Nathan Lewin

Justice Gorsuch: Do not abandon the Sabbath-observers

The usually polarized US Supreme Court had a brief moment of peaceful consensus during oral argument of a case brought by an evangelical Christian postal service employee who lost his job because he refused to deliver mail on Sundays. He claimed that a 1972 amendment to the Civil Rights Act required his employer to accommodate his religious observance. Assigning other employees to fill in for him on Sundays was, he said, not an “undue hardship” on the postal service’s operations.

A 1977 Supreme Court decision (Trans World Airways v. Hardison — a case in which I personally participated in the Court’s oral argument because I had drafted the statutory language) had gratuitously opined that no greater hardship than a “de minimis” accommodation was required by law. Religious-liberty organizations have been urging the Supreme Court for many years to repudiate the “de minimis” language. They say it has been invoked repeatedly by lower courts to justify denying religious rights to conscientious employees when employers would be only mildly inconvenienced by an accommodation.

The Court finally accepted a case presenting that question. It heard almost two hours of oral presentations from Aaron Streett, the lawyer who represented the postman, and from the Biden Administration’s Solicitor General, Elizabeth Prelogar, who defended the postal service’s decision to refuse accommodation.

Noel Francisco, the Trump Administration’s Solicitor General, had supported earlier requests that the Court “revisit” the Hardison “de minimis” limitation and “overrule” it. Ms. Prelogar acknowledged that lower courts had “sometimes been led astray” by the opinion’s language, but she argued that the precedent should be retained with a clarification from the Supreme Court that it agreed with decisions of the Equal Employment Opportunity Commission (“EEOC”) that had required accommodations in some cases notwithstanding the “de minimis” rule.

During her presentation Justice Neil Gorsuch, a staunch and heretofore reliable supporter of free religious exercise, made a startling proposal that Prelogar promptly endorsed. He suggested that rather than explicitly overruling the “de minimis” standard, the Court need only clarify that it is “not the law,” and “then remand the matter back and be done with it.” He amplified this proposal with the suggestion that the Court declare that ”we all agree” that it is “wrong” to refuse an accommodation for “trifling” reasons. “[W]hy can’t we just say that and be done with it and be silent as to the rest of it?”

Justice Elena Kagan followed with an observation that generated laughter from the audience. She was “happy that we are all kumbaya-ing together.” That indicates there is a real danger that instead of addressing and jettisoning the two words that have done enormous damage to current and prospective employees for the past 46 years, the Supreme Court may choose to adopt the compromise suggested by Gorsuch and leave the Hardison standard, with a judicial footnote interpreting the damaging words narrowly.

Justice Gorsuch’s proposal is attractively simple and avoids another public squabble among judges who are pictured in the media as engaged in never-ending ideological warfare. It will obviously appeal to Chief Justice Roberts, who is constantly hunting for the narrowest grounds to resolve a case.

It will, however, be a disaster for all who (like me) have actually dealt with down-to-earth religious accommodation requests made by employees who face the conscientious dilemma of preserving their livelihoods when employment rules require them to violate religious commands.

Most employers are annoyed by a request for individual treatment that disrupts the ordinary work schedule. They turn to their lawyers, who can satisfy their clients by finding legal justification for denying special treatment. If the lawyers may continue to invoke a “de minimis” standard, that legal opinion will be cited in response to a request for reasonable religious accommodation.

This is where the accommodation request usually expires. Rarely are employees ready to precipitate a public legal battle by initiating a complaint or filing a lawsuit. They fear that any such aggressive step will brand them as troublemakers and jeopardize future employment possibilities.

Neither the employer nor its counsel has any reason to study or abide by the small-type caution that may be appended to the “de minimis” rule even if the Court declares that “we all agree” with its qualifying language. Justice Gorsuch’s proposed “compromise” will resolve the employees’ problem in only the few cases of persistent and uncompromising employees who are ready to assume some risk to defend their beliefs.

When the Supreme Court faced resistance to its historic 1954 desegregation decision, Justice Felix Frankfurter’s fertile legal acumen proposed that its second ruling in Brown v. Board of Education, announced in May 1955, direct that school desegregation be implemented with “all deliberate speed.” That language – Frankfurter’s gentler compromise substitute for “at the earliest practicable date” – became, as Professor Brad Snyder noted in his recent biography of Frankfurter, “a touchstone for southern delay and opposition to school desegregation.” It allowed local school boards to delay, obstruct, and slow the process of racial integration in public schools.

Retaining “de minimis” as a valid, even if judicially limited, legal standard will have comparable impact. It will enable employers and their lawyers to engage in both deliberate and otherwise unjustifiable religious discrimination whenever a current or potential employee is unlikely to sue.

Briefs filed in the Supreme Court by the postal employee (who was supported by more than 40 amici curiae) proposed that the Justices substitute for “de minimis” the standard that is applied under federal law for other employment accommodations. An employer is legally required to accept much more substantial economic hardship, for example, to satisfy the needs of disabled employees. Only if a majority of the Justices reject the Gorsuch compromise, explicitly jettison the “de minimis” standard, and announce that a different test must now be employed when a religious accommodation is requested will the Civil Rights Act effectively prohibit religious discrimination in employment.

About the Author
Nathan Lewin is a Washington, D.C., attorney who specializes in religious freedom cases before the US Supreme Court.