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Divided high court debates rights of religious employees

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WASHINGTON (BP) – The U.S. Supreme Court’s oral arguments Tuesday (April 18) in a religious freedom case offered no clear indication whether it intends to revisit a previous decision and strengthen the right of workers to practice their beliefs without penalty.

In arguments approaching two hours, the justices considered a U.S. Postal Service (USPS) employee’s contention that his belief in observing Sunday as the Sabbath was not properly accommodated. The high court is contemplating whether to revise its interpretation in its 1977 Trans World Airlines v. Hardison decision regarding the standard for accommodating workers’ religious exercise.

The Supreme Court is expected to issue an opinion in the case, Groff v. DeJoy, before it adjourns for the term this summer.

The Southern Baptist Ethics & Religious Liberty Commission (ERLC) had joined in a friend-of-the-court brief that urged the justices to change a 1977 ruling they said has resulted in discrimination against employees who seek to practice their faith. It continued to call for that decision’s revamping after the arguments.

“Religious liberty protects not only our freedom to believe but also our freedom to live out those beliefs in the public square, including the workplace,” said Hannah Daniel, the ERLC’s policy manager. “As Justice [Samuel] Alito noted in today’s oral arguments, religious communities are unified in recognizing that the current minimal burden standard under Hardison does not provide adequate protections for religious employees who require accommodations to perform their work without violating their deeply held religious beliefs.

“As our brief argued, ‘A right that exists only when it bothers no one else, is no right at all,’” she told Baptist Press in written comments. “The court should overturn Hardison and restore the rights of religious employees that have been hampered for too long.”

After losing in federal court and the Third Circuit Court of Appeals in Philadelphia, Gerald Groff appealed to the Supreme Court. A divided Third Circuit panel had affirmed the lower court’s opinion that the USPS did not violate Title VII of the Civil Rights Act of 1964 by refusing to accommodate his religious belief that he should not work on Sunday.

Groff’s request of the USPS to accommodate his faith constituted an “undue hardship,” the meaning of which is at the heart of the case. In its 1977 Hardison opinion, the Supreme Court ruled an employer suffers an “undue hardship” under Title VII regarding religious accommodation when the price to do so is more than “de minimis,” which means minimal or trivial.

The “de minimis” standard “makes a mockery of the English language, and no party truly defends it today,” said Houston lawyer Aaron Streett, who argued on behalf of Groff. “[T]he court can and should construe ‘undue hardship’ according to its plain text to mean ‘significant difficulty or expense.’”

The Americans With Disabilities Act and some states apply the “significant-difficulty-or-expense” test for religious accommodations, Streett told the justices. “[E]mployers know how to apply the ‘significant-difficulty-[or]-expense’ standard, and it will not be a problem for them to apply that to religious employees, including as to morale issues.”

Arguing on behalf of the Department of Justice, Solicitor General Elizabeth Prelogar told the court a “substantial body of case law” that has followed Hardison “provides meaningful protection to religious observants.”

The employer has the burden “to demonstrate undue hardship with concrete evidence,” and “lower courts frequently deny ‘undue hardship’ defenses,” she said. “And here Hardison has properly been applied [by the Equal Employment Opportunity Commission and courts] in the four-plus decades since in light of its facts.”

Different justices expressed skepticism regarding the arguments from both lawyers. One even sought to find “common ground” between both sides.

Associate Justice Samuel Alito told Prelogar he was “really struck” by her contention Hardison has been properly interpreted to respect the rights of adherents of minority religions. The high court has received friend-of-the-court briefs “by many representatives of many minority religions, Muslims, Hindus, Orthodox Jews, Seventh-day Adventists, and they all say that that is just not true, and that Hardison has violated their right to religious liberty,” Alito said.

Three associate justices – Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – pointed out to Streett that Congress has had more than four decades to change Title VII but has refused to do so.

“[I]sn’t this a policy question at bottom for Congress?” Jackson said. She expressed concern “a person could fail to get in Congress what they want with respect to changing the statutory standard and then just come to the court and say, ‘You give it to us.’”

He agrees it “is a policy question for Congress, but Congress answered that question in 1972 when it enacted the words ‘undue hardship,’” Street said. The justices can interpret the text “in a way according with plain meaning,” he said.

Chief Justice John Roberts told Prelogar “it’s not clear” Hardison and other cases “would come out the same way” now since the high court has issued a series of opinions in recent years that say “there really is no Establishment Clause problem if you make accommodations for people’s religious belief.”

Prelogar said her concern is if the high court announced “a new standard, I think it would come with all the costs of destabilizing this area of the law and unsettling whether the court means to overrule” Hardison or “call into question all of the established areas of law that have developed that we think have drawn the right lines here.”

Associate Justice Neil Gorsuch, meanwhile, proposed the sides reach common ground.  He suggested the Supreme Court could say the “de minimis” language is “not the law” and remand the case to the lower court for a decision in light of that guidance.  Associate Justice Amy Coney Barrett seemed sympathetic to that solution.

Groff is an evangelical Christian who believes Sunday is the Sabbath and should be observed by rest and worship. He was able to practice his sabbatarian belief without a problem when he began working as a postal employee in Lancaster County, Pa., in 2012.

After the Postal Service began making Amazon deliveries on Sunday, he sought an accommodation for his religious belief. Though his request was initially granted, he eventually was scheduled to work on Sunday and ultimately was disciplined for failing to work when he was scheduled on that day of the week. He resigned in 2019 and filed suit against the USPS, specifically Postmaster General Louis DeJoy, for religious discrimination.