Rare concurring pronouncements by a minority of the Justices of the United States Supreme Court are not legally binding but may be educational.  The United States Supreme Court hears a mere handful of cases every year and denies certiorari in the rest.  Denials of certiorari are not usually accompanied by any explanation or opinion.  Though rare, sometimes there is a published dissent.  Rarer still, a filed and published concurrence to a denial of certiorari may be interesting enough to note.

In Seattle’s Union Gospel Mission v Woods, 592 US ___ (2022) (concurrence with denial of certiorari), Seattle’s Union was a parachurch organization that engaged in a number of threads of ministry to the poor.  One such thread was a legal aid service.  In order to minister through legal aid, the plaintiff had to hire a lawyer.  All employees, including any lawyer hired, had to agree to the employee handbook.  The handbook imposed a morality clause.  The lawyer applicant was a former summer intern and volunteer for Seattle’s Union.  The lawyer applied and disclosed that he was a bisexual in a same sex relationship.  The applicant could not provide a reference from a local pastor and was not a church member at the time of the application.  The ministry leader met with the lawyer applicant and explained the application could not be considered because of the morals clause in the handbook.  The lawyer submitted an application to “protest” the ministry’s morality clause and then filed suit.  The Washington state trial court dismissed the case based on the Washington anti-discrimination statute’s religious exemption.  The Washington Supreme Court reversed holding the statutory religious exemption violated the Washington state constitution.  The Washington Supreme Court also reversed for a factual finding by the trial court as to whether a lawyer in a ministry to the poor was a “minister” as contemplated by Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171, 189 (2012) and Our Lady of Guadalupe School v Morrissey-Berru, 591 US___ (2020).  Because the decision of the Supreme Court of Washington was interlocutory, and the trial court decision was not yet final, the United States Supreme Court would not accept the case.  The Justices’ concurrence with the denial noted the Washington state trial court had yet to address “whether applying state employment law to require the Mission to hire someone who is not a co-religionist would infringe the First Amendment.”

It can be assumed that the cost of the litigation has thus far been staggering and now must “start over” in the trial court.  The Mission would be well within its rights to simply abolish its legal aid ministry.  It might not clear the Mission of the charge of discrimination, and it might not prevent liability in a jurisdiction like the state of Washington, but it might stop the next case.  It is clear that many courts on the west coast simply no longer consider basic constitutional rights meaningful limits in their quest to suppress religious organizations and persons.  Even statutory exemptions for religious organizations enacted by the Washington legislature are to be set aside, it seems, in the quest of west coast courts for hegemony.

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