In Fragmented Decision, Washington Supreme Court Finds Discrimination Exemption For Religious Non-Profits Unconstitutional As Applied

The Washington state Supreme Court yesterday answered certified questions from a federal district court in a fragmented decision.  In  Ockletree v. Franciscan Health System, (SA Sup. Ct., Feb. 6, 2014), the state's high court responded to two questions of state constitutional law: (1) Does the exclusion in the Washington Law Against Discrimination for religious non-profit organizations violate the state constitution's equal privileges and immunities clause or its free exercise clause. (2) If not, is the exclusion unconstitutional when applied to prevent a suit by an employee who claims discrimination unrelated to any religious purpose, practice or activity of defendant.  The suit involved a claim of discrimination on the basis of race and disability in the firing of a security guard by a Catholic hospital.

In the lead opinion, 4 justices answered the first certified question in the negative, concluding that "WLAD's definition of 'employe'... does not involve a privilege or immunity" and "does not involve the appropriation of money or application of property, and therefore does not fall within the prohibition of article I, section 11 's establishment clause."

Dissenting, 4 justices disagreed, saying: "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."

In a separate opinion, Justice Wiggins provided a 5th vote for answering the first certified question in the negative, concluding that the exclusion is not unconstitutional on its face.  However he also provided a fifth vote for answering the second certified question in the affirmative, but only after insisting that the second certified question needs to be reframed, saying:

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. 

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.

(See prior related posting.) AP reports on the decision.