Amicus Curiae Brief — Gerald E. Groff, Petitioner v. Louis DeJoy, Postmaster General

No. 22-174

IN THE

Supreme Court of the United States

______________

GERALD E. GROFF,

Petitioner,

v.

LOUIS DEJOY, POSTMASTER GENERAL,

UNITED STATES POSTAL SERVICE,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Third Circuit

AMICUS BRIEF OF THE AMERICAN CENTER FOR

LAW AND JUSTICE IN SUPPORT OF PETITIONER

JAY ALAN SEKULOW

Counsel of Record

STUART J. ROTH

COLBY M. MAY

LAURA B. HERNANDEZ

AMERICAN CENTER FOR

LAW & JUSTICE

201 Maryland Ave. NE

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................... iii

INTEREST OF AMICUS ......................................... 1

SUMMARY OF THE ARGUMENT ......................... 1

ARGUMENT ............................................................ 2

I. This Court Should Repudiate Hardison’s

Non-Textual Interpretation of “Undue

Hardship.” .......................................................... 2

A. The More-Than-De-Minimis Standard

Is Dictum and Finds No Refuge In

Stare Decisis.. ................................................ 4

B. Hardison Is Not True Precedent

Because the More-than-De-Minimis

Standard Is Unmoored from the

Statutory Text and Was Adopted

without a Minimally Plausible Ratio

Decidendi ....................................................... 5

1. Hardison is also ineligible for the

super-stare decisis presumption.............. 8

2. Congress is not responsible for

fixing

Hardison’s

antonymous

definition of undue hardship ................. 10

ii

CONCLUSION ....................................................... 13

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Barr v. Am. Ass'n of Pol. Consultants,

140 S. Ct. 2335 (2020) ............................................. 6

Bd. of Educ. v. Grumet,

512 U.S. 687 (1994) ................................................. 9

Brulotte v. Thys Co.

379 U.S. 29 (1964) ................................................... 8

Carson v. Makin,

142 S. Ct. 1987 (2022) ............................................. 1

Crawford Fitting Co. v. J. T. Gibbons, Inc.,

482 U.S. 437 (1987) ................................................. 4

Cent. Va. Cmty. Coll. v. Katz,

546 U.S. 356 (2006) ................................................. 6

EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) ............................................. 4, 9

Gamble v. United States,

139 S. Ct. 1960 (2019) ........................................... 11

Girouard v. United States,

328 U.S. 61 (1946) ................................................. 11

iv

Helvering v. Hallock,

309 U.S. 106 (1939) ............................................... 11

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012) ................................................. 9

Kennedy v. Bremerton Sch. Dist.,

142 S. Ct. 2407 (2022) ............................................. 3

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015) ..................................... 8, 10, 12

Kirtsaeng v. John Wiley & Sons, Inc.,

568 U.S. 519 (2013) ............................................. 4, 5

Local 82, Furniture & Piano Moving Drivers v.

Crowley,

467 U.S. 526 (1984) ................................................. 4

Oklahoma v. Castro-Huerta,

142 S. Ct. 2486 (2022) ............................................. 4

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ........................................... 9, 11

Patterson v. Walgreen Co.,

140 S. Ct. 685 (2020) ....................................... 5, 6, 9

v

Pereida v. Wilkinson,

141 S. Ct. 754 (2021) ............................................... 6

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) ............................................................ 1

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ......................................... 5, 9

Runyon v. McCrary,

427 U.S. 160 (1976) ................................................. 9

Sandifer v. U.S. Steel Corp.,

571 U.S. 220 (2014) ................................................. 6

Seila Law LLC v. Consumer Fin. Prot. Bureau,

140 S. Ct. 2183 (2020) ............................................. 3

Small v. Memphis Light, Gas & Water,

141 S. Ct. 1227 (2021) ............................................. 6

Small v. Memphis Light, Gas & Water,

952 F.3d 821 (6th Cir. 2020) ................................... 3

Toolson v. N.Y. Yankees, Inc.,

346 U.S. 356 (1953) ............................................... 10

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ......................................... 3, 6, 11

vi

Van Buren v. United States,

141 S. Ct. 1648 (2021) ............................................. 6

STATUTES

29 U.S.C. § 207(r)(3) .................................................... 7

35 U.S.C. § 154 ............................................................ 8

42 U.S.C. § 2000e(j) ..................................................... 3

42 U.S.C. § 2000e-2(a) ................................................. 2

42 U.S.C. § 12111(10) .................................................. 7

42 U.S.C. § 12112(b)(5)(A) .......................................... 7

OTHER SOURCES

Amy Coney Barrett, Stare Decisis and Due Process,

74 U. Colo. L. Rev. 1011, 1063 (2003) ................... 11

Amy Coney Barrett, Statutory Stare Decisis in the

Courts of Appeals,

73 Geo. Wash. L. Rev. 317, 339 (2005) ................. 12

Black’s Law Dictionary (5th ed. 1979) ................... 6, 7

William N. Eskridge, Jr., Overruling Statutory

Precedents, 76 Geo. L.J. 1361, 1399 (1988) .......... 10

vii

Random House Dictionary of the English Language

(1968) ....................................................................... 6

J. Salmond, Jurisprudence § 62 ................................. 5

1

INTEREST OF AMICUS*

The American Center for Law and Justice (ACLJ)

is an organization dedicated to the defense of

constitutional liberties secured by law. ACLJ

attorneys often appear before this Court as counsel

either for a party, e.g., Pleasant Grove City v.

Summum, 555 U.S. 460 (2009), or for amicus, e.g.,

Carson v. Makin, 142 S. Ct. 1987 (2022).

The ACLJ is committed to religious liberty in the

workplace, and regularly represents clients seeking

Title VII’s protections for employees’ religious

practices. Title VII’s promise has been eviscerated by

the non-textual pronouncement in Trans World

Airlines, Inc. v. Hardison that the term “undue

hardship” means employers need not provide

accommodations that impose “more than a de

minimis” cost.

SUMMARY OF THE ARGUMENT

Hardison’s more-than-de-minimis standard should

be repudiated or overruled. The standard does not

deserve refuge in stare decisis because it is dictum

pulled out of thin air. The standard is further

ineligible for stare decisis because it was invented

without even a minimally persuasive ratio decidendi.

* No counsel for any party in this case authored this brief in whole

or in part. No person or entity aside from Amicus, its members,

or its counsel made a monetary contribution to the preparation

or submission of this brief.

2

Neither party in Hardison suggested such a standard

in briefing and the Court’s opinion adopted it with no

regard to the ordinary meaning of either “undue” or

“hardship.” The Court further failed to provide even a

de minimis explanation for its borderline antonymous

definition of a key statutory term.

Neither does the super-stare decisis presumption

save

Hardison’s

non-textual

standard.

The

presumption should be foreclosed when a barely

reasoned opinion results in an outright conflict

between a precedent and the statutory provision it

purports to interpret. The separation of powers

rationale for the presumption does not justify

continued adherence to Hardison. A much greater

violation of separation of powers results from

perpetuation of an egregiously wrong standard that

eviscerates Congress’s goal to protect employees’

religious liberty rights. To the extent Congress’s

silence for almost half a century means anything, it is

more credibly construed as “you broke it, you fix it”

than tacit approval of Hardison.

ARGUMENT

I. This Court Should Repudiate Hardison’s

Non-Textual Interpretation of “Undue

Hardship.”

Title VII of the Civil Rights Act of 1964 prohibits

employment discrimination on the basis of religion. 42

U.S.C. § 2000e-2(a). The statute requires reasonable

accommodation of employees’ religious practices

provided that such accommodation does not cause

3

“undue hardship” on the employer’s business. 42

U.S.C. § 2000e(j). In Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63 (1977), the Court pronounced

ipse dixit that undue hardship means anything “more

than a de minimis cost.” Id. at 84. Because Hardison

eschewed any appropriate interpretive guideposts, it

is debatable whether Hardison’s definition qualifies

as statutory construction. See, e.g., Small v. Memphis

Light, Gas & Water, 952 F.3d 821, 829 (6th Cir. 2020)

(Thapur, J., joined by Kethledge, J., concurring)

(possible explanation for the more-than-de-minimis

standard is that the Hardison “majority stumbled

through the looking glass and into an Alice-inWonderland world where words have no meaning”).

But regardless of whether Hardison involved

statutory construction or naked fiat, the more-thande-minimis standard should be repudiated because

the standard was dictum and lacks an even minimally

plausible ratio decidendi to justify its status as

precedent entitled to stare decisis. Whether Hardison

is overruled or the Court merely repudiates the morethan-de-minimis standard, 1 the standard should be

replaced with a definition of undue hardship that is

grounded in the text and promotes Congress’s goal of

protecting religious freedom in the workplace.

1 See, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2427-

28 (2022) (repudiating but not formally overruling the Lemon

test); Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct.

2183, 2217 (2020) (Thomas, J., dissenting) (discussing Court’s

repeated repudiation of Humphrey’s Ex’r v. United States, 295

U.S. 602 (1935) and arguing that the case should be overruled).

4

A. The More-Than-De-Minimis Standard Is

Dictum and Finds No Refuge in Stare Decisis

Hardison’s

more-than-de-minimis

standard

deserves no stare decisis protection because it is

dictum. The Court is not bound by dicta when focused

argument demonstrates the dicta is wrong. Kirtsaeng

v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013)

(rejecting as dicta a previous interpretation § 109 of

the Copyright Act); Crawford Fitting Co. v. J. T.

Gibbons, Inc., 482 U.S. 437, 443 (1987) (refusing to

rely on dictum from Farmer v. Arabian Am. Oil Co.,

379 U.S. 227 (1964), which dealt with exercise of

district judges’ discretion to tax costs); Local 82,

Furniture & Piano Moving Drivers v. Crowley, 467

U.S. 526, 549-50 & n.22 (1984) (rejecting dictum from

Dunlop v. Bachowski, 421 U.S. 560 (1975), which

related to union elections governed by 29 U.S.C. §

482).

In Hardison, the employee was terminated before

the 1972 amendment to Title VII’s definition of

religion which added the “undue hardship” standard.

The Court accordingly applied the EEOC guideline in

effect at the time and not the amended statutory

definition. See EEOC v. Abercrombie & Fitch Stores,

Inc., 575 U.S. 768, 787 n.* (2015) (Thomas, J.,

concurring in part and dissenting in part). Because

Hardison did not interpret the 1972 amendment

defining

“religion,”

the

more-than-de-minimis

standard is technically dictum. See Oklahoma v.

Castro-Huerta, 142 S. Ct. 2486, 2498 (2022) (a prior

decision “that does not analyze the relevant statutory

5

provision cannot be said to have resolved the statute’s

meaning”).

Hardison’s more-than-de-minimis standard is

little different than the fictitious classification of the

tomato in Kirtsaeng, 568 U.S. at 548 (“Is the Court

having once written dicta calling a tomato a vegetable

bound to deny that it is a fruit forever after?”). This

Court is not forever constrained from repudiating

Hardison’s egregiously wrong definition of undue

hardship.

B. Hardison Is Not True Precedent Because the

More-than-De-Minimis Standard Is Unmoored

from the Statutory Text and Was Adopted

without a Minimally Plausible Ratio Decidendi.

Even

if

Hardison’s

more-than-de-minimis

standard was not dictum, it is still not a candidate for

stare decisis, because it does not qualify as true

precedent. The more-than-de-minimis standard is

bereft of even a minimally persuasive ratio decidendi

and should therefore lack “life and effect in the

disposition of future cases.” Ramos v. Louisiana, 140

S. Ct. 1390, 1404 & n.54 (2020) (citing J. Salmond,

Jurisprudence § 62, p. 191 (G. Williams ed., 10th ed.

1947) (“The concrete decision is binding between the

parties to it, but it is the abstract ratio decidendi

which alone has the force of law as regards the world

at large.”)).

The parties’ briefs in Hardison did not focus on the

meaning of “undue hardship” or advocate for the “de

minimis” standard, and the Court adopted the

standard with almost no explanation. Patterson v.

6

Walgreen Co., 140 S. Ct. 685, 686 (2020) (Alito, J.,

joined by Thomas and Gorsuch, JJ., concurring in the

denial of certiorari). This Court is therefore not bound

to follow Hardison because the meaning of undue

hardship was not “fully debated.” Cent. Va. Cmty.

Coll. v. Katz, 546 U.S. 356, 363 (2006).

Pulled out of thin air, the more-than-de-minimis

standard flies in the face of the Court’s standard

practice of “zero[ing] in on the precise statutory text.”

Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335,

2349 (2020); Van Buren v. United States, 141 S. Ct.

1648, 1654 (2021) (“[W]e start where we always do:

with the text of the statute.”). Hardison was a raw

exercise of “freewheeling judicial policymaking,”

Pereida v. Wilkinson, 141 S. Ct. 754, 767 (2021), that

effectively rewrote Title VII. Small v. Memphis Light,

Gas & Water, 141 S. Ct. 1227, 1228 (2021) (Gorsuch,

J., joined by Alito, J., dissenting from denial of

certiorari) (Hardison “undid Title VII’s undue

hardship test”).

If the Hardison Court had given “undue hardship”

its “ordinary, contemporary” meaning, Sandifer v.

U.S. Steel Corp., 571 U.S. 220, 227 (2014), it would

never have equated the term with “more than de

minimis.” Hardison, 432 U.S. at 92 n.6 (Marshall, J.,

dissenting) (doubting that “simple English usage”

supports the majority’s reading). The contemporary

meaning of hardship was “suffering,” “a condition that

is difficult to endure,” “deprivation.” E.g., Random

House Dictionary of the English Language (1968);

Black’s Law Dictionary (5th ed. 1979). Not only must

the accommodation impose hardship on the employer,

but the hardship must be “undue.” Contemporaneous

7

dictionaries defined “undue” as beyond “what is

appropriate or normal,” “excessive.” Black’s Law

Dictionary (5th ed. 1979). To qualify as an “undue”

hardship, therefore, the accommodation must impose

significant unwarranted costs on the employer’s

business. By contrast, “de minimis” meant “very small

or trifling.” Id.

Congress has defined “undue hardship” in other

statutes consistent with the ordinary meaning of both

words. For example, the Americans with Disabilities

Act, 42 U.S.C. §§ 12101-12213, requires an employer

to make “reasonable accommodations” for an

employee’s disability unless doing so would impose an

“undue hardship” on the employer’s business. 42

U.S.C. § 12112(b)(5)(A). Congress defined undue

hardship as “an action requiring significant difficulty

or expense,” including such considerations as a

proposed accommodation’s cost, an employer’s

financial resources, and the accommodation’s impact

on the employer’s business. 42 U.S.C. § 12111(10); see

also Fair Labor Standards Act, 29 U.S.C. § 207(r)(3)

(undue hardship means significant difficulty or

expense).

To conclude that “undue hardship” equates to any

cost that is more than very small or trifling negates

the term. Hardison lacks even a pretense of statutory

interpretation or rational deliberation by the Court. It

does not qualify as a true precedent with stare decisis

force.

8

1. Hardison is also ineligible for the super-stare

decisis presumption.

Because Hardison did not interpret Title VII, it

should also be disqualified from the “superpowered

form of stare decisis” normally accorded to cases

interpreting federal statutes. See, e.g., Kimble v.

Marvel Ent., LLC, 576 U.S. 446, 456 (2015) (“[U]nlike

in a constitutional case, critics of our ruling can take

their objections across the street, and Congress can

correct any mistake it sees.”).

Hardison is nothing like the kind of statutory

interpretation precedent where the Court rendered a

thoroughly reasoned and explicated decision after full

briefing on the issue by the parties. For example, in

Kimble, the Court applied the super-stare decisis

presumption to Brulotte v. Thys Co., 379 U.S. 29

(1964). Brulotte devoted three full pages of analysis to

the precise statutory question, and its interpretation

was not facially inconsistent with the actual text of the

statute.2 Moreover, Brulotte was consistent with two

separate lines of cases addressing corollary issues. 3

2 The statute governed the expiration of patents: “Every patent

shall contain a short title of the invention and a grant to the

patentee, his heirs or assigns, for the term of seventeen years, of

the right to exclude others from making, using, or selling the

invention throughout the United States, referring to the

specification for the particulars thereof.” 35 U.S.C. § 154.

Brulotte read the provision to mean that, after 17 years, the

patentee’s rights became public property. 379 U.S. at 33.

3 Brulotte was part of a series of cases also guarding that 17-year

cut-off date and another series of cases holding that private

contract provisions limiting free use of such inventions past the

cut-off date were unenforceable. Kimble, 576 U.S. at 452-53.

9

Similarly in Patterson v. McLean Credit Union, 491

U.S. 164, 172-73 (1989), the Court applied the

presumption to Runyon v. McCrary, 427 U.S. 160

(1976), in which the “language and history of the

statute were examined and discussed with great care.”

By contrast, Hardison provided little analysis or

explanation for its newly minted standard. 140 S. Ct.

at 686 (Alito, J., joined by Thomas and Gorsuch, JJ.,

concurring in the denial of certiorari) (the Hardison

Court did not “explain the basis” for the “more-thande-minimis” standard). Hardison is an isolated

decision with no support from any of this Court’s

subsequent decisions. To the contrary, Hardison was

squarely contradicted in EEOC v. Abercrombie &

Fitch Stores, Inc., 575 U.S. 768, 775 (2015) (Title VII

requires “favored treatment” of employees’ religious

practices, not mere neutrality) and other cases

emphasizing the First Amendment’s preferential

treatment of religion. See, e.g., Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. EEOC, 565

U.S. 171, 189 (2012) (stating that the “First

Amendment itself, . . . gives special solicitude to the

rights of religious organizations”); Bd. of Educ. v.

Grumet, 512 U.S. 687, 705 (1994) (“Our cases leave no

doubt that in commanding neutrality the Religion

Clauses do not require the government to be oblivious

to impositions that legitimate exercises of state power

may place on religious belief and practice.”).

“[S]tare decisis isn’t supposed to be the art of

methodically ignoring what everyone knows to be

true.” Ramos, 140 S. Ct. at 1405. The super-stare

decisis presumption should be foreclosed when a

barely reasoned opinion results in an outright conflict

10

between a precedent and the statutory provision it

purports to interpret.

2. Congress is not responsible for fixing

Hardison’s antonymous definition of undue

hardship.

The separation of powers doctrine supplies the

justification for the super stare decisis presumption.

The theory goes that an initial interpretation of a

statute is necessary as part of judicial review, but that

subsequent reinterpretations would usurp legislative

authority to amend statutes. See, e.g., Toolson v. N.Y.

Yankees, Inc., 346 U.S. 356, 357-60 (1953). In other

words, wrong statutory interpretations are “balls

tossed into Congress’s court, for acceptance or not as

that branch elects.” Kimble, 576 U.S. at 456.

As a preliminary matter, that theory begs the

question: “Why should an errant initial interpretation

of legislative expectations be considered acceptable

judicial lawmaking, and a later, corrective

interpretation be considered usurpation?” William N.

Eskridge, Jr., Overruling Statutory Precedents, 76

Geo. L.J. 1361, 1399 (1988). For the textualist, what a

later Congress might think, or have the will to do, has

no probative value to the meaning of a statute enacted

a half century earlier.

But assuming the theory has any continuing

validity, it should be inapplicable where, as here, the

Court fabricated a standard with no basis in the

statutory language. In fact, continued adherence to

the Court’s fiat violates separation of powers because

it perpetuates an egregiously wrong precedent that

11

“makes a mockery” of Congress’s goal to protect

employees’ religious liberty rights. Hardison, 432 U.S.

at 88-89 (Marshall, J., dissenting). See also Amy

Coney Barrett, Stare Decisis and Due Process, 74 U.

Colo. L. Rev. 1011, 1063 (2003). (“A broad power to

trump statutory text with erroneous gloss would

remove the line between judicial interpretation and

legislation.”).

It is also true that where the Court applied

appropriate statutory construction principles, a

corollary justification for the super stare decisis

presumption is that Congress’s failure to amend a

statute in response to judicial interpretation reflects

tacit approval. See, e.g., Patterson v. McLean Credit

Union, 491 U.S. 164, 172-73 (1989). But almost five

decades of Congressional silence on Hardison’s noninterpretative judicial gloss should not be read as

approval. See Girouard v. United States, 328 U.S. 61,

69 (1946) (“It is at best treacherous to find in

congressional silence alone the adoption of a

controlling rule of law.”); Helvering v. Hallock, 309

U.S. 106, 119 (1939) (“It would require very

persuasive circumstances enveloping Congressional

silence to debar this Court from reexamining its own

doctrines.”).

In any event, the Congressional acquiescence

theory is based on the “false premise” that the

correctness of statutory construction is to be measured

by what later Congresses want, “rather than by what

the law as enacted meant.” Gamble v. United States,

139 S. Ct. 1960, 1987 (2019) (Thomas, J., concurring)

(quotations omitted). Additionally, as Justice Barrett

has pointed out, Congressional approval through

12

silence “circumvents the constitutional limits on the

legislative process” because laws must be passed

through bicameralism and presentment, Amy Coney

Barrett, Statutory Stare Decisis in the Courts of

Appeals, 73 Geo. Wash. L. Rev. 317, 339 (2005).

Silence cannot satisfy the requirement of

bicameralism. Without a vote, it is impossible to

tell whether a majority of both houses supports a

measure. And even assuming that silence could

somehow satisfy the requirement of bicameralism,

ratification

by

inaction

circumvents

the

requirement of presentment. If Congress’s silence

is given legal effect, Congress effectively can

amend an existing statute without ever giving the

President the opportunity to veto the amendment.

Id.

Hardison’s more-than-de-minimis standard is a

judicial invention unmoored from anything that

Congress has enacted. The Court “cannot properly

place on the shoulders of Congress the entire burden

of correcting the Court’s own error.” Kimble, 576 U.S.

at 471 (Alito, J., joined by Roberts, C.J. and Thomas,

J., dissenting) (cleaned up).

13

CONCLUSION

Amicus respectfully requests this Court to grant

review.

Respectfully submitted,

JAY ALAN SEKULOW

Counsel of Record

STUART J. ROTH

COLBY M. MAY

LAURA B. HERNANDEZ

AMERICAN CENTER FOR

LAW & JUSTICE

201 Maryland Ave. NE

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org