IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Enforcement of the No. 87005-0-I Investigative Subpoena of: DIVISION ONE THE COMPLEX LITIGATION DIVISION OF THE WASHINGTON PUBLISHED OPINION STATE OFFICE OF THE ATTORNEY GENERAL.
STATE OF WASHINGTON,
Appellant,
v.
CORPORATION OF THE CATHOLIC ARCHBISHOP OF SEATTLE,
Respondent.
BIRK, J. — We are asked whether the Washington Attorney General’s Office
(AGO) has statutory authority to subpoena records from a religious corporation
concerning sexual abuse. We hold that it does.
Washington’s charitable trust act (CTA), chapter 11.110 RCW, applies in
relevant part to “[a]ny person holding assets subject to limitations permitting their
use only for charitable, religious, eleemosynary, benevolent, educational, or similar
purposes.” RCW 11.110.020(2)(a)(iii). The CTA defines a person holding
charitable property as a “trustee” who is subject to certain regulatory provisions.
Id. One of the CTA’s provisions permits the AGO to “investigate transactions and No. 87005-0-I/2
relationships of trustees and other persons” for the purpose of “determining
whether the trust or other relationship is administered according to law and the
terms and purposes of the trust, or to determine compliance with this chapter in
any other respect.” RCW 11.110.100. The CTA excludes from the definition of
“trustee” any “[r]eligious corporations duly organized and operated in good faith as
religious corporations, which have received a declaration of current tax exempt
status from the government of the United States,” as well as certain affiliated
organizations. RCW 11.110.020(2)(b)(ii).
The AGO relied on its investigative authority under RCW 11.110.100 to
subpoena the Corporation of the Catholic Archbishop of Seattle, the civilly
incorporated organization of the Archdiocese of the Roman Catholic Church in
Western Washington (Archdiocese). The AGO’s subpoena sought several
categories of documents, but in summary the requests centered on “records
regarding . . . clerics . . . who have been accused or suspected of sexual abuse or
sexual misconduct occurring on or after January 1, 1940.” The Archdiocese
successfully quashed the subpoena in superior court, arguing that it is exempted
from the definition of “trustee” under RCW 11.110.020(2)(b)(ii) and is therefore not
subject to the AGO’s investigative authority under RCW 11.110.100.
We hold that under the Washington constitution’s article I, section 12
privileges and immunities clause, the exemption for religious corporations may be
applied here only more narrowly to exempt religious corporations to the extent
required to protect their rights under the federal and state constitutional religion
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clauses. This means the AGO’s subpoena is supported by statutory authorization,
and we therefore reverse and remand for further proceedings.
I
The Archdiocese is civilly incorporated as a corporation sole under
Washington’s corporations sole act, chapter 24.12 RCW.1 Under RCW 24.12.030,
property held in the official capacity of the bishop or other person presiding over a
corporation sole “shall be held in trust for the use, purpose, benefit, and behoof of
his or her religious denomination, society or church.” Since its first recognition by
the Washington Territorial Legislature in 1861, today’s Archdiocese has gone
through a series of amendments to its articles of incorporation. LAWS OF 1860, at
129. Article VI of the Archdiocese’s 1951 amended articles of incorporation states
it is “not organized for profit or gain, . . . all property held by it being in trust for the
use, purpose, benefit and behoof of the Roman Catholic Church of the
Archdiocese of Seattle . . . in the State of Washington.”
The AGO served its subpoena on the Archdiocese in July 2023. According
to the AGO’s letter accompanying its subpoena, it invoked RCW 11.110.100 to
“determine ‘whether the trust or other relationship is administered according to law
and the terms and purposes of the trust.’ ” The AGO said it “initiat[ed] this
investigation to determine how the Catholic Church in Washington has handled
1 See RCW 24.12.010 (“Any person, being the bishop . . . of any church or
religious denomination in this state, may . . . become a corporation sole . . . and, thereupon, said bishop . . . shall be held and deemed to be a body corporate, with all the rights and powers prescribed in the case of corporations aggregate”); see also BLACK’S LAW DICTIONARY 433 (12th ed. 2024) (defining “corporation sole” as “a corporation having or acting through only a single member”).
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allegations of child sexual abuse, and whether recent reforms publicized by the
Church are being implemented and whether they are effective.” The AGO said
that “similar investigations around the country have revealed that the Church has
repeatedly failed to protect children and has misled the public by hiding the truth
about the extent of sexual abuse within its ranks.”2 The AGO said its “aim in this
investigation is to share a full accounting of sexual abuse committed by Catholic
clergy and other agents; ensure that appropriate reforms have been made and are
effective in preventing abuse; and honor survivors by giving voice to their
experiences and dignifying their journey towards recovery.”
The AGO’s initial July 2023 subpoena made 23 document requests.
Besides the request noted above for records regarding clerics accused or
suspected of abuse, the subpoena sought, for instance, documents provided to
certain third parties, such as treatment providers, “law enforcement on or after
January 1, 1940,” or documents “reflecting communications with the public about
allegations of sexual abuse.” It sought “[a]ll documents relating to the restriction
of duties, reassignment, removal from the ministry,” and other “discipline” of
individuals accused of sexual misconduct. It sought “[a]ll documents and policies
relating to compensation to, or monetary or non-monetary, formal or informal
settlements with private individuals arising from allegations of sexual abuse or
2 In this court and in the trial court, both parties have relied on sources
attributed to websites reportedly documenting, on the one hand, abuse by Catholic clerics together with state investigations of the same, and, on the other hand, the Catholic Church’s responses to such abuse. We accept the parties’ respective representations of these sources, from each side without objection by the other, but we have not independently examined the unauthenticated websites never made part of the superior court record.
4 No. 87005-0-I/5
sexual misconduct by clergy members.” The AGO supplemented its subpoena in
April 2024. The supplemental subpoena added five new requests seeking
“governing documents,” “[a]ll documents . . . pertaining to any trust,” and financial
records “describing liabilities,” “describing disbursements,” or any other
“accounting records.”
The Archdiocese produced some documents but otherwise objected to the
subpoena, and the AGO petitioned to enforce the subpoena in superior court. The
AGO’s petition described its investigation as addressing “allegations that the
Catholic Church has facilitated and attempted to cover up decades of pervasive
sexual abuse of children by Church leaders in Washington State” by “misus[ing]
its religious and charitable trust funds.” The petition emphasized the example of a
priest who joined the church in 1958 and perpetrated decades of abuse. According
to the AGO’s petition, the Archdiocese knew of this priest’s abuse but “repeatedly
transferr[ed] him to new parishes,” allowed him to “remain[] an incardinated priest,”
and provided him a “monthly stipend.” The Archdiocese responded that the
priest’s “reprehensible crimes against children, and any neglect on the part of the
Archdiocese, his former employer, has received a full airing without the AGO’s
involvement and with the standard use of civil process.”
The court ruled the CTA’s exemption of religious corporations from the
definition of trustee was enforceable as a categorical exemption and denied
enforcement of the subpoena. The AGO appeals.3
3 This court received amicus curiae briefs from three parties: Heal Our Church, Suzanne Healy, and six First Amendment scholars from various law schools. To the extent amici present new arguments not presented by the parties,
5 No. 87005-0-I/6
II
The interpretation of a statute is a question of law that we review de novo.
Dep’t of Lab. & Indus. v. Cannabis Green, LLC, 4 Wn.3d 829, 840, 569 P.3d 303
(2025). Our goal is to determine the legislature’s intent. Id. We determine
legislative intent from the “plain language enacted by the legislature, considering
the text of the provision in question, the context of the statute in which the provision
is found, related provisions, amendments to the provision, and the statutory
scheme as a whole.” Ass’n of Wash. Spirits & Wine Distribs. v. Liquor Control Bd.,
182 Wn.2d 342, 350, 340 P.3d 849 (2015) (citing Dep’t of Ecology v. Campbell &
Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)). Likewise, we review the
constitutionality of a statute de novo. Vet Voice Found. v. Hobbs, 4 Wn.3d 383,
398, 564 P.3d 978 (2025). Statutes are presumed constitutional, and in most
cases the challenger bears the burden of establishing otherwise. Id.
A
The AGO first argues that the religious corporations exemption by its terms
does not bar its investigation into sexual abuse. The exemption covers “[r]eligious
corporations duly organized and operated in good faith as religious organizations.”
RCW 11.110.020(2)(b)(ii). The AGO reasons that because the exemption requires
the religious corporations be “operated in good faith,” id., a religious corporation
cannot come within the exemption to the extent it is involved “in secular, bad-faith
misconduct like sexual abuse.” From this, the AGO concludes “the use of
we exercise our discretion to decline to consider them. See Keodalah v. Allstate Ins. Co., 194 Wn.2d 339, 346 n.4, 449 P.3d 1040 (2019).
6 No. 87005-0-I/7
charitable trust funds to conceal and facilitate sexual abuse” is “bad-faith
misconduct” outside the exemption.
However, the text of RCW 11.110.020(2)(b)(ii) defeats an activity-by-activity
analysis of the exemption. The whole phrase ends in language focusing the
analysis on the organization as a whole—covering “[r]eligious corporations duly
organized and operated in good faith as religious organizations.” RCW
11.110.020(2)(b)(ii) (emphasis added). To ask whether a corporation is operated
in good faith “as” a particular kind of organization focuses the inquiry on whether
the organization is truly of that kind, here a religious one, rather than on whether
individual acts, through individual agents, are individually done in good faith.4
Other aspects of the CTA besides the AGO’s investigative authority suggest
the desirability of an organizational-level determination of the exemption,
specifically the requirement that certain trustees register with the secretary of
state.5 RCW 11.110.051. The AGO convincingly argues that acts of involvement
in sexual abuse can never be done in good faith. But in asking whether a religious
corporation is “operated in good faith as [a] religious organization[],” the statute
4 Since the phrase “operated in good faith” is immediately followed by “as
religious organizations,” it is clear that these two phrases at minimum go together. RCW 11.110.020(2)(b)(ii). It is likely that the earlier phrase, “duly organized” also refers to “duly organized . . . as religious organizations,” though with the “duly organized” prong not challenged, we need not address it. Id. 5 The CTA’s religious corporations exemption also requires that the religious
corporation “have received a declaration of current tax exempt status from the government of the United States.” RCW 11.110.020(2)(b)(ii). The Archdiocese provided a letter from the Internal Revenue Service confirming it is “exempt from federal income tax under section [26 U.S.C. §] 501(c)(3) of the Internal Revenue Code.” The AGO has not challenged the Archdiocese’s assertion that it meets this element of the exemption.
7 No. 87005-0-I/8
asks about good faith in the corporation’s being a religious one, a different
question. RCW 11.110.020(2)(b)(ii). When this question is asked of the
Archdiocese, the longstanding establishment in Western Washington of one of the
world’s most ancient and most cultivated religions, it clearly qualifies.
B
The AGO argues that the applicability of the exemption is nevertheless
limited by the privileges and immunities clause of article I, section 12 of the
Washington constitution. The AGO argues that under article I, section 12, the
CTA’s statutory carveout for religious organizations grants a privilege, in this case
implicating a fundamental right, that is not justified by reasonable grounds. The
AGO argues, “[T]here are no reasonable grounds to distinguish between religious
and secular institutions for purposes of authorizing an investigation into using
charitable funds to facilitate sexual abuse.” To the extent of our discussion below,
we agree with the AGO.
Washington’s privileges and immunities clause states, “No law shall be
passed granting to any citizen, class of citizens, or corporation other than
municipal, privileges or immunities which upon the same terms shall not equally
belong to all citizens, or corporations.” CONST. art. I, § 12. Although article I,
section 12 operates similarly to the federal equal protection clause, U.S. CONST.
amend. XIV, § 1, in Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 145
Wn.2d 702, 726, 42 P.3d 394 (2002) (Grant County I), vacated in part on reh’g,
150 Wn.2d 791, 83 P.3d 419 (2004) (Grant County II), the court explained it serves
8 No. 87005-0-I/9
a further purpose: “whereas the federal constitution is concerned with majoritarian
threats of invidious discrimination, the state constitution protects against laws
serving private interests to the detriment of the majority.”6 Thus, independent state
constitutional analysis is appropriate in cases involving favoritism. Grant County
II, 150 Wn.2d at 808-09 & n.12. This state constitutional principle protects against
laws serving the interest of special classes of citizens to the detriment of the
interests of all citizens. Madison v. State, 161 Wn.2d 85, 97, 163 P.3d 757 (2007).
Article I, section 12 was intended to prevent favoritism and special treatment for a
few to the disadvantage of others. Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc.,
196 Wn.2d 506, 518, 475 P.3d 164 (2020).
Antifavoritism analysis under article I, section 12 subjects legislation to a
two-part test. Schroeder v. Weighall, 179 Wn.2d 566, 572-73, 316 P.3d 482
(2014). First, the court asks whether a challenged law grants a “privilege” or
“immunity” for purposes of our state constitution. Id. at 573. If the answer is yes,
6 Among the Washington Supreme Court’s first applications of article I,
section 12, the court said, “The object of the constitution was to prohibit special legislation, and substitute in its place a general law, which bore on all alike.” City of Tacoma v. Krech, 15 Wash. 296, 297, 46 P. 255 (1896), overruled by State v. Nichols, 28 Wash. 628, 69 P. 372 (1902). Krech’s focus on “special legislation” anticipated the Supreme Court’s jurisprudence on article I, section 12 today. In the same era, the court also applied the provision to legislative classifications, analogously to the equal protection clause of the Fourteenth Amendment. E.g. McDaniels v. J.J. Connelly Shoe Co., 30 Wash. 549, 555, 71 P. 37 (1902). During the twentieth century, challenges to legislative classification became the mainstay of article I, section 12 litigation. As early as 1941, the court said that analysis under article I, section 12 is “substantially identical” to that under the federal Equal Protection Clause. Texas Co. v. Cohn, 8 Wn.2d 360, 374, 112 P.2d 522 (1941). By the end of the century, the near equivalence of the two provisions had been stated many times. Seeley v. State, 132 Wn.2d 776, 788, 940 P.2d 604 (1997).
9 No. 87005-0-I/10
then the court asks whether there is a “reasonable ground” for granting that
privilege or immunity. Id.
Under the first step, article I, section 12 antifavoritism analysis is triggered
only by statutory benefits implicating fundamental rights of state citizenship. Id.
(quoting State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902)). Citing a treatise,
Vance said that the terms privileges and immunities,
as they are used in the constitution of the United States, secure in each state to the citizens of all states the right to remove to and carry on business therein; the right, by usual modes, to acquire and hold property, and to protect and defendant the same in the law; the rights to the usual remedies to collect debts, and to enforce other personal right[s]; and the right to be exempt, in property or persons, from taxes or burdens which the property or persons of citizens of some other state are exempt from.
29 Wash. at 458 (citing THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL
LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE
AMERICAN UNION 597 & n.3 (Alexis Angell ed., 6th ed. 1890)).
The treatise that Vance cited relied on Corfield v. Coryell, which said that
the privileges and immunities intended to be guaranteed under article IV, section
2 of the federal constitution may
be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an
10 No. 87005-0-I/11
exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.
6 F. Cas. 546, 551-52 (C.C.E.D. Pa. 1823).7 The Washington Supreme Court has
cited Vance and Corfield in defining fundamental rights. Martinez-Cuevas, 196
Wn.2d at 521-22. The court has declined to adopt an exclusive enumeration of
fundamental rights. Id. at 522. In contrast, however, generally rights left to the
discretion of the legislature have not been considered fundamental. Id. at 519.
Under the second step of article I, section 12 antifavoritism analysis, the
reasonable ground test is more exacting than rational basis review. Schroeder,
179 Wn.2d at 574. Under the reasonable ground test, a court will not hypothesize
facts to justify a legislative distinction. Id. Rather, the court will scrutinize the
legislative distinction to determine whether it in fact serves the legislature’s stated
goal. Id. Article I, section 12’s analysis does not allow speculation. Martinez-
Cuevas, 196 Wn.2d at 523. Under article I, section 12, a provision must be justified
7 Corfield was written by United States Supreme Court Justice Bushrod
Washington, nephew of President George Washington, while riding circuit. ERIC FONER, THE SECOND FOUNDING, HOW THE CIVIL WAR AND RECONSTRUCTION REMADE THE CONSTITUTION 73-74 (2019). This was the “prewar effort” to interpret the original Constitution’s mention of privileges and immunities that was “most widely cited during Reconstruction”—the time when it became important to understand the privileges and immunities clause of the Fourteenth Amendment. Id. at 73. Corfield thus gained currency during the era leading up to the time when the Washington constitution was formed. Martinez-Cuevas describes the widely- criticized subsequent interpretation of the privileges and immunities clause of the Fourteenth Amendment by the United States Supreme Court. Martinez-Cuevas, 196 Wn.2d at 515-19.
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in fact and theory. Id. In assessing the existence of reasonable grounds, courts
may rely on statutory language to ascertain legislative goals when construing
statutory and constitutional provisions. Woods v. Seattle’s Union Gospel Mission,
197 Wn.2d 231, 244, 481 P.3d 1060 (2021) (citing Dep’t of Ecology, 146 Wn.2d at
11). Meaning is discerned from the language itself, the context and related
provisions in relation to the subject of the legislation, the nature of the act, the
general object to be accomplished, and the consequences that would result from
construing a statute in a particular way. Id. at 244-45 (citing Burns v. City of
Seattle, 161 Wn.2d 129, 146, 164 P.3d 475 (2007)).
The AGO argues that this case is controlled by the analysis in Woods. In
Woods, the court examined an as applied challenge under article I, section 12 to
another statutory exemption for religious organizations, and relied on the First
Amendment to set “the appropriate parameters of the provision’s application.” Id.
at 241, 246. Woods brought an employment discrimination action against Seattle’s
Union Gospel Mission. Id. at 236. The Mission was “a nonprofit, evangelical
Christian organization providing services to Seattle’s unsheltered homeless
population.” Id. at 237. The Mission declined to hire Woods because he was in a
same-sex relationship. Id. The Washington Law Against Discrimination (WLAD),
chapter 49.60 RCW, guarantees “[t]he right to be free from discrimination because
of . . . sexual orientation,” which includes “[t]he right to obtain and hold employment
without discrimination.” RCW 49.60.030(1)(a). In Woods, the Mission argued that
it was exempt from the WLAD because, in defining “employer,” the WLAD exempts
12 No. 87005-0-I/13
“any religious or sectarian organization not organized for private profit.” 197 Wn.2d
at 236-37; RCW 49.60.040(11). Woods argued that as applied specifically to his
case, the WLAD’s granting an exemption to religious employers violated article I,
section 12. Id. at 241.
As applied to Woods, the religious employer exemption from the WLAD
burdened two fundamental rights—the right to an individual’s sexual orientation
and the right to marry. Id. at 242 (citing Lawrence v. Texas, 539 U.S. 558, 577-
78, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003); Obergefell v. Hodges, 576 U.S.
644, 663-65, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015)). But, turning to reasonable
grounds, the court held that reasonable grounds existed to distinguish religious
and secular nonprofits to secure the “avoidance of state interference with religion.”
Id. at 246 (citing Ockletree v. Franciscan Health Sys., 179 Wn.2d 769, 806, 317
P.3d 1009 (2014) (Wiggins, J., concurring in part in dissent) (“[I]t was reasonable
for the legislature to exempt religious nonprofit organizations from the definition of
‘employer’ in order to promote two goals: avoiding excessive entanglement with
religious doctrines and practices and facilitating the free exercise of religion
guaranteed by our Washington Constitution.”)). However, while this conclusion
preserved the WLAD religious employer exemption against a facial challenge, the
court next turned to the possibility that the exemption “may still be unconstitutional
as-applied to Woods.” Id.
Having concluded that reasonable grounds existed justifying the legislature
in treating religious organizations differently “in order to avoid state interference
with religious freedoms,” id. at 245-46 (citing Ockletree, 179 Wn.2d at 784 (plurality
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opinion)), the court turned to the First Amendment to set “the appropriate
parameters of the provision’s application.” Id. at 246. Woods concluded that
article I, section 12 “is not offended” if the WLAD exemption for religious
organizations is applied concerning claims subject to the First Amendment
“ministerial exception.”8 197 Wn.2d at 250.
Woods held that that the ministerial exception provided “a fair and useful
approach for determining whether application of RCW 49.60.040(11)
unconstitutionally infringes on Woods’ fundamental right to his sexual orientation
and right to marry.” 197 Wn.2d at 251. With Woods’s fundamental rights burdened
by the religious employer exemption, the Supreme Court allowed the exemption to
apply coextensively with the reasonable grounds the court identified, avoiding state
interference with religious freedoms. This meant in turn that the exemption applied
coextensively with, and its availability would be determined by, the scope of the
Mission’s implicated religious freedoms, in that case the ministerial exception.
8 Under the ministerial exception, “to preserve a church’s independent authority” on matters of faith and doctrine, courts must abstain from adjudicating “employment disputes involving those holding certain important positions with churches and other religious institutions.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 746-47, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020); see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp’t Opportunity Comm’n, 565 U.S. 171, 188, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012) (“Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”).
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Applying the above principles to the present case, the parties dispute
whether the CTA’s religious corporations exemption implicates a fundamental right
under article I, section 12. We hold that there is, as a fundamental right of
Washington state citizenship, a right to be free from unwanted interference with
one’s own body, which includes the right to be free from sexual abuse.
Cited with approval by the Washington Supreme Court, Corfield lists the
following among fundamental rights: protection by the government and the
enjoyment of life and liberty, and the right to pursue and obtain happiness and
safety. 6 F. Cas. at 551-52. Legal protection against assault is one of the oldest,
and one of the most basic, continually recognized aims of the law, with the common
law recognizing the right to be free from bodily invasion and from nonconsensual
invasions of one’s bodily integrity. In re Welfare of Colyer, 99 Wn.2d 114, 121-22,
660 P.2d 738 (1983). A fundamental interest in autonomous decision-making is
recognized involving “issues related to marriage, procreation, family relationships,
child rearing and education.” O’Hartigan v. Dep’t of Pers., 118 Wn.2d 111, 117,
821 P.2d 44 (1991). Washington courts recognize “a child’s fundamental right to
health and safety” in the context of parental termination proceedings.9 In re
9 Other principles of Washington law reinforce a fundamental right to be free
from unwanted interference with one’s person. Article I, section 7 of Washington’s constitution states that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The “primary purpose” of article I, section 7 “is to protect the individual right to privacy.” State v. Mayfield, 192 Wn.2d 871, 882, 434 P.3d 58 (2019). Article 1, section 7 guarantees, for instance, a right to refuse medical treatment. Colyer, 99 Wn.2d at 120. In furtherance of the
15 No. 87005-0-I/16
Dependency of M.H.P., 184 Wn.2d 741, 758 n.7, 364 P.3d 94 (2015). Washington
law uniformly supports a right to be free from unwanted interference with one’s
own body, including the right to be free from sexual abuse, as a fundamental right
of state citizenship. This right is among the rights protected as privileges and
immunities under article I, section 12.
The Archdiocese does not directly dispute that a right to be free from sexual
abuse exists, but argues that exempting it from the AGO’s subpoena power under
the CTA does not burden the identified right in the same way that challenged
exemptions did in other cases. In Woods, exempting the Mission from the WLAD
would have permitted it to discriminate against Woods, undermining his
fundamental rights to his sexual orientation and to marry. In Martinez-Ceuvas, the
Washington Minimum Wage Act, ch. 49.46 RCW, was a statutory implementation
of the fundamental right of Washington workers to health and safety in the
workplace. 196 Wn.2d at 520-21. Although the Minimum Wage Act protected
farmworkers to an extent, id. at 521, the exemption for agricultural workers from
overtime pay requirements directly deprived them of guaranteed health and safety.
Id. at 520 (“Overtime work is particularly injurious, resulting in increased injuries,
illness, and mortality.”). And in Schroeder, the elimination of tolling for minors’
constitutional guarantee of privacy, the legislature and the Supreme Court have recognized a fundamental right of privacy with respect to personal reproductive decisions. RCW 9.02.100; Pacheco v. United States, 200 Wn.2d 171, 180, 515 P.3d 510 (2022). Under the state constitution’s due process clause, article I, section 3, this court has recognized a protected person’s rights as including a “liberty interest in their personal security and bodily integrity.” Wash. Fed’n of State Emps., Council, 28 v. State, 22 Wn. App. 2d 392, 405, 511 P.3d 119 (2022), aff’d in part, rev’d in part, 2 Wn.3d 1, 534 P.3d 320 (2023).
16 No. 87005-0-I/17
claims for medical negligence directly impaired the minor’s fundamental right to
pursue common law causes of action in court. 179 Wn.2d at 573-74. The
Archdiocese says this case does not involve a similar direct impact on the
fundamental right to be free from unwanted bodily interference, because
exempting it from the AGO’s statutory subpoena power does not directly condone
the invasion of any person’s bodily autonomy.
If we were faced with a facial challenge to the religious corporations
exemption, we would likely agree with the Archdiocese. But the Supreme Court
expressly allows as applied challenges under article I, section 12. Woods, 197
Wn.2d at 246; Grant County II, 150 Wn.2d at 812 (“For a violation of article I,
section 12 to occur, the law, or its application, must confer a privilege to a class of
citizens.”). The AGO makes an as applied challenge to the operation of the
exemption, and expressly does not make a facial challenge. Although the scope
of the AGO’s subpoena is broad—and we address its scope below—its focus is on
sexual abuse that burdened survivors’ fundamental right to be free from unwanted
interference with their bodies. As the Archdiocese recognizes, one purpose of the
CTA was to facilitate enforcement of the purposes of charitable trusts because,
before such laws, trustees had no duty to furnish trust information to the AGO.
William H. Wicker, Charitable Trusts, 11 Gonz. L. Rev. 1, 12 (1975). In this as
applied challenge, we focus on the particular facts involving a long history, publicly
acknowledged, of abuse that was criminal, tortious, or both, together with a
statutory provision exempting religious corporations, but not secular trusts, from
disclosing evidence to a public agency vested with oversight authority. To the
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extent the AGO’s subpoena seeks evidence relevant to the existence of conduct
that was criminal, tortious, or both, the exemption from disclosure burdens the
rights of the survivors of such conduct.
When Woods turned to the second step of article I, section 12 antifavoritism
analysis, it held that federal and state constitutional religious protections and their
requirement of avoidance of state interference with religion justified the legislature
in treating religious and secular nonprofits differently. 197 Wn.2d at 245-46.
“Among other things,” the religion clauses of the First Amendment “protect the right
of churches and other religious institutions to decide matters ‘of faith and doctrine’
without government intrusion.” Our Lady of Guadalupe Sch. v. Morrissey-Berru,
591 U.S. 732, 746, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020) (internal quotation
marks omitted) (quoting Hosanna-Tabor Evangelical Lutheran Church & Sch. v.
Equal Emp’t Opportunity Comm’n, 565 U.S. 171, 186, 132 S. Ct. 694, 181 L. Ed.
2d 650 (2012)). Closely linked, the First Amendment religion clauses guarantee
the independence of religious institutions in matters of church government. Id.
“This does not mean that religious institutions enjoy a general immunity from
secular laws, but it does protect their autonomy with respect to internal
management decisions that are essential to the institution’s central mission.” Id.
This autonomy includes, under the ministerial exception, “the selection of the
18 No. 87005-0-I/19
individuals who play certain key roles.” Id. And article I, section 11 of the
Washington constitution states,
Absolute freedom of conscience in all matters of religious sentiment, belief, and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.
The Washington Supreme Court has held that this language is “stronger” than that
of the First Amendment, and, compared to the federal constitution, has a broader
scope, protecting “both belief and conduct,” as evidenced in the terms “worship,”
“acts,” and “practices.” First Covenant Church of Seattle v. City of Seattle, 120
Wn.2d 203, 224, 840 P.2d 174 (1992). A civil court’s involvement in religious
matters can constitute excessive entanglement between church and state and
have the effect of inhibiting religion, in violation of the First Amendment. Erdman
v. Chapel Hill Presbyterian Church, 175 Wn.2d 659, 670, 286 P.3d 357 (2012).
The Archdiocese offers direct evidence that the religious corporations
exemption was included because its proponents had these concerns in mind. In
a February 3, 1966 memorandum, an AGO officer wrote in regard to then-
proposed charitable trust legislation that “[t]he exemption of bona fide religious
organizations was felt desirable because there are serious questions as to the
issues of separation of church and state which could be involved if it were handled
otherwise.” There is a difference between a nonreligious charitable trust and a
religious corporation having constitutionally guaranteed protections from
governmental interference with faith and doctrine, church government, selection of
19 No. 87005-0-I/20
key personnel, and religious belief and conduct. Again, if the AGO were making a
facial challenge, we would probably conclude that reasonable grounds existed to
treat a religious corporation differently. But with the AGO making only an as
applied challenge, Woods teaches that the existence of reasonable grounds to
treat a religious corporation differently does not answer the question whether
reasonable grounds exist to support a “constitutional application” of the exemption
in this case.
We are satisfied that if the AGO, with the court’s authorization, achieved the
maximal exercise of its powers under the CTA as if there were not any exemption
for religious corporations, it would unconstitutionally encroach upon the
Archdiocese’s protected freedoms. The CTA authorizes the AGO to investigate
transactions and relationships of trustees and other persons, among other
purposes, “for the purpose of determining whether the trust . . . is administered
according to . . . the terms and purposes of the trust.” RCW 11.110.100. The
operative trust document in this case specifies those purposes as being “for the
use, purpose, benefit and behoof of the Roman Catholic Church of the
As the Archdiocese correctly observes, a civil authority in the United States
cannot sit in judgment of whether the Archdiocese has conformed to its faith and
doctrine. To the extent, by its subpoena or otherwise, the AGO were to purport to
second-guess whether a given action by the Archdiocese was truly “for the use,
purpose, benefit and behoof” of the church, the AGO and its use of the subpoena
would violate the federal and state constitutional religious protections. See
20 No. 87005-0-I/21
Hosanna-Tabor, 565 U.S. at 187 (“[B]y inquiring into whether the Church had
followed its own procedures,” a court “had ‘unconstitutionally undertaken the
resolution of quintessentially religious controversies whose resolution the First
Amendment commits exclusively to the highest ecclesiastical tribunals’ of the
Church.”) (quoting Serbian E. Orthodox Diocese for U.S. of Am. and Canada v.
Milivojevich, 426 U.S. 696, 720, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976)). The
United States Supreme Court has acknowledged the possibility that when a
governmental inquiry “will necessarily involve inquiry into the good faith of the
position asserted by the clergy-administrators” and a religious organization’s
“relationship” to its “religious mission,” “the very process of inquiry” may “impinge
on rights guaranteed by the Religion Clauses.” Nat’l Lab. Rels. Bd. v. Catholic
Bishop of Chicago, 440 U.S. 490, 502, 99 S. Ct. 1313, 59 L. Ed. 2d 533 (1979).
At the same time, the subpoena to this point does not implicate a civil
authority second-guessing the Archdiocese’s decision-making or good faith, but
requires only the production of documents. Besides compliance with the terms of
a trust, the CTA also empowers the AGO to investigate transactions and
relationships of trustees and other persons “for the purpose of determining whether
the trust . . . is administered according to law.” RCW 11.110.100. The
Archdiocese has not pointed to any authority that constitutional religious
protections are offended by inquiry into whether criminal or tortious conduct has
occurred, including sexual abuse by clergy.
If “prohibiting the exercise of religion . . . is not the object of the [law] but
merely the incidental effect of a generally applicable and otherwise valid provision,
21 No. 87005-0-I/22
the First Amendment has not been offended.” Emp’t Div., Dep’t of Hum. Res. v.
Smith, 494 U.S. 872, 877-78, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). Likewise,
constitutional religious protections do “not provide churches with absolute
immunity to engage in tortious conduct” “[s]o long as liability is predicated on
secular conduct and does not involve the interpretation of church doctrine or
religious beliefs.” C.J.C. v. Corp. of Catholic Bishop, 138 Wn.2d 699, 728, 985
P.2d 262 (1999) (“[T]he constitutional guarantee of religious freedom cannot be
construed to protect secular beliefs and behavior, even when they comprise part
of an otherwise religious relationship between a minister and a member of his or
her congregation.”) (citing Sanders v. Casa View Baptist Church, 134 F.3d 331,
336 (5th Cir. 1998)); see also N.K. v. Corp. of Presiding Bishop of Church of Jesus
Christ of Latter-Day Saints, 175 Wn. App. 517, 543-44, 307 P.3d 730 (2013) (“To
the extent the church may be arguing that nonprivileged information in the
disciplinary files is shielded by the First Amendment, we disagree.”).
Citing Surinach v. Pesquera De Busquets, 604 F.2d 73, 75-76 (1st Cir.
1979), the Archdiocese argues that “where document production is related to an
investigation pursuant to a statutory scheme that would infringe church autonomy,
the First Amendment is violated.” In Surinach, Puerto Rico law authorized its
Department of Consumer Affairs to restrain inflationary trends and establish price
controls. Id. at 73-74. Investigating the costs of private schools, including Roman
Catholic parochial schools, the Department ordered the parochial schools to
produce records detailing the schools’ budgets, revenues, and operating costs. Id.
at 74. Recognizing the schools’ Canon Law mandate to pursue academic
22 No. 87005-0-I/23
excellence, the court concluded “the eventual use to which the school’s cost
information could be put could interfere seriously with these religious duties and
objectives.” Id. at 77. In the regulatory process, it was likely “some determination
of which costs are ‘necessary’ and ‘reasonable’ in the running of a private school
would have to be made.” Id. Thus, the court saw the likelihood of civil authorities
furthering a secular objective at the expense of a religious one, a chilling effect
resulting from public disclosure of the schools’ decision-making process and
donors, and entanglement in the schools’ fiscal management. Id. at 78. Thus, the
demands burdened the schools’ free exercise of religion and posed a threat of
entanglement between the affairs of church and state, placing the burden on the
government to show some compelling state interest justified that burden. Id. at 79.
The present case is distinguished, however, by a clear history, the existence
of which is not disputed even while its details may be, of acts by Archdiocese
personnel that were either criminal, tortious, or both. Although the AGO’s
investigatory power under RCW 11.110.100 may be a precursor to enforcement
action under RCW 11.110.120 or other statutory authority, under the CTA,
discovery of unlawful acts is an authorized end in and of itself. The authority to
take enforcement action where a charitable trust has engaged in an act violating
criminal or civil law logically includes the authority to discover that such an act has
occurred, regardless of whether enforcement is pursued. Unlike the Puerto Rico
law at issue in Surinach, the discovery of evidence of an act that was criminal,
tortious, or both, is “an end in itself” under the CTA. Id. at 75.
23 No. 87005-0-I/24
A conclusion that a state may constitutionally investigate the existence and
scope of sexual abuse by clergy is reinforced by the parties’ acknowledgement
that a number of states have done so. The AGO points to civil investigations
completed by other states with a comprehensive scope, such as one by Maryland
and another by Illinois, with which the church cooperated, revealing “quadruple the
number of credibly accused abusers than the Church had voluntarily disclosed
prior to the investigation.” We recognize that the Archdiocese argues that the
investigation itself violates the First Amendment, but it cites no authority that other
states’ investigations into the existence and scope of sexual abuse by clergy
violated constitutional religious protections from governmental interference with
faith and doctrine, church government, selection of key personnel, or religious
belief and conduct. Rather, to distinguish those investigations, the Archdiocese
argues that Washington law imposes a more circumscribed role to our AGO. The
AGO’s state law authority is a question of state law, controlled by the CTA as it
must be construed under Article I, section 12. To the extent statutory authorization
supports the AGO’s subpoena, the Archdiocese has provided no authority why the
First Amendment would not permit Washington’s investigation to reach as far as
Maryland’s or Illinois’s.
We perceive in the AGO’s subpoena a scope that, if pursued, would clearly
unconstitutionally infringe the Archdiocese’s religious protections, to the extent the
AGO seeks to determine whether any given act or expenditure by the Archdiocese
was “for the use, purpose, benefit and behoof” of the church. But we also perceive
a scope that clearly does not infringe the Archdiocese’s religious protections, to
24 No. 87005-0-I/25
the extent the AGO seeks evidence relevant to determining that an act occurred
that is criminal, tortious, or both, including sexual abuse by clergy. As in Woods,
the Archdiocese’s protections under the federal and state constitutional religion
clauses provide the appropriate approach for determining whether application of
the religious corporations exemption infringes on the fundamental rights of
survivors of criminal and tortious acts, including sexual abuse by clergy, and this
is the limit to which the CTA’s religious corporations exemption is supported by
reasonable grounds. We hold that RCW 11.110.020(2)(b)(ii) exempts religious
corporations from the AGO’s investigative authority under RCW 11.110.100 to the
extent the AGO’s exercise of that authority would intrude upon rights protected by
the federal and state constitutional religion clauses.10 However, to the extent the
AGO’s exercise of its authority would not intrude upon these protected rights, the
exemption cannot be applied and the AGO’s subpoena was authorized by RCW
11.110.100. As a result, we must reverse.
III
Because the superior court held that RCW 11.110.020(2)(b)(ii) categorically
exempted the Archdiocese from the AGO’s subpoena, it never reached the AGO’s
individual document requests. On remand, the superior court must address the
scope of the AGO’s subpoena that is allowable without infringing the Archdiocese’s
10 Neither party asserts that any other requirements under the CTA, such
as requiring trustees to register with the secretary of state under RCW 11.110.051, implicate a fundamental right. Accordingly, in the absence of the necessary analysis under article I, section 12, our opinion does not run to any provision of the CTA other than RCW 11.110.020(2)(b)(ii) as applied in this case, and we do not subject religious corporations to the requirements of the CTA generally.
25 No. 87005-0-I/26
rights under the federal and state constitutional religion clauses. The subpoena
cannot be enforced to the extent the AGO purports to determine whether any given
act or expenditure by the Archdiocese was “for the use, purpose, benefit and
behoof” of the church. But the subpoena may and should be enforced to the extent
the AGO seeks evidence relevant to determining the existence of an act that was
criminal, tortious, or both, including sexual abuse by clergy. While we define these
two zones in which the subpoena is and is not enforceable, we do not determine
the precise boundaries to which the subpoena may extend in between them. On
remand, the superior court must determine the dividing line in the first instance,
with the aid of the parties’ briefing and argument.
We reverse and remand for proceedings consistent with this opinion.
WE CONCUR: