LARRY C. OCKLETREE, individually, Plaintiff, v. FRANCISCAN HEALTH SYSTEM, a Washington Corporation, d/b/a ST. JOSEPH HOSPITAL, and JOHN and JANE DOE(S) 1-10, Defendants.
No. 88218-5
SUPREME COURT OF THE STATE OF WASHINGTON
FEB 0 6 2014
En Banc
CERTIFICATION
LARRY C. OCKLETREE, individually, Plaintiff, v. FRANCISCAN HEALTH SYSTEM, a Washington Corporation, d/b/a ST. JOSEPH HOSPITAL, and JOHN and JANE DOE(S) 1-10, Defendants.
Filed FEB 0 6 2014
C. JOHNSON, J.—The certified questions in this case ask us to decide whether the exemption of nonprofit religious organizations from the definition of “employer” under Washington‘s Law Against Discrimination (WLAD),
CERTIFIED QUESTIONS
- The Washington Law Against Discrimination excludes religious non-profit organizations from its definition of “employer” (
Wash. Rev. Code § 49.60.040(11) ). Such entities are therefore facially exempt from WLAD‘s prohibition of discrimination in the workplace. Does this exemption violateWash. Const. Article I, § 11 or§ 12 ? - If not, is
Wash. Rev. Code § 49.60.040(11) ‘s exemption unconstitutional as applied to an employee claiming that the religious non-profit organization discriminated against him for reasons wholly unrelated to any religious purpose, practice, or activity?
Order Certifying Question to the Wash. Supreme Ct. (Certification) at 4.
FACTS
Plaintiff Larry C. Ockletree was employed as a security guard by FHS in 2010. He staffed a desk in the emergency department at St. Joseph Hospital, where he checked visitors’ identification and issued name tags. While employed by FHS, Ockletree suffered a stroke that impaired his nondominant arm. FHS determined he could not perform the essential functions of his job with or without accommodation, refused his requested accommodation, and terminated his employment.
Ockletree brought multiple causes of action in state court, including employment discrimination on the basis of race and disability in violation of federal law and WLAD. FHS removed the case to federal court and moved to dismiss four of Ockletree‘s claims, including his WLAD claim. Jurisdiction for Ockletree‘s federal employment discrimination claim under the Civil Rights Act of 1964,
FHS asserts that as a nonprofit religious organization, it is exempt from WLAD‘s definition of “employer” and therefore exempt from WLAD‘s private cause of action.
ANALYSIS
The certified questions ask us to determine the constitutionality of the exemption of religious nonprofit organizations from WLAD.2 WLAD was enacted in 1949 with the purpose of ending discrimination by employers “on the basis of race, creed, color, or national origin.” Griffin v. Eller, 130 Wn.2d 58, 63, 922 P.2d 788 (1996). WLAD has expanded over the years 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. See
As enacted, the law 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). In 1957, the legislature rewrote the definition of “employer” to its present form, bringing
secular nonprofit organizations
The WLAD religious employer exemption has been examined in two earlier cases raising arguments under the state constitution, but in neither case did we expressly reach the state constitutional issue. The first came in 1991, when Nancy Farnam, an employee of a religious nursing home, challenged her dismissal for reporting the removal of a patient‘s gastric tube. Farnam v. CRISTA Ministries, 116 Wn.2d 659, 662-66, 807 P.2d 830 (1991). Farnam argued that the WLAD exemption was invalid under
A second state constitutional challenge to the religious employer exemption came in 2010, when Angela Erdman, a church elder employed in a secular position, was dismissed on the recommendation of the church tribunal. Erdman v. Chapel Hill Presbyterian Church, 156 Wn. App. 827, 234 P.3d 299 (2010) (Erdman I), rev‘d on other grounds by Erdman, 175 Wn.2d 659, 286 P.3d 357 (2012) (Erdman II). Erdman challenged the dismissal, asserting several causes of action, including a violation of WLAD. Moving for summary judgment dismissal of Erdman‘s WLAD claim, the church asserted the religious employer exemption. Erdman countered that the exemption was an unconstitutional privilege or immunity under
Here, we are asked to confront the question of whether the religious employer exemption violates
a. Article I, section 12
Despite the historical and textual differences, Washington courts often construed
privilege or immunity. See Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 145 Wn.2d 702, 731, 42 P.3d 394 (2002) (Grant I).5
Before beginning this analysis, it is important to recognize the breadth of the claim presented. Although much of the argument focuses on this claim against this hospital, the issue is far more significant and broader given the certified questions. We are asked to declare as unconstitutional the exemption for all religious nonprofits, which extends to not only this case, but all other employers covered by the exemption, including universities, elementary schools, Catholic Community Services, Jewish Family Services, CRISTA Ministries, YMCA, YWCA, Salvation Army, and St. Vincent De Paul. Arguably, churches, synagogues, and mosques would be exposed as well. We further note that since enacted in 1949, the legislature has not revised this exemption to limit its scope. With that said, we turn to whether the definition of “employer” in
i. Does
Ockletree argues that under the dictionary definition of “privilege,” “the right to work free from discrimination is a privilege of citizenship” and that the legislature grants this “privilege” on unequal terms. Corrected Pl.‘s Reply Br. at 14. He further argues that the legislature grants religious employers “‘immunity’ from the antidiscrimination laws applicable to other employers and, thus, grants them a ‘privilege’ to discriminate against employees” without civil liability. Pl.‘s Opening Br. at 28. FHS counters that the dictionary definition of “privilege” is not coextensive with the meaning we give that term in the context of
As FHS correctly observes, in a constitutional sense a privilege has been more narrowly construed than the arguments advanced by Ockletree. In defining the scope of a privilege, we have emphasized that “not every statute authorizing a particular class to do or obtain something involves a ‘privilege’ subject to
the term “privileges and immunities” refers “alone to those fundamental rights which belong to the citizens of [Washington] by reason of such citizenship.” State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902). Accordingly we have held that not every legislative classification constitutes a “privilege” within the meaning of
[a] statute can be declared unconstitutional only where specific restrictions upon the power of the legislature can be pointed out, and the case shown to come within them, and not upon any general theory that the statute conflicts with a spirit supposed to pervade the constitution, but not expressed in words.
Vance, 29 Wn. at 459 (citing Smith v. City of Seattle, 25 Wash. 300, 65 P. 612 (1901)). Generally, rights left to the discretion of the legislature have not been considered fundamental. Grant II, 150 Wn.2d at 814.
Ockletree asks us to embrace a broader meaning of “privilege or immunity” for purposes of
jurisprudence but could also produce harmful consequences. Accepting Ockletree‘s definition means recognizing a privilege anytime a statute grants a right to some but not others. In other words, many legislative decisions could be claimed as privileges. As a result, we could be called upon to second-guess the distinctions drawn by the legislature for policy reasons nearly every time it enacts a statute. For example, the property tax exemptions for citizens “[s]ixty-one years of age or older” and “veterans with one hundred percent service-connected disabilities” could be challenged as unconstitutional grants of special privileges to certain classes of citizens but not others.
Ockletree‘s argument seems to be that a cause of action for discrimination by a private actor in a private employment setting is a fundamental right of citizenship. However, Ockletree‘s assertion has no support in our jurisprudence or in any other state or federal court. As amici Religious Organizations notes, absent state action, courts have uniformly declined to prohibit employment discrimination on constitutional grounds. See Moran v. GTECH Corp., 989 F. Supp. 84, 93 (D.R.I. 1997); Am. Nat‘l Ins. Co. v. Fair Emp‘t & Hous. Comm‘n, 32 Cal. 3d 603, 619, 651 P.2d 1151, 186 Cal. Rptr. 345 (1982) (Mosk, J., dissenting); Ky. Comm‘n on Human Rights v. Fraser, 625 S.W.2d 852, 854 (Ky. 1981). Because discrimination in private employment cannot “be said to come within the prohibition of the constitution,” it is not a fundamental right. Rather, protection from discrimination in private employment is a creature of statutory enactment. Notably, WLAD was not enacted until 1949, over half a century after the adoption of our constitution. And the private cause of action under the statute was not created until 1973. LAWS OF 1973, ch. 141. Moreover, the exemption for religious organizations has been part of the antidiscrimination statute from the time it was enacted and has never been amended. The timing of WLAD‘s enactment further supports our conclusion that the right at issue here is not fundamental to state citizenship
Our determination concerning the nature of the right at issue here is also consistent with our holding in Griffin, 130 Wn.2d 58. In Griffin, we considered and rejected a similar challenge involving the exemption in WLAD for employers with fewer than eight employees. There, we applied a federal equal protection analysis and held that the small employer exemption does not violate
Ockletree also contends that
Here, Ockletree fails to establish how
Finally, Ockletree‘s assertion that WLAD authorizes religious nonprofits to discriminate is without merit. The statute plainly does not state that religious nonprofits can discriminate against employees on the bases listed. And religious nonprofits are arguably subject to federal antidiscrimination laws. It may be that Ockletree could find protection under federal law, but we leave that issue to the federal court to decide. Here, we conclude only that, under an analysis independent of the federal equal protection clause,
ii. Is there a “reasonable ground” for the classification?
Even if the exemption in WLAD for religious nonprofits did implicate a “privilege or immunity,” Ockletree‘s
requirement, distinctions must rest 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). Here, no one disputes that the challenged exemption applies equally to all religious nonprofits. The question, then, is whether there is a “reasonable ground” for distinguishing between religious nonprofits and other nonprofits.
As amici Pacific Northwest Conference of the United Methodist Church (amici United Methodist Church) notes, there are real and substantial differences between religious nonprofits and secular nonprofits that make it reasonable for the legislature to treat them differently under WLAD. One of the primary differences is that religious organizations have a right to religious liberty guaranteed by the state free exercise clause under
The United States Supreme Court has recognized that exemptions for religious organizations from civil discrimination suits protect religious freedom by avoiding state interference with religious autonomy and practice. 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). In Amos, the Court
it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.
Amos, 483 U.S. at 336 (footnote omitted). The Court further rejected the argument that the exemption violated equal protection principles by giving less protection to employees of religious organizations than employees of secular employers. Applying rational basis review, the Court upheld the exemption on the basis that it “is rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions.” Amos, 483 U.S. at 339. We agree with this reasoning.
Here, the religious employer exemption satisfies the reasonable ground test because it similarly accommodates the broad protections to religious freedoms afforded by Washington‘s
multitude of religious belief systems. Moreover, as noted by amici, similarly broad exemptions for religious employers have been upheld in other states. See Pieszak v. Glendale Adventist Med. Ctr., 112 F. Supp. 2d 970, 997 (C.D. Cal. 2000) (finding California‘s blanket exemption of all religious nonprofit organizations from the state antidiscrimination statute constitutional). Because of the evidentiary standards and the nature of the inquiry for discrimination claims, the legislature could reasonably conclude that religious organizations should be relieved of the burden of predicting when their religious beliefs would be regarded as sufficient justification for an employment decision.11
b. Article I, section 11
The second question presented is whether the exemption of religious nonprofit employers from WLAD violates the establishment clause of article I, section 11.
Ockletree initially asserts that WLAD‘s definition of “employer” favors religious nonprofits and that such favor constitutes “support” for “religious establishment[s]” in violation of
Ockletree asserts that “[i]n the event this Court limits
We find nothing in our case law, however, to support Ockletree‘s position. To the contrary, our establishment clause jurisprudence makes clear that an indirect financial benefit to a religious organization does not violate the state constitution. For instance, in Washington Health Care Facilities Authority, we held that allowing religious hospitals to raise money through tax exempt bonds did not violate
The only “public” financial assistance given borrower hospitals here is indirect, not measurable in dollars, and is not state aid: Those who receive the interest from tax exempt bonds are relieved of the obligation to pay a tax on this income. This tax relief can hardly be called an appropriation or application of public money unless the income which is taxed is claimed to be public money in the first place.
Wash. Health Care Facilities Auth., 96 Wn.2d at 73. Notably, in discussing Washington Health Care Facilities Authority in a later case, we said that “[b]y making this method of financing available to a private religious institution the state conferred a tremendous financial benefit on a religious establishment but without violating the state constitution in the slightest.” Malyon, 131 Wn.2d at 801 (emphasis added). By contrast, in Visser, which Ockletree cites for support, we held that providing free transportation to or from religious schools violated
As FHS points out, this case is unlike Visser, where publicly funded transportation
CONCLUSION
We answer the certified questions as follows:
- WLAD‘s definition of “employer” under
RCW 49.60.040(11) does not involve a privilege or immunity, and therefore does not violatearticle I, section 12 ‘s privileges and immunities clause. - WLAD‘s definition of “employer” under
RCW 49.60.040(11) does not involve the appropriation of money or application of property, and therefore does not fall within the prohibition ofarticle I, section 11 ‘s establishment clause.
C. JOHNSON, J.
WE CONCUR:
MADSEN, C.J.
OWENS, J.
J.M. JOHNSON, J.
STEPHENS, J. (dissenting)—The lead opinion begins with an uncontroversial proposition: religious institutions hold a special place in our society and may be granted certain statutory exemptions without offending the constitution. But it elevates this proposition to unprecedented heights and deprives Washington‘s
DISCUSSION
I. Article I, Section 12‘s Privileges and Immunities Clause Protects Rights Guaranteed to all Washington Citizens
Delegates to the Washington constitutional convention were united in their desire to reign in these abuses. FITTS, supra, at 28-29; Jonathan Thompson, The Washington Constitution‘s Prohibition on Special Privileges and Immunities: Real Bite for “Equal Protection” Review of Regulatory Legislation?, 69 TEMP. L. REV. 1247, 1277-78 (1996); see ROBERT F. UTTER & HUGH D. SPITZER, THE WASHINGTON STATE CONSTITUTION: A Reference Guide 39 (2d ed. 2013). Antipathy for unchecked legislative power was so pervasive that one member remarked, “‘If . . . a stranger from a foreign country were to drop into this convention, he would conclude that we were fighting a great enemy, and that this enemy is the legislature.‘” FITTS, supra, at 29 (quoting TACOMA DAILY LEDGER (Aug. 9, 1889)).
Despite striking differences between the text and historical roots of
After Grant County II, some confusion remained over whether
The lead opinion concedes that Ockletree‘s right to hold employment free from discrimination is important but argues it is not “fundamental” and therefore not protected by
Due process protects a variety of fundamental rights under the banner of “liberty,” including the rights to marry, to have and raise children, to obtain contraception and an abortion, and to refuse medical treatment. See generally Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). Infringements of these fundamental rights are permissible only if “‘narrowly tailored to serve a compelling state interest.‘” Id. at 721 (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993)).
By contrast, Washington‘s privileges and immunities clause guarantees equal protection of the laws, but also protects those “‘“fundamental rights which belong to the citizens of the state by reason of such citizenship.“‘” Ventenbergs, 163 Wn.2d at 103 (quoting Grant County II, 150 Wn.2d at 813 (quoting State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902))). This court has never suggested that these rights are limited to those deserving heightened scrutiny under federal law. Rather, these rights are more prosaic than the “fundamental rights” guaranteed by due process, and include “the right to . . . carry on business” in the state, “to acquire and hold property, and to protect and defend the same in the law,” and “to enforce other personal rights.” Vance, 29 Wash at 458.
By conflating distinct constitutional doctrines, the lead opinion asks us to believe that the framers of Washington‘s constitution ratified the privileges and immunities clause in 1889 to safeguard rights that would not be consolidated 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) (broadening the scope of “liberty” to include these personal rights). Even if I were prepared to accept this view, the lead opinion‘s sweeping reinterpretation of
II. The Right To Sue for Discriminatory Dismissal Is a Privilege of Washington Citizenship Protected by Article I, Section 12
The lead opinion is correct that not every statute favoring one class of employers over another grants a “privilege or immunity” under
In Vance, 29 Wash. at 458, we explained that
In contrast, a right granted only at the discretion of the legislature is not a “privilege” any citizen can assert. For example, there is no privilege to petition for annexation because the legislature enjoys plenary authority to adjust municipal boundaries. Grant County II, 150 Wn.2d at 813-14. Likewise, the legislature has authority to create or repeal causes of action unrelated to common law claims, and it does not grant or withhold a privilege when it does so. See Atchison v. Great W. Malting Co., 161 Wn.2d 372, 381, 166 P.3d 662 (2007) (wrongful death).
The lead opinion is simply wrong when it states that the “protection from discrimination in private employment is a creature of statutory enactment.” Lead opinion at 13. The WLAD itself makes clear that employment free from discrimination rests at the core of the sort of “personal rights” this court in Vance identified as fundamental. 29 Wash. at 458. The WLAD was enacted “in fulfillment of the provisions of the Constitution of this state concerning civil rights,” to protect “the rights and proper privileges” of state citizens,
Importantly, the WLAD recognizes that freedom from discrimination is a civil right, not merely a statutory promise.
The lead opinion relies on Griffin, asserting that the religious employer exemption and the small business exemption reflect the same rational basis in lifting the burden of enhanced statutory remedies. Lead opinion at 13. Maybe so, but this does not answer whether the exemption affects a fundamental right for purposes of the state privileges and immunities clause. Griffin was resolved solely under an equal protection analysis. 130 Wn.2d at 65. While we held in Griffin that the small employer exemption survived the traditional federal rational basis review, we did not suggest it would survive an independent state privileges and immunities analysis. 130 Wn.2d at 64-65. Though Griffin is not on point, in considering the privileges and immunities clause in this context, “[w]e do not write on a clean slate.” Madison, 161 Wn.2d at 114 (Madsen, J., concurring). In Cotten, 27 Wn.2d at 317-20, this court struck down a state law that required injured plaintiffs to prove gross negligence on the part of certain common carriers on privileges and immunities grounds. We held that injured persons would otherwise have benefited from the state common-law rule, under which “the carrier is held to the highest degree of care for the safety of its passengers, and the plaintiff is required to prove
III. There Is No “Reasonable Ground” for Privileging Religious Nonprofits over Secular Ones
A law that grants a privilege or immunity to any citizen, group of citizens, or corporation not available to all on the same terms violates
Although this test resembles certain articulations of rational basis review, the two are not identical. As Professor Thompson notes, Washington courts refrain from “hypothesizing facts” to justify a distinction under
A. There Are No Reasonable Economic or Regulatory Grounds for Distinguishing between Religious and Secular Nonprofits
We need not question whether the legislature had reasonable grounds to exempt all nonprofit employers from discriminatory employment claims when it enacted WLAD. See LAWS OF 1949, ch. 183, § 3. Many nonprofits do socially vital work on a comparative shoestring, most in reliance on erratic government funds, grants, or donations. See Evelyn Brody, Agents Without Principals: The Economic Convergence of the Nonprofit and For-Profit Organizational Forms, 40 N.Y.L. SCH. L. REV. 457, 470 & n.50 (1996) (quantifying sources of nonprofit funding). Nonprofits often compete directly with government and for-profit enterprises for scarce resources, including employees, but lack both the for-profit‘s power to sell ownership interests and the taxing power of a government.
In today‘s increasingly complex regulatory environment, nonprofits frequently lack access to the sophisticated financial and legal advice enjoyed by for-profit competitors. See Carter G. Bishop, The Deontological Significance of Nonprofit Corporate Governance Standards: A Fiduciary Duty of Care Without a Remedy, 57 CATH. U. L. REV. 701, 709 (2008). Discrimination suits place a heavy financial and legal burden on these comparatively fragile employers, and the legislature could reasonably exempt nonprofits from WLAD on this basis.
But this is not what the legislature did. The WLAD exempts only religious nonprofits, not secular ones, from employment discrimination claims, and the question is whether its distinction is justified by some “reasonable and just difference” between the two types of employers. Grant County I, 145 Wn.2d at 737 (Madsen, J., concurring and dissenting) (citing McDaniels v. J.J. Connelly Shoe Co., 30 Wash. 549, 555, 71 P. 37 (1902)). With respect to the burdens of state regulation, what makes nonprofits vulnerable to discrimination claims is their structure and financing, not their particular mission. Amici Religious Organizations argue that the exemption better enables them to “meet[ ] critical needs of the most vulnerable,” that it “lessens the burden on governmental assistance programs,” and that defending discrimination claims requires significant resources that would be better spent for the public good. Br. of Amici Curiae Religious Orgs. at 13-14. Amici are undoubtedly correct, but these arguments apply equally in every respect to secular nonprofits, which are organized for purposes no less socially beneficial, and whose charitable, benevolent, educational, cultural, and scientific aims are no less impaired by civil claims. See
Nor are secular nonprofits any better situated than religious ones to “price these increased expenses [from discrimination suits] into the cost of the ‘goods’ they provide.” Br. of Amici Curiae Religious Orgs. at 15-16. Indeed, religious nonprofits receive the lion‘s share of private contributions and more volunteer labor than any other nonprofit segment. See Brody, supra, at 470 n.50 (noting more than 50 percent of all private contributions go to religious employers, and that 75 percent of their labor is donated). Religious and secular nonprofits are similarly situated with regard to civil liability for employment discrimination claims and should be treated the same under the law. Instead, the exemption bestows upon religious nonprofits a uniquely valuable asset. Amici point out that Franciscan Health Services (FHS) and others use the exemption as a bargaining chip in negotiations with unionized employees, offering to waive the exemption as to represented employees. See Br. of Amici Curiae Am. Civil Liberties Union, Am. Civil Liberties Union of Wash., and Anti-Defamation League at 11-12.
If there is reasonable ground for the WLAD exemption, it is not based in any economic or regulatory distinction between religious and secular nonprofits. The lead opinion subtly recognizes this fact, as its only argument for granting special privileges to religious nonprofits is based on their religious character. As discussed below, this argument, rather than justifying the WLAD exemption, actually confirms its unconstitutionality.
B. The Federal Constitution Prohibits Granting Special Benefits to Religious Employers That Are Unrelated to Religious Freedom
Although WLAD‘s grant of immunity to religious nonprofits lacks any legitimate regulatory basis, the lead opinion asserts it is reasonable because the law alleviates a burden on these employers’ religious free exercise. Lead opinion at 18-20. At the same time, the lead opinion is careful to point out that the free exercise clause does not require granting the immunity. Id. at 21 n.11. The lead opinion misapprehends the import of its argument: the law violates the First Amendment to the federal constitution. It is therefore per se unreasonable under
The free exercise and establishment clauses of the First Amendment stand in some tension. While the free exercise clause bars the State from showing overt hostility to religion, the establishment clause addresses the opposite concern, directing that government “may not place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general.” Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 9, 109 S. Ct. 890, 103 L. Ed. 2d 1 (1989).
(1989). It prohibits government “from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such.” Gillette v. United States, 401 U.S. 437, 450, 91 S. Ct. 828, 28 L. Ed. 2d 168 (1971); see Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 703, 114 S. Ct. 2481, 129 L. Ed. 2d 546 (1994) (“government should not prefer one religion to another, or religion to irreligion.“).
Laws that benefit religion over nonreligion are valid only if they serve a “secular legislative purpose.” Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). Because government must honor
But while government can relieve a significant and concrete burden on free exercise, at some point, accommodation of religious freedom crosses the line into “an unlawful fostering of religion.” Id. at 145. A law that grants a special privilege to religious organizations is unconstitutional if it “is not required by the Free Exercise Clause and . . . either burdens nonbeneficiaries markedly or cannot reasonably be seen as removing a significant state-imposed deterrent to the free exercise of religion.” Bullock, 489 U.S. at 15 (citing Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 348, 107 S. Ct. 2862, 97 L. Ed. 2d 273 (1987) (O‘Connor, J., concurring in judgment)).
While the lead opinion purports to follow federal law, it concedes that even the “[a]bsolute freedom of conscience” guaranteed by article I, section 12 does not demand an exemption for religious employers from the WLAD.4 Lead opinion at 21 n.11. Consequently, the WLAD exemption violates the First Amendment establishment clause unless it removes a “significant state-imposed deterrent” to free exercise. Bullock, 489 U.S. at 15.
The lead opinion insists that it does, citing the United States Supreme Court‘s decision in Amos. Lead opinion at 19-20. In its rush to adopt Amos, the lead opinion fails to consider that the WLAD exemption is not the equivalent of Title VII of the Civil Right Act of 1964 (Title VII),
Title VII exempts religious employers from federal discrimination law only “‘with respect to the employment of individuals of a particular religion.‘” Amos, 483 U.S. at 329 n.1 (emphasis added) (quoting
By contrast, the sweeping WLAD exemption allows any religious employer, whether operating a church or a coffee shop, to discriminate against employees on the basis of race, age, sex, or disability status, even if these factors are unrelated in any way to the employer‘s faith. See
Amos’ rationale also fails to translate to the WLAD exemption. The United States Supreme Court noted with approval that Congress’ 1972 expansion of the Title VII exemption to nonreligious activities of religious employers relieves them of the peril of predicting “on pain of substantial liability . . . which of its activities a secular court will consider religious.” Amos, 483 U.S. at 336. The lead opinion gladly builds upon this reasoning, asserting that the legislature can also relieve Washington religious employers of the burden of predicting when their beliefs justify taking a discriminatory employment action. Lead opinion at 21. But requiring religious employers to comply with general laws forbidding discrimination on the basis of race and disability does not require them to draw impossible lines in the gray area between religious and secular activities. Amos, 483 U.S. at 336 (noting the absence of a bright line for this distinction). It simply requires them not to discriminate. If there is a brighter bright-line rule, I cannot imagine it.
The State may grant special benefits to religious affiliated corporations without violating the establishment clause, but only when necessary to alleviate a burden on free expression that is substantial and concrete. Bullock, 489 U.S. at 18; Amos, 483 U.S. at 335. Requiring a religious employer to articulate a sincerely held religious belief that concerns one of Washington‘s “growing list of protected categories,” lead opinion at 20, does not itself interfere “with the ability of religious organizations to define and carry out their religious missions.” Amos, 483 U.S. at 339. WLAD already requires religious organizations not to discriminate against anyone in this “growing list” in places of public accommodation. See
As applied to Ockletree, the WLAD exemption immunizes FHS from potential liability for employment discrimination based on grounds unrelated to its religious beliefs or practice. The exemption is not necessary to satisfy FHS‘s free exercise right and does not alleviate a substantial state-imposed burden on religious freedom. Bullock, 489 U.S. at 18 n.8. Consequently, it exceeds the limits of an accommodation of religion and violates the federal establishment clause. Because it is unconstitutional under the First Amendment, the distinction WLAD draws between religious and secular nonprofit employers cannot be “natural, reasonable, or just” under article I, section 12. Bacich, 187 Wash. at 84. I would hold it is invalid as applied to Ockletree and all similarly situated plaintiffs.6
CONCLUSION
WLAD grants religious nonprofits immunity from a right of action that belongs to all Washington citizens by virtue of citizenship. Under the privileges and immunities clause, the legislature cannot grant such immunity to one class of corporations unless there are reasonable grounds for excluding others. Because WLAD grants immunity from discrimination claims that are unrelated to the employer‘s religious beliefs, it is not necessary to alleviate a concrete and substantial burden on religious exercise. The distinction WLAD draws between religious and secular nonprofits violates the federal First Amendment establishment clause and
Stephens, J.
Gonzalez, J.
Fairhurst, J.
Gordon McCloud, J.
WIGGINS, J. (concurring in part in dissent)—I concur in part in the result reached by the dissenting opinion.
I agree with the lead opinion‘s conclusion that Washington‘s Law Against Discrimination‘s (WLAD)1 definition of “employer” is not facially unconstitutional, answering “no” to the first certified question. However, WLAD‘s exclusion of religious nonprofit organizations from the definition of “employer,” under
As presented to us, the second certified question is:
If not [facially unconstitutional], is Wash. Rev. Code § 49.60.040(11)‘s exemption unconstitutional as applied to an employee claiming that the religious non-profit organization discriminated against him for reasons wholly unrelated to any religious purpose, practice, or activity?
Order Certifying Question to the Wash. Supreme Ct. (Certification) at 4.
I believe the proper inquiry should be:
If not [facially unconstitutional], is Wash. Rev. Code section 49.60.040(11)‘s exemption unconstitutional as applied to an employee of a religious non-profit organization whose job description and responsibilities are wholly unrelated to any religious practice or activity?
The original second certified question improperly focused on whether the employer discriminated on religious grounds, which requires courts to engage in excessive entanglement with religious doctrines and practices. Washington courts would be asked to determine what constitutes a particular religion‘s purpose, practice, and activity and determine whether the reason for the discrimination is related. This is an intrusive inquiry into religious doctrine.
Instead, I believe the constitutionality of the exemption depends entirely on whether the employee‘s job responsibilities relate to the organization‘s religious practices. In other words,
Regarding the first certified question, I would answer that the statute is not facially unconstitutional. I agree with the dissent that the exemption of religious and sectarian organizations in
But the exemption is reasonable only to the extent that it relates to employees whose job responsibilities relate to the organization‘s religious practices. When the exemption is applied to a person whose job qualifications and responsibilities are unrelated to religion, there is no reasonable ground for distinguishing between a religious organization and a purely secular organization. Therefore, I agree with the dissent that the exemption is invalid when applied to an employee like Ockletree, assuming that there is no relationship between his duties and religion or religious practices.
Wiggins, J.