Supreme Court has ‘watered down’ it’s standard for religious liberty: Jeremy Dys
First Liberty Institute senior counsel Jeremy Dys joined ‘Fox News Live’ to weigh in on the ongoing Supreme Court case on religious liberty.
The U.S. Supreme Court appeared ready on Tuesday to make it harder for employers deny a worker's religious accommodation request, a high-stakes civil rights dispute over balancing an individual's faith demands with a business' economic bottom line.
But in nearly two hours of tense oral arguments, a majority of justices also raised questions over the specific workplace discrimination claims raised by a former postal worker who was disciplined for refusing to work on Sundays, when the evangelical Christian said he observes the Sabbath.
Gerald Groff, a Christian mail carrier from Pennsylvania, is asking the court to decide if he was wrongfully fired by the U.S. Postal Service after he refused to deliver Amazon packages on Sundays, which he considers to be the Sabbath. The nine justices heard from Groff's attorney, Aaron Streett, who argued that the court should overturn a 50-year-old precedent that establishes a test to determine when employers should make accommodations for their employees' religious practices.
"It's important to just stand up for what you believe," Groff told Fox News after the oral argument session.
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Gerald Groff, a former postal worker whose case will be argued before the Supreme Court, stands during a television interview near a "Now Hiring" sign posted at the roadside at the United State Postal Service, Wednesday, March 8, 2023, in Quarryville, Pennsylvania. (AP Photo/Carolyn Kaster)
A federal law, Title VII of the Civil Rights Act of 1964, requires employers to accommodate employees’ religious practices unless doing so would be an "undue hardship" for the business. But a Supreme Court case from 1977, Trans World Airlines v. Hardison, says employers can deny religious accommodations to employees when they impose "more than a de minimis cost" on the business.
Streett argued that the court should scrap the "de minimus" test, which he suggested has been abused by lower courts to deny religious accommodations, in favor of the plain language of Title VII, which would define "undue burden" in the same way it is defined in other federal laws, such as the Americans with Disabilities Act (ADA).
"The government believes undue hardship arises whenever there is lost efficiency, weekly payment of premium wages, or denial of a coworker's shift preference," Streett said. "Thus, under the government's test, a diabetic employee could receive snack breaks under the ADA but not prayer breaks under Title VII, for that might cause lost efficiency."
U.S. Solicitor General Elizabeth Prelogar argued against the court overturning Hardison, stressing that nearly half a century of established case law — including cases that protect religious observance — would be "up for grabs" if the court created a new "undue burden" standard. Appearing to concede the de minimus language in isolation can be unclear, she argued that the government's interpretation of the standard over more than four decades is context-based to whichever particular cases are present.
Several justices questioned why the court shouldn't revisit Hardison, given that both parties to the case appeared to agree the de minimus language is confusing. Justice Neil Gorsuch sought "common ground" between the two parties and asked why the court shouldn't just clarify that a "de minimus cost" cannot be trivial and remand the case. Justice Amy Coney Barrett agreed, noting that "no one's defending the test."
Justice Samuel Alito challenged Prelogar on the government's contention that lower courts and the Equal Employment Opportunity Commission's interpretation of Hardison have respected minority religions, pointing to amicus briefs filed by Muslim, Hindu and Jewish groups that argued Hardison has violated their right to religious liberty.
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Members of the Supreme Court (L-R) Associate Justices Amy Coney Barrett, Neil M. Gorsuch, Sonia Sotomayor, and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Associate Justices Ketanji Brown Jackson, Samuel A. Alito, Jr., Elena Kagan, and Brett M. Kavanaugh pose in the Justices Conference Room prior to the formal investiture ceremony of Associate Justice Ketanji Brown Jackson Sept. 30, 2022 in Washington, D.C. (Collection of the Supreme Court of the United States via Getty Images)
"In our view they are not accurately portraying how Hardison has actually played out in the lower courts," Prelogar responded.
Justice Clarence Thomas said companies have been able to accommodate other federal workplace protection laws like the Americans With Disabilities Act, but that religious accommodations were oftentimes not being fairly and consistently applied.
It may all come down to language, and whether the Supreme Court is prepared to articulate a new legal standard for accommodating workplace requests in the name of religion.
"Do you understand 'undue hardship'?" asked Justice Brett Kavanaugh of the Justice Department's Solicitor General Elizabeth Prelogar. "I understand that term in the original statute to reflect a balance between two important values: one, religious liberty and the other the rights of American businesses to thrive, and to thrive, you have to be able to make money."
The court's liberal justices were more sympathetic to the government's position. Justices Elena Kagan and Ketanji Brown Jackson expressed hesitancy for the court to redefine how Title VII has been interpreted, observing that in the nearly 50 years since Hardison, Congress has not sought to change the law or address the court's ruling.
"Congress has had that opportunity to change it. Congress has not done so. You can count on, like a finger, how many times we have overruled a statutory ruling in that context," Kagan said.
And throwing the whole argument over Hardison into question, Justice Sonia Sotomayor suggested that the court cannot provide "absolute clarity" on these kinds of religious liberty cases" because "it's all contextual."
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Gerald Groff lives in Lancaster, Pennsylvania and is a former postal employee. The U.S. Supreme Court will decide his case by late June. (First Liberty Institute)
The specific facts of Groff's case are that he was a fill-in mail carrier who worked at the United States Post Office when other mail carriers were off.
In 2013, USPS contracted with Amazon to deliver packages and workers were required to take Sunday shifts for weekend deliveries.
Initially he was able to work out an arrangement with his supervisors to transfer to another branch that did not deliver on Sundays. When that branch also began Sunday deliveries, Groff was permitted to miss his shifts provided he could find someone to cover for him. However, Groff was frequently unable to do so and missed over two dozen assigned Sunday shifts.
Officials said Groff’s absences created a tense environment and contributed to morale problems. It also meant other carriers had to deliver more Sunday mail than they otherwise would.
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There are openings at the post office in Quarryville, Pennsylvania on March 05, 2023. A former part-time postal worker named Gerald Groff once worked here and (he's a devout Christian) sued the United States Postal Service claiming religious discrimination because he was being forced to work on Sundays. (Michael S. Williamson/The Washington Post via Getty Images)
Believing that he would be fired for missing Sunday shifts, Groff resigned from his job in 2019. He then obtained representation from the conservative First Liberty Institute, Baker Botts LLP, the Church State Council, and the Independence Law Center, and filed a federal lawsuit against the Postal Service.
Groff contends USPS could have accommodated his beliefs by scheduling shifts so that he didn't have to work on Sundays. But the 3rd Circuit Court of Appeals held in May 2022 that USPS would suffer an undue hardship if it took further action to accommodate Groff.
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Groff's attorneys hope the Supreme Court will overrule the 3rd Circuit Court's decision by overturning Hardison and the "de minimus cost" standard lower courts used to side with the post office.
"The government today has not given us any reason why religious employees should have less accommodation than all of those other individuals protected under the other statutes that share the same reasonable accommodation and undue hardship framework," Streett asserted.
The court's ruling is expected by late June.
The Associated Press contributed to this report.
