Does exemption from antidiscrimination law for all religious organizations violate the Washington Constitution?

Scarberry, Mark Mark.Scarberry at pepperdine.edu
Mon Oct 24 18:04:11 PDT 2011


Washington also goes to substantial lengths to deny funding even on an even-handed basis for persons training to work in ministry. More separation than required by US Const = more immunity permitted?

Mark Scarberry

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From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan [aebrownstein at ucdavis.edu]
Sent: Monday, October 24, 2011 10:19 AM
To: Law & Religion issues for Law Academics
Subject: RE: Does exemption from antidiscrimination law for all religious organizations violate the Washington Constitution?


I assume the argument under the federal Establishment Clause would be that this accommodation goes too far and imposes an unacceptable burden on third parties. And a similar argument could be made under state law. Courts, of course, have not been clear as to how far is too far. Given the size of the non-profit sector of the economy, carving out an exception from all anti-discrimination laws for all religious NGOs, for all job functions, could certainly limit the job opportunities for members of protected classes. Does the Washington exemption extend to all religious non-profits for all job functions?

Alan Brownstein

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Vance R. Koven
Sent: Monday, October 24, 2011 9:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Does exemption from antidiscrimination law for all religious organizations violate the Washington Constitution?

Interesting issue. Is it essentially an argument that a statutory antidiscrimination law *must* exactly track the "naked" constitutional requirements? Presumably, if the exemption under the statute is too broad, a plaintiff can make a direct constitutional claim. Would it suffice for the state to argue that the likelihood of success against a religious organizational defendant (which, along with other nonprofit organizations, benefits in many states from very low limits of liability) is remote enough that the state is justified in withholding whatever administrative machinery is put in place by the statute?

Vance
On Wed, Oct 19, 2011 at 7:21 PM, Volokh, Eugene <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
Washington antidiscrimination law, http://apps.leg.wa.gov/rcw/default.aspx?cite=49.60.040, categorically exempts “any religious or sectarian organization not organized for private profit.”  In Donelson v. Providence Health & Services-Washington, 2011 WL 4899911 (E.D. Wash. Oct. 14), plaintiff – who alleged that she was fired because of her disability – argues that this exemption violates article I, section 11 of the Washington Constitution, because it unconstitutionally discriminates in favor of religious institutions.  The district court has ordered the parties to state their positions on whether it should certify the question to the Washington Supreme Court.

Eugene

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--
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com<mailto:vrkoven at world.std.com>
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