Reported / Citable
Background
Union Gospel Mission of Yakima is a Christian nonprofit organization that operates a homeless shelter and social services programs in Yakima, Washington. When the organization declined to hire job applicants based on religious criteria — requiring staff to share its Christian beliefs — the Washington State Attorney General and Human Rights Commission moved to enforce Washington’s Human Rights Act, which prohibits employment discrimination on the basis of religion.
The Mission defended on First Amendment grounds, arguing that the Constitution protects religious organizations’ autonomy to hire employees who share their faith. Under the “ministerial exception” — a First Amendment doctrine that shields religious institutions from anti-discrimination laws when selecting the employees who carry out their religious mission — and related religious liberty principles, the organization contended that Washington could not compel it to hire people who openly reject its religious teachings.
A three-judge Ninth Circuit panel sided with the Mission. The Washington State officials then petitioned for rehearing before all active judges of the Ninth Circuit — called en banc rehearing — arguing the panel opinion was wrong.
The Court’s Holding
On June 18, 2026, a majority of the Ninth Circuit’s nonrecused active judges voted to grant en banc rehearing. Under Federal Rule of Appellate Procedure 40(c) and Ninth Circuit rules, the grant of en banc rehearing automatically vacates the three-judge panel opinion. The case will be argued before the full court, which will issue a new decision; no substantive ruling has yet been made.
Three judges — Bumatay, VanDyke, and Tung — dissented from the en banc grant in a notable opinion. Judge Bumatay, joined by the other two, wrote that the Ninth Circuit has developed “an alarming trend” of relegating religious liberty to “a second-class right,” citing a series of recent cases in which the court sided with the government against religious organizations or individuals. Bumatay argued that forcing religious organizations to hire people who openly flout their beliefs is wrong “as a matter of constitutional first principles” and warned that the en banc rehearing signals the court will move in that direction. He noted that the U.S. Supreme Court had recently itself criticized the Ninth Circuit’s record on religious liberty in Mirabelli v. Bonta (607 U.S. 492 (2026)).
Because the panel opinion has been vacated, it no longer carries any precedential weight anywhere in the Ninth Circuit, including California.
Key Takeaways
- The Ninth Circuit will reconsider from scratch, before all active judges, whether states may apply anti-discrimination hiring requirements to religious organizations — the original panel opinion protecting the religious mission is no longer good law and cannot be cited as precedent.
- The three-judge dissent signals the court is deeply divided and the en banc decision is expected to be significant; a ruling either way will reshape the boundaries between religious employer autonomy and state anti-discrimination law throughout the Ninth Circuit.
- California religious employers — churches, religious schools, faith-based nonprofits — face potential exposure under FEHA if the en banc court holds that states may broadly enforce employment anti-discrimination requirements against religious organizations’ hiring practices.
- Until the en banc decision issues, the law in this area is unsettled: there is no binding Ninth Circuit panel opinion, and compliance counsel advising religious organizations should document the religious nature of particular positions now, while the outcome is uncertain.
- The Supreme Court’s recent criticism of the Ninth Circuit on religious liberty (cited in the dissent) may ultimately bear on how the en banc court approaches the case.
Why It Matters
For California religious organizations — including churches, religious schools, faith-based homeless shelters, and nonprofit social services providers — this case represents a significant moment of legal uncertainty. California’s Fair Employment and Housing Act (FEHA) contains exemptions for religious nonprofits and for positions whose primary duties involve religious ritual or instruction, but those exemptions have been the subject of litigation and varying interpretations. A Ninth Circuit ruling that states may impose broad anti-discrimination hiring requirements on religious organizations could set the stage for expanded FEHA enforcement against faith-based employers in California, even where those employers believe they are acting on sincerely held religious doctrine.
Legal counsel for religious organizations should monitor this case carefully and advise clients to document the religious nature and requirements of all positions — especially positions that are not clearly “ministerial” in the traditional sense. The en banc decision, when it comes, will be binding on all federal courts in California and is likely to influence California state courts interpreting analogous FEHA provisions.