The Latest Crusade to Place Religion Over the Rest of Civil Society Linda Greenhouse
Federal civil rights law requires employers to accommodate their employees’ religious needs unless the request would impose “undue hardship on the conduct of the employer’s business.” Congress didn’t bother to define “undue hardship,” so 46 years ago the Supreme Court came up with a definition of its own.
An accommodation requiring an employer “to bear more than a de minimis cost” — meaning a small or trifling cost — need not be granted, the court said in Trans World Airlines v. Hardison. In that case, an airline maintenance worker claimed a legal right to avoid Saturday shifts so he could observe the tenets of the Worldwide Church of God, which he had recently joined. Ruling for the airline, the court noted that if one worker got Saturdays off for religion reasons, the burden would fall on other workers who might have nonreligious reasons for wanting to have the weekend off.
“We will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath,” the court said.
Treating religion as nothing particularly special, the decision reflected the spirit of the times but was deeply unpopular in religious circles. There have been many attempts over many years to persuade Congress to amend the law, Title VII of the Civil Rights Act of 1964, to shift the balance explicitly in favor of religiously observant employees. Between 1994 and 2019, more than a dozen such bills were introduced. None emerged from Congress.
And so now, a very different court from the one that ruled 46 years ago is about to do the work itself.
That isn’t an idle prediction but rather the surely foreordained outcome of the new case the justices recently added to their calendar for decision during the current term. The appeal was brought by a conservative Christian litigating group, First Liberty Institute, on behalf of a former postal worker, Gerald Groff, described as a Christian who regards Sunday as a day for “worship and rest.”
Mr. Groff claimed a legal right to avoid the Sunday shifts required during peak season at the post office where he worked. Facing discipline for failing to show up for his assigned shifts, he quit and filed a lawsuit. The lower courts ruled against him, with the Philadelphia-based U.S. Court of Appeals for the Third Circuit expressing no doubt that the disruption and loss of morale Mr. Groff’s absences caused in the small rural post office where he worked exceeded the de minimis threshold that the Supreme Court’s 1977 precedent requires an employer to demonstrate.
The decision to hear his appeal brings the Supreme Court to a juncture both predictable and remarkable. It is predictable because Justices Samuel Alito, Clarence Thomas and Neil Gorsuch have all called for a case that would provide a vehicle for overturning a precedent that is clearly in tension with the current court’s privileging of religious claims above all others, whether in the context of public health measures during the Covid-19 pandemic or anti-discrimination claims brought by employees of religious organizations.
The court in 1977 worried about the burden on nonreligious workers from accommodations granted to their religious colleagues. To today’s court, as Justice Alito has repeatedly expressed it, the real victims of discrimination are those who take religion seriously.
It takes the votes of four justices to grant a case, and it’s hardly surprising that this determined troika found a fourth, and most likely a fifth and sixth as well. Mr. Groff’s petition, filed in August, even describes Trans World Airlines v. Hardison as an “egregious error,” as if to remind Justice Alito of the words “egregiously wrong” he used to describe Roe v. Wade in his Dobbs opinion overruling that decision two months earlier.
The moment is remarkable for the bold activism the court is about to display. In the days when the justices professed respect for the doctrine of stare decisis, or adherence to precedent, the general understanding was that decisions that interpreted statutes should be harder to overturn than those that interpreted the Constitution. That may seem counterintuitive at first glance, but the reasoning went like this: Only the Supreme Court can issue a definitive constitutional interpretation, so only the court can revisit a constitutional precedent if the justices later perceive a problem with it. But Congress has the last word on the meaning of a federal law, so the court should stay its hand and let Congress repair an erroneous statutory interpretation.
That Congress has refused for decades to revisit the meaning of “undue hardship” carries no weight with the justices pressing to revisit the issue on their own. That was certainly the view expressed by Justices Gorsuch and Alito two years ago in dissent from the court’s decision not to hear an earlier case challenging the 1977 precedent. “There is no barrier to our review and no one else to blame,” the two wrote in Small v. Memphis Light, Gas & Water. “The only mistake here is of the court’s own making — and it is past time for the court to correct it.”
The plaintiff in that case, Jason Small, was a Jehovah’s Witness. In two other cases the court has turned down in the past few years, the employees seeking religious accommodations were Seventh-day Adventists. The religious-accommodation provision of Title VII — a foundational civil rights law that prohibits employment discrimination on the basis of race and sex as well as religion — has long been understood to protect adherents of just such minority faiths. A friend of the court brief filed in the new case by scholars of religion and employment law on behalf of Mr. Groff argues that the provision, properly interpreted, furthers constitutional values by making sure that followers of underrepresented faiths may worship in their own way “without putting their job at risk, to the same extent as adherents of more familiar faiths that are less often burdened by employers.”
It may be just a coincidence, but the plaintiff who finally persuaded the justices to take his case is in fact, according to the joint statement of facts agreed to by the parties, “an evangelical Christian within the Protestant tradition.”
When the court doubtless rules for him later this term, the decision will not stand for a vindication of minority rights. It will instead signify the court’s complete identification with the movement in the country’s politics to elevate religion over all other elements of civil society.
Whether today’s Supreme Court is helping to lead that movement or has been captured by it is by now beside the point. Religion is the lens through which the current majority views American society; as I have written, there is no other way to understand the overturning of Roe v. Wade. The endpoint of this project is not yet in view. Those of us not on board are left to watch, to try to understand, and to call the court out with each additional step it takes
