The Supreme Court may be on the verge of correcting a constitutional injustice that has affected the lives and careers of thousands of religiously observant employees for almost half a century. It can do so in a case that the justices have obviously been taking very seriously during their recent private conferences.
The case involves an Orlando, Florida, training instructor, Darrell Patterson, who sued his former employer, Walgreen Co., for religious discrimination. Patterson is a member of the Seventh-day Adventist Church, which prohibits work on the Sabbath. Walgreen scheduled Patterson for a Saturday shift, and fired him when he refused the assignment. The case made it to the Eleventh Circuit federal appeals court, which ruled for Walgreen. The court held that forcing Walgreen to guarantee that Patterson would never have to work on Saturdays posed an undue hardship on the corporation. Patterson and his church, backed by several other religious groups, have asked the Supreme Court to hear his case, and the court will soon decide whether to do so.
The case should interest anyone concerned with religious liberties, but I have a very personal interest in its outcome. Forty-two years ago, on March 30, 1977, I stood before nine Supreme Court justices who had allotted me time to argue orally as an amicus curiae (friend of the court) in support of Larry Hardison, a clerk employed by Trans World Airlines. Like Patterson, Larry refused to report for work on Saturdays, because he had become an adherent of the Worldwide Church of God, which also forbids work on Saturdays. Rather than assigning another clerk to work on Saturdays in Larry’s place, TWA fired Larry, claiming that he did not have enough seniority under TWA’s union contract to demand that a substitute be assigned.
The Civil Rights Act of 1964 prohibited large employers from discriminating against employees and applicants for employment on the basis of their “race, color, religion, sex, or national origin.” The language of the law, however, did not specify what was required if employment discrimination was based not on an employee’s religious identity or faith, but on conduct prescribed by an employee’s religious observance. Could an employer lawfully declare that its standard work schedule applicable to all employees required attendance on Saturdays, and refuse to make any exception for Sabbath observers?
The Supreme Court was asked to decide this issue in 1971 and again in 1976. Both times one of the justices recused himself, and the court’s decision was a 4-to-4 tie. In 1972, after the first of these inconclusive rulings, a number of religious-liberty activists, myself included, thought that this issue could best be resolved if Congress clarified the Civil Rights Act with explicit language addressing this question. I personally drafted what became Section 701(j) of the part of the act that covered employment. It defined “religion” as including “all aspects of religious observance and practice, as well as belief,” and required employers “to reasonably accommodate to an employee’s, or prospective employee’s, religious observance or practice.” Under this proposed wording, an employer could justify discriminating only if he could prove “undue hardship on the conduct of the employer’s business.”
We consulted Sen. Harrison Williams of New Jersey, known to be sympathetic to our goal, on how to get the language into the law. He recommended that we give the text to Sen. Jennings Randolph of West Virginia, who was then almost 70 years old, highly respected by his colleagues, and known to be a Saturday-observant Seventh-Day Baptist.
Randolph was eager to oblige, and he offered my proposed Section 701(j) as an amendment when the draft of the new Civil Rights Act provisions came up for discussion on the floor of the Senate in January 1972. In an officially recorded speech on the Senate floor, Randolph explained that he belonged to a “relatively small” Baptist denomination of “only 5,000 individuals” that observed the Sabbath from sundown Friday to sundown Saturday “following the Biblical words, ‘From eve unto eve shall you celebrate your Sabbath.’” On the same day it was proposed, Randolph’s amendment was adopted unanimously by the Senate. Senate and House conferees agreed on it, and it became law on March 24, 1972.
When Larry Hardison sued TWA after he was fired, however, the airline claimed that its refusal to accommodate the clerk’s Sabbath observance was “reasonable” because the union contract gave TWA’s union the exclusive right to assign a substitute. The federal trial judge agreed with TWA, but the appellate court reversed that decision. It ruled that federal law required TWA to try harder to devise an accommodation for Hardison’s religious observance.
TWA took the case to the Supreme Court, and I was given 10 minutes of the time allotted for oral argument. The justices asked few questions—they were more restrained then than they are today—and listened patiently as I told them that “the union agreement cannot override the statute” and that TWA had no authority to assign to the union all control over Larry Hardison’s federal right to religious accommodation. I said that his federal right was “something that TWA doesn’t own.” Just as it “can’t assign the Brooklyn Bridge,” I argued, “[TWA] can’t assign the rights of Mr. Hardison.”
Although we won the votes of the two most liberal justices on the court—Justices William J. Brennan and Thurgood Marshall—the majority’s decision, issued on June 16, 1977, rejected Hardison’s position. Justice Byron White wrote the court’s ruling, and he was obviously concerned that the far-reaching interpretation that the court was then giving to the First Amendment’s prohibition against the “Establishment of Religion” conflicted with an interpretation of the law that could impose costs on private employers to satisfy the religious observances of their employees. White’s majority opinion declared: “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”
First Amendment law was very different in 1977 than it is today. In a 1975 case (Meek v. Pittenger) the Supreme Court had held that governmental loans of maps and other instructional materials to church-related schools violated the constitutional prohibition against establishment of religion. And in a 1977 decision (Wolman v. Walter) the court held that government funds could not constitutionally be spent for secular field trips in church-related schools. These Supreme Court majorities seemed to condemn even the most remote governmental assistance to religion.
But that attitude was short-lived. Little more than two decades later, in a 2000 decision (Mitchell v. Helms), a different Supreme Court majority called the 1975 and 1977 decisions “anomalies in our case law” and said they were “no longer good law.” The 2000 decision explicitly overruled both Meek v. Pittenger and Wolman v. Walter. The court began an era in which the exercise of religion wins greater judicial respect.
What about Justice White’s unfortunate de minimis language in Larry Hardison’s case? The Supreme Court has never had a case in which the continued viability of that limitation was challenged. The de minimis language has, over more than four decades, ruined the careers and employment prospects of thousands of religiously observant employees. There are many reported judicial decisions that fail to apply Section 701(j) as Sen. Randolph contemplated it. They permit employers to ban religious practices they dislike and to harm Sabbath observers and employees who have other unusual prescribed religious practices.
But close scrutiny of the Supreme Court’s recent actions raises hopes that these injustices will soon be corrected.
The court is traditionally secretive with its choice of cases: Parties file petitions asking the court to hear their case, and more than 98 percent of such requests are denied with no comment from any justice. But several justices have recently hinted that they’re ready to hear the Patterson case, most notably by taking meaningful preliminary steps that reveal their intentions. They requested Walgreen to respond to Patterson’s petition and have twice deferred and relisted for additional conference whether the case should be added to the court’s docket.
These are not meaningless technicalities. Patterson’s petition was supported by five friend-of-the-court briefs endorsed by a host of religious organizations. I submitted a brief for the National Jewish Commission on Law and Public Affairs (COLPA), an umbrella organization that speaks for eight Orthodox Jewish groups. Walgreen chose not to file an opposition, an increasingly popular tactical measure since the Supreme Court instituted a rule that tells parties it will not agree to hear a case without inviting a brief from the side opposing the petition. When the justices have no interest in a case, they routinely deny a petition without requesting a response.
In October 2018, the court invited Walgreens to respond to Patterson’s petition. That was the first encouraging sign that the justices are interested in the case. Walgreens hired Jenner & Block, a nationally renowned firm, and filed a vigorous 33-page opposition on Jan. 14. Patterson answered on Jan. 29. The case was assigned for consideration at the justice’s private conference of Feb. 15.
Astute observers of the Supreme Court know that denials of petitions regularly occur on a petition’s first listing at the court’s conference. If a case is “relisted”—set for further consideration at a second conference—it is viewed as a live candidate for addition to the court’s docket. Some petitions are granted after being relisted for conference five, six, or more times.
Patterson v. Walgreen Co., No. 18-349, was relisted for the court’s Feb. 22 conference, and has now been relisted for the court’s conference of March 1, 2019. In a recent opinion explaining why they rejected a publicized religious-liberty case Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh— said they are ready to “revisit” the Hardison ruling. If the Supreme Court does, in fact, agree to hear the Patterson case, there might be more than five votes to overrule Hardison. Chief Justice Roberts and the current court’s more liberal justices might choose to follow the lead of Justices Brennan and Marshall who, in 1977, would have ruled for Larry Hardison and rejected Justice White’s de minimis limitation. Resounding vindication of Darrell Patterson would correct a decades-long injustice, granting religious Americans the protection they so richly deserve.
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Nathan Lewin is a Washington lawyer with a Supreme Court practice who has taught at Harvard, Georgetown, Columbia, and University of Chicago Law Schools.