Here’s the assessment of recent Ockletree decision by Washington’s highest court, as laid out by Jack Bouboushian of CourtHouse News. The top line: “Bias Claims Won’t Stick to Religious Employers.”
Washington’s Supreme Court gave religious nonprofits a huge advantage with this ruling. It’s stunning to think that four of our Supreme Court justices seem not to comprehend that it’s a clear advantage when multi-billion dollar entities that “compete” in the marketplace don’t have to follow the same laws that apply to everyone else. I suspect that none of these justices has ever worked for a multi-billion dollar entity and certainly none of them must have any practical experience overseeing compliance issues. If they did, they would know that compliance actually does cost money and not having to comply with a law saves money.
These same justices also found that freedom from discrimination in employment is not a civil right, it’s a right created through statute which means it can be changed when the next group of legislators comes in.
What’s more stunning is to take a step back and see what this decision reveals about Washington State’s Supreme Court compared to the citizenry at large. Washington State is one of the least religious states in the union, and yet five of our justices believe exempting religious employers from antidiscrimination laws makes perfect sense – even though religious employers in the health care space are multi-billion dollar entities providing services to the general public in competition with nonreligious nonprofits and for-profit entities.
From their commentary during oral arguments, several of the justices seem to think that religious nonprofits are small, unthreatening entities that do nothing but promote the common good.
Justice Charles Wiggins tried to narrow, if only a tiny bit, the type of employees covered by the exemption. For him, as long as your job for a religious employer has NOTHING to do with religion, then your employer must follow WA’s law, but if the employer can show a link, no matter how tangential, to a religious purpose, that protection is gone. Note that Justice Wiggins has only been on the Supreme Court since 2010, although the Seattle Times reported him saying that he likely would have found the ban against same-sex marriage in 2006 Constitutional.
In health care, where Franciscan and other Catholic health care ministries insist that mission is integral to everything the entity does, it will be hard to find a job category that meets Wiggins’ criteria for NO religious tie – which in effect means that Washington’s religious employers are free to discriminate at will. For what lawyer would want to take on a case of bias against a religious employer when all that employer has to do to avoid culpability is show the tiniest shread of evidence that the job in question supports the broader religious mission?
Below is more information about the four Washington Supreme Court justices who signed on to the lead opinion, written by Charles Johnson, saying that religious employers should be completely exempt from Washington’s antidiscrimination laws. Included is information about their votes relating to same-sex marriage in 2006. I’ve chosen to highlight the vote on same-sex marriage because people in same-sex marriages are among the classes of people who would be protected if these institutions were required to abide by Washington’s law against discrimination. With this vote, the justices are leaving employees who are subjected to bias based on marital status/sexual orientation without recourse.
Charles Johnson, graduated from Seattle University School of Law, voted in 2006 to uphold a ban on same-sex marriage in Washington State. This judge is so enamored of the education he received at (Catholic) Seattle University that he freely admits to a hiring bias when seeking clerks: Seattle U grads are preferred.
Susan Owens – In 2006, Owens dissented from the majority opinion that the ban against same-sex marriage was Constitutional. Her vote on this issue, which clearly prioritizes support for major religious institutions over the rights of individuals, is concerning.
Barbara Madsen, voted in 2006 to uphold a ban on same-sex marriages and wrote that the State’s marriage law was enacted to “promote procreation and to encourage stable families” and that same-sex couples failed to prove a fundamental right to marry.
James Johnson, voted in 2006 to uphold a ban on same-sex marriages. According to the Seattle Times, Johnson “vigorously defends marriage as being between a man and a woman.” He also calls himself an “originalist, ” a judicial model that calls for a historical interpretation of the constitution that excludes modern interpretation. As the Seattle Times said, “Think U.S. Supreme Court Justice Antonin Scalia.”