Hearing Date/Time: 4 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY. No.

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1 Hearing Date/Time: SUPERIOR COURT OF SHINGTON FOR KING COUNTY MARK R. ZMUDA, v. Plaintiff, CORPORATION OF THE CATHOLIC ARCHBISHOP OF SEATTLE d.b.a. THE ARCHDIOCESE OF SEATTLE, and EASTSIDE CATHOLIC SCHOOL, Defendants, No. DEFENDANT EASTSIDE CATHOLILC SCHOOL S MOTION TO DISMISS PURSUANT TO CR (b)() I. RELIEF REQUESTED Plaintiff s action should be dismissed because the Court does not have jurisdiction to adjudicate Plaintiff s claims without violating the First Amendment. In addition, RCW.0.0 explicitly prevents Plaintiff from bringing civil causes of action. II. FACTS The following facts are taken from the Complaint for purposes of Eastside Catholic s CR (b)() motion. Eastside Catholic, however, does not agree to or concede these facts for any purpose other than to include them as context for the instant motion. See Reid v. Pierce County, Wn.d,, P.d (). Eastside Catholic hired Plaintiff as its vice principal in May. Pl. s Compl.. When Plaintiff was hired, he signed and was bound by the Employee Handbook referenced DISMISS PURSUANT TO CR (b)()- Third Avenue, Suite 00, Seattle Tel

2 throughout the Complaint. See Pl. s Compl.,,. Plaintiff references page nine which contains a section regarding discrimination as well as a section entitled Role of Canon Law. On that page, Eastside Catholic states that Plaintiff s role requires him to serve the legitimate Roman Catholic religious value of providing a suitable Catholic education for children and that the school is subject to certain requirements of Canon law established by the Catholic Church. See Pl. s Compl.,. Plaintiff also references page six of the handbook which contains a section stating that the school leadership will [g]uide students by using the teachings of the Catholic Church and loving example of Jesus Christ. See Pl. s Compl.. When Plaintiff was hired, he was not married to his male partner. Pl. s Compl.. Plaintiff married his male partner on July,, but did not initially disclose the marriage to Eastside Catholic. Pl. s Compl. -. In November, Eastside Catholic learned that Plaintiff and his male partner had married, and Plaintiff confirmed that they possessed an official marriage certificate from the State of Washington. Pl. s Compl. -. According to Plaintiff, the Archbishop J. Peter Sartain made the decision that Plaintiff could no longer work at Eastside Catholic if he was married to his male partner. Pl. s Compl.. Plaintiff was aware that his marriage was against Catholic teachings and principles. See e.g. Pl. s Compl.. Plaintiff filed this lawsuit alleging that he was discriminated against because he married someone of the same sex, an action against Catholic teachings and principles. See gen. Pl. s Compl. The four causes of action directed at Eastside Catholic include the following: Violation of Washington s Law Against Discrimination; Breach of Implied Contract/Promissory Estoppel; Wrongful Termination in Violation of Public Policy; and Violation of the Consumer Protection Act. It is Eastside Catholic s view that Plaintiff s first cause of action, Tortious Interference with Business Expectancy is only alleged against the Archdiocese of Seattle. DISMISS PURSUANT TO CR (b)()- Third Avenue, Suite 00, Seattle Tel

3 III. ISSUE PRESENTED. Under CR (b)(), should the Court dismiss Plaintiff s five causes of action because the court cannot adjudicate the claims without violating the First Amendment?. Under CR (b)(), should the Court dismiss Plaintiff s five causes of action because RCW.0.0 explicitly prohibits Plaintiff from bringing civil causes of action? IV. EVIDENCE RELIED UPON Plaintiff s Complaint for Damages ( Complaint ). V. LEGAL AUTHORITY Eastside Catholic moves for dismissal under CR (b)() because Plaintiff s claims relate to Catholic doctrine and cannot be heard by a civil court as a matter of law and Plaintiff s claims are excluded under RCW.0.0. When a plaintiff fails to state a claim upon which relief can be granted, plaintiff s claims should be dismissed. See CR (b)(). Specifically, courts should dismiss a claim under (b)() when it appears beyond a reasonable doubt that no facts exist that would justify recovery. Cutler v. Phillips Petro. Co., Wn.d,, P.d (). Dismissal of a claim is appropriate when the complaint does not allege the necessary facts that could justify recovery. Wright v. Jeckle, Wn. App.,, P.d (00). A. Under CR (b)(), Plaintiff s claims should be dismissed because the Court cannot adjudicate the claims without violating the First Amendment. Adjudicating Plaintiff s claims would impermissibly entangle the Court in Catholic doctrine. In order to make a discrimination determination, the Court would be forced to delve into Catholic doctrine on the definition of marriage. Such action would impermissibly violate the First Amendment s Free Exercise and Establishment Clauses. When liability is not predicated on secular conduct and involves the interpretation of church doctrine or religious beliefs, constitutional principles are offended. C.J.C. v. Corp. of the Catholic Bishop of Yakima, Wn.d,, P.d ; Germain v. Pullman Baptist Church, Wn. App. DISMISS PURSUANT TO CR (b)()- Third Avenue, Suite 00, Seattle Tel

4 ,, 0 P.d 0 (); Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N.A., U.S.,, L. Ed. d, S. Ct. (). Courts are prohibited from interfering with a religious institution s First Amendment right to make its own decisions relating to matters of faith and doctrine. See Brazauskas v. Fort Wayne-South Bend Diocese, Inc., N.E.d,, 0 Ind. LEXIS 0 (0) (citing Bryce v. Episcopal Chruch, F.d, (0)). Courts have also held that they must dismiss causes of action that would require them to explore a religious institution s employment decisions. See e.g. Bollard v. California Province of the Soc y of Jesus, F.d 0 (th Cir. ); McClure v. Salvation Army, 0 F.d, (th Cir. ). Where an underlying dispute is in no way secular and is one of faith and doctrine, a court cannot review. See Jones v. Wolf, U.S., 0, S. Ct. 0, L. Ed. d () (where issue was completely secular because it related to a property dispute with no underlying dispute of faith or ecclesiastical rule); Kedroff, U.S. at (where decision on who could occupy the church was strictly a matter of ecclesiastical government). Plaintiff s claims are in no way secular because every cause of action in his Complaint relates to his marriage to his male partner. Thus, the First Amendment prohibits the Court s interference in this non-secular issue.. Plaintiff s claims fail because the Court is prohibited from interfering with disputes concerning faith and doctrine. i. The Establishment clause would be violated if the Court heard this matter. Adjudicating this matter would violate the First Amendment s Establishment clause which prohibits government entanglement with religion. The Establishment clause prohibits all laws respecting the establishment of religion. U.S. Const. amend. I. All of Plaintiff s claims fail because maintaining jurisdiction over the claims would require the Court to impermissibly entangle itself in matters of church doctrine and practice. See Gates v. Catholic Archdiocese, Wn. App. 0,, P.d (00). All of DISMISS PURSUANT TO CR (b)()- Third Avenue, Suite 00, Seattle Tel

5 Plaintiff s claims are premised on his allegation that he was discriminated against because Eastside Catholic will not employ a person if that person is married to someone of the same sex because such marriage contravenes Catholic doctrine and practice. See Pl. s Compl.. In Gates v. Catholic Archdiocese, the plaintiff assisted the pastor with music for the parish. Gates, Wn. App. At. The plaintiff alleged that he was constructively discharged by the pastor because the pastor threatened to discipline him if he failed to perform additional work asked of him. Id. at. The court held that the Superior Court did not have jurisdiction over the dispute without the court inevitably entangling itself in matters of church doctrine and practice. Id. at. It reasoned that any employment case arising from church controversy, where ecclesiastical or doctrinal issues are involved, is outside of the court s jurisdiction. Id. at - (citing Org. for Preserving the Constitution of Zion Lutheran Church v. Mason, Wn. App., -, P.d ()). According to Canon law, the pastor had authority over the plaintiff s workload and a secular court could not hear the claim without assuming the power to reorganize the essential principles of the church, an undertaking forbidden by the First Amendment. Gates, Wn. App. At. Similarly, this Court does not have jurisdiction over the dispute without requiring the Court to entangle itself into matters of church doctrine and practice in violation of the First Amendment. Like the parish in Gates, Eastside Catholic is a Catholic institution. See Pl. s Compl.. Also, like in Gates where a doctrinal issue was involved, a doctrinal issue is also involved here. In Gates, it was a pastor s power to oversee the plaintiff s workload; here, it is a Catholic institution s decision regarding employment of a person married to someone of the same sex in contravention of Catholic doctrine. See Pl. s Compl.. As previously stated, all of Plaintiff s claims arise from Plaintiff s contention that he was discriminated against because he was not able to work for Eastside Catholic if he was married to a person of the same sex. See Pl. s Compl.,. Since Eastside Catholic s employment decision, that Plaintiff s marriage contravenes Catholic doctrine, is wholly doctrinal, it would be impossible DISMISS PURSUANT TO CR (b)()- Third Avenue, Suite 00, Seattle Tel

6 for the Court to hear this case without necessarily entangling itself in Catholic doctrine, directly violating the First Amendment. ii. The Free Exercise clause would be violated if the Court heard this matter. Adjudicating this matter would also violate the First Amendment guarantee of free exercise of religion. The Constitution recognizes that government action violates the First Amendment when it interferes with a believer s ability to practice his or her faith, and when it encroaches on the ability of an organization to manage its internal affairs. See e.g. Kedroff, U.S. at (Free Exercise Clause protects power of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine ); Bollard, F.d at. This Court s interference in Eastside Catholic s decision on whether to employ a person married to someone of the same sex, a violation of Catholic doctrine, would encroach on Eastside Catholic s ability to manage its internal affairs. In Ockletree v. Franciscan Health System, Washington Supreme Court opined that the religious employer exemption in Washington s Law Against Discrimination ( WLAD ) is constitutional and accommodates the broad protections to religious freedoms afforded by Washington s article I, section. Ockletree v. Franciscan Health Sys., Wash. LEXIS,, WL. In that case, the plaintiff was an African American security guard for Franciscan Health System ( FHS ) and suffered a stroke rendering him unable to perform the essential functions of the job. Ockletree Wash. LEXIS at. As a result, FHS terminated his employment. Id. Among other claims, the plaintiff brought a WLAD claim against FHS on the basis of race and disability. Id. FHS argued that, as a nonprofit religious organization, it was exempt from WLAD because WLAD s definition of employer explicitly excluded nonprofit religious organization. Id.; RCW.0.00(). The plaintiff challenged the exemption as unconstitutional under DISMISS PURSUANT TO CR (b)()- Third Avenue, Suite 00, Seattle Tel

7 article I, section, and article II, section of the state and federal constitutions. Id. The District Court certified questions to the Washington Supreme Court asking whether the exemption was unconstitutional, and if not, was the exemption unconstitutional as applied to an employee claiming the religious nonprofit organization discriminated against him for reasons unrelated to religion. Id. at. The Court held that the religious exemption was constitutional because under article I, section (Privileges and Immunities Clause), WLAD does not involve a privilege or immunity, and under article I, section (Establishment Clause), WLAD does not involve the appropriation of money or application of property. Id. at. In its analysis of article I, section, the Court noted that the legislature reasonably excluded religious organizations, rather than attempting to reconcile Washington s growing list of protected categories with the numerous religious belief systems. Id. at. Just as including religious organizations like Eastside Catholic under WLAD may implicate Eastside Catholic s constitutional religious freedom, the same can be said about permitting Plaintiff to pursue his other claims. The very issue the legislature identified with WLAD, that is, the conflict between Washington s growing list of protected categories, and a religious organization s beliefs system, is present here. The Court would be required to examine the Catholic doctrine that only permits marriage between a man and a woman which would impermissibly require the Court to delve into doctrine and Eastside Catholic s religious teachings. Accordingly, the free exercise clause will be violated if Plaintiff is permitted to pursue his claims. If this Court hears this matter and Plaintiff prevails, it would create a difficult situation for religious organizations in the future. That is, all religious institutions would be forced to choose between adhering to Church doctrine or potentially exposing themselves to civil liability. Such outcome would be detrimental to religious institutions. It should be noted that Plaintiff asserts a WLAD claim. See Pl. s Compl. p.. Without reference to the arguments outlined in this motion, given Ockletree and the plain language of RCW.0.00, which excludes religious organizations like Defendant, his WLAD claim is without merit and is improperly before the Court. DISMISS PURSUANT TO CR (b)()- Third Avenue, Suite 00, Seattle Tel

8 . Plaintiff s claims also fail because the Court cannot adjudicate the substance of the claim where Plaintiff is considered a minister. When an employee is considered a minister, the court cannot hear the claims involving the employment relationship between a religious institution and that employee. Fontana v. Diocese, Wn. App.,, P.d (0) (quoting Hollins v. Methodist Healthcare, Inc., F.d, (th Cir. 0). Courts seek to insulate the relationship between a religious organization and its ministers from constitutionally impermissible interference by the government. Bollard, F.d at. Courts examine the circumstances of a person s employment to determine if the exception applies. Hosanna-Tabor Evangelical Lutheran Church & Sch. V. EEOC, S. Ct., 0, L. Ed. d 0, LEXIS (). For example, in Alcazar v. Archbishop of Seattle, plaintiff s duties included maintenance of the Church grounds. Alcazar v. Corp. of the Catholic Archbishop of Seattle, F.d,, U.S. App. LEXIS. In Hosanna-Tabor v. EEOC, plaintiff s duties included a role of a lay teacher who taught mostly secular courses, and in Fontana v. Diocese, plaintiff s duties did not include priest ordination. Fontana, Wn. App. at ; Hosanna-Tabor, S. Ct. at 00. In Fontana, the Catholic Diocese of Yakima hired the plaintiff as director of evangelization. Fontana, Wn. App. At. The plaintiff s job involved, for example, forming programs in Christian discipleship, Scripture, and spirituality, in order to prepare every Catholic for ministry. Id. Although not an ordained minister, the court held that the plaintiff was a minister because of the function of his position. Id. at. The court reasoned that the focus should not be on whether a person is ordained but instead what the position entails. Id. at (citing Equal Employment Opportunity Comm n v. Roman Catholic Diocese, F.d, ()). Like Fontana, Plaintiff s case is barred case as well. Just as the plaintiff in Fontana was not an ordained minister, Plaintiff is not an ordained priest, yet the exception applies. Plaintiff s role as vice principal of a Catholic institution necessarily includes duties related to DISMISS PURSUANT TO CR (b)()- Third Avenue, Suite 00, Seattle Tel

9 the Catholic teachings. For example, page of the Employee Handbook which Plaintiff referenced for the section on nondiscrimination, also includes a section on the Role of Canon Law. See Pl. s Compl.. It specifically states that Plaintiff s role requires him to serve the legitimate Roman Catholic religious value of providing a suitable Catholic education for children and that the school is subject to certain requirements of Canon law established by the Catholic Church. Accordingly, Plaintiff s claims must be dismissed as barred due to this religious exemption. B. Under CR (b)(), Plaintiff s claims should be dismissed because RCW.0.0 explicitly prohibits Plaintiff from bringing civil causes of action. Eastside Catholic notes that Plaintiff is also prohibited from bringing claims because RCW.0.0 provides it immunity. RCW.0, et seq. governs marriage in Washington. Under RCW.0.0(), religiously affiliated educational institution[s] are immune from civil claims, including claims pursuant to RCW.0. RCW.0.0(). Religious institutions cannot be required, for example, to provide privileges related to the celebration of a marriage. Id. Plaintiff s claims center on his right to marry. See e.g. Pl. s Compl.,. Under RCW.0.0, Eastside Catholic, as a religiously affiliated educational institution, is not required to acknowledge his marriage, and Plaintiff is prohibited from filing suit. For instance, the statute specifically references RCW.0, WLAD, which means that Plaintiff cannot make a WLAD claim. Given the clear language of the statute precluding civil claims against Eastside Catholic, all of Plaintiff s claims should be dismissed. DISMISS PURSUANT TO CR (b)()- Third Avenue, Suite 00, Seattle Tel

10 VI. CONCLUSION For the foregoing reasons Eastside Catholic respectfully requests this Court grant the Motion to Dismiss. DATED this day of March,. By: Michael A. Patterson, WSBA Andrew M. Weinberg, WSBA Of Attorneys for Eastside Catholic School DISMISS PURSUANT TO CR (b)()- Third Avenue, Suite 00, Seattle Tel