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Does The 1st Amendment Protect Religious Organization’s Right to Discriminate Against Its Employees?

by Sean V. Small

Does the First Amendment Protect a Religious Organizations Right to Discriminate Against its Employees?

Most Seattle employers, employees, and employment attorneys would agree that a religious organization should be allowed to select the individuals to lead the religious organization (i.e., discriminate on the basis of religion). The parishioners at the local church would be a bit surprised to find the ceremony being led by a Buddhist Monk or a Rabbi who was hired because the religious organization could not discriminate on the basis of religion. However, the question gets a little tougher when you ask whether a religious organization should be permitted to discriminate on the basis of gender, color or national origin. 

The First Amendment to the United States Constitution prohibits any “law respecting an establishment of religion, or prohibiting the free exercise thereof…” U.S. Const. amend. I. The United States Supreme Court has interpreted this clause to mean that the civil courts cannot decide disputes involving religious organizations where the religious organizations would be deprived of interpreting and determining their own laws and doctrine. See Watson v. Jones, 80 U.S. 679, 20 L. Ed. 666, 13 Wall. 679 (1871) (Establishing doctrine of judicial abstention in matters which involved interpretation of religious law and doctrine).

Similarly, Art. I, § 11 of the Washington State Constitution protects “[a]bsolute freedom of conscience in all matters of religious sentiment,” however, that protection “shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.” C.J.C. v. Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699, 728, 985 P.2d 262 (1999).

In addition, civil courts may not adjudicate matters involving a church’s selection of its spiritual leaders. This “ministerial exception” is a constitutionally-derived exception to civil rights legislation that “insulates a religious organization’s employment decisions regarding its ministers from judicial scrutiny[.]”  Elvig v. Ackles, 123 Wn. App. 491, 496-97, 98 P.3d 524, 527 (2004). It applies “when the disputed employment practices involve a church’s freedom to choose its ministers or to practice its beliefs.”  Id.

The Washington Law Against Discrimination (“WDLA”) at RCW 49.60.030 provides that it is a civil right in the state of Washington to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a disabled person. RCW 49.60.180 goes on to state that it is unlawful for an employer to discharge or bar any person from employment because of the foregoing protected categories, or to discriminate against any person for those reasons in compensation or in other terms or conditions of employment. However, pursuant to RCW 49.60.040(11), the term “employer” does not include any religious or sectarian organization not organized for private profit.

In sum, the clash between broad policy goals of eliminating discrimination in the workplace and the government’s attempt to not entangle itself in ecclesiastical issues leaves Washington civil courts with only the ability to adjudicate church-related disputes if the dispute does not involve ecclesiastical or doctrinal issues. Elvig v. Ackles, 123 Wn. App. 491, 98 P.3d 524 (2004); Gates v. Seattle Archdiocese, 103 Wn. App. 160, 166-67, 10 P.3d 435 (2000) (Secular courts will hear contract and employment cases arising from a church controversy when no ecclesiastical or doctrinal issues are involved). However, this is easier said than done. The task of separating facts and causes of action as either secular or ecclesiastical is not always clear. The modern religious organization is operated like a business, but with an ecclesiastical business plan. Washington civil courts are often left with little guidance on how to differentiate between the conflicting policy goals.   

The Employment Litigation Department at the Seattle law firm of Lasher Holzapfel Sperry & Ebberson recently litigated this matter before the Washington Supreme Court in Erdman v. Chapel Hill Presbyterian Church, 156 Wn. App. 827, 234 P.3d 299, review granted, 170 Wn.2d 1010, 245 P.3d 772 (2010), and would be happy to assist you with any questions or concerns.