SEATTLE (CN) — A Ninth Circuit panel cut Seattle Pacific University a break Friday morning by partially reviving its First Amendment challenge against Washington state’s investigation of the religious school’s homophobic hiring practices.
“The merits of this lawsuit involve yet another clash between a state anti-discrimination law and the First Amendment,” penned U.S. Circuit Judge Margaret M. McKeown, a Clinton appointee, in the order. “But this appeal presents an antecedent question — whether the federal courts may pass on this important issue before the attorney general commences an enforcement action.”
In October 2022, U.S. District Judge Robert Bryan dismissed Seattle Pacific’s lawsuit against Washington state Attorney General Bob Ferguson, citing a lack of redressability and an abstention under Younger v. Harris — a 1971 U.S. Supreme Court ruling that generally prevents federal courts from intervening in a state criminal proceeding.
The lawsuit, which Seattle Pacific filed in July 2022, sought to prevent Ferguson’s office from continuing an investigation into the school’s hiring practices after student and staff protests drew national attention when the university’s board of trustees voted to keep a policy that prohibits staff from engaging in same-sex intercourse and marriage.
The May 2022 vote came after a period of upheaval at the private Christian university: A faculty applicant sued the school claiming sexual orientation discrimination, students and faculty called on the school to drop its positions on human sexuality — even taking a vote of no confidence in the board — and a working group of faculty, students and trustees recommended the changes that were ultimately rejected.
According to the university’s complaint, this prompted a group of students to ask Ferguson to take legal action against the school and its board. Ferguson then sent a letter demanding “prompt production of voluminous and sensitive internal information on the university’s religious policies and their application to any and all faculty, staff, and administrators,” the school said in its complaint.
Ferguson’s investigation specifically sought to determine whether the university’s employment policies discriminate based on sexual orientation in violation of the Washington Law Against Discrimination. His office requested five years of information regarding the school’s internal religious matters, hiring practices, communication between ministerial employees and the selection of the school leadership positions.
Seattle Pacific argued the investigation violated its First Amendment rights by interfering with its relationship with the Free Methodist Church, which established the school in 1891. The school’s claims also included First Amendment retaliation, interference with church autonomy and other violations of the free exercise and establishment clauses of the First Amendment — ultimately seeking a constitutional green light to make its hiring and doctrine decisions without state intervention.
But since Ferguson’s notice to Seattle Pacific did not require mandatory compliance or any determination that it had broken Washington state law, Bryan reasoned that any injury to the school could not be remedied without changing state law and limiting the powers of Ferguson’s office.
Seattle Pacific asked the Ninth Circuit to reverse Bryan’s ruling last November. On Friday, the same appellate panel ordered the federal judge to reconsider the school’s prospective pre-enforcement injury claims.
“We affirm the district court’s dismissal of Counts I, III, IV, V, VIII, and XI, because we determine that SPU failed to allege a cognizable injury in fact for its retrospective claims,” McKeown wrote in the order affirmed by fellow Clinton-appointee, U.S. Circuit Judge Ronald Gould, and U.S. Circuit Judge Mark Bennet — a Trump appointee.
“In contrast, we conclude that SPU has standing for its prospective pre-enforcement injury claims — Counts II, VI, VII, IX, and X — and therefore reverse the dismissal of those claims. Younger abstention does not support dismissal of SPU’s complaint. We remand to the district court to consider prudential ripeness.”
McKeown explained that the decision cites three benchmarks from the U.S. Supreme Court’s 2014 ruling in Susan B. Anthony List v. Driehaus to determine a credible threat of enforcement against activities with constitutional interests, activities denounced by a challenged statute and when the threat of future enforcement is substantial.
“SPU has evidenced a sufficient intention to continue its employment practices,” McKeown wrote, adding that Seattle Pacific claims that it faces automatic disaffiliation from the Free Methodist Church if it employed Christians in same-sex marriages.
The same practices, McKeown wrote, are arguably denounced by Washington state law — even despite Ferguson’s “circular” argument that it does not affect ministerial employees.
“The complaint is crystal clear that SPU has applied and will continue to apply its sexual conduct policies to all regular faculty and staff, ministers and non-ministers alike,” McKeown wrote. “These policies arguably violate the WLAD, even according to the attorney general.”
The panel further disagreed with the federal court’s rationale for rejecting redressability, including those under the Younger abstention.
“The attorney general, unlike the Washington State Human Rights Commission and Washington administrative law judges, cannot independently sanction SPU,” McKeown wrote. “Rather, the attorney general must file a lawsuit in state court to enforce the WLAD, something he has yet to do. This ends the Younger inquiry. The district court should not have abstained under Younger.”
In a statement to Courthouse News on Friday, Ferguson said that while religious organizations “are legally allowed to discriminate in the selection of their religious leaders, that exception does not apply to jobs that have nothing to do with the organization’s religious work.”
“All Washingtonians have protections against discrimination based on their faith, or who they love,” Ferguson said. “Those protections don’t vanish if they happen to work for a religious organization. The court’s decision upheld these important, fundamental principles.”
Seattle Pacific attorney Lori Windham — vice president and senior counsel for The Becket Fund for Religious Liberty — expressed gratitude toward the panel’s ruling in an emailed statement after the ruling.
“We are very grateful that the Ninth Circuit’s ruling ensures Seattle Pacific University can continue its effort to defend the First Amendment principle of religious freedom,” Windham wrote. “SPU’s Christian identity has been held for generations and the university seeks to protect the ability to live out its religious faith and practices in all aspects of campus life. Washington’s attorney general is trying to strip that right away from Seattle Pacific and all other faith-based institutions in the state.”