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Religious Freedom and the First Amendment: The 9th Circuit May Have Changed the Future of the Church Autonomy Doctrine
Religious freedom has been acknowledged as a fundamental natural right from the beginning of our nation’s history. Even before the Declaration of Independence was signed, many colonists were guaranteed the liberty to “at all times freely and fully enjoy his own judgement and Conscience in matters of religious concernments.”1 Further, it’s no coincidence that the first freedoms enumerated in the Bill of Rights are those of religious free exercise and the prohibition against the establishment of a national church.
In interpreting the First Amendment, courts have further developed the implications of these fundamental values. Through the slowly evolving Church Autonomy Doctrine, churches and other religious organizations are given broad leeway when making decisions about internal matters of faith and governance. Just days ago, one of the nation’s most influential courts expanded the protections of the Church Autonomy Doctrine by holding that a religious organization can favor co-religionists when making employment decisions, even for staff that are not legally considered “ministers.”
Introduction to Union Gospel Mission
In a case decided recently by the U.S. Court of Appeals for the Ninth Circuit, Union Gospel Mission of Yakima, a Christian nonprofit dedicated to sharing the Gospel and serving the poor, challenged Washington’s Law Against Discrimination (WLAD). WLAD prohibits employers from taking an employee or applicant’s sexual orientation into consideration when deciding to hire or fire him. While the plain language of the law exempts faith-based nonprofits, the state’s supreme court severely limited that exception several years ago.2 As such, WLAD effectively prevents religious organizations from hiring only those who agree with their religious beliefs, particularly those concerning human sexuality and marriage.
In 2023, Union Gospel Mission decided to expand its staff significantly by adding over 50 positions. Due to its Christian identity, Union Gospel Mission requires all employees to agree to abide by its statement of faith and core values. According to court documents, it receives several applications per year from individuals hostile to its religiously motivated beliefs that marriage is between one man and one woman and that human sexuality is a gift that ought to be exercised in accordance with God’s design (within marriage). As one would expect, these applications are simply screened out.
Several of the new roles that Union Gospel Mission began hiring for were largely internal - including a new IT technician and an operations assistant. Since Union Gospel Mission believes its staff members must all believe and live the same religious beliefs in order to advance its religious mission, those new staff members would be required to sign the statement of faith. Anticipating a conflict with WLAD, the nonprofit filed a pre-enforcement lawsuit, arguing that the Church Autonomy Doctrine protects its right to make such an internal decision based on its religious beliefs.
Current Church Autonomy Jurisprudence and the Ministerial Exception
In a line of cases dating back over 150 years,3 the U.S. Supreme Court has interpreted the religion clauses of the First Amendment to protect the autonomy of religious organizations when they make decisions on matters of faith and doctrine. This has come to be known as the Church (or religious) Autonomy Doctrine. A key derivative of the doctrine is the ministerial exception,4 which broadly exempts religious organizations from federal and state nondiscrimination laws when hiring “ministers.”
The definition of the term “minister” was recently revisited by the Supreme Court in 2020. In Our Lady of Guadalupe v. Morrissey, two religion teachers at different Catholic schools sued their former employers for unlawful discrimination after being fired. The Court ruled that, regardless of the label of an employee’s position, in determining whether he is a minister “what matters, at bottom, is what an employee does.”5 Since both former teachers played vital roles that advanced the central religious mission of the schools, they qualified as ministers and could be dismissed notwithstanding laws prohibiting discrimination based on age and other protected characteristics. Secular authorities, whether administrative agencies, legislatures, or courts, are not permitted to weigh in on decisions concerning the ministers of a religious organization.
The ministerial exception only applies to personnel that fall within the legal definition of a minister. If an individual performs no vital religious duties, he is likely not covered by the ministerial exception. As such, a religious employer could still be subject to employment “nondiscrimination” laws for all non-ministerial roles. The ministerial exception does not necessarily allow faith-based employers to take religion into account when filling jobs like IT support and operations assistants, regardless of any self-identified need for religious homogeneity within a church or nonprofit, though this will vary depending on an organization’s specific circumstances.
How The Ninth Circuit Expanded Protections for Religious Employers
In its lawsuit, Union Gospel Mission argued that the Church Autonomy Doctrine protects its ability to require all its staff to abide by its statement of faith, even those not covered by the ministerial exception. This claim that the Church Autonomy Doctrine permits religious organizations to favor co-religionists in non-ministerial roles “is largely a question of first impression.”6 In a novel decision, the court sided with Union Gospel Mission.
The opinion, penned by Judge Bumatay,7 recognized that the Church Autonomy Doctrine is broader than the ministerial exception and more generally “protects religious institutions’ independence in matters of faith and doctrine.”8 Union Gospel Mission’s insistence upon having all of its employees abide by its Christian beliefs about human sexuality is an internal decision motivated by its sincerely held religious beliefs. The organization believes that, among other things, maintaining ideological consistency among all staff better communicates its religious message and spreads the Gospel. In order to rule against Union Gospel Mission’s claim that WLAD violates its constitutional rights, the court would have to invalidate its religious claim. Such a ruling is beyond the purview and jurisdiction of a secular court and “violates the institution’s free exercise rights to ‘shape [its] own faith and mission’ and would improperly establish an ‘ecclesiastical decision’ for the institution.”9 Doing so would be a clear violation of the First Amendment.
There are some key distinctions between the court’s decision here and the protections offered by the ministerial exception; the Ninth Circuit did not simply expand the ministerial exception to cover non-ministers. For one, the court was clear that its logic only applied to religious organizations and ministries that clearly “qualify for protection under the church autonomy doctrine.”10 Other organizations, like faith-based hospitals or business corporations, may not also be free to favor co-religionists in their hiring of non-ministers -- that is a decision for another day. Additionally, in order to take advantage of these Church Autonomy Doctrine protections, a religious organization must act based on sincerely held religious beliefs. This is distinct from the ministerial exception, under which a religious organization can fire a minister for any reason whatsoever, whether the reason is religious or not. There, religion doesn’t have to be the reason for the employment decision. Here, it does.
Takeaway for Religious Organizations
If your organization already operates in a state where the employment “nondiscrimination laws” have broad exemptions for religious organizations, the Union Gospel Mission case should not impact your organization’s employment decisions. If, however, your organization is in a state like Washington that has statutes that do not explicitly allow religious organizations to hire on the basis of religious beliefs and practices, Union Gospel Mission may set a constitutional precedent that protects religious organizations in certain situations, regardless of state employment laws.
If you are unsure what religious exemptions are available in your state’s employment laws, consult Napa Legal’s Multi-State Compliance Matrix or the Faith and Freedom Index to find out.
Note that the Ninth Circuit does not set precedent for the whole country. Additionally, the Union Gospel Mission opinion is clear that it only applies to religious organizations like Union Gospel Mission. It is unclear whether other types of religious organizations (such as religious hospitals) will also be afforded these expanded protections under the Church Autonomy Doctrine. So while this case is a sign of hope, it is likely too early for most religious organizations to change their hiring policies or practices in response to this opinion.
Conclusion
The Church Autonomy Doctrine, derived from the Religion Clauses of the First Amendment, protects the freedom of religious organizations to make decisions concerning their own beliefs without government interference. While the ministerial exception enables such organizations to hire and fire ministers at will, regardless of nondiscrimination laws that ordinarily restrict employment decisions based on a list of protected characteristics, that protection does not extend to employment decisions involving non-ministers. In a novel ruling, the Ninth Circuit held that the Church Autonomy Doctrine also protects the ability of certain religious organizations to make employment decisions based on their religious beliefs, even for non-ministers. While the effects of Judge Bumatay’s opinion are yet to be seen, a highly influential court’s expanded reading of the Church Autonomy Doctrine will not go unnoticed in other jurisdictions. The outcome of Union Gospel Mission of Yakima has the potential to be one of the most important victories for religious freedom of our day.
