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The Biden administration's Justice Department has submitted a brief to the Supreme Court that should be the subject of a false-labeling charge.
An evangelical Christian postman lost his job because he would not deliver mail on Sunday. A federal appellate court ruled against his employment-discrimination claim because accommodating his religious conviction would require the U.S. Postal Service to incur more than "de minimis" hardship. The Supreme Court held in a 1977 split decision (Trans World Airways v. Hardison) that an employer escapes liability for religious discrimination if an accommodation would impose more than such a minimal burden on the employer. The Supreme Court agreed to hear the postman's Civil Rights Act claim, 33 friends of the Court have submitted briefs supporting him, and the case will be argued on April 18.
The Trump administration, for its part, had urged the Supreme Court to revisit the 1977 rule that had resulted in frequent denial of federal employment rights to Sabbath-observers. The Biden administration's Justice Department said in a brief filed on March 23 that it had "reexamined the issue." Explicitly reversing the Trump administration's legal position, the Biden DOJ urged the Court to retain the Hardison formulation because, the brief said in a misrepresentation repeated multiple times, that formulation is a "statutory precedent."
The Supreme Court must frequently decide how broadly to apply a right created by Congress. Patent law, for example, grants exclusive rights to a patent-holder for 20 years. The Supreme Court held in 1964 that the right to make or use a patented article becomes unrestricted and passes to the public at the end of the 20-year monopoly period. The decision was criticized by academics and patent lawyers who claimed, after the Court's decision, that a patentee's contract rights should extend beyond the statutory exclusive-rights period. Congress did not, however, tell the Court it was wrong by amending the patent law to give rights to a patentee after 20 years. In 2015, the Court was asked to overrule the 1964 decision. Justice Elena Kagan wrote an opinion for a Court majority rejecting the request for overruling because Congress had not in the interim corrected the Court's interpretation. Kagan said that the arguments for extending the patentee's exclusivity rights were "balls tossed into Congress's court, for acceptance or not as that branch elects." When the Supreme Court interprets Congress's law, the decision has a "superpowered form of stare decisis."
The Biden DOJ's brief in the postman's present case argues that deciding whether the Court majority's "de minimis" formulation was right is comparable to the dispute over whether the exclusive right to a patented item survives past the 20-year statutory period. Both, argues the Biden solicitor general, are arguments that seek to overrule a "statutory precedent."
The Court should see through this flim-flam. Where Congress has created a right—as in the patent area—the scope of that right, if it is tested in court, may depend on a judicial determination of Congress's intent. When it enacted the patent law, did Congress want a patentee's exclusive rights to terminate after 20 years? If the Court's guess of what Congress intended is wrong, Congress should correct it with a legislative clarification. But if the Court's initial conclusion regarding the application of a law turns not on what Congress intended but on some other consideration—such as a belief that the Constitution itself requires a particular result—the decision cannot be said to be a "statutory precedent." It would be, in this case, a precedent based on a particular understanding of the Constitution.
That accurately describes the "de minimis" standard that the Court implemented in Hardison. The Hardison majority opinion did not suggest that the Court believed that when Congress enacted an amendment to the Civil Rights Act requiring an employer to accommodate religious observance, Congress consciously rejected accommodations that required more than a "de minimis" burden. (Indeed, at the time of the Hardison case, the Equal Employment Opportunity Commission affirmatively required employers to accommodate religious observers even when they could demonstrate a more-than-minimal hardship, and Congress had not rejected the EEOC's application with legislation.)
The transcript of the Hardison oral argument presented to the Court (I was a lawyer who argued in the Hardison case in favor of greater accommodation) clearly demonstrates that the justices who joined the majority opinion believed that, regardless of what Congress might have actually intended, the First Amendment's clause prohibiting an establishment of religion required rejection of any seriously burdensome accommodation for religious observers. Hence, the decision was decidedly not a "statutory precedent" that the Court could have expected Congress to correct if it disagreed. The Hardison outcome was, according to the Court majority, constitutionally compelled because allowing Sabbath observers to avoid work on their chosen day of rest was constitutionally dubious under the then-prevailing view that the First Amendment prohibited any and all government assistance to religion.
The premise of many hostile questions asked by justices during the Hardison oral argument—that allowing a Sabbath-observers to avoid work on his/her religion's Sabbath would unconstitutionally encourage membership in a church—is no longer valid today. Over the past two decades, the Court has explicitly overruled many of its decisions from that era that categorically forbade all aid to religion.
Equally pernicious in the Biden DOJ's brief is the veneer of reasonableness that the brief promises if the Hardison standard is retained. The brief suggests that even with the "de minimis" standard intact, the courts and the EEOC, which is the federal agency responsible for enforcing the law, have frequently ruled in favor of religiously observant employees. Consequently, argues the Biden solicitor general's brief, the Court should not jettison Hardison.
This approach throws under the bus Sabbath-observers who encounter hostile employers or whose case comes before unsympathetic judges. Are their lives and careers to be sacrificed just to preserve a long-repudiated, mistaken, and gratuitous observation made by a Supreme Court majority 46 years ago? It is time to finally discard the misguided and devastating "de minimis" standard of the Hardison opinion.
Nathan Lewin is a Washington, D.C. attorney with a Supreme Court practice who argued orally in the Supreme Court in the Hardison case and has taught at leading U.S. law schools.
The views expressed in this article are the writer's own.
