NRPLUS MEMBER ARTICLE I n one of its last decisions of the term, the Supreme Court upheld the right of an Evangelical Christian mailman for the U.S. Postal Service not to work on Sundays. Is this another example of “religiously conservative” Republican-appointed justices flexing their muscles?
No. To the bemusement of zealots on both sides of the culture wars, the decision was unanimous. If this is an example of the so-called “pro-religion” bias of a conservative Court, how come the liberal justices, including the newest associate justice, President Biden appointee Ketanji Brown Jackson, also supported it?
Because it’s the law. The case, Groff v. DeJoy, brought back to life a provision in Title VII of the Civil Rights Act, which federally prohibits discrimination in the workplace, that employers must accommodate the religious practices of employees unless doing so would entail an “undue hardship” on the operation of business.
When Gerald Groff first took a job as a mailman for the U.S. Postal Service, he was not required to work on Sundays. Things changed in 2012 when the USPS signed a contract with Amazon to deliver packages on Sundays. While Groff’s postmaster initially made good on the obligation to accommodate, Groff’s co-workers began to grumble that Groff was given “special treatment.”
Rather than explain the obligations of Title VII, the postmaster buckled and scheduled Groff for Sunday work. When Groff failed to show up on Sundays, he was disciplined and eventually quit. Following his resignation, Groff went to court. The lower courts decided that the postal service was not obliged to accommodate Groff’s need for Sundays off.
Justice Samuel Alito, writing for the unanimous Court, explained that lower courts have embraced a mistaken reading of the Court’s 1977 opinion in TWA v. Hardison. This misguided interpretation counseled denial of a request for accommodation of religious practice if doing so would involve more than a “de minimis” expense.
“A bevy of diverse religious organizations has told this Court that the de minimis test has blessed the denial of even minor accommodation in many cases, making it harder for members of minority faiths to enter the job market,” Alito noted.
Alito’s opinion is a perfect model of that bogeyman of fanatics of Left and Right: textualism. “’Undue hardship’ in Title VII means what it says,” he wrote, “and courts should resolve whether a hardship would be substantial in the context of an employer’s business in the commonsense manner that it would use in applying any such test.”
And while the Court did not base this on the history leading up to Title VII’s inclusion of a religious accommodation, Alito noted that “no factor discussed by the parties – the ordinary meaning of ‘undue hardship’, the EEOC guidelines that Hardison concluded that the 1972 amendment ‘ratified,’ the use of that term by the EEOC prior to those amendments, and the common use of that term in other statutes – supports reducing Hardison to its ‘more than a de minimis cost’ line.”
So what about Hardison? Alito explained that the “erroneous de minimis interpretation of Hardison may have had the effect of leading courts to pay insufficient attention to what the actual text of Title VII means with regard to several recurring issues. Since we are now brushing away that mistaken view of Hardison’s holding, clarification of some of those issues – in line with the parties’ agreement in this case – is in order.”
In addition to clarifying Hardison, the Court went one step further to guide lower courts and employees by addressing the reaction of co-workers. “A hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice, cannot be considered ‘undue.’ Bias or hostility to a religious practice or accommodation cannot supply a defense.”
The last significant Supreme Court case interpreting Title VII was Bostock v. Clayton County. Justice Neil Gorsuch, writing then for the Court’s 6–3 majority, infamously expanded Title VII’s prohibition on workplace discrimination “because of sex” to include discrimination based on sexual orientation and gender identity. Justice Alito’s dissent was scathing. “There is only one word for what the Court has done today: legislation.” Alito denounced it as “like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation . . . that courts should ‘update’ old statutes so that they better reflect the current values of society.”
This time, Alito spoke for every Supreme Court justice.
Today was a bad day for those progressives on the left and “post-liberals” on the right who want to turn the Court into an instrument for their strange, divisive ideologies in a sinister quest for regime change. Its job is to interpret the law for all Americans, and that is what it has just done. In other words: Textualism works.