[00:00:00] Speaker 04:
Good morning.

[00:00:01] Speaker 01:
Good morning, your honors.

[00:00:03] Speaker 01:
May it please the court.

[00:00:04] Speaker 01:
Ryan Tucker on behalf of the Union Gospel Mission of Yakima, Washington.

[00:00:08] Speaker 01:
I'd like to reserve three minutes for rebuttal.

[00:00:11] Speaker 01:
The Washington law against discrimination prohibits the mission's ability to hire only employees who share its religious beliefs on marriage and sexuality.

[00:00:20] Speaker 01:
Just last month, this court held Seattle Pacific University, a Christian college with nearly identical religiously based hiring practices and policies

[00:00:29] Speaker 01:
had pre-enforcement standing to challenge these aspects of the WLAD.

[00:00:34] Speaker 01:
Like SPU, Seattle Pacific University, the mission has pre-enforcement standing to protect its constitutional rights.

[00:00:41] Speaker 01:
And below, the district court correctly held that the mission's hiring practices were affected with First Amendment interests and arguably prohibited by the WLAD.

[00:00:50] Speaker 01:
But it incorrectly held no credible threat of enforcement.

[00:00:54] Speaker 01:
Despite repeated threats from the Washington attorney general's office on the same subject matter,

[00:00:59] Speaker 01:
past commission complaints related to the WLED, a viral social media post condemning the mission's policies, as well as receipt of job applications from those who disagree with their faith.

[00:01:10] Speaker 03:
Why can't the mission, it might later on, assert the recognized ministerial exception that the state court has recognized as to these employees?

[00:01:21] Speaker 01:
Well, Your Honor, the mission doesn't have to subject itself to a complaint process.

[00:01:28] Speaker 01:
Under Steffel, it doesn't have to put a target on its back in order to

[00:01:32] Speaker 01:
redress its grievances.

[00:01:34] Speaker 01:
It can go first to the court on a First Amendment basis.

[00:01:37] Speaker 03:
But I guess that comes back to what the First Amendment basis is.

[00:01:41] Speaker 03:
Under federal law and the ministerial exception cases, that is the exception that exists.

[00:01:52] Speaker 03:
And that would be one that the mission would need to prove in order to enjoy that exception as other religious organizations have in the past.

[00:02:02] Speaker 01:
Well, you could do so both affirmatively and defensively.

[00:02:05] Speaker 01:
Look at the Seattle Pacific University case.

[00:02:07] Speaker 01:
That's what they were doing there.

[00:02:09] Speaker 01:
They were saying we have the ministerial exception, and that was applied just a month ago.

[00:02:13] Speaker 03:
But in those ministerial exception cases, again, looking at the Supreme Court as the Washington State Supreme Court also looked at,

[00:02:24] Speaker 03:
there were investigations to determine the ministerial exception.

[00:02:27] Speaker 03:
Do we have any cases from the Supreme Court suggesting that a religious organization would be immune from at least that level of inquiry to determine the ministerial exception?

[00:02:37] Speaker 01:
Well, unfortunately, we only got Hosanna Tabor and Our Lady.

[00:02:40] Speaker 03:
Well, and that's quite a bit for you, isn't it?

[00:02:41] Speaker 03:
Well, it is.

[00:02:42] Speaker 01:
It's obviously extremely helpful.

[00:02:44] Speaker 01:
But to Your Honor's question, Hosanna Tabor lists some factors, and Our Lady came back and said,

[00:02:50] Speaker 01:
Listen, you want to look to see what the actual individual does.

[00:02:55] Speaker 01:
But we can use it both in the defensive capacity, as your honor mentioned, but also in this context.

[00:03:02] Speaker 01:
Just to step back for a moment, the way this has been set up for decades, about 70 years,

[00:03:09] Speaker 01:
the state of Washington had a religious exemption in the law, much like everyone else in the United States.

[00:03:15] Speaker 01:
But when they took that exemption and they narrowed it down to only cover ministerial employees, now all of a sudden in the state, we have these non-ministerial positions where religious organizations are exposed.

[00:03:29] Speaker 00:
When you say they, you're talking about the Supreme Court of Washington?

[00:03:33] Speaker 01:
That's correct.

[00:03:34] Speaker 01:
That's correct, Your Honor.

[00:03:35] Speaker 01:
And so Washington is an anomaly.

[00:03:39] Speaker 01:
There are no other states.

[00:03:40] Speaker 01:
I mean most of the states have you know, in essence title seven equivalents where you've got a religious exemption The state of Washington narrowed that to where now every single religious employer in the state is exposed for their non Ministerial positions and so that's the genesis of this man.

[00:03:58] Speaker 03:
How is that I guess?

[00:04:00] Speaker 03:
plenty of briefing on this, but could you restate the First Amendment injury that that

[00:04:08] Speaker 03:
imposes given Hosanna Tabor and her lady?

[00:04:13] Speaker 01:
Well, it's the ability to hire, to discipline, to fire those that are like-minded.

[00:04:20] Speaker 01:
This mission is comprised of Christian individuals with certain tenets.

[00:04:26] Speaker 03:
And maybe this goes to the merits, but the Supreme Court hasn't gone that far.

[00:04:31] Speaker 01:
The Supreme Court has not gone there yet.

[00:04:34] Speaker 01:
No, that is correct.

[00:04:35] Speaker 01:
But there are appellate courts, and even in the ninth, we have language that we can look at.

[00:04:41] Speaker 01:
There are the fifth, the third.

[00:04:44] Speaker 01:
Several courts of appeal have looked at this.

[00:04:46] Speaker 01:
And a number of the courts that haven't even specifically addressed it say, if you take away the exemption, the release exemption out of Title VII,

[00:04:54] Speaker 01:
then you create the federal constitutional issue.

[00:04:56] Speaker 01:
In fact, Justice Alito, I think it's very important to look at the statement on the cert denial.

[00:05:02] Speaker 01:
I believe it's on page five.

[00:05:04] Speaker 01:
Justice Alito said that these religious organizations are not able to commune, to hire, to discipline those that are like-minded.

[00:05:18] Speaker 01:
Then what you will have is a tearing away of the very fabric

[00:05:22] Speaker 01:
of those religious institutions.

[00:05:23] Speaker 03:
How is the Washington State Supreme Court's inconsistency with respect and denial of cert, how does that amount to an injury in fact for your clients?

[00:05:35] Speaker 01:
Well, Your Honor, there are several reasons for that.

[00:05:40] Speaker 01:
I think at the district court level, the one that the court focused on was the credible threat.

[00:05:46] Speaker 01:
And so I think what you're gonna hear from the other side is whether or not there is a credible threat.

[00:05:51] Speaker 01:
There are several reasons, I think, why the district court aired there.

[00:05:57] Speaker 01:
I think, to start, it's important to look at the Thomas factors are not a checklist to be checked off one by one.

[00:06:05] Speaker 01:
You look at them as a whole.

[00:06:06] Speaker 00:
And that's what we said in Tingley, essentially.

[00:06:09] Speaker 01:
That's exactly right, Your Honor.

[00:06:10] Speaker 01:
In fact, if you consider a string of cases, Tingley, you look at Cal Trucking, you look at Arizona v. Yellen,

[00:06:19] Speaker 01:
You look at SBA lists, or I'm sorry, Seattle Pacific, and certainly SBA lists at the Supreme Court level, each of those underscore how standing is appropriate here.

[00:06:30] Speaker 01:
So if the district court correctly held, won a concrete plan, and I think second to your Honor's question, the second and third factors, the specific threat in past enforcement is where I think she really

[00:06:44] Speaker 01:
missed in her analysis.

[00:06:46] Speaker 01:
Now, there are multiple ways that you can satisfy these Thomas factors.

[00:06:50] Speaker 01:
And the Ninth Circuit, in fact, has even gone so far as to say that courts have found standing where no one has ever been prosecuted under the challenge provision.

[00:06:58] Speaker 01:
That's the LSU.

[00:06:59] Speaker 03:
Mr. Tucker, this is a very helpful discussion I'm trying to figure out.

[00:07:03] Speaker 03:
We talk a lot about

[00:07:05] Speaker 03:
I guess we'd start from the point that with respect to standing, constitutional injuries under the First Amendment are special.

[00:07:13] Speaker 03:
I'm trying to sort out in the cases, there's a lot in the First Amendment, whether we're talking about the first part of the First Amendment with respect to speech, where I think it's well established in that case.

[00:07:26] Speaker 03:
What about with respect to the religion clauses?

[00:07:30] Speaker 03:
Is there well-developed authority that says that

[00:07:33] Speaker 03:
That's also included, I mean, we have Dry House and others that seem to suggest, okay, well, free speech, yes.

[00:07:42] Speaker 03:
On the religious claims, would we apply the exact same tests?

[00:07:45] Speaker 01:
Your Honor, the SBA list is the test.

[00:07:48] Speaker 01:
When you're looking at whether or not we've met our burden of understanding, you look at Susan B. Anthony list.

[00:07:53] Speaker 01:
And what's really interesting about SBA list, SBA list was- What was the First Amendment claim in that case?

[00:07:59] Speaker 01:
Well, it was speech.

[00:08:01] Speaker 03:
You had- Okay.

[00:08:02] Speaker 03:
But is there a- I don't think- Speech has been recognized as special.

[00:08:07] Speaker 03:
Why does that carry over to religion?

[00:08:10] Speaker 01:
It's the pre-enforcement standing piece.

[00:08:13] Speaker 01:
There's no differential between the two.

[00:08:16] Speaker 01:
There's not a separate standard that one must obtain.

[00:08:21] Speaker 01:
You look at Susan B. Anthony List as the base.

[00:08:25] Speaker 01:
And when you look at that case, SBA List, you have two cases that were consolidated.

[00:08:31] Speaker 01:
The second case was brought on behalf of an entity called COAST.

[00:08:34] Speaker 01:
What's interesting there is,

[00:08:36] Speaker 01:
Coast did not receive a complaint.

[00:08:39] Speaker 01:
And my friends on the other side suggest, well, we didn't reach out to you.

[00:08:44] Speaker 01:
We didn't know who you were.

[00:08:45] Speaker 01:
We didn't have to.

[00:08:47] Speaker 01:
Coast didn't either.

[00:08:48] Speaker 01:
That's SBA lists.

[00:08:49] Speaker 01:
So we have Supreme Court authority.

[00:08:51] Speaker 01:
We have an abundance of Ninth Circuit precedent that says the same thing.

[00:08:56] Speaker 01:
And just to step back for a moment, just practically speaking,

[00:09:00] Speaker 01:
The simple reality is we have 150 employees, some of which are ministerial as we pled, some of which are not.

[00:09:09] Speaker 01:
This entity has watched the state attorney general make very clear that if you have non-ministerial employees and you believe in biblical sexuality,

[00:09:21] Speaker 01:
then that is a violation of the WLAD, that is sexual orientation discrimination.

[00:09:29] Speaker 01:
So recognizing that problem.

[00:09:30] Speaker 03:
Is that a necessary connection?

[00:09:32] Speaker 03:
In other words, is it possible for people who are not... Your objection here is co-religionists.

[00:09:44] Speaker 03:
That's the right you're asserting.

[00:09:46] Speaker 03:
That's correct, Your Honor.

[00:09:46] Speaker 03:
Is it possible to hire someone who, for example, maybe celibate, who may have a different sexual orientation not to be a co-religionist?

[00:09:57] Speaker 03:
Because that's what the statute is concerned with sexual orientation.

[00:10:00] Speaker 03:
You're concerned with co-religionist.

[00:10:01] Speaker 03:
Are those co-extensive in this case?

[00:10:03] Speaker 01:
Well, certainly those aren't the facts here, Your Honor.

[00:10:05] Speaker 01:
This is an as-applied challenge.

[00:10:07] Speaker 01:
We've stated in our statement of faith that those that act on

[00:10:14] Speaker 01:
that are in those relationships, they cannot work at this institution because that's part of our statement of faith.

[00:10:23] Speaker 01:
And I think the ultimate question here is whether or not this institution can hire non-ministerial employees.

[00:10:31] Speaker 01:
That's the ultimate question.

[00:10:33] Speaker 04:
Let me ask you this.

[00:10:34] Speaker 04:
How would you respond to the argument that the facts of Dry House cut against your argument in this case?

[00:10:41] Speaker 01:
Well, Your Honor, as I mentioned, I think they're spot on.

[00:10:47] Speaker 01:
Spot on, meaning that we have standing under SBA list.

[00:10:51] Speaker 01:
You consider the fact that Concrete Plan, as the district court held, when you look at the specific threat, you look at past enforcement, I mentioned earlier that explicit warning isn't needed.

[00:11:01] Speaker 01:
If you look at, as Judge Bennett mentioned, in Tingley, that was underscored.

[00:11:07] Speaker 01:
There's a reference there.

[00:11:08] Speaker 01:
to that law as well.

[00:11:11] Speaker 01:
SBA List, again, says that Coast, which did not receive a complaint, has standing.

[00:11:16] Speaker 01:
The threats against SPU alone are enough, because you look at the conduct, you don't look at whether or not they get a specific.

[00:11:26] Speaker 04:
Again, if the Attorney General were to say, you know, we're not gonna pursue this, we promise.

[00:11:35] Speaker 04:
Would that make any difference?

[00:11:36] Speaker 01:
Oh, absolutely.

[00:11:37] Speaker 01:
We've not heard that.

[00:11:38] Speaker 04:
I understand that.

[00:11:39] Speaker 04:
Were they to say that, what difference would that make?

[00:11:43] Speaker 01:
A humongous difference.

[00:11:44] Speaker 01:
If they could stand up here right now and disavow, then we'd all go home.

[00:11:47] Speaker 00:
And we talked about that in our prior cases.

[00:11:51] Speaker 01:
Exactly.

[00:11:51] Speaker 01:
And that's why standing really was held in the case just a month ago in SPU.

[00:11:56] Speaker 01:
And so I would, again, if they stand up here and say, we're not going to enforce this, then I don't have a dog in the fight.

[00:12:03] Speaker 01:
If they stand up here and say,

[00:12:04] Speaker 01:
Well, no, we are.

[00:12:05] Speaker 01:
Or if they don't answer the question, then I have every reason to be here.

[00:12:08] Speaker 00:
I think that question will be coming to your friend.

[00:12:11] Speaker 01:
Thank you, Your Honor.

[00:12:12] Speaker 01:
So I'll reserve my time.

[00:12:13] Speaker 04:
Very well.

[00:12:15] Speaker 04:
All right.

[00:12:15] Speaker 04:
Let's hear from the Attorney General, Mr. Dayon, please.

[00:12:19] Speaker 04:
Did you say Jayon or Dayon?

[00:12:21] Speaker 02:
Dunn.

[00:12:22] Speaker 02:
Dunn.

[00:12:22] Speaker 02:
Rhymes with rye.

[00:12:23] Speaker 02:
OK.

[00:12:23] Speaker 04:
Thank you for grating it.

[00:12:24] Speaker 02:
No, thank you for asking.

[00:12:31] Speaker 02:
Good morning.

[00:12:31] Speaker 02:
May it please the court?

[00:12:32] Speaker 02:
Daniel Dunn for State Appellees.

[00:12:35] Speaker 02:
Union Gospel attempts to create standing by pleading a litigation position that directly conflicts with its employment records that must be taken as true at this stage.

[00:12:44] Speaker 02:
It brought this case in search of a controversy and the district court properly rejected its attempts to manufacture standing.

[00:12:50] Speaker 02:
This court should affirm and I'd like to highlight two reasons this morning.

[00:12:54] Speaker 02:
The first is that Union Gospel faces no threat of enforcement, let alone the substantial threat of enforcement that is required to bring a pre-enforcement.

[00:13:00] Speaker 00:
Does the Attorney General disavow enforcement?

[00:13:03] Speaker 02:
Your Honor, we disavow enforcement with respect to ministerial employees and with respect to all of the records that we have in this case.

[00:13:09] Speaker 00:
I'm taking that as a no, that you are not disavowing enforcement of this statute against the plaintiff.

[00:13:17] Speaker 02:
Your Honor, with the records that we have before us and the records that we must take as true at this juncture, that suggests that every employee that they have is a minister.

[00:13:25] Speaker 02:
And I'd like to point to the fact that they include their statement of faith.

[00:13:29] Speaker 02:
And their statement of faith says that every single employee that they have, that they consider every single employee they have as a minister.

[00:13:36] Speaker 02:
That's the beginning of ER 424.

[00:13:38] Speaker 04:
Every employee- If that's the case,

[00:13:43] Speaker 04:
If they declare that they're a minister, that's a religious doctrine, right?

[00:13:47] Speaker 02:
The answer would be legal.

[00:13:51] Speaker 04:
Well, maybe so, but I mean the reality is you're not asking us to investigate the ecclesiastical basis for the determining whether someone is a minister, right?

[00:14:01] Speaker 04:
Of course not, yes.

[00:14:05] Speaker 04:
that they are in a position to say all of our folks here are ministers and co-religionists.

[00:14:12] Speaker 04:
Given that fact, are you prepared to respond to my colleague's question?

[00:14:16] Speaker 04:
Is the Attorney General of Washington prepared to say that you will not seek to prosecute the case against these folks?

[00:14:24] Speaker 02:
Your Honor, based on the record that we have before us that we must take as true, we haven't investigated the union gospel.

[00:14:30] Speaker 04:
So we're not, you're saying you can't say?

[00:14:32] Speaker 02:
I think absent anything that shows the contrary, we have no intention of investigating.

[00:14:38] Speaker 03:
Mr. John, you say that it's a question of law.

[00:14:40] Speaker 03:
And we've got two sides, an immovable object and an irresistible force.

[00:14:46] Speaker 03:
Both of you are exercising your rights to state your positions in this controversy.

[00:14:51] Speaker 03:
But if it's a question of law,

[00:14:55] Speaker 03:
Would that preclude any investigation into the mission if they decided to stand by your assertion that they're all subject to the exception?

[00:15:09] Speaker 02:
With no other contrary information.

[00:15:12] Speaker 03:
So part of the injury here is a lot of the injury, and we'll want to turn to SBU pretty soon, is the very investigation.

[00:15:21] Speaker 03:
And so when you say it's a question of law,

[00:15:23] Speaker 03:
But then you come back to all of the evidence that we have, it's at least their assertion, and maybe this still isn't enough for Sam, but it's their assertion that that gathering of evidence, the investigation is the injury.

[00:15:36] Speaker 03:
Would you need an investigation to make a determination or agree with their assertion that they're all subject to the ministerial exemption?

[00:15:43] Speaker 02:
We wouldn't investigate unless there was something to show the contrary and I think the record that we have though indicates that it's there's nothing to there's nothing here and every agreement that every employee signs when they work at Union gospel missions.

[00:15:56] Speaker 04:
You say forgive me you say there's nothing here.

[00:15:58] Speaker 04:
And that's because they're saying that everyone is a co-religionist and everyone is a minister.

[00:16:03] Speaker 04:
Is that why you're saying?

[00:16:04] Speaker 02:
Because the job duties and the descriptions of what those positions that they hope to hire for include duties like they are going to minister to their customers.

[00:16:11] Speaker 04:
Let me take it a step further.

[00:16:13] Speaker 04:
If they were to put in writing, maybe they have.

[00:16:16] Speaker 04:
I haven't seen it.

[00:16:17] Speaker 04:
But if they were to say that because we hire only co-religionists to have these views, we treat all of our employees as ministers.

[00:16:28] Speaker 04:
Would that indicate from the AGH's perspective?

[00:16:34] Speaker 02:
I don't think that would prompt us to investigate.

[00:16:36] Speaker 02:
And I guess I don't.

[00:16:38] Speaker 02:
It's certainly not what we have here.

[00:16:40] Speaker 02:
I think what we have here is the record that Union Gospel has created.

[00:16:43] Speaker 04:
Well, going back to what we said before, I don't think under constitutional law you could investigate or ask us to investigate the religious tenets of the organization, right?

[00:16:55] Speaker 04:
Right.

[00:16:56] Speaker 04:
So they say, as a matter of our construction of scripture and our belief in various provisions flowing there from, we believe that all of our employees are ministers.

[00:17:10] Speaker 04:
That's in the case, right, from your perspective?

[00:17:12] Speaker 02:
That's not a concern, Your Honor, because what determines whether someone is a minister under Our Lady of Guadalupe and Osana de Bor is an inquiry into what they do.

[00:17:23] Speaker 00:
Yes, I understand that you're saying what I assume is General Ferguson's position here, which is that we can't necessarily take their word for it.

[00:17:38] Speaker 00:
and we're not required to necessarily take their word for it.

[00:17:42] Speaker 00:
And if they're saying everybody's a minister but they're really not a minister because of their job duties, we have at least the right to look at it.

[00:17:51] Speaker 02:
I think that's right, but I think that's different from the case that we have here, Your Honor, where Union Gospel has attached all of these job duties and descriptions that include things like they are to minister to their staff, they are to minister to customers and donors.

[00:18:03] Speaker 02:
Those are all attached to the complaint.

[00:18:05] Speaker 02:
It must be taken as true.

[00:18:06] Speaker 04:
So they're kind of like everybody's a missionary, everybody's spreading the gospel, and they say that makes them a minister.

[00:18:13] Speaker 04:
What's the problem?

[00:18:15] Speaker 02:
We don't have a problem with that.

[00:18:16] Speaker 03:
Well, then why can't you disclaim enforcement?

[00:18:18] Speaker 02:
Because we're just claiming enforcement if we're with respect to what the record that we have.

[00:18:23] Speaker 02:
I think certainly if there's I guess we need more beyond the right.

[00:18:27] Speaker 03:
So do we need more beyond the record other than their statement of faith and what their mission is and I don't think at this juncture and certainly it's Union Gospels mission to show standing and I think

[00:18:42] Speaker 02:
Based on what we have and there's no reason to believe that any of this is not true.

[00:18:46] Speaker 00:
There are no concerns on our end You know the council what they're seeking to do is to get a declaration they're seeking to be able to advance their claim and

[00:18:57] Speaker 00:
it strikes me that the state wants it both ways here although I can understand why the state is making the argument but it seems like the state is saying that you know they haven't alleged enough to even make a claim that there's a potential problem here but that the state is saying

[00:19:16] Speaker 00:
Well, you know, sort of based on what we sort of know now, there's nothing we're going to be doing here, but we can't tell you that if we looked at it a little further, we wouldn't.

[00:19:27] Speaker 00:
And I mean, it just seems to me that based on that, they at least have the right to go forward, and you may absolutely prevail on the merits, but all they're seeking to do is to make their claim.

[00:19:40] Speaker 02:
And I guess to that point, Judge, I'd highlight two things.

[00:19:43] Speaker 02:
And the first is that at this stage, it's Union Gospel's burden to show standing.

[00:19:49] Speaker 02:
And I think based on the record that they've provided that we all must take as true, including this court, there doesn't seem to be a problem.

[00:19:56] Speaker 02:
And so it's not us having it both ways.

[00:19:58] Speaker 02:
It's just that at this stage, based on the record that we have and are taking as true, they haven't met their burden of showing that they can advance this claim.

[00:20:06] Speaker 04:
For purposes of this case, though,

[00:20:10] Speaker 04:
You understand that if you were to say, based upon their representation, that everybody is a minister under their construction of the gospel, and they're co-religionists, they have their beliefs, we're not going to touch that, that would kind of end the problem.

[00:20:29] Speaker 04:
But you don't want to do that, which suggests to the court anyway that, as my colleague puts it, you want to have it both ways.

[00:20:37] Speaker 02:
I think I would go a little bit further just with and just point to the fact that they have provided the statement of faith.

[00:20:42] Speaker 02:
They have provided these job description and job duties that include these ministerial duties.

[00:20:46] Speaker 02:
Right.

[00:20:46] Speaker 02:
And that's and that's why we say that because of this.

[00:20:49] Speaker 04:
For example, almost anybody that belonged to any religion that has a evangelical aspect.

[00:20:56] Speaker 04:
You can have janitors out there preaching the gospel to co-religionists or talking to people on the streets and under their doctrine.

[00:21:03] Speaker 04:
Perhaps that's what they mean is a minister, but you can't get beyond that, can you?

[00:21:09] Speaker 02:
I don't think in this posture, and I guess I would point this court to its decision in Seattle Pacific University where it said that asking who is a minister and who is not a minister, that is fair game.

[00:21:19] Speaker 03:
OK, well, I guess the Seattle Pacific is large here.

[00:21:27] Speaker 03:
Would you draw any other distinction between that case and this and the standing holding there than that your office sent a letter?

[00:21:35] Speaker 02:
I think there are other key factual differences, Your Honor, the first being that

[00:21:40] Speaker 02:
One, Seattle Pacific University didn't create this record of its non-ministerial employees having ministerial duties.

[00:21:47] Speaker 02:
That's one key distinction.

[00:21:48] Speaker 02:
The other distinction, I think, is that I don't think that it's correct to say that Union Gospel has standing simply because another entity has standing.

[00:21:57] Speaker 02:
Union Gospel still needs to show that it faces a substantial threat of enforcement.

[00:22:02] Speaker 02:
And based on the record that it is provided, that just simply isn't the case.

[00:22:05] Speaker 03:
And so in what ways are they materially differently situated?

[00:22:10] Speaker 03:
Set aside the stage of the investigation, because at some point, the idea of a pre-enforcement challenge doesn't work if you have to send a letter to start the challenge.

[00:22:20] Speaker 03:
So in what other ways are they differently situated other than the stage of the investigation process?

[00:22:26] Speaker 02:
The record that Seattle Pacific University has is substantially different from the record that we have in this case, Your Honor, which includes Union Gospel Statement of Faith, it includes their job descriptions, it includes this agreement that every employment, that quote, acknowledge that Union Gospel requires all staff to engage in acts of Christian ministry.

[00:22:45] Speaker 02:
These are all very different factual scenarios which suggest that Union Gospel mission does not have

[00:22:51] Speaker 03:
So why is the state keeping in its back pocket the opportunity to enforce its anti-discrimination law against this organization that you seem to have all the information you need to determine whether the law applies?

[00:23:09] Speaker 02:
Because the factual scenario matters, Your Honor, and I think it is totally fair game, as this court put it in Seattle Pacific University, to ask whether or not someone is ministerial.

[00:23:20] Speaker 02:
Certainly the organization can say it.

[00:23:22] Speaker 02:
Absent any other information to the contrary, we have no reason to disbelieve it.

[00:23:26] Speaker 02:
That's particularly true.

[00:23:27] Speaker 03:
You have an answer to that.

[00:23:29] Speaker 03:
In other words, you now have your answer to that question by virtue of the complaint.

[00:23:33] Speaker 03:
You didn't have to send them a letter.

[00:23:34] Speaker 03:
They provided all the information that you likely would have asked and maybe did ask of Seattle Pacific.

[00:23:40] Speaker 04:
Based upon your, I'll call it unwillingness to commit not to do anything, under Seattle Pacific,

[00:23:49] Speaker 04:
Is there any reason why we shouldn't reverse and remand to the district court to flesh this out?

[00:23:55] Speaker 04:
I mean, right now we're talking about pleadings.

[00:23:57] Speaker 04:
You're saying you're not going to disclaim a right to prosecute.

[00:24:02] Speaker 04:
SPU says, hey, well, that's maybe enough.

[00:24:06] Speaker 04:
Haven't they established then sufficient Article III standing to send it back to the district court?

[00:24:12] Speaker 02:
I don't think so, Your Honor, and I guess I would point to one that there's been no enforcement.

[00:24:17] Speaker 02:
There's no history of enforcement.

[00:24:18] Speaker 04:
I understand that.

[00:24:19] Speaker 04:
I'll get that.

[00:24:20] Speaker 04:
But the reality is the case law is pretty clear that when you have a constitutional right to practice a religion and there's a threat from the perspective of the religionists, the Supreme Court's given us a little leeway.

[00:24:33] Speaker 04:
The SPU gives us a little leeway.

[00:24:35] Speaker 04:
Basically, people have a right to defend themselves

[00:24:38] Speaker 04:
at an earlier point than they might in certain other types of categories because a constitutional right is involved.

[00:24:44] Speaker 04:
So I get back then to the question again, given your unwillingness to say you're not going to prosecute these people, why would we not find under our case law and Supreme Court case law that there is sufficient Article III standing shown and send it back to district court?

[00:25:00] Speaker 02:
Because I think the factual differences here underscore the fact that Union Gospel, particularly, does not face a substantial threat of enforcement.

[00:25:08] Speaker 02:
I would point to the fact that oftentimes this court will look to a past history of violations of the statute, for instance in Tingley.

[00:25:14] Speaker 00:
Although in Tingley, we said,

[00:25:16] Speaker 00:
The third factor concerning the history of enforcement carries little weight when the challenged law is relatively new.

[00:25:23] Speaker 00:
That's correct.

[00:25:24] Speaker 00:
And we're looking here at the, in that context, the Washington Supreme Court decision, right?

[00:25:30] Speaker 02:
Yes, but I think you're looking at occultry versus Franciscan health systems, I believe, and that was decided by the Washington Supreme Court in 2014.

[00:25:39] Speaker 02:
And in that case, the Washington Supreme Court held

[00:25:41] Speaker 02:
that the Washington Law Against Discrimination applies to religious entities in certain aspects.

[00:25:46] Speaker 02:
And so this has been a relevant statement.

[00:25:48] Speaker 00:
That was certainly at least fleshed out, though, more recently than 2014, right?

[00:25:53] Speaker 02:
In Woods, I think it made it more clear, but at the end of the day, the fact that the Union Gospel Mission has been subject, the Union Gospel Mission and every religious employer has been subject to the Washington Law Against Discrimination since occultry in 2014, a decade ago, means that the history of enforcement matters.

[00:26:10] Speaker 02:
And all we have here is this letter that doesn't constitute enforcement that Union Gospel points to.

[00:26:17] Speaker 02:
That's the only instance.

[00:26:18] Speaker 00:
Although, again, and I apologize for beating a dead horse, but in our recent cases, we have talked about, in this exact context, the specific importance of the absence of a disavowal.

[00:26:34] Speaker 00:
So, I mean, in some ways,

[00:26:38] Speaker 00:
the Attorney General has the keys to this litigation in his own pocket to borrow a metaphor from a different context.

[00:26:49] Speaker 02:
Sure.

[00:26:50] Speaker 02:
I guess what I would say to that is that it is Union Gospel's burden to prove standing here, and we have disavowed everything that the record currently has.

[00:26:58] Speaker 02:
And so I don't see this disavowal as particularly hollow or anything like that.

[00:27:02] Speaker 02:
I don't think there's anything more needed.

[00:27:05] Speaker 03:
Isn't one reason why the attorney general can't reach a disavowal is Seattle Pacific itself, where we have said that the ministerial exception is not a free pass, so that to determine the state of that, the state is entitled to make further inquiries, which in this case may be the source of the injury in fact.

[00:27:24] Speaker 02:
Right, and that's exactly correct.

[00:27:26] Speaker 02:
And just quickly, I know I'm running out of time, but I just want to make this point that I think part of the concern here is that if you gospel doesn't have standing, then how will it ever notice the answer to this constitutional question?

[00:27:36] Speaker 02:
And I just want to point quickly to Justice Scalia's concurrence in city of

[00:27:40] Speaker 02:
Bernie versus Flores, where he said that, you know, however strongly we may feel about these constitutional principles, at the end of the day, the rubber needs to hit the road, and you need a case in controversy to decide the contours of that right.

[00:27:51] Speaker 04:
Well, you think this is a good year case.

[00:27:54] Speaker 04:
Sorry?

[00:27:56] Speaker 04:
I'm being facetious.

[00:27:56] Speaker 04:
You said that the rubber hitting the road.

[00:27:59] Speaker 04:
Sorry.

[00:27:59] Speaker 04:
Thank you, Your Honor.

[00:27:59] Speaker 04:
Well, thank you.

[00:28:00] Speaker 04:
So you have some rebuttal time.

[00:28:05] Speaker 01:
Yes, Your Honor, just very briefly.

[00:28:07] Speaker 01:
I think the fact that the state's not willing to disavow not just evidence is the fact that we have standing, but it also underscores a very important practical point here.

[00:28:16] Speaker 01:
We have two positions that we needed to hire yesterday.

[00:28:20] Speaker 01:
We have our IT professional and we have an administrative assistant.

[00:28:25] Speaker 01:
We had hoped to hire those individuals over a year ago.

[00:28:28] Speaker 01:
The state's had those job descriptions now, again, for well over a year.

[00:28:34] Speaker 01:
And we need to hire them.

[00:28:37] Speaker 01:
So I would respectfully ask that not only does the court find standing, but the court also enter an injunction that covers not just those two, but also the multitude of other co-religionists that we would like to hire.

[00:28:50] Speaker 03:
Mr. Tucker, do you agree that even if the ministerial exception is a question of law under the standard, that the state would be entitled to

[00:29:05] Speaker 03:
investigate to determine the application of that law to an organization?

[00:29:10] Speaker 01:
Well, yes, your honor.

[00:29:11] Speaker 01:
I think if, I mean, and that's the basis of your claim for an injury.

[00:29:14] Speaker 01:
As this even, I think, I think there's a little bit of conflating between the merits and standing perhaps in the Seattle Pacific case.

[00:29:20] Speaker 01:
But if you look at that, the ninth has already said just a month ago that, you know, the attorney general, the commission has the right to ask, you know, that the, the initial questions to see, you know, what was the,

[00:29:33] Speaker 01:
the hiring issue.

[00:29:36] Speaker 03:
And how is that, is the injury in fact that you're claiming any different from that, or how would it differ?

[00:29:45] Speaker 01:
Well, I think in the Seattle Pacific case, I think the position that SPU was taking is that the investigation itself was a First Amendment harm, and we're not saying here that they can't ask the question, that they can't look at the determination as to whether or not we have a minister or a non-minister

[00:30:02] Speaker 01:
The issue, though, is if in the non-minister space there you look to see whether or not the act that's being complained of can be tied to a religious belief of the institution.

[00:30:17] Speaker 01:
And if the institution's able to tie the religious belief to the act that's complained of, then I think the state can go no further.

[00:30:26] Speaker 03:
And the ministerial state- And that's exactly the merits that you're trying to get to if you establish standing.

[00:30:30] Speaker 01:
Yes, Your Honor.

[00:30:31] Speaker 01:
Yes, Your Honor.

[00:30:31] Speaker 01:
And we're asking for that.

[00:30:34] Speaker 01:
Not just, you know, we have two that we have the dire need for.

[00:30:37] Speaker 01:
But we also, as I mentioned before, are an institution with 150 employees.

[00:30:42] Speaker 01:
On any given year, we go through about, by way of retirement or just attrition in today's society, we have about 50 or so people that we need to hire.

[00:30:54] Speaker 01:
And so this has been a tremendous issue from the moment the attorney general started threatening enforcement.

[00:31:01] Speaker 04:
Very well.

[00:31:01] Speaker 04:
Other questions?

[00:31:02] Speaker 04:
Thanks to both counsel for your argument, very helpful.

[00:31:05] Speaker 01:
Thank you, Your Honor.

[00:31:05] Speaker 04:
The case just argued is submitted.