The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1247
BENJAMIN P. ENDRES, JR.,
Plaintiff-Appellee,
and
UNITED STATES OF AMERICA,
Intervening Plaintiff-Appellee,
v.
INDIANA STATE POLICE,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:01-CV-0518—Robert L. Miller, Jr., Chief Judge.
____________
No. 02-1377
PATRICIA HOLMES,
Plaintiff-Appellee,
and
UNITED STATES OF AMERICA,
Intervening Plaintiff-Appellee,
v.
MARION COUNTY OFFICE OF FAMILY AND CHILDREN,
Defendant-Appellant.
2 Nos. 02-1247 & 02-1377
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP 00-0677-C-M/S—Larry J. McKinney, Chief Judge.
____________
ARGUED NOVEMBER 1, 2002—DECIDED JUNE 27, 2003
____________
Before BAUER, POSNER, and EASTERBROOK, Circuit
Judges.
EASTERBROOK, Circuit Judge. Benjamin Endres lost his
job with the Indiana State Police after he refused to work
at a casino, an enterprise that contravenes his religious
beliefs. Patricia Holmes, an employee of Indiana’s child-
welfare system, took two days of paid leave rather than
comply with a directive to remove a headwrap required
by her faith. Endres and Holmes have sued under Title
VII of the Civil Rights Act of 1964, contending that
Indiana discriminated against them on account of their reli-
gion. Plaintiffs rely on a definition in §701(j) of that Act,
42 U.S.C. §2000e(j), which provides that religion “includes
all aspects of religious observance and practice, as well
as belief, unless an employer demonstrates that he is
unable to reasonably accommodate to an employee’s or
prospective employee’s religious observance or practice
without undue hardship on the conduct of the employer’s
business.”
Both defendants concede that they have a duty not
to discriminate against any religious faith but rely on
Employment Division v. Smith, 494 U.S. 872 (1990), for the
proposition that they need not accommodate religiously
inspired practices adversely affected by rules that are
neutral with respect to religion. To the extent an accom-
modation requirement extends beyond the first amend-
Nos. 02-1247 & 02-1377 3
ment, defendants insist, it rests on the Constitution’s com-
merce clause and not on §5 of the fourteenth amendment.
That does not undermine §701(j)’s validity as applied to
state employees, see Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528 (1985), but does affect
where litigation must occur—for, when Congress acts only
under the commerce power, the eleventh amendment
permits states to insist that suit be in state court. Compare
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), with Seminole
Tribe v. Florida, 517 U.S. 44 (1996). In Boerne v.
Flores, 521 U.S. 507 (1997), the Court concluded that the
Religious Freedom Restoration Act, 42 U.S.C. §2000bb to
§2000bb-4, exceeds the power granted by §5 and therefore
may not support a private action in federal court against
a state. Defendants submit that §701(j), which like the
RFRA requires accommodation rather than neutrality, also
is not §5 legislation. After the United States intervened
to defend the constitutionality of Title VII, each district
judge rejected Indiana’s argument and held that litigation
may proceed in federal court. Endres v. Indiana State
Police, No. 3:01-CV-0518 (N.D. Ind. Dec. 28, 2001) (unpub-
lished order); Holmes v. Marion County Office of Family and
Children, 184 F. Supp. 2d 828 (S.D. Ind. 2002). Defendants
took interlocutory appeals. See Lapides v. University of
Georgia, 535 U.S. 613 (2002); Puerto Rico Aqueduct & Sewer
Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993). We
consolidated the cases for briefing and argument.
I.
Endres joined the State Police in 1991. After Indiana
began to license casinos, the State Police designated
some of its officers as Gaming Commission agents. In
March 2000 Endres was assigned to a full-time position
as an agent at the Blue Chip Casino in Michigan City,
Indiana. Endres worships at the Community Baptist
4 Nos. 02-1247 & 02-1377
Church in South Bend; he and other congregants believe
they must neither gamble nor help others to do so, be-
cause games of chance are sinful. Endres told the
State Police that providing law-enforcement services at a
casino would violate his religious beliefs because it
would facilitate gambling. He asked for a different as-
signment; the State Police declined. Endres then refused
to report for duty and was fired for insubordination. The
record does not reflect why Endres was deputed as a
Gaming Commission agent, but he does not contend that
this occurred because of, rather than in spite of, his reli-
giously based opposition to gambling. See Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. 256
(1979). Nor did the State Police hold his views against
him; it responded to his deeds, not his faith, and Endres
does not contend that he was treated more severely than
he would have been had he refused the same assignment
for secular reasons. As a result, neither the posting nor the
decision not to accommodate Endres’s desire for differ-
ent duties violated the free exercise clause of the first
amendment, as Smith understands that clause.
Before taking up the question whether §701(j) is an
exercise of §5 powers, we first inquire whether §701(j)
obliges states to afford the sort of accommodation that
Endres requested. A negative answer will enable the
court to avoid a constitutional issue, which makes it
prudent to follow the model that the Supreme Court
established in Saucier v. Katz, 533 U.S. 194, 201 (2001), for
qualified-immunity appeals by state actors: determine
whether the complaint states a claim before inquiring
whether the defendants have immunity. Because the
eleventh amendment does not curtail subject-matter
jurisdiction (if it did, states could not consent to litigate
in federal court, as Lapides holds that they may), a court
is free to tackle the issues in this order, when it makes
sense to do so, without violating the rule that jurisdic-
Nos. 02-1247 & 02-1377 5
tional issues must be resolved ahead of the merits. See
Vermont Agency of Natural Resources v. United States
ex rel. Stevens, 529 U.S. 765, 778-80 (2000).
Endres contends that §701(j) gives law-enforcement
personnel a right to choose which laws they will enforce,
and whom they will protect from crime. Many officers
have religious scruples about particular activities: to give
just a few examples, Baptists oppose liquor as well as
gambling, Roman Catholics oppose abortion, Jews and
Muslims oppose the consumption of pork, and a few
faiths (such as the one at issue in Smith) include halluci-
nogenic drugs in their worship and thus oppose legal
prohibitions of those drugs. If Endres is right, all of these
faiths, and more, must be accommodated by assigning
believers to duties compatible with their principles. Does
§701(j) require the State Police to assign Unitarians to
guard the abortion clinic, Catholics to prevent thefts
from liquor stores, and Baptists to investigate claims that
supermarkets mis-weigh bacon and shellfish? Must prosti-
tutes be left exposed to slavery or murder at the hands of
pimps because protecting them from crime would en-
courage them to ply their trade and thus offend almost
every religious faith?
The Supreme Court held in Trans World Airlines, Inc. v.
Hardison, 432 U.S. 63, 84 (1977), that §701(j) does not
require an accommodation that would cause more than
minimal hardship to the employer or other employees. See
also Ansonia Board of Education v. Philbrook, 479 U.S. 60,
67-69 (1986). Juggling assignments to make each compati-
ble with the varying religious beliefs of a heterogeneous
police force would be daunting to managers and difficult
for other officers who would be called on to fill in for
the objectors. Whether or not a paramilitary organiza-
tion could accommodate task-specific conscientious objec-
tion without undue hardship, however, the demand
would not be reasonable—and §701(j) calls only for reason-
6 Nos. 02-1247 & 02-1377
able accommodations. Reasonableness and the avoid-
ance of undue hardship are distinct. Cf. Vande Zande v.
Wisconsin Department of Administration, 44 F.3d 538 (7th
Cir. 1995) (discussing the difference between “reasonable”
accommodation and “undue hardship” under the Americans
with Disabilities Act). Selective objection to some of the
employer’s goals raises problems on the “reasonableness”
branch as well as the “undue hardship” branch. See Reed v.
Great Lakes Cos., No. 02-3371 (7th Cir. May 30, 2003).
This is the third time we have had to consider how §701(j)
applies to requests by law-enforcement personnel to
choose which crimes they will investigate and which
potential victims they will protect. In Ryan v. Department
of Justice, 950 F.2d 458 (7th Cir. 1991), an FBI agent
claimed a right to be free of any assignment concerning
nonviolent opposition to military activities—such as, for
example, protesters who vandalize military installations,
see United States v. Urfer, 287 F.3d 663 (7th Cir. 2002), or
pour blood on military records, see United States v.
Berrigan, 437 F.2d 750 (4th Cir. 1971). Agent Ryan’s
views stemmed from the U.S. Bishops’ Pastoral Letter on
War and Peace; his sincerity was not in doubt. Nonethe-
less, we held, §701(j) did not protect him from discharge
for insubordination:
It is difficult for any organization to accommodate
employees who are choosy about assignments; for
a paramilitary organization the tension is even
greater. Conscientious objectors in the military seek
discharge, which accommodates their beliefs and
the military’s need for obedience. Ryan received
discharge but does not want it. He wants to be
an agent and to choose his assignments too. With
good will all around, and flexibility on the part of
Ryan’s fellow agents, it just might be possible to
make a go of it. Title VII does not, however, compel
the FBI to attempt this. Legal institutions lack the
Nos. 02-1247 & 02-1377 7
sense of nuance that will tell an experienced agent
how far the rules may be bent without injury to the
FBI’s mission. Compelled, as it is by Title VII, to
have one rule for all of the diverse religious beliefs
and practices in the United States, the FBI may
choose to be stingy with exceptions lest the de-
mand for them overwhelm it.
950 F.2d at 462. Our second case was Rodriguez v. Chicago,
156 F.3d 771 (7th Cir. 1998). Rodriguez, like Ryan a
Roman Catholic, refused to protect abortion clinics and
their clients. Again the sincerity of his views was unques-
tioned; again the officer lost, this time because an accom-
modation had been offered in the form of an opportunity
to transfer to a precinct without abortion clinics (which
avoided the need to determine whether the offer had
been required). Chief Judge Posner filed a concurring
opinion addressing the question that the majority had
ducked and concluding, in part on the authority of Ryan,
that agencies such as police and fire departments de-
signed to protect the public from danger may insist that
all of their personnel protect all members of the pub-
lic—that they leave their religious (and other) views be-
hind so that they may serve all without favor on religious
grounds. That is, after all, an obligation both state law
and the Constitution fasten on the police. If police and
fire departments must enforce the law and protect poten-
tial victims free of religious favoritism, then they may
insist that all members of their forces (volunteers rather
than conscripts) do their parts in fulfilling this duty.
“[P]ublic protectors such as police and firefighters must
be neutral in providing their services.” Shelton v. University
of Medicine & Dentistry, 223 F.3d 220, 228 (3d Cir. 2000).
Perhaps one could say that Ryan does not compel
this conclusion; agent Ryan had been offered one form of
accommodation (a swap of assignments with a fellow agent),
and officer Endres lacked any similar way out. Yet what
8 Nos. 02-1247 & 02-1377
principally led to Ryan’s discharge (as opposed to lesser
discipline) was his failure to follow a direct order, coupled
with a claim of entitlement in the future to choose
which crimes would be investigated and which potential
victims protected. Endres has made the same claim of
entitlement as Ryan did; it is, we hold, a claim that it
would be unreasonable to require any police or fire de-
partment to tolerate.
Law-enforcement agencies need the cooperation of all
members. Even if it proves possible to swap assignments
on one occasion, another may arise when personnel are
not available to cover for selective objectors, or when (as
in Hardison) seniority systems or limits on overtime cur-
tail the options for shuffling personnel. Beyond all of this
is the need to hold police officers to their promise to en-
force the law without favoritism—as judges take an oath
to enforce all laws, without regard to their (or the liti-
gants’) social, political, or religious beliefs. Firefighters
must extinguish all fires, even those in places of worship
that the firefighter regards as heretical. Just so with police.
The public knows that its protectors have a private
agenda; everyone does. But it would like to think
that they leave that agenda at home when they
are on duty—that Jewish policemen protect neo-
Nazi demonstrators, that Roman Catholic police-
men protect abortion clinics, that Black Muslim
policemen protect Christians and Jews, that fun-
damentalist Christian policemen protect noisy
atheists and white-hating Rastafarians, that Mor-
mon policemen protect Scientologists, and that
Greek-Orthodox policemen of Serbian ethnicity
protect Roman Catholic Croats. We judges certainly
want to think that U.S. Marshals protect us from
assaults and threats without regard to whether, for
example, we vote for or against the pro-life position
in abortion cases.
Nos. 02-1247 & 02-1377 9
Rodriguez, 156 F.3d at 779 (Posner, C.J., concurring). And,
we add, that Baptist policemen protect gamblers from
theft and fraud (and casino operators from sticky-fingered
gamblers and employees). Cf. Gillette v. United States,
401 U.S. 437 (1971) (selective conscientious objection
does not excuse military service).
Endres advanced a claim under 42 U.S.C. §1983 as well
as one under Title VII. The Indiana State Police, as a unit
of state government, is not a “person” as §1983 uses that
term and therefore is not amenable to a suit for damages
under that statute. See Will v. Michigan Department
of State Police, 491 U.S. 58 (1989). There is no point in
remanding to allow Endres to fix this problem by adding
other defendants. His claim under the free exercise clause
is incompatible with Smith, and only §701(j) offered any
prospect of success. The district court’s disposition of
Endres’s suit therefore is reversed outright; his complaint
fails to state a claim on which relief may be granted.
II
Holmes has a much better claim for accommodation. Her
complaint, the only thing we have to go on, alleges: “August
13, 1998, I wore a geles (headwrap) as part of my religious
practice. My supervisor, Teresa Howard, informed me if
I didn’t remove my headgear I would be written up for
insubordination for violating a dress code policy. I in-
formed Ms. Howard that due to religious reasons I could
not take my geles off. I had to take two vacation days to
avoid being disciplined.” Although the Constitution does
not compel a public employer to allow religious head-
coverings that violate neutral dress codes, see Goldman
v. Weinberger, 475 U.S. 503 (1986); Menora v. Illinois
High School Association, 683 F.2d 1030 (7th Cir. 1982),
toleration of religious diversity in this respect is a wise
policy in a pluralistic society. See United States v. James,
10 Nos. 02-1247 & 02-1377
328 F.3d 953, 957-58 (7th Cir. 2003). Accommodation
would be reasonable. Whether Indiana could establish
“undue hardship” is not at issue this early in the case. It
is enough to say that the complaint survives any chal-
lenge under Rule 12(b)(6), so we must decide whether
further litigation takes place in state rather than fed-
eral court.
A
Before doing this, however, we need to say more about
our own jurisdiction. There are two potential problems,
even taking as given the holding of Lapides and Puerto
Rico Aqueduct & Sewer Authority that a state’s invoca-
tion of the eleventh amendment normally permits an
interlocutory appeal.
The first is that the case is in federal court to stay.
Holmes alleged, after the language we have quoted: “Other
employees wore headgear or hats and were not threat-
ened as I was.” That disparate-treatment claim does not
depend on the accommodation rule in §701(j). Indiana
concedes that it may be litigated in federal court, because
Title VII is §5 legislation to the extent it enforces the
Constitution’s own rule against religious discrimination.
One may wonder what sense it makes to entertain an
interlocutory appeal about a single line of legal argu-
ment even though another legal theory requires the same
defendant to litigate in the same court no matter how the
appeal comes out. Holmes advances only one claim for
relief, supported by multiple legal theories, each of which
(if successful) would lead to the same money damages:
two days’ pay. But Behrens v. Pelletier, 516 U.S. 299, 311-12
(1996), says that an interlocutory immunity appeal may
contest a single theory of liability, even though success will
not end the case, at least if the potential relief differs—and
Holmes’s victory on an accommodation theory would lead to
Nos. 02-1247 & 02-1377 11
prospective relief different from what would follow victory
on a disparate-treatment theory. After Behrens, the fact
that a defendant is not asserting an unqualified “right not
to be tried in federal court” does not preclude an interlocu-
tory appeal based on a claim of immunity.
Second, and more complex, is the question whether the
Marion County Office of Family and Children, the defen-
dant in Holmes’s suit, is the State of Indiana. If, as its
name implies, it is a unit of county rather than state
government, then it gets no benefit from the eleventh
amendment, see Lincoln County v. Luning, 133 U.S. 529
(1890), and is amenable to suit in federal court whether or
not §701(j) “enforces” the fourteenth amendment. See
University of Alabama v. Garrett, 531 U.S. 356, 368 (2001).
Twenty-five years ago we ruled that Indiana’s county
welfare departments are not “the state” for purposes of the
eleventh amendment. See Mackey v. Stanton, 586 F.2d
1126, 1130-31 (7th Cir. 1978). In 1986 Indiana revised
the organization of its child-welfare system; county wel-
fare departments became county offices of family and
children, and their workers became state employees. Baxter
v. Vigo County School Corp., 26 F.3d 728, 732-33 (7th
Cir. 1994), holds that these changes do not affect Mackey’s
conclusion: these organizations still are units of local
rather than state government, principally because the
money to pay for child-welfare services comes from local
taxes.
Relying on J.A.W. v. Indiana, 687 N.E.2d 1202 (Ind.
1997), the state asks us to overrule Baxter. The Supreme
Court of Indiana concluded in J.A.W. that we misunder-
stood how the state’s child-welfare system is organized
after the 1986 legislation. That law, J.A.W. concluded, made
all family-welfare officials full-fledged state employees in
a chain of command that extends to the Governor. All of
these workers are paid directly from the state treasury.
12 Nos. 02-1247 & 02-1377
County offices are part of the state in such a structure
in the same way the Indianapolis office of the Department
of Health and Human Services is part of the federal
government. Some taxes to raise funds for welfare bene-
fits are collected at the local level, but J.A.W. holds that
the county acts in this respect as an agent of the state:
“county governments were largely rendered tax collec-
tors for the State” (687 N.E.2d at 1213). “When the county
departments were transformed into subordinate agencies
of the state[ ] in 1986, the county governments became—
with respect to these activities—financial agents of the
state. We so hold as a matter of state law.” Id. at 1215.
Indiana’s system brings to mind the way the United
States apportioned direct taxes among the states before
the sixteenth amendment. Sharing of authority among
units of government complicates both practical admin-
istration and legal characterization. Even if as a matter
of state law the counties act as agents of the state in rais-
ing and remitting revenues, it remains a matter of fed-
eral law whether this makes each county’s department
part of the state. See Hess v. Port Authority Trans-Hudson
Corp., 513 U.S. 30 (1994). The dispositive question is
more “who pays?” than “who raised the money?”. See
University of California v. Doe, 519 U.S. 425 (1997) (if state
pays, the fact that the money came to the state from the
federal Treasury does not matter). We need not decide
whether J.A.W. alone would cause us to overturn the
holding of Baxter, however, because Indiana changed its
law again in 2000.
Baxter relied principally on I.C. 12-19-3-2, which estab-
lished a welfare fund in each county. The fund was raised
by a tax on all taxable property in the county, plus the
issuance of bonds secured by future property taxes, see I.C.
12-19-3-12 through 12-19-3-16. These provisions were
repealed effective January 1, 2000, by I.C. 12-19-1-21.
Counties still have the ability to levy taxes to fund certain
Nos. 02-1247 & 02-1377 13
services (the fund is called the “family and children’s fund”),
but that money is used only for “child services.” I.C. 12-19-
7-3. “Child services” is a defined term, see I.C. 12-19-7-1,
that does not include any personnel or administrative
costs. These come exclusively from the state treasury. See
I.C. 12-19-1-8 and 12-19-1-9. The damages Holmes seeks
therefore would be paid by the state itself. (The events
of which she complains occurred in 1998, but Indiana
charges damages against current appropriations.) The
combination of J.A.W. and the 2000 legislation leads us to
conclude that county offices of family and children in
Indiana now must be classified as part of the state for
purposes of the eleventh amendment. This does not re-
quire the overruling of Baxter, which dealt with super-
seded legislation. It is enough to say that the statutes
now in force make county offices part of the state, as J.A.W.
held and as the formal organization chart now shows them.
B
Thus we arrive at the question whether a claim against
a state, based on the accommodation clause of §701(j),
may be litigated in federal court. The parties’ dispute
concerns venue, not substance: it is the validity of §701(a),
to the extent it authorizes private parties to sue a state
in federal court, and not the validity of §701(j), that is
at issue—for legislation based on the commerce clause
may be applied to states (as employers) via suits brought
by the federal government in federal court, or via private
suits in state courts that are already open to litigation
against the state. See Alden v. Maine, 527 U.S. 706 (1999).
Indiana’s argument is a simple one. Section 5 of the
fourteenth amendment authorizes Congress to “enforce” the
other provisions of that amendment. A requirement of
accommodation does not “enforce” the free exercise clause
(applied to the states by §1 of the fourteenth amendment),
14 Nos. 02-1247 & 02-1377
for Smith holds that a state complies with the free exer-
cise clause by maintaining neutrality toward religiously
motivated practices. Accommodation means departure
from neutrality, and Boerne accordingly holds that the
Religious Freedom Restoration Act is not based on the
power to “enforce” the fourteenth amendment. In Boerne
not a single Justice thought that a statutory demand for
accommodation could be deemed a law to “enforce” the free
exercise clause as Smith had interpreted it; the only
seriously debated question was whether to overrule Smith
(which the Court did not do). Likewise Garrett holds that
the Americans with Disabilities Act, to the extent it re-
quires accommodation rather than disregard of disabil-
ities, does not rest on the §5 enforcement power. See also
Erickson v. Northeastern Illinois University, 207 F.3d
945 (7th Cir. 2000). Indiana asks us to equate accom-
modation under §701(j) with accommodation under the
RFRA and the ADA.
Plaintiffs and the United States reply that §701(j) can
be enforcement legislation even though it departs from
the Constitution’s own rules, provided that it is “congruent
and proportional” to them—in other words, that it is a
reasonable way to prevent evasions of constitutional rules.
See Nevada Department of Human Resources v. Hibbs, 123
S. Ct. 1972 (2003), which holds that the family-leave
provisions of the Family and Medical Leave Act may be
sustained under the §5 power because they root out sex-
based stereotypes. The Court stressed in Hibbs that
Congress compiled a legislative record showing that
many states used to discriminate explicitly on account of
sex and may continue to do so (either subconsciously
or deliberately but in disguise) in the absence of preven-
tive legislation. Family leave is “congruent” to the consti-
tutional rule because designed to reduce the scope for
stereotypical thinking and “proportional” because it im-
poses a modest requirement: family leave is limited in
Nos. 02-1247 & 02-1377 15
time and is unpaid. Limits built into §701(j) satisfy the
proportionality element of this analysis: §701(j) demands
much less of a state than the RFRA did (and less than the
FMLA does, too). The RFRA demanded that the state show a
compelling interest, while under Hardison even a slight
burden is “undue hardship.” Yet the employer’s burden
under §701(j) is identical to that under the ADA, which
Garrett held to be unsupported by §5. So we must inquire
whether §701(j) is “congruent” to the free exercise clause,
even though the RFRA was not (and the ADA’s accommoda-
tion rule has been held not congruent to the equal protec-
tion clause).
The idea behind “congruence” is that Congress may
respond to a history of concealable violations by adopt-
ing precautionary rules that reduce either the chance of
evasion or the influence of lingering stereotypical beliefs.
Congress can’t change the constitutional rule of decision,
but it may add teeth so that the Constitution’s rule has
practical bite. Many violations of the equal protection
clause are concealable, for disparate impact is not action-
able, and the disparate-treatment rule requires proof
of intent to use the forbidden characteristic. See, e.g.,
Washington v. Davis, 426 U.S. 229 (1976). When stereo-
typical thinking underlies a decision, the line between
disparate treatment and disparate impact blurs, and it
may be difficult indeed to prove a claim. The Court held
in Hibbs that, when a history of real discrimination
has been documented, §5 permits Congress to address
established patterns of stereotypical thinking without
requiring proof of discriminatory intent.
Section 701(j) does not fit that model. Discrimination by
public employers against their employees’ religiously
inspired practices does not have the same history as
discrimination on account of race or sex, and states rarely
have resorted to legislation with a veneer of neutrality
designed to mask a forbidden discriminatory plan. Church
16 Nos. 02-1247 & 02-1377
of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993),
offers one of the few examples—and as it was not enough
to persuade the Court that the RFRA matches a constitu-
tional problem, it is hard to see why §701(j) would be
congruent to a constitutional problem. (Note that Lukumi
Babalu Aye itself had nothing to do with employment
by state agencies.) Hibbs stressed that, before enacting
the FMLA, Congress had compiled a record of subtle sex
discrimination reflected in employers’ leave policies. Be-
fore enacting Title VII, Congress had not compiled such
a record of subtle discrimination against religious prac-
tices. In 1964 the legislature concentrated on race dis-
crimination; religion and sex were afterthoughts. There
was no legislative record at all in the Senate, where the
bill was not referred to committee, lest it be bottled up
by opponents.
The United States concedes that before enacting Title
VII Congress did not compile any legislative record on the
question whether states were violating their constitu-
tional obligations with respect to religious practices in
public workplaces. If the history were written elsewhere
for all to see, as the history of race and sex discrimination
is, then the lack of a legislative record could not matter.
Often a “legislative record” reflects only the ability of
advocacy groups to have favorable tidbits recited by tame
witnesses during staged hearings. Members of Congress
are not professional historians; they do not conduct schol-
arly research or even make findings after the fashion of
juries. Legislative “records” are compiled but not eval-
uated, voted on, or presented to the President (or the
judiciary) for approval. Section 5 does not condition legisla-
tive power on the ability of interest groups or committee
chairmen to ladle anecdotes into hearing transcripts.
Legislative power under §5 depends on the state of the
world, not the state of the Congressional Record.
Nos. 02-1247 & 02-1377 17
Yet the Executive Branch did not file in this court a
brief that supplies the details missing from the legisla-
tive record; nor does the United States’ brief point to
any scholarly writings that illuminate the history. We
have been given no reason whatever to think that subtle,
hard-to-catch, discrimination against religious practices
is now, or ever has been, a problem in state employ-
ment. Although hostility to Catholicism was common
in many states during the nineteenth century, and some
states adopted local versions of the Blaine Amendment, see
Mitchell v. Helms, 530 U.S. 793, 828-29 (2000) (plurality
opinion), that period was behind us long before the en-
actment of Title VII. For much of the twentieth century,
public employers counteracted religious discrimination
in the private sector, hiring those who had difficulty find-
ing private jobs suited to their skills. The foundation for
a decision such as Hibbs is missing with respect to §701(j).
Logic does not furnish what history lacks. An accommoda-
tion requirement does not reinforce the constitutional
approach; to the contrary, neutrality (which is both neces-
sary to avoid disparate treatment and, under Smith,
sufficient to avoid any violation) differs substantially from
accommodation. Neutrality is blind to religion; accom-
modation requires consciousness of religion and entails
a demand that believers and non-believers receive differ-
ent treatment. One Justice believes that, for this reason,
accommodation is itself a violation of the establish-
ment clause. See Boerne, 521 U.S. at 536-37 (Stevens, J.,
concurring). Though this is a minority view, all of the
other Justices recognize that there is a difference and a
potential tension between an anti-discrimination rule
and an accommodation requirement. So in the absence
of some need to use accommodation to counteract evasions
of the anti-discrimination principle, §701(j) cannot be
called an ancillary rule that is congruent with the consti-
tutional norm that Congress is entitled to enforce. This
18 Nos. 02-1247 & 02-1377
means that §701(j) rests on the commerce clause alone,
and that §701(a) therefore may not be used to compel a
state to defend in federal court a private suit seeking
accommodation of a religious practice. Holmes has not
named any state official as a defendant in order to seek
prospective relief, contrast Bruggeman v. Blagojevich, 324
F.3d 906, 912-13 (7th Cir. 2003) (discussing the applica-
tion of Ex parte Young, 209 U.S. 123 (1908)), so all varia-
tions of the accommodation theory belong in state court.
The decision of the district court in Endres is reversed,
and that case is remanded with instructions to enter
judgment for the State Police on the merits. The decision
of the district court in Holmes is vacated, and that case
is remanded with instructions to dismiss that portion of
the complaint that deals with failure to accommodate,
while retaining that portion of the complaint that deals
with disparate treatment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-27-03