Amicus Curiae Brief — David Petersen, et al., Petitioners v. Snohomish Regional Fire and Rescue

Supreme Court briefMay 26, 2026

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No. 25-1210

In the Supreme Court of the United States

____________________________

DAVID PETERSEN, et al.,

Petitioners,

SNOHOMISH REGIONAL FIRE & RESCUE,

Respondent.

____________________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

JEWISH COALITION FOR RELIGIOUS LIBERTY

IN SUPPORT OF NEITHER PARTY

MATTHEW A. SCHWARTZ

Counsel of Record

MATTHEW J. MARCHELLO

JULIAN G. ZAJKOWSKI

SULLIVAN & CROMWELL LLP

125 Broad Street

New York, NY 10004

(212) 558-4000

schwartzmatthew@sullcrom.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

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

ARGUMENT ............................................................ 4

THIS COURT SHOULD GRANT

CERTIORARI TO ENSURE THAT TITLE

VII PROVIDES THE ROBUST

PROTECTION FOR RELIGIOUS

AMERICANS THAT THIS COURT

INTENDED ......................................................... 4

A. The Ninth Circuit Effectively Revived

The Very “De Minimis” Standard Groff

Rejected ......................................................... 7

B. The Ninth Circuit Compounded That

Error By Misapplying The Summary

Judgment Standard .................................... 15

II. THE QUESTION PRESENTED IS

EXCEPTIONALLY IMPORTANT TO

RELIGIOUS MINORITIES AND

WARRANTS IMMEDIATE REVIEW .............. 19

CONCLUSION ....................................................... 22

TABLE OF AUTHORITIES

Page(s)

Cases

Adeyeye v. Heartland Sweeteners, LLC,

721 F.3d 444 (7th Cir. 2013) ................................ 10

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ......................................... 15-17

City of Boerne v. Flores,

521 U.S. 507 (1997) ................................................ 6

EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) .......................................... 5, 20

Employment Division v. Smith,

494 U.S. 872 (1990) .............................................. 21

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ................................................ 7

Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetal,

546 U.S. 418 (2006) ............................................. 7-8

Groff v. DeJoy,

600 U.S. 447 (2023) .........................1-7, 9-13, 18-19

Holt v. Hobbs,

574 U.S. 352 (2015) ................................... 11, 13-14

III

Lombardo v. City of St. Louis,

594 U.S. 464 (2021) .............................................. 16

Mast v. Fillmore Cnty.,

141 S. Ct. 2430 (2021) .......................................... 11

Nunez v. Wolf,

117 F.4th 137 (3d Cir. 2024) ................................ 12

Petersen v. Snohomish Reg’l Fire & Rescue,

150 F.4th 1211 (9th Cir. 2025)3-4, 8-12, 14, 16-17, 21

Salazar v. Buono,

559 U.S. 700 (2010) .............................................. 21

Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963) ................................................ 4

Sherbert v. Verner,

374 U.S. 398 (1963) ................................... 11, 19-20

Singh v. Berger,

56 F.4th 88 (D.C. Cir. 2022) ................................. 20

Tennant v. Peoria & P. U. Ry. Co.,

321 U.S. 29 (1944) ........................................... 15-18

Tolan v. Cotton,

572 U.S. 650 (2014) ......................................... 16-18

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) .................................................. 5

Williams v. Legacy Health,

2026 WL 1239760 (9th Cir. May 6,

2026) ............................................................... 12, 21

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) ................................ 20

Constitutional Provisions

U.S. Const. amend. VII ............................................. 15

Statutes

42 U.S.C. § 2000e(j) ..................................................... 5

Other Authorities

Amici Curiae Brief of the National

Jewish Commission on Law and

Public Affairs (“COLPA”) and Other

Jewish Organizations in Support of

Petitioner, Groff v. DeJoy, 600 U.S.

447 (2023) (No. 22-174) .......................................... 5

Amicus Curiae Brief of the Union of

Orthodox Jewish Congregations of

America in Support of Petitioner,

Groff v. DeJoy, 600 U.S. 447 (2023)

(No. 22-174) ............................................................ 2

James Madison, Memorial and

Remonstrance Against Religious

Assessments (1785), reprinted in

Everson v. Bd. of Educ. of Ewing

Twp., 330 U.S. 1 (1947) (appendix to

dissent of Rutledge, J.) ........................................... 7

Michael W. McConnell, The Origins and

Historical Understanding of Free

Exercise of Religion, 103 Harv. L.

Rev. 1409 (1990) ..................................................... 6

Petition for a Writ of Certiorari,

Petersen v. Snohomish Reg’l Fire &

Rescue, No. 25-1210 (U.S. filed Apr.

16, 2026) ............................ 3, 7-9, 12, 16-17, 19, 21

Supreme Court Rule 37.2 ............................................ 1

Supreme Court Rule 37.6 ............................................ 1

INTEREST OF AMICUS CURIAE1

The Jewish Coalition for Religious Liberty (JCRL)

is an incorporated organization of rabbis, lawyers, and

professionals who practice Judaism and are

committed to defending religious liberty for all

Americans. Like many other religious Americans,

observant Jews may seek workplace accommodations

for religious observance, including for holidays,

dietary restrictions, and religious dress.

Thus,

although JCRL does not itself object to Washington’s

vaccination requirement on religious or other grounds,

it strongly supports the right of Petitioners—and any

other litigants seeking religious accommodations—to

pursue their claims under a proper reading of this

Court’s decision in Groff v. DeJoy, 600 U.S. 447 (2023),

and not under the Ninth Circuit’s improper reading,

which will allow employers to deny almost any

religious accommodation request.

SUMMARY OF ARGUMENT

This appeal raises a circuit split and an

exceptionally important question about religious

accommodations. In Groff, this Court held that Title

VII requires an employer who rejects a religious

accommodation to prove that the accommodation

Pursuant to Rules 37.2 and 37.6 of this Court, JCRL

affirms that no counsel for a party authored this brief in whole or

in part, and that no party, counsel for a party, or any person or

entity other than JCRL, its members, or its counsel made a

monetary contribution intended to fund the preparation or

submission of the brief, and affirms that counsel of record

received the required 10 days’ notice.

would impose a substantial, context-specific burden—

not a “de minimis” one, as lower courts had long

applied. But the Ninth Circuit’s decision renders

Groff a borderline nullity by allowing employers to

prevail based on speculative harms while refusing to

allow employees to even present to a jury competing

evidence about how other employers have addressed

identical accommodation requests, which is often the

most powerful evidence an employee has.

That misreading of Groff is not abstract—it drives

the result here.

SRFR is a Seattle-area fire

department that refused to accommodate Petitioners’

religious beliefs—even as nearby departments

successfully did so, including by employing Petitioner

Petersen to fight fires alongside SRFR crews. The

Ninth Circuit nevertheless allowed conjectural risks

and employer say-so to defeat accommodation as a

matter of law, while expressly disregarding that realworld evidence.

That holding is materially

indistinguishable from the one this Court rejected in

Groff, out of line with other circuits, and at odds with

ordinary summary judgment principles. This case

thus squarely presents whether Groff will be

enforced—or circumvented.

Groff provided long-sought relief for religious

minorities who had suffered disproportionate harm

under the mistaken de minimis framework.2 Having

See, e.g., Amicus Curiae Brief of the Union of Orthodox

Jewish Congregations of America in Support of Petitioner at 14,

Groff v. DeJoy, 600 U.S. 447 (2023) (No. 22-174).

so recently restored Title VII’s protections to religious

Americans, including religious Jewish Americans, this

Court should not allow the decision below to strip

those protections away once again.

There are at least three reasons to grant review.

First, the Ninth Circuit adopted a rule under

which a “reasonable concern” about hardship is

enough to deny religious accommodation at the

summary judgment stage. Petersen v. Snohomish

Reg’l Fire & Rescue, 150 F.4th 1211, 1221 (9th Cir.

2025). The panel accordingly affirmed summary

judgment based on disputed assessments of risk,

potential liability, and a possible contract loss, while

expressly disclaiming any need for “realized

hardships.” Id. at 1221-22. That is the logic of de

minimis by another name.

Second, compounding the error, the panel severed

the asserted burdens from the “overall context” and

“particular business” inquiry Groff requires. Groff,

600 U.S. at 468, 470. It never asked whether the

alleged costs were substantial relative to SRFR’s

actual operations. And it refused to consider powerful

real-world evidence that nearby fire departments

successfully operated under similar conditions while

accommodating religious objectors—including by

employing Petitioner Petersen to fight fires alongside

SRFR crews during the very period SRFR claimed

accommodation was impossible. Petersen, 150 F.4th

at 1222; Pet. 8-10.

Third, the panel misconstrued the summary

judgment inquiry. Rather than asking whether a

reasonable jury could reject SRFR’s undue-hardship

defense, the Ninth Circuit stated: “we consider

whether SRFR would have faced an undue hardship.”

Petersen, 150 F.4th at 1218 (emphasis added). It then

weighed disputed evidence, credited SRFR’s expert

and predictions, and dismissed Petitioners’ contrary

evidence.

That is not the summary judgment

standard.

By so insulating Respondent’s assertions of

burden from meaningful scrutiny, the Ninth Circuit’s

decision all but ensures that Groff’s holding of “what

Title VII requires” will matter little in the cases where

employees need it most. Groff, 600 U.S. at 454. And

its departure is of particular importance to religious

minorities, whom the de minimis standard once “left

at the mercy of their employers’ good graces.” Id. at

465 (citation omitted). This Court should grant

review.

ARGUMENT

THIS COURT SHOULD GRANT

CERTIORARI TO ENSURE THAT TITLE VII

PROVIDES THE ROBUST PROTECTION

FOR RELIGIOUS AMERICANS THAT THIS

COURT INTENDED.

The “place of religion in our society is an exalted

one,” housed in the “inviolable citadel of the individual

heart and mind.” Sch. Dist. of Abington Twp. v.

Schempp, 374 U.S. 203, 226 (1963). Title VII of the

Civil Rights Act of 1964 thus affords to religious

Americans

“favored

treatment,

affirmatively

obligating employers” to accommodate their workers’

reasonable religious practices. EEOC v. Abercrombie

& Fitch Stores, Inc., 575 U.S. 768, 775 (2015). Even

otherwise-neutral policies must give way to the need

for an accommodation “to ensure religious persons’ full

participation in the workforce.” Groff, 600 U.S. at 461

n.9.

More precisely, Title VII requires employers to

accommodate their workers’ religious exercise unless

the employer “demonstrates” an “undue hardship.” 42

U.S.C. § 2000e(j). For decades, lower courts treated

that provision as satisfied by anything more than a “de

minimis” burden. Cf. Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63, 84 (1977) (the misinterpreted

source of the de minimis language).

Religious

Americans, including religious Jewish Americans,

suffered greatly under that improper understanding of

Title VII.3 But this Court unanimously rejected that

“loose language” in Groff, where it ruled that an

employer must show a “burden, privation, or

adversity” that rises “to an ‘excessive’ or ‘unjustifiable’

level” to escape liability. 600 U.S. at 469; id. at 474

See

Amici

Curiae

Brief

the

National Jewish Commission on Law and Public Affairs

(“COLPA”) and Other Jewish Organizations in Support of

Petitioner at 5, Groff v. DeJoy, 600 U.S. 447 (2023) (No. 22-174),

2022 WL 4537686, at *5 (explaining that “the Hardison standard

ha[d] severely impaired employment opportunities of Jewish

Sabbath-observing Americans”).

(Sotomayor, J., concurring).

In other words,

speculative or “trifling” costs divorced from “overall

context” are not enough. Id. at 468-69. Title VII

requires proof that the accommodation would impose

“substantial increased costs in relation to the conduct

of [an employer’s] particular business.” Id. at 470.

Groff aligned Title VII’s accommodation mandate

with this Nation’s history of religious liberty and

tolerance.4 By restoring the statute to what it

“actually says,” this Court reaffirmed that Title VII is

a meaningful, context-sensitive safeguard for religious

exercise, not a hollow formality satisfied by trivial

inconvenience. Id. at 468. That clarification is a

significant victory for religious liberty. It ensures that

religious Americans are not effectively barred from

employment in certain industries or occupations. And

that protection is especially vital for religious

minorities, who are least likely to find their practices

reflected in majoritarian workplace norms and thus

most in need of robust accommodation.

That history reaches back to before the founding, when

colonies were “established as sanctuaries for particular groups of

religious dissenters” who “extended freedom of religion to groups

. . . beyond their own.” City of Boerne v. Flores, 521 U.S. 507, 551

(1997) (O’Connor, J., dissenting). By the time the Bill of Rights

was ratified in 1791, the Nation’s commitment to religious liberty

had already endured for more than a century. See Michael W.

McConnell, The Origins and Historical Understanding of Free

Exercise of Religion, 103 HARV. L. REV. 1409, 1425 (1990) (“In

1649, the Maryland Assembly passed a statute containing the

first ‘free exercise’ clause on the continent[.]”).

But our Nation’s promises of religious liberty are

not self-executing.5 If left undisturbed, especially as

disagreement among the circuits grows, see Pet. 13-20,

the Ninth Circuit’s decision will erode the protections

this Court restored in Groff.

A. The Ninth Circuit Effectively Revived

The Very “De Minimis” Standard Groff

Rejected.

This Court could not have been clearer: “the de

minimis reading of Hardison is a mistake.” Groff, 600

U.S. at 454, 471-72. After Groff, undue hardship

means “something very different”—it requires a “factspecific inquiry” to assess whether an employer has

shown “substantial increased costs in relation to the

conduct of its particular business.” Id. at 468-70. That

inquiry cannot rely on generalized, unquantified, or

speculative burdens. There must instead be an

assessment of the particular accommodation at issue,

the employer’s actual operations, and the “logical step”

of examining the concrete “ramifications” of granting

the exemption.6 Id. at 472.

See James Madison, Memorial and Remonstrance

Against Religious Assessments (1785), reprinted in Everson v. Bd.

of Educ. of Ewing Twp., 330 U.S. 1, 65 (1947) (appendix to dissent

of Rutledge, J.) (“[I]t is proper to take alarm at the first

experiment on our liberties.”).

Cf. Fulton v. City of Philadelphia, 593 U.S. 522, 541

(2021) (citation omitted) (clarifying, in another religious freedom

context, that rather than relying on “‘broadly formulated

interests,’ courts must ‘scrutinize[ ] the asserted harm of granting

specific exemptions to particular religious claimants’”); Gonzales

The Ninth Circuit’s analysis circumvented Groff

in two important ways.

First, the panel sustained summary judgment by

crediting precisely the kind of speculative and

unquantified evidence Groff’s standard does not

permit. It approved SRFR’s refusal to accommodate

based on factors like the “‘increased risk’ of employee

absences” and “scheduling issues,” the “potential loss

of a contract” with the Department of Corrections

(DOC), and “potential liability” under an insurance

exclusion. Petersen, 150 F.4th at 1221 (emphases

added) (“[W]e do not understand ‘undue hardship’ to

mean ‘realized hardships.’”); see Pet. 10 (explaining

that the panel mistakenly focused on whether the

evidence supported a “reasonable concern” of undue

hardship). Though the Ninth Circuit said a risk must

be “realistic,” it treated that requirement as satisfied

by such unquantified predictions—all without proof of

how those risks would have imposed substantial

increased costs on SRFR’s business. Petersen, 150

F.4th at 1222. The panel further weighed how

Petitioners’

proposed

accommodations

“might

endanger” others or “potentially” limit operations,

concluding those accommodations were not the

“safest, easiest, and most effective.” Id. at 1219-20

(emphases added).

v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,

438 (2006) (emphasizing that the government’s “invocation of . . .

general interests, standing alone, is not enough”).

But religious accommodations need not be

maximally convenient to the employer to pass

muster—that is Hardison’s erroneous test. And, more

importantly, Groff requires more than a mere

possibility of burden. An employer may not satisfy

Title VII by invoking “some sort of additional costs”;

the hardship must rise to an “excessive” or

“unjustifiable” level in the overall context of the

business. 600 U.S. at 468-69. When the test becomes

whether the employer reasonably feared hardship,

rather than whether accommodation would impose a

substantial hardship, the standard is just de minimis

by another name. Courts may consider future risk,

but Groff requires proof that the predicted risk would

translate into substantial increased costs for an

employer’s particular business.

The record here illustrates the difference.

Petitioners pointed to evidence that SRFR had

accommodated their opt-outs both before and after the

Governor’s mandate, that DOC never once objected to

Petitioners’ working in its facilities once they

returned, and that SRFR’s own chief acknowledged

communicable-disease suits were “rare and difficult . .

. to win.” Petersen, 150 F.4th at 1221-22; Pet. 8-10.

That evidence may or may not persuade a jury

considering undue hardship, but it squarely rebuts the

notion that speculative risks automatically amount to

undue hardship as a matter of law.

The panel’s treatment of “risk” also threatens to

swallow accommodation rights whole in safetyadjacent jobs. If employers in public-facing fields—

where some risk is always present—are routinely

allowed to deny accommodations on the basis of

unquantified or generalized safety “risk,” then Groff’s

“substantial increased costs” requirement becomes

meaningless. 600 U.S. at 470.

The panel made a related error in assessing

SRFR’s asserted burdens in the abstract, rather than

“in relation to the conduct of its particular business.”

Id. Aside from noting the number of exemption

requests, the panel never explains how the “potential

loss of a contract” or “potential [unquantified]

liability” bears on SRFR’s operating budget. Petersen,

150 F.4th at 1221. Nor do we learn whether the

asserted safety risks, in relation to the DOC contract

or otherwise, could have been mitigated by testing

protocols, station assignments, staffing adjustments,

voluntary shift swaps, or other measures tailored to

SRFR’s actual operations. Cf. Groff, 600 U.S. at 471,

473 (explaining that “voluntary shift swapping” and

“occasional

shift

swapping”

are

potential

accommodations); Adeyeye v. Heartland Sweeteners,

LLC, 721 F.3d 444, 455 (7th Cir. 2013) (recognizing

that an employer on summary judgment “must show,

as a matter of law, that any and all accommodations

would have imposed an undue hardship” (emphasis

added) (cited by this Court in Groff, 600 U.S. at 473)).

Treating the sheer number of requests as evidence

of undue hardship only compounds the problem. Title

VII may permit consideration of cumulative

operational burden, but it still requires an

individualized and context-specific assessment of

whether the requested accommodation would impose

substantial hardship. It does not permit an employer

merely to tally initial requests and declare them

collectively too inconvenient—especially where

different requests from different employees in

different circumstances may require different

accommodations.

In that vein, the panel endorsed the incorrect

notion that an employer’s mere receipt of many

accommodation requests weighs in favor of refusing

individual religious exemptions, however meritorious

they may be. Petersen, 150 F.4th at 1220 (“The fact

that forty-six requests were ‘initially received’ is the

critical data point[.]”). This is exactly the sort of

wholesale, categorical treatment that Groff’s “contextspecific” test rejects. 600 U.S. at 473. And, at bottom,

“this argument is but another formulation of the

‘classic rejoinder of bureaucrats throughout history: If

I make an exception for you, I’ll have to make one for

everybody, so no exceptions.’” Holt v. Hobbs, 574 U.S.

352, 368 (2015) (citation omitted). This Court has

“rejected a similar argument in analogous contexts,”

see Sherbert v. Verner, 374 U.S. 398, 407 (1963), and

should “reject it again today.” Holt, 574 U.S. at 368.

Second, Groff also instructed courts to consider

“all relevant factors.”

600 U.S. at 470.

That

necessarily includes real-world evidence of “the

policies followed at other well-run institutions,” as this

Court has explained in similar settings. Holt, 574 U.S.

at 368 (citation omitted); Mast v. Fillmore Cnty., 141

S. Ct. 2430, 2433 (2021) (Gorsuch, J., concurring); see

also, e.g., Nunez v. Wolf, 117 F.4th 137, 148-49, 155

(3d Cir. 2024) (citation omitted) (faulting the “failure

of a defendant to explain why another institution with

the same compelling interests was able to

accommodate the same religious practices”). In other

words, courts ought to consider whether comparable

employers could—and did—operate successfully

under similar conditions while accommodating

Petitioners’ religious objections.

Though not

necessarily dispositive, such evidence is plainly

relevant to the question of undue hardship and often

the most powerful evidence that employees can offer.

Petitioners here offered precisely that evidence:

nearby fire departments accommodated the same

religious objections, and one even “hired Plaintiff

David Petersen while he was on leave from SRFR” to

“f[ight] fires alongside his SRFR peers” during the

very period SRFR insisted accommodation was

impossible. Petersen, 150 F.4th at 1222; Pet. 9-10.

That evidence did not “judge SRFR by the responses

taken by other fire departments,” Petersen, 150 F.4th

at 1222; rather, it bore directly on whether SRFR’s

asserted costs were truly “undue”—rising to an

“‘excessive’ or ‘unjustifiable’ level”—or instead

manageable. Groff, 600 U.S. at 469. See also Williams

v. Legacy Health, 2026 WL 1239760, at *3 (9th Cir.

May 6, 2026) (quoting Petersen, 150 F.4th at 1222)

(denying religious accommodation in part because,

under Petersen, the court cannot consider “the

responses taken by other [employers]” (alteration in

original)).

The Ninth Circuit’s decision cannot be squared

with Holt’s treatment of comparative institutional

evidence. In Holt, a Muslim inmate sought to grow a

half-inch beard in accordance with his religious

beliefs, and prison officials denied the request on

security grounds. This Court unanimously reversed,

holding that the prison “failed to show, in the face of

petitioner’s evidence,” why other institutions “permit

inmates to grow ½-inch beards . . . but it cannot.” Holt,

574 U.S. at 368. This Court stressed that “[w]hile not

necessarily controlling, the policies followed at other

well-run institutions would be relevant to a

determination of the need for a particular type of

restriction.” Id. (citation omitted). And it required

that when other institutions “offer an accommodation,

[the government] must, at a minimum, offer

persuasive reasons why it believes that it must take a

different course.” Id. at 369.

Although Holt arose under RLUIPA, its

methodological point maps directly onto Groff’s

requirement to consider all relevant factors. The

principle is the same: when a defendant claims that

an accommodation would impose an undue burden,

evidence that comparable institutions accommodated

the same practice is powerful—and often the best—

proof that the claimed hardship is neither “excessive”

nor “unjustifiable.” Groff, 600 U.S. at 469. The

contrast here is stark, as shown below:

This Court in Holt

Comparator evidence

is relevant: “[T]he

policies followed at other

well-run institutions

would be relevant to a

determination of the

need for a particular

type of restriction.” 574

U.S. at 368.

When peers

accommodate the

same religious

practice, the defendant

“must, at a minimum,

offer persuasive

reasons” for “tak[ing] a

different course.” 574

U.S. at 369.

Result: Reversing in

part because a prison

“failed to show, in the

face of petitioner’s

evidence,” why other

institutions “permit

inmates to grow ½-inch

beards . . . but it

cannot.” 574 U.S. at

368.

9th Cir. in Petersen

Comparator evidence

is irrelevant: “We

cannot judge SRFR by

the responses taken by

other [neighboring] fire

departments.” 150

F.4th at 1222.

When peers

accommodate the

same religious

practice, that is legally

immaterial “hindsight”

evidence: “The

reasonableness of

others’ decisions is not

before us.” 150 F.4th at

1222.

Result: Affirming in

part by expressly

disregarding Petitioners’

evidence that nearby

fire departments

allowed firefighters to

continue working and

that one even hired

Petitioner Petersen to

fight fires “alongside his

SRFR peers.” 150 F.4th

at 1222.

The Ninth Circuit’s bar on comparative evidence

is especially harmful to minority faiths in particular,

in addition to religious Americans in general. In many

cases, examining a comparator may be the only way

an employer can ascertain whether it can

accommodate religious practices that it has never

before encountered. For example, an employer may

not know initially whether it can accommodate a

religious Jewish employee’s request to wear a

religious head covering under his hard hat or to

refrain from traveling on the Sabbath, but seeing it

done elsewhere might reveal that accommodation is

entirely practical.

The decision below cannot be reconciled with Title

VII or this Court’s precedents. By permitting an

employer to prevail on unquantified risk predictions,

by evaluating burdens in the abstract rather than in

the context of actual operations, and by disregarding

probative evidence from comparable institutions, the

Ninth Circuit effectively reinstated the de minimis

standard Groff repudiated.

B. The Ninth Circuit Compounded That

Error By Misapplying The Summary

Judgment Standard.

It is “the jury, not the court, which is the factfinding body.” Tennant v. Peoria & P. U. Ry. Co., 321

U.S. 29, 35 (1944); Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986); cf. U.S. CONST. amend. VII.

Indeed, so clear is the rule that juries—not judges—

“weigh the evidence” and “draw[] . . . inferences from

the facts,” Liberty Lobby, 477 U.S. at 249, 255, that

this Court has repeatedly summarily vacated contrary

rulings. See Lombardo v. City of St. Louis, 594 U.S.

464 (2021); Tolan v. Cotton, 572 U.S. 650, 659 (2014).

The Ninth Circuit’s departure from that basic rule

here is apparent: instead of asking whether every

reasonable juror would find SRFR faced an undue

hardship, Liberty Lobby, 477 U.S. at 248, the court

stated that “we consider whether SRFR would have

faced an undue hardship,” Petersen, 150 F.4th at 1218

(emphasis added). That omission mattered because

the panel then proceeded to weigh the evidence and

“select from among conflicting inferences” as though it

were the factfinder. Tennant, 321 U.S. at 35.

That error appeared across all the court’s

categories of asserted burden—safety, finances, and

operations. In each category, the panel credited

SRFR’s

predictive

evidence

and

discounted

Petitioners’ contrary proof as irrelevant or too

insubstantial to matter.

On safety, the panel privileged the “concerns” of

SRFR’s expert, Dr. Lynch, over Petitioners’ evidence

that firefighters always “masked . . . and maintained

social distancing” and that SRFR had accommodated

Petitioners’ opt-outs both before and after the

Governor’s mandate. Petersen, 150 F.4th at 1218-22

(“SRFR mandated the vaccine for a seven-month

period . . . after managing the pandemic without one

at other times.”); see Pet. 9-10. A jury might credit Dr.

Lynch. But a court may not grant summary judgment

by deciding that a moving party’s expert was more

persuasive than the opposing party’s record evidence.

So too with finances and operations. As to the

DOC contract, Petitioners offered evidence that DOC

never objected to Petitioners “working in its facilities

once SRFR allowed [them] to return” and that DOC’s

policy allowed for religious accommodations anyway.

Petersen, 150 F.4th at 1221; Pet. 9-10. The panel

nonetheless deemed the risk of losing the contract

dispositive because DOC’s policy was “not within

SRFR’s control.” Petersen, 150 F.4th at 1221. That is

not a summary judgment inference in the opposing

party’s favor. See Tolan, 572 U.S. at 651 (citing

Liberty Lobby, 477 U.S. at 255) (granting certiorari,

vacating, and remanding because “the Fifth Circuit

failed to adhere to the axiom that in ruling on a motion

for summary judgment, ‘[t]he evidence of the

nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor’”).

Petitioners also pointed to evidence that SRFR’s

insurer had “never faced” the sort of lawsuit SRFR

hypothesized, that SRFR’s own chief described such

suits as “rare and difficult . . . to win,” and that nearby

departments—and indeed SRFR itself—had already

implemented the proposed accommodations. Petersen,

150 F.4th at 1221-22; Pet. 9. The panel brushed that

evidence aside as legally irrelevant “hindsight” and

found that SRFR was “justified” in its version of the

facts.7 Petersen, 150 F.4th at 1222. That summary

In other instances, the court concluded that Petitioners’

evidence lost because it was “contradicted by other evidence in

the record.” Petersen, 150 F.4th at 1219. That result flies in the

face of this Court’s precedents. See Tennant, 321 U.S. at 35

judgment error is especially serious here because

Groff itself emphasizes that undue hardship is “factspecific” and turns on “all relevant factors.” 600 U.S.

at 468, 470. A standard that is fact-intensive by

design cannot be converted into a paper-record inquiry

by treating disputed evidence as irrelevant hindsight.

In Tolan, for instance, it was enough for this Court

that the Court of Appeals had made a “fundamental”

error in neglecting the principle that “a judge’s

function

summary

judgment

not

to weigh the evidence and determine the truth of the

matter.” 572 U.S. at 656, 659 (cleaned up) (“[W]e

intervene here because the opinion below reflects a

clear misapprehension of summary judgment

standards in light of our precedents.”).

Here, not only did the Ninth Circuit commit the

same fundamental error, but the disputed facts at

issue are outcome-determinative: the panel “fail[ed]

to credit evidence that contradicted some of its key

factual conclusions” and “resolved disputed issues in

favor of the moving party” as to every category of cost

that featured in its undue hardship analysis. Id. at

657. Religious minorities will be unprotected by

Groff’s demanding standard if courts can convert a

fact-specific inquiry into summary judgment

whenever a party produces some admissible evidence

of potential hardship.

(explaining that it is “not the function of a court to search the

record” for conflicting evidence “in order to take the case away

from the jury”).

As the petition explains, the question presented

controlled the outcome below. Pet. 20, 22-23. In

circuits that require substantiated proof of undue

hardship, rather than a reasonable concern about

potential hardship, the same evidence would have at

least permitted a jury to decide whether SRFR’s

asserted burdens were real, substantial, and businessspecific. The panel’s failure to apply—indeed, to

state—the correct summary judgment standard

independently warrants this Court’s review.

II. THE QUESTION PRESENTED IS

EXCEPTIONALLY IMPORTANT TO

RELIGIOUS MINORITIES AND WARRANTS

IMMEDIATE REVIEW.

As this Court recognized in Groff, the Ninth

Circuit’s error will disproportionately harm members

of minority faiths. 600 U.S. at 465 (observing that the

de minimis test had “blessed the denial of even minor

accommodation in many cases, making it harder for

members of minority faiths to enter the job market”).

That concern is not theoretical. When courts

dilute protections for religious exercise, it is adherents

of minority traditions—whose practices are least

likely to align with prevailing workplace norms—who

bear the brunt. See Sherbert, 374 U.S. at 404 (warning

of the danger that adherents may be forced to choose

between losing their jobs and violating their faith).

For religious Jews—whose observance of Shabbat,

religious dress, and other religious obligations often

diverge from dominant workplace expectations—the

difference between a meaningful accommodation

standard and a watered-down one is the difference

between equal participation in the workforce and

exclusion from it. The same is true for other religious

minorities, such as:

•

Muslim employees who require breaks for daily

prayers, time off for Eid and Ramadan

observance, halal dietary options, or the ability

to wear a hijab or other religious dress, see

Abercrombie & Fitch Stores, 575 U.S. at 770;

•

Sikh employees who wear turbans, maintain

unshorn hair, or carry small ceremonial

daggers as articles of faith—practices that may

conflict with workplace uniform or grooming

policies, see Singh v. Berger, 56 F.4th 88, 93-94

(D.C. Cir. 2022);

•

Seventh-day Adventists and other Sabbatarian

Christians who cannot work on Saturdays, see

Sherbert, 374 U.S. at 399; or

•

Observers of Native American traditions who

may need leave for ceremonial practices or the

ability to wear sacred items, see Yellowbear v.

Lampert, 741 F.3d 48, 53, 56 (10th Cir. 2014)

(opinion of Gorsuch, J.).

Indeed, because certain religious practices are

often alien to employers, employers are more likely to

assume—without adequate basis—that such practices

cannot be accommodated, even where they would

readily accommodate more familiar religious

observances.

This Court has thus long emphasized the need to

“protect the rights of those whose religious practices

are not shared by the majority and may be viewed with

hostility.” Employment Division v. Smith, 494 U.S.

872, 902 (1990) (O’Connor, J., concurring in the

judgment); Salazar v. Buono, 559 U.S. 700, 728 (2010)

(Alito, J., concurring in part and concurring in the

judgment) (“Congress has shown notable solicitude for

the rights of religious minorities.”).

The problem is national and recurring. As the

petition details, the courts of appeals are now divided

over whether Title VII requires substantiated proof of

undue hardship or only a reasonable concern about

potential hardship.

Pet. 13-20.

And religiousaccommodation disputes continue to arise across the

country in workplaces ranging from hospitals to

schools to correctional institutions. Id. at 13-18.

This case is also a strong vehicle. The question

presented controlled the judgment below, the record

cleanly presents the difference between actual

hardship and predicted risk, and the Ninth Circuit’s

published opinion was its first sustained application

of Groff. Petersen, 150 F.4th at 1217; Pet. 20-25.

Immediate review would give lower courts needed

guidance before post-Groff confusion hardens. See

Williams, 2026 WL 1239760, at *3 (applying Petersen’s

mistaken rule on summary judgment to deny religious

accommodation).

Absent review, Title VII’s protection will once

again depend on geography and employer grace.

Employees of faith in one circuit will receive the robust

protection Groff promised, while employees elsewhere

will remain subject to a diluted standard that

Congress did not enact—affecting religious minorities

in particular. This Court’s intervention is necessary.

The petition should be granted.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari.

Respectfully submitted,