Endres, Benjamin v. Indiana State Police

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.

____________

ARGUED NOVEMBER 1, 2002—DECIDED JUNE 27, 2003

ON PETITION FOR REHEARING—DECIDED NOVEMBER 19, 2003

____________

This appeal originally was consolidated with No. 02-1377,

Holmes v. Marion County Office of Family and Children,

and the two appeals were decided in a single opinion, which

is reported at 334 F.3d 618 (7th Cir. 2003). In response to

the petition for rehearing and rehearing en banc, the court

has decided to de-consolidate the appeals and to issue a

separate opinion in each. The panel’s opinion resolving this

appeal follows.

2 No. 02-1247

All members of the panel have voted to deny the petition

for rehearing. A judge in active service called for a vote on

the petition for rehearing en banc. A majority did not favor

rehearing, so the petition is denied. Judges Ripple, Rovner,

and Williams voted to grant rehearing en banc. Judge

Ripple has written a dissenting opinion (joined by Judges

Rovner and Williams) that immediately follows the panel’s

new opinion.

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. He sued under Title VII of the Civil Rights Act of

1964, contending that Indiana discriminated against him on

account of religion. Endres relies 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.”

Indiana concedes that the State Police must not discrimi-

nate against any religious faith but relies on Employment

Division v. Smith, 494 U.S. 872 (1990), for the proposition

that it need not accommodate religiously inspired practices

adversely affected by rules that are neutral with respect to

religion. To the extent an accommodation requirement ex-

tends beyond the first amendment, Indiana insists, it rests

on the Constitution’s commerce 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

No. 02-1247 3

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 con-

cluded 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. Indiana submits that §701(j), which

like the RFRA requires accommodation rather than neutral-

ity, also is not §5 legislation. After the United States

intervened to defend the constitutionality of Title VII, the

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)

(unpublished order). The state took an interlocutory appeal.

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).

Endres joined the State Police in 1991. After Indiana be-

gan 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. Gaming

Commission agents certify gambling revenue, investigate

complaints from the public about the gaming system, and

conduct licensing investigations for the casinos and their

employees. Endres worships at the Community Baptist

Church in South Bend; he and other congregants believe

they must neither gamble nor help others to do so, because

games of chance are sinful. Endres told the State Police

that, although he was willing to enforce general vice laws

at casinos, providing the specialized services required of

4 No. 02-1247

Gaming Commission agents would violate his religious

beliefs because it would facilitate gambling. He asked for a

different assignment; the State Police declined. Endres then

refused to report for duty and was fired for insubordination.

An assignment to this position because of (rather than in

spite of, or with indifference to) his religious beliefs would

violate the Constitution, see Personnel Administrator of

Massachusetts v. Feeney, 442 U.S. 256 (1979), but Endres

does not contend that his religion played any role in the

selection. According to the complaint, he was selected by lot.

Nor did the State Police hold his views against him after he

refused the assignment; 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 position for secular reasons. As a result, neither the

posting nor the decision not to accommodate Endres’s desire

for different 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 ex-

ercise 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 jurisdictional 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).

No. 02-1247 5

Endres contends that §701(j) gives law-enforcement per-

sonnel a right to choose which laws they will enforce, and

whom they will protect from crime. Many officers have re-

ligious scruples about particular activities: to give just a few

examples, Baptists oppose liquor as well as gambling,

Roman Catholics oppose abortion, Jews and Muslims op-

pose the consumption of pork, and a few faiths (such as the

one at issue in Smith) include hallucinogenic 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 in-

vestigate claims that supermarkets mis-weigh bacon and

shellfish? Must prostitutes be left exposed to slavery or

murder at the hands of pimps because protecting them from

crime would encourage 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 re-

quire an accommodation that would cause more than mini-

mal 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 compatible

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 organization could accommo-

date task-specific conscientious objection without undue

hardship, however, the demand would not be reasonable—

and §701(j) calls only for reasonable accommodations.

Reasonableness and the avoidance of undue hardship are

distinct. Cf. Vande Zande v. Wisconsin Department of

Administration, 44 F.3d 538 (7th Cir. 1995) (discussing the

6 No. 02-1247

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., 330

F.3d 931 (7th Cir. 2003). This is especially pertinent when

the assignment is unpopular: the State Police had to draft

Endres because there were not enough volunteers. Excusing

officers from the risk of unpopular assignments would

create substantial costs for fellow officers who must step in,

as well as the police force as an entity.

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 opposi-

tion 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. Nonetheless, 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

No. 02-1247 7

of it. Title VII does not, however, compel the FBI to

attempt this. Legal institutions lack the 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 demand 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 unquestioned;

again the officer lost, this time because an accommodation

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 designed to protect the public

from danger may insist that all of their personnel protect

all members of the public—that they leave their religious

(and other) views behind 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 potential 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 ac-

8 No. 02-1247

commodation (a swap of assignments with a fellow agent),

and officer Endres lacked any similar way out. Yet what

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 a claim of entitlement similar

to Ryan’s—broader to the extent that Endres claims a right

to reject an entire job classification, while Ryan claimed

only the right to reject particular investigations— and

Endres’s employer has not offered a similar accommodation.

Certainly nothing in Ryan or Rodriguez implies that there

must be such an offer: those cases deemed proffered accom-

modations adequate and did not reach the question whether

any had been necessary. Here, where no accommodation

was attempted, we must decide whether the statute

requires one, and we hold that it does not. Endres has made

a demand that it would be unreasonable to require any

police or fire department 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 curtail

the options for shuffling personnel. Beyond all of this is the

need to hold police officers to their promise to enforce the

law without favoritism—as judges take an oath to enforce

all laws, without regard to their (or the litigants’) 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

No. 02-1247 9

demonstrators, that Roman Catholic policemen

protect abortion clinics, that Black Muslim police-

men protect Christians and Jews, that fundamen-

talist Christian policemen protect noisy atheists

and white-hating Rastafarians, that Mormon

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.

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 with falsified credentials). 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 re-

manding 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.

The decision of the district court is reversed, and the case

is remanded with instructions to enter judgment for the

State Police on the merits.

10 No. 02-1247

RIPPLE, Circuit Judge, with whom ROVNER and WILLIAMS,

Circuit Judges, join, dissenting from the denial of rehearing

en banc. Today, the court declines to rehear en banc a case

that departs significantly from this court’s fundamental

approach to statutory interpretation. In doing so, it sets our

court apart from the other circuits with respect to a funda-

mental aspect of Title VII law and deprives those who serve

us in important public safety positions from a protection

that they enjoy in every other circuit in the United States.

For the reasons set forth in the following paragraphs, I

respectfully dissent from the denial of rehearing en banc.

Benjamin Endres was an officer for the Indiana State

Police. After Indiana began to license casinos, the State

Police designated some of its officers as Gaming Commis-

sion Agents. In March 2000, Mr. Endres was designated

as a Gaming Commission Agent and was assigned full time

to the Blue Chip Casino in Michigan City, Indiana. Mr.

Endres is a Baptist; he believes that gambling is a sin and

that he must neither gamble nor help others to do so. As

admitted by the court, although Mr. Endres did not object

to enforcing general vice laws on casino property, Mr.

Endres informed his supervisors that providing full-time

services at the casino would violate his religious beliefs; he,

therefore, requested a different assignment. The State

Police refused. When Mr. Endres failed to report for duty,

he was fired for insubordination. Mr. Endres subsequently

filed suit under Title VII and claimed that the State of

Indiana failed to accommodate reasonably his religious

beliefs.

In addressing his claim, the panel first noted, correctly,

that Ҥ701(j) does not require an accommodation that would

cause more than minimal hardship to the employer or other

employees.” Endres v. Indiana State Police, No. 02-1247,

slip op. at 5 (7th Cir. Nov. 19, 2003) (citing Trans World

Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)).

No. 02-1247 11

However, it then continued:

Juggling assignments to make each compatible 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 paramili-

tary organization could accommodate task-specific

conscientious objection without undue hardship,

however, the demand would not be reasonable—and

§701(j) calls only for reasonable accommodations.

Id. Comparing Mr. Endres’ request to that of the plaintiff in

Ryan v. Department of Justice, 950 F.2d 458 (7th Cir. 1991),

the panel held that such a request is per se unreasonable in

the context of a police or fire department. See id. at 5-6.

The panel’s disposition of Mr. Endres’ accommodation

claim contains several crucial errors. First, the panel

recharacterizes the scope of the accommodation that Mr.

Endres sought. Mr. Endres simply asked that he not be

assigned on a permanent, full-time basis to a gambling es-

tablishment; he did not seek to avoid all law enforcement

activity with respect to a casino. Consequently, his request

did not either require the ongoing “[j]uggling [of] assign-

ments” or involve an officer choosing which law he would

enforce—elements of Mr. Endres’ claim that the panel found

so troubling.

The panel’s resolution also fails to adhere to the estab-

lished law of this and every other circuit. Employing a less

polemical characterization, this court has twice addressed

accommodations that must be offered to law enforcement

personnel who seek to avoid specific assignments on re-

ligious grounds. Most recently in Rodriguez v. City of

Chicago, 156 F.3d 771 (7th Cir. 1998), we addressed the

request of a Catholic police officer to be exempted from

assignments at abortion clinics. In evaluating the City’s

12 No. 02-1247

alleged failure to accommodate, we reiterated the standard

to be applied:

Under Title VII, therefore, an employer must rea-

sonably accommodate an employee’s religious ob-

servance or practice unless it can demonstrate that

such accommodation would result in an undue

hardship to the employer’s business. Accordingly,

we turn first to the issue of whether the City has

satisfied its duty of reasonable accommodation; only

if we answer that question in the negative need we

proceed to the “undue hardship” prong of the Title

VII analysis.

Id. at 775. Applying this standard, we determined that the

City had satisfied its duty of reasonable accommodation

because, under the existing collective bargaining agree-

ment, the officer in question could have secured a transfer

to a district without an abortion clinic without any reduc-

tion in his level of pay or benefits. See id. In an earlier case,

Ryan v. United States Department of Justice, 950 F.2d 458

(7th Cir. 1991), we reached a similar conclusion. Ryan was

a Federal Bureau of Investigation agent who, on religious

grounds, “repeatedly refused to carry out a lawful order to

investigate an unsolved federal offense; he declined to swap

assignments; he would not promise to carry out similar

orders in the future . . . .” 950 F.2d at 461. Although seeking

to be removed from the investigation of any peaceful, anti-

war protestors, “Ryan proposed no course other than

discontinuing investigations of the sort to which he is

opposed, which would be capitulation rather than accommo-

dation.” Id. Under these circumstances, we determined the

FBI had not failed to accommodate Ryan’s religious beliefs.

Notably absent from our resolution of either Rodriguez’s

or Ryan’s claim, however, was a holding that the agencies

were exempt from the statutory requirement of reasonable

No. 02-1247 13

accommodation because of their law enforcement mission.

Indeed, the panel in Endres acknowledges that “Ryan does

not compel” its conclusion. Endres, slip op. at 8. Quite the

opposite, Ryan acknowledged the unreasonableness of the

request to cease investigations when the perfectly reason-

able solution of an assignment swap had been proposed and

rejected.

Not only does the panel’s decision here abandon the

analytical framework of Rodriguez and Ryan, it also ignores

the clear language of the statute. It simply blue pencils the

reasonable accommodation requirement from the statute as

it applies to police and fire personnel. It relies on no

language of the statute, no interpretive regulation, no

legislative history. It simply constructs a categorical

statutory amendment where none exists. Congress took a

different view. Title VII makes it unlawful for an employer

“to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with re-

spect to his compensation, terms, conditions, or privileges

of employment, because of such individual’s . . . religion.” 42

U.S.C. § 2000e-2(a)(1). Furthermore, Title VII’s definition

of religion includes “all aspects of religious observance and

practice, as well as belief, unless an employer demonstrates

that he is unable to reasonably accommodate . . . an em-

ployee’s . . . religious observance or practice without undue

hardship on the conduct of the employer’s business.” Id. §

2000e(j). Neither the definition of religion, nor the defini-

tion of employer in § 2000e(b), suggests that law enforce-

ment agencies, fire departments, or any other “paramili-

tary” employers are exempt from the reasonable accommo-

dation provisions. Consequently, a law enforcement excep-

tion to the reasonable accommodation requirement finds no

support in the plain language of Title VII.

I have no doubt that public safety agencies have a great

deal of latitude in accommodating the religiously based

14 No. 02-1247

requests of their employees for exemptions from particular

duties. Both our previous case law and the case law of the

other circuits make that proposition clear.1 But Congress

simply did not determine that these agencies ought to be

given a blanket exemption from the mandate of the statute,

and, I respectfully suggest, Congress’ ability to determine

the wisdom of such an exemption is far superior to ours. On

a nationwide scale, public safety organizations come in

many shapes and sizes. Some are highly professional; some

are not. Some are relatively immune from prejudices, be

they racial or religious or otherwise; some are not. Congress

apparently saw no reason to exempt categorically such

organizations from the plain mandate of the statute and

preferred that the boundaries of the reasonable accommoda-

tion requirement be established in case-by-case adjudica-

tion.

The court’s decision to let this panel decision stand will

raise, regretfully, many questions in the minds of many

people. Public safety and emergency personnel, whose con-

tributions to our daily lives are so much more appreciated

these days, have every right to ask why this court has sin-

gled them out as not deserving of a statutory protection

1

See, e.g., Shelton v. Univ. of Med. & Dentistry of New Jersey, 223

F.3d 220, 228 (3d Cir. 2000) (finding public hospital had reason-

ably accommodated Pentecostal nurse opposed to assisting with

emergency abortions by offering her different assignment); Beadle

v. City of Tampa, 42 F.3d 633, 637 (11th Cir. 1995) (applying

reasonable accommodation analysis and holding that excusing

Seventh Day Adventist officer from all Friday evening and

Saturday shifts would work an undue hardship); Miller v.

Drennon, 1992 WL 137578 (4th Cir. June 19, 1992) (applying

reasonable accommodation analysis and finding that county had

offered reasonable accommodations to emergency medical worker

who was opposed to sharing one-room apartment with a member

of the opposite sex when on twenty-four hour shifts).

No. 02-1247 15

guaranteed to every other person in the United States.

Members of minority religions, whose doctrines are not

well-understood or appreciated in our culture, may well

wonder whether municipalities within this circuit are the

best place in which to make a public contribution. Hope-

fully, these doubts will be lessened by enlightened munici-

pal management who certainly could ensure that those who

serve us are protected despite this court’s decision to depart

from the anti-discrimination standards enforced in the rest

of the United States.

Members of the practicing judiciary and the practicing

bar in this circuit also will be puzzled by this court’s de-

parture from its usual methodology in interpreting statutes.

Time and time again, we profess that, in interpreting a

statute, we begin with the plain wording of the statute.

Unless there is an ambiguity, we apply the explicit com-

mand of Congress. No one suggests that Congress has left

any doubt as to what it expects in this situation. Unfortu-

nately, however, our current decisional behavior does not

follow the course of our rhetoric. In future cases, judges,

attorneys, and litigants will have to accept the reality that

they must observe not what we say, but what we do.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-19-03