply. [00:16:32] Speaker 00: Well, the Supreme Court has called them. [00:16:34] Speaker 00: I think they're all species of the same thing. [00:16:36] Speaker 00: I mean, I think ministerial reception is a smaller subset of the church autonomy doctrine. [00:16:40] Speaker 00: But OK, fine. [00:16:41] Speaker 00: Fair enough. [00:16:42] Speaker 00: So point being, though, you agree that if the IT person, the cashier, they all have this doctrinal, religious doctrinal role, then they are protected under either ministerial exception or church autonomy. [00:16:58] Speaker 04: Under the ministerial exception, yes, and perhaps under church. [00:17:02] Speaker 00: So how does that, so what are we doing here then? [00:17:04] Speaker 00: It seems like that's exactly what they allege and. [00:17:08] Speaker 04: Fair, your honor. [00:17:08] Speaker 04: And we have, we have disclaimed intention to enforce the wallet against the positions they've alleged. [00:17:15] Speaker 04: And I, I see I'm running out of time. [00:17:16] Speaker 03: The problem is you haven't disclaimed the intention to enforce the law against future [00:17:25] Speaker 03: positions that may become open, and that's why they have standing because they want it to be an injunction against the future openings. [00:17:36] Speaker 04: Understood, Your Honor, but they do have to show a reasonable fear of enforcement. [00:17:41] Speaker 03: I think it's reasonable to fear enforcement if you haven't disclaimed enforcement. [00:17:46] Speaker 03: against those positions. [00:17:48] Speaker 04: Well, I mean, again, the state just isn't in a position to disclaim or not disclaim positions that it doesn't know about. [00:17:55] Speaker 04: All right. [00:17:57] Speaker 03: I'd like to reserve. [00:17:57] Speaker 03: We understand your positions, though. [00:17:59] Speaker 03: OK. [00:18:00] Speaker 04: Thank you, Your Honor. [00:18:00] Speaker 04: I'd like to reserve the rest of my time. [00:18:02] Speaker ?: All right. [00:18:10] Speaker 02: Good morning, and may it please the Court. [00:18:11] Speaker 02: Jeremiah Gallas on behalf of the Union Gospel Mission of Yakima. [00:18:15] Speaker 02: The District Court here got it exactly right. [00:18:16] Speaker 02: The first amendment does not allow the government to force a religious organization to hire someone who rejects its faith. [00:18:24] Speaker 02: I'd like to kind of pick up on the questions Your Honors were asking about church autonomy, but I do want to address the Tandon general applicability analysis as well. [00:18:32] Speaker 02: So we heard from my friend on the other side that their view of all the First Amendment protects here is limited to the ministerial exception, and that's the problem. [00:18:42] Speaker 02: The mission has non-ministerial employees who, as most religious organizations do, have expectations that they share and live out their faith. [00:18:51] Speaker 02: And we think the church autonomy doctrine, it was our lead claim below, and there's good reason for this court to reach that. [00:18:58] Speaker 02: If I could just touch on two reasons. [00:19:00] Speaker 02: The first is that the courts in this circuit need guidance. [00:19:05] Speaker 02: There is the Seattle Pacific University case. [00:19:08] Speaker 02: This case has been up now twice on appeal just two weeks ago. [00:19:12] Speaker 02: This court heard argument in the World Vision case on a full summary judgment record. [00:19:18] Speaker 02: In all of those cases, all the religious organizations want to do is to be able to hire those who share their faith. [00:19:25] Speaker 02: What case is that one? [00:19:26] Speaker 00: The one that you argued two weeks ago? [00:19:27] Speaker 02: I didn't argue it, Your Honor, but it was argued before this court two weeks ago as the World Vision case in McMahon. [00:19:33] Speaker 02: And that was a full summary judgment record where World Vision was pulled through discovery and all the burdens of litigation because they have religious hiring requirements. [00:19:43] Speaker 00: I wonder if that case might have priority over us on this issue. [00:19:46] Speaker 00: Does it have the precise issue of church autonomy doctrine? [00:19:49] Speaker 02: It was raised, Your Honor. [00:19:51] Speaker 02: It also has the ministerial exception in play because it's a specific position that was involved. [00:19:56] Speaker 02: And so that case, there's no decision yet, but it could be resolved on a ministerial exception and not on the broader church autonomy question. [00:20:04] Speaker 03: I was also on a panel, U-71-5, that raised similar issues. [00:20:09] Speaker 03: Yes, Your Honor. [00:20:10] Speaker 03: That case is pending as well. [00:20:12] Speaker 02: That's correct, Your Honor. [00:20:13] Speaker 02: That was argued in November, and that involved the state of Oregon taking hundreds of thousands of dollars in grants away from a religious ministry just because it hires those who share its faith. [00:20:22] Speaker 02: So the first thing is that I think guidance is needed. [00:20:24] Speaker 02: The second thing is that church autonomy doctrine would better guard against the type of entanglement and intrusion that would otherwise result in a case like this one. [00:20:34] Speaker 00: Just by terminology, do you agree that church autonomy is a broader set and that the ministerial exception is a subset of that? [00:20:43] Speaker 02: Yes, Your Honor. [00:20:44] Speaker 00: That's how I've conceived of it. [00:20:45] Speaker 02: Correct, Your Honor. [00:20:46] Speaker 02: The ministerial exception is just a component of church autonomy and it does provide broader protections for particular positions. [00:20:53] Speaker 03: What's your response to opposing counsel's observation then that if we go with the doctrine of church autonomy, it swallows the ministerial exception and there's no [00:21:04] Speaker 03: room for that exception. [00:21:05] Speaker 03: What's your response to that? [00:21:06] Speaker 02: So I disagree with that, Your Honor. [00:21:08] Speaker 02: The ministerial exception is focused on particular roles, and if there's a position that's ministerial, it provides broad protection. [00:21:15] Speaker 02: And the way the protection is broader is it does not matter what the reason was for the employment decision. [00:21:21] Speaker 02: So the Our Lady of Guadalupe cases are good examples where the religious institutions there let go of some teachers but didn't articulate any religious reason for it. [00:21:31] Speaker 02: It was just performance and they didn't articulate a religious reason. [00:21:35] Speaker 02: And because those positions were ministerial, the Supreme Court said hands off. [00:21:39] Speaker 02: In the position that we're arguing for, for the non-ministerial employees, the religious reason does matter. [00:21:46] Speaker 02: So if there were a position, for instance, Judge Brass, I think you mentioned age discrimination or disability discrimination, if there was a claim along those lines and a religious justification were not offered for a non-ministerial employee, then those claims could proceed, whereas with the ministerial exception, they could not. [00:22:02] Speaker 01: So you concede, I guess, that the employees we're talking about here would not qualify as ministers? [00:22:09] Speaker 02: That's correct, Your Honor. [00:22:10] Speaker 02: Looking at the case, we recognize that those positions would not be ministerial. [00:22:14] Speaker 02: And that's why the protection here is incredibly important in the recognition that church autonomy can still protect a hiring decision that is, again, what pretty much all religious organizations do, which is to ask those who work for them to share and live out their beliefs. [00:22:30] Speaker 01: So here we're talking about it's essentially a ministry, but how would this apply or would it apply to other kinds of religious type organizations that are not strictly ministries like a hospital or something else? [00:22:42] Speaker 02: Yeah, so I think as far as limiting principles, you have to look first, is it a religious institution? [00:22:49] Speaker 02: And that would be a question. [00:22:50] Speaker 02: Is it a religious organization, religious institution? [00:22:52] Speaker 02: Is there a sincere religious belief? [00:22:55] Speaker 02: So the court can always inquire into sincerity instead of belief. [00:22:59] Speaker 02: And was the employment decision based on that particular religious belief? [00:23:05] Speaker 03: And I would think you have to consider whether it's a part of the mission of the organization to live out its tenets and to convert people. [00:23:15] Speaker 03: A hospital may not have that same mission. [00:23:19] Speaker 03: as your organization does. [00:23:21] Speaker 02: Yes, I would agree with that, Your Honor. [00:23:23] Speaker 02: Some level of justification for why it is important that they share their faith would be needed. [00:23:29] Speaker 02: And we, of course, have that here where the testimony is that the inward fellowship and discipleship of these particular employees affects their ability to outwardly express their religious beliefs and message. [00:23:44] Speaker 02: So that evidence is in the record, Your Honor. [00:23:46] Speaker 00: I'm sorry, could you explain again why these employees would not be entitled to ministerial exception? [00:23:51] Speaker 00: Because as I read the complaint, they do have a religious component to their jobs, right? [00:23:56] Speaker 02: They do have a religious component. [00:23:58] Speaker 02: I think when we look at what the Supreme Court has said, and Hosanna Tabor, and Our Lady of Guadalupe, these are positions that don't have a ministerial type title. [00:24:08] Speaker 00: They don't have... Teachers don't have that title either. [00:24:11] Speaker 02: That's true. [00:24:12] Speaker 02: They don't have religious training, though. [00:24:14] Speaker 02: There's no religious training. [00:24:15] Speaker 00: So why wouldn't these be similar to just the teacher in Our Lady Guadalupe? [00:24:20] Speaker 02: Yeah, I think the key distinction is probably that these positions, their job duties are mostly inward-facing, so you don't have the outward-facing job duties that a teacher might have. [00:24:30] Speaker 02: And I would say whether one position might be minister or not, [00:24:35] Speaker 02: ministerial, I think, is somewhat beside the point where you have the state saying that they're not disavowing enforcement. [00:24:42] Speaker 02: So at least they're arguably non-ministerial, and they face a credible threat of enforcement with respect to those positions. [00:24:48] Speaker 02: And so the question then becomes, does the First Amendment still provide protection? [00:24:52] Speaker 01: Is the nature of the protection you're asking for the same as what you would already have under federal statutory law? [00:25:01] Speaker 02: I think so, Your Honor, based on my view of Title VII, my understanding of Title VII, which allows religious organizations to prefer members of their own faith. [00:25:09] Speaker 02: We're asking for no more than what's allowed there. [00:25:13] Speaker 00: So, sorry to push back on this. [00:25:14] Speaker 00: So then, under your church autonomy doctrine theory then, if these employees had zero religious role, like they have no obligation whatsoever, they don't do anything religious, could the church still fire them as long as it's for a religious purpose? [00:25:29] Speaker 02: I think so, Your Honor, as far as if the religious institution like the mission here has religious expectations and conduct requirements and the employee were going against those, I think that matters because it's going to affect the ministry internally in their ability to... I guess, like, how would that manifest itself if that person has no religious role in their job and they would never reveal itself? [00:25:57] Speaker 02: Right. [00:25:58] Speaker 02: So I guess the way I would approach it is say, has the religious organization presented some sort of religious justification for why it's important for that position to share its faith? [00:26:07] Speaker 02: And once it's done that, then I don't see how the government could come in and second guess it. [00:26:12] Speaker 00: That's fair. [00:26:13] Speaker 02: Because you get into the church autonomy issues if the government can come in and says, I know you said it's important that the janitor or the secretary share the faith, but we actually don't think it is. [00:26:23] Speaker 02: And that's the precise type of second guessing and entanglement intrusion at church autonomy. [00:26:27] Speaker 03: Council, are you arguing that Title VII preempts the Washington law? [00:26:32] Speaker 02: No, that's not our argument, Your Honor. [00:26:35] Speaker 01: I take it from the materials that your clients essentially believe that all employees, regardless of what they do, that it's your client's religious judgment that they need to share their religious beliefs, whether they're working in a cubicle by themselves and never talking to anybody else or whether they're out there on the front lines talking to clients or visitors. [00:26:56] Speaker 02: Yes, Your Honor, that's exactly right. [00:26:57] Speaker 02: And I think that's why one of the reasons church autonomy is implicated is because the government would be second-guessing what ultimately is a religious determination that should be the religious institutions to make. [00:27:09] Speaker 02: The other reason, and I think this is the more obvious one, is to require a religious organization to hire those who reject its faith would fundamentally alter the character and composition of the ministry. [00:27:20] Speaker 02: And we would say that that goes to the concerns of interfering with internal governance [00:27:25] Speaker 02: of a religious institution. [00:27:27] Speaker 01: So what does this mean in practice? [00:27:30] Speaker 01: You could have future employees, prospective employees sign statements, or you could conduct interviews of job applicants and ask them about these things. [00:27:38] Speaker 01: What would it actually mean on the ground? [00:27:40] Speaker 02: Yeah, on the ground it means that the mission could continue with its co-religious hiring practices, its application process, without the fear and threat of government punishment that currently exists. [00:27:52] Speaker 02: So it would be allowed to ask and inquire of potential applicants and current employees as far as their alignment with the core religious convictions of the ministry. [00:28:01] Speaker 03: So that's how things worked before the exemption was removed. [00:28:06] Speaker 02: Exactly right. [00:28:07] Speaker 02: And the WLAD had an exemption, a complete and total exemption for 70 plus years. [00:28:14] Speaker 02: And what we're seeking here really is a partial exemption, where they're just asking to be allowed to hire those who share and live out its faith, willing to comply with other aspects of the WLAD. [00:28:24] Speaker 00: Can I ask, you know, one of the, you know, I was on the Huntsman case a while ago, and one of the questions we always had, how far does a church autonomy doctrine go? [00:28:33] Speaker 00: So, for example, like all evidence points that you were firing a janitor for non-religious reasons and, you know, the church just says, church autonomy, there's a religious reason for it. [00:28:44] Speaker 00: Are we, are courts completely precluded under peeking beyond that reasoning? [00:28:50] Speaker 00: You know, how far does it go? [00:28:52] Speaker 00: No one seems to have that answer. [00:28:55] Speaker 02: Yeah, so it's a good question. [00:28:56] Speaker 02: I think really the way I would look at that is you have some limiting principle. [00:29:02] Speaker 02: Is it a religious organization? [00:29:04] Speaker 02: Is it a sincere religious belief and courts conduct sincerity requirements? [00:29:08] Speaker 02: And as long as the religious belief is sincere and it's sincere that they base their decision on that belief, then I don't think the courts can go any further and I don't think the government can go any further. [00:29:19] Speaker 03: So the person would be able to bring an action against the organization and all of that would be sorted out in terms of whether or not the church autonomy doctrine bars [00:29:29] Speaker 03: any further delving into that hiring or firing decision. [00:29:34] Speaker 03: Yes, that's correct, your honor. [00:29:36] Speaker 02: So if I may, I just want to address the Tandon general applicability question. [00:29:41] Speaker 02: We think the district court did faithfully apply the Supreme Court's precedence. [00:29:45] Speaker 02: And if you look at Tandon and Fulton in particular, the Supreme Court has said that a law is not generally applicable. [00:29:53] Speaker 02: and triggers strict scrutiny if it does one of two things. [00:29:55] Speaker 02: The first is if it treats comparable secular activity more favorably than religious exercise, or if it includes a mechanism for individualized exemptions. [00:30:05] Speaker 02: We think the WLAD does both of those things here. [00:30:09] Speaker 02: The lower court focused on the small employer exemption, and just one exemption is enough to trigger strict scrutiny, but we actually have five here. [00:30:18] Speaker 02: And I'd like to just briefly touch on those five. [00:30:21] Speaker 01: Well, the only one the district court really [00:30:23] Speaker 01: did was the small business exception. [00:30:27] Speaker 01: And the other ones are really hardly mentioned in the briefs. [00:30:29] Speaker 01: They come up in a limited way. [00:30:32] Speaker 01: So it seems if this is going to be affirmed on that ground, it would really have to be under the small business exception. [00:30:40] Speaker 02: That's the only one, you're correct, that's the only one that the district court addressed. [00:30:44] Speaker 02: I will say that this court can affirm on any grounds and I do think it's supported by the record and of course this type of analysis is you're looking at the text of the law and in doing the comparability analysis you're looking at the asserted government interest. [00:31:02] Speaker 02: And so here the government's asserted interest is in the elimination [00:31:06] Speaker 02: and prevention of discrimination, and if you go through these exemptions, that interest is being undermined. [00:31:12] Speaker 02: The small employers, there's hundreds of thousands of small employers that employ hundreds of thousands of employees. [00:31:17] Speaker 02: You also have an example, and just candidly, Your Honors, this is not in our briefing, but it's something I came across in oral argument. [00:31:23] Speaker 02: The WLAD allows state tribal schools to implement a policy of Indian preference or Native American preference in employment. [00:31:32] Speaker 02: That's a revised code of Washington section 49.60.400 subsection 7. [00:31:38] Speaker 02: We also have the BFOQ process that's in a system of individualized exemptions. [00:31:43] Speaker 00: That would be a more Fulton type argument. [00:31:46] Speaker 02: It would, Your Honor, yes. [00:31:47] Speaker 02: Then you have the WLAD allowing educational institutions, public and private, regardless of size, discriminating and making distinctions based on sex and marital status in their housing and dormitory policies. [00:32:01] Speaker 02: And then you also have the distinctly private businesses and organizations that are allowed under the WLAD. [00:32:07] Speaker 02: to discriminate on any grounds in the provision of their goods and services. [00:32:11] Speaker 02: We would submit that all of these exemptions undermine the government's asserted interest here in eliminating and preventing this. [00:32:18] Speaker 01: I mean, some of the other ones you mentioned, I think, raise some other questions that aren't really fleshed out that much in the brief, aren't talked about in the district court decision at all. [00:32:27] Speaker 01: But the under-eight employee one, that seems like a harder argument for your clients to make, given that [00:32:34] Speaker 01: the religious institutions get the benefit of that? [00:32:37] Speaker 01: I mean really what you're trying to do is say anytime anybody gets an exception, any religious organization therefore is immune from the law, that seems quite broader than Tandon. [00:32:48] Speaker 02: Well, I wouldn't say they're immune from the law, because it's not categorical immunity like the small employers are getting. [00:32:54] Speaker 02: It's just carving out the particular religious practice. [00:32:57] Speaker 02: We do think the district court faithfully applied Tandon. [00:33:00] Speaker 02: If you look at how Tandon did that analysis, too, of small businesses versus larger businesses and said, really, what we need to look at is, what is the government's asserted interest? [00:33:10] Speaker 02: And here, they're asserting an interest in eliminating and preventing discrimination. [00:33:14] Speaker 02: And that undermines, to allow hundreds of thousands [00:33:17] Speaker 00: Well, here they're suggesting that the interest in the carve-out was to not overburden small businesses. [00:33:25] Speaker 00: So how would that apply for you all? [00:33:28] Speaker 02: Your honor, I think that's worse for them. [00:33:30] Speaker 02: If that's their asserted interest is to not burden small employers, that's not the type of interest that would generally allow them to infringe on constitutional rights. [00:33:41] Speaker 02: And so if they are burdening, not wanting to burden small employers, they shouldn't then turn around and burden a religious employer like the mission. [00:33:51] Speaker 03: But the issue is whether or not secular institutions are being treated more favorably. [00:33:56] Speaker 03: and it's hard for me to make that leap analytically to the small business exemption. [00:34:04] Speaker 03: So how is that showing that secular entities are being treated more favorably? [00:34:10] Speaker 02: Yeah, I think, again, Your Honor, it's going to the government's interest. [00:34:14] Speaker 02: So you say, well, what is the government asserting as its interest? [00:34:18] Speaker 02: And here, if they're asserting an interest in eliminating discrimination or not burdening small employers, then that interest is being undermined by the exemption in similar or worse ways than what the mission is requesting. [00:34:35] Speaker 03: Well, but we have cases that say that the government can take an incremental approach. [00:34:40] Speaker 03: in terms of achieving its objectives. [00:34:43] Speaker 03: And so a government can say, here's the line we're going to draw in terms of how we start to reach our goals. [00:34:51] Speaker 03: So why wouldn't that theory permit the government to exempt the small businesses? [00:34:58] Speaker 02: Your Honor, again, I just keep going back to Tandon and what the Supreme Court said in Tandon as far as focusing on interest. [00:35:05] Speaker 02: I will acknowledge that the argument that my friend on the other side is making with respect to the small employers, that's why I think it's significant that it's not just one exemption within the WLAD. [00:35:18] Speaker 02: You have multiple ones. [00:35:19] Speaker 03: But that's the only one that the [00:35:21] Speaker 02: Sure, and Your Honors, we would be perfectly happy for this court to go to the church autonomy argument, which is our first and lead claim, and we think really fundamentally that's what this case is about. [00:35:32] Speaker 02: Can the government force a religious institution to hire those who don't share a place? [00:35:36] Speaker 00: Do you think the church autonomy doctrine is a threshold question that the courts must address up front? [00:35:41] Speaker 02: I don't have a position on that particular question. [00:35:45] Speaker 00: Clearly I do. [00:35:49] Speaker 02: I think there's good reason to. [00:35:52] Speaker 02: I think there's very good reason to in this case and the court should. [00:35:56] Speaker 00: Just to the Tannen question, why couldn't the argument be, well, if the state has an interest in unburdening [00:36:03] Speaker 00: small businesses, then you're disfavoring religion versus small businesses. [00:36:08] Speaker 00: You're favoring small businesses over religion, and that doesn't fly under the First Amendment. [00:36:12] Speaker 02: I agree, Your Honor. [00:36:13] Speaker 02: That goes to Tandon and some of the other general applicable cases that the Supreme Court has addressed talk about government giving secular reasons for an exemption. [00:36:29] Speaker 02: So basically saying [00:36:30] Speaker 02: here's a secular justification for why we exempt this category of employers. [00:36:35] Speaker 02: And if they're going to say there's a secular reason that's good enough for an exemption, they can't then turn around and say a religious reason. [00:36:41] Speaker 01: This is why I think it's, I understand why you led with the church autonomy doctrine and not this particular argument because [00:36:48] Speaker 01: This argument, it's hard to describe this as secular when it includes religious institutions, they get the benefit of the exception as well. [00:36:55] Speaker 01: The implication of the argument would be whatever exception it is, no matter how neutral it is, no matter how well it applies to entities like yours, it still creates a tandem problem. [00:37:05] Speaker 01: That would basically turn every federal discrimination law into a tandem problem. [00:37:11] Speaker 01: I don't think the Supreme Court has said that. [00:37:13] Speaker 02: So I understand that. [00:37:14] Speaker 02: I think in Tandon, the houses of worship were exempted in the same way that large businesses were. [00:37:20] Speaker 02: So you did have religious exercise that was getting a benefited exemption. [00:37:24] Speaker 02: So I do think Tandon speaks to it. [00:37:26] Speaker 02: But again, we're perfectly happy if this court were to address the church autonomy argument, because we think that's at the heart of the case. [00:37:32] Speaker 02: And unless your honors have any further questions, we'd ask you to affirm. [00:37:36] Speaker 02: Thank you. [00:37:37] Speaker 03: Thank you. [00:37:45] Speaker 04: I just have a few points that I want to make. [00:37:48] Speaker 04: With regard to the church autonomy doctrine, that's not an issue that the district court reached either. [00:37:53] Speaker 04: And this court does not need to reach it either because this case can be resolved with regard to the ministerial exception. [00:38:01] Speaker 04: As Your Honour noted, all of these positions have been described as having a sort of ministerial role to evangelize and to pray. [00:38:09] Speaker 04: And those kinds of roles fall within the ministerial exception and that this case can be resolved on that basis. [00:38:15] Speaker 00: Do you think that's narrower, if we just do that narrower ruling versus broader church autonomy? [00:38:21] Speaker 04: I think that that is, I think that that's what the, yes, Your Honor, sorry. [00:38:27] Speaker 01: I mean, that's a somewhat, you know, usually, you know, clients in your position would come in and try to narrow the ministerial exceptions. [00:38:33] Speaker 01: So here you would be essentially broadening it even in the face of your opposing counsel's concession that it doesn't apply to these employees. [00:38:39] Speaker 04: Well, I don't think we're broadening it. [00:38:41] Speaker 04: I think what we're saying is, you know, we're aware of the requirements that the Supreme Court mentioned in Our Lady of Guadalupe that tend to show ministerial exceptions. [00:38:54] Speaker 04: And some of them are duties to pray, duties to attend religious services. [00:38:58] Speaker 01: I mean, the Supreme Court had cases involving teachers. [00:39:00] Speaker 01: I mean, that seems a little different than an IP technician. [00:39:04] Speaker 04: that's initially what we thought as well you know but as the record developed and there I feel like they're trying to have it both ways you know they want to say that they would like all non-ministerial positions to be safe from having to comply with the wall ad and at the same time they're saying you know these are ministerial positions so it's kind of a [00:39:25] Speaker 04: It's this could this particular case with these particular positions that have been alleged in the complaint can be resolved based on the ministerial exception and the Washington attorney general's Decision not to enforce the wallet with regard to the positions raised in the complaint. [00:39:43] Speaker 00: Is that why the Washington attorney general? [00:39:46] Speaker 00: did the known non-enforcement that there was an independent analysis of the [00:39:49] Speaker 00: that these are entitled to ministerial exception, or was it just a litigation tactic? [00:39:54] Speaker 04: No, it's not a litigation tactic, Your Honor. [00:39:57] Speaker 04: What happened, as I understand it, is that as the record, again, we did not know anything about this organization when they filed the lawsuit, and so as the record developed and as some of the allegations in the complaint were [00:40:11] Speaker 04: confirmed with declarations under oath that describe the positions, we became more comfortable that these are not the kind of positions that we would enforce the wall out against. [00:40:22] Speaker 04: And it's not a, it wasn't a litigation tactic. [00:40:27] Speaker 04: It had to do with the status of the case and how the record has developed. [00:40:41] Speaker 04: And your honors, I just want to say again, I think I might have said this already, but Olympus Spa did discuss a carve out for private clubs and found that that carve out is not a mechanism for individualized exemption. [00:40:57] Speaker 04: So Olympus Spa addressed the issue that we've been talking about. [00:41:00] Speaker 04: It just addressed it last week. [00:41:02] Speaker 04: So I just wanted to draw that to the court's attention. [00:41:04] Speaker 04: Then I just did want to mention that the kind of rule that UGM is seeking and the implication of the district court's ruling would have unanticipated consequences in terms of things like small business exceptions not being [00:41:23] Speaker 04: considered by the legislature when it makes policy decisions. [00:41:26] Speaker 04: So there are, this is a broader issue than just, you know, is church autonomy applicable in this case? [00:41:34] Speaker 03: That's a different issue than church autonomy though, the small business exception. [00:41:39] Speaker 03: I think that's a little more difficult in my view for them to make, but that's a different argument. [00:41:44] Speaker 03: You've exceeded your time. [00:41:45] Speaker 03: Would you like to wrap up? [00:41:46] Speaker 04: Yes, Your Honor. [00:41:47] Speaker 04: Thank you. [00:41:48] Speaker 04: We ask the court to vacate the preliminary injunction and to remand to the trial court with instructions to either dismiss the case for lack of judicial ability or for further proceedings. [00:41:58] Speaker 03: All right. [00:41:58] Speaker 03: Thank you, counsel. [00:42:00] Speaker 03: Thank you to both counsel for your helpful arguments. [00:42:02] Speaker 03: The case just argued is submitted for decision by the court. [00:42:05] Speaker 03: We are adjourned.