Do religious groups have a legal right to fire non-ministerial employees for religious reasons? It’s a surprisingly knotty legal question presented in 17 (!) recent lawsuits that may soon ripen into a circuit split. It is also the subject of my new article for the Notre Dame Law Review — “Religious Hiring Beyond the Ministerial Exception” — which provides a user-friendly road map for this rapidly developing area of law.

While other cases are working their way up to the Third and Fourth Circuits, the latest case to land in a federal circuit court is Union Gospel Mission of Yakima v. Brown, recently argued in the Ninth Circuit before Judges Johnnie Rawlinson, Daniel Bress, and Patrick Bumatay.

The case involves a Christian homeless shelter that requires all employees, from computer technicians to janitors, to agree with its religious views on marriage. Washington State says this is illegal employment discrimination.

Disputes like this typically focus on an oft-litigated First Amendment doctrine called the ministerial exception, which protects religious groups’ freedom to hire “ministers” — defined broadly to include employees with important religious functions. But the homeless shelter concedes that a computer technician or janitor isn’t a “minister.”

So, the Ninth Circuit has to grapple with a different question: What legal protections do religious groups have for hiring non-ministers?

My article identifies six such protections. Three are statutory: (1) Title VII’s religious exemption, (2) Title VII’s bona fide occupational qualification exception, and (3) the Religious Freedom Restoration Act. Three are constitutional: (4) the church autonomy doctrine, (5) the freedom of expressive association, and (6) the free exercise clause.

The most common protection is found in employment laws (like Title VII), which typically include a religious exemption protecting the freedom of religious groups to hire “individuals of a particular religion” — that is, individuals who share the group’s religious beliefs and practices.

But the Washington Supreme Court recently gutted the state’s religious exemption, narrowing it to employees who qualify as ministers under the First Amendment. So the Ninth Circuit had to grapple with the constitutional question: Does the Constitution protect religious hiring of non-ministers?

At oral argument, the judges started with the free exercise clause. The key question there, under Tandon v. Newsom, is whether Washington’s law treats secular conduct (like hiring by small businesses) better than comparable religious conduct. But the panel seemed dissatisfied with that analysis, suggesting that maybe it was asking the wrong question. That is, why should it matter how the law treats small businesses if it still forces religious ministries to hire people who reject its religious beliefs? A key moment came when Judge Bress changed the subject (11:13–11:39): “Why wouldn’t the church autonomy doctrine allow a church to hire people based on their religious views — whether they agree with the church’s religious views?” That’s a crucial question.

The state had no good answer. It claimed that church autonomy is limited to the ministerial exception. But the Supreme Court has said the ministerial exception is only one “component” of church autonomy, which more broadly protects “internal management decisions that are essential to the institution’s central mission” — i.e., church governance.

Church governance is precisely what is at stake in Union Gospel Mission of Yakima: the freedom of religious groups to maintain religious qualifications for employment. In fact, Judge Rawlinson seemed incredulous at the state’s position (14:35–15:50) that even if employees “don’t agree with the tenets of the church, they still have to be hired.”

Judge Rawlinson’s view is backed by common sense. It’s widely accepted that mission-driven organizations of all stripes can require employees to align with their missions. Religious organizations shouldn’t be treated differently just because religion is often treated as a protected category — mainly for protection against religious discrimination by nonreligious organizations.

This commonsense view is also backed by legal doctrine and precedent. As my article explains, there are multiple, overlapping, and mutually reinforcing protections for the freedom of religious groups to maintain religious qualifications for employment. Among them are the church autonomy doctrine, the free exercise clause, and the right of expressive association, all of which are routinely reflected in additional statutory protections for internal church governance.

Hopefully, the Ninth Circuit follows Judge Bress’s and Rawlinson’s line of questioning and rules for the shelter based on church autonomy. That would be the correct and commonsense result.