Amicus Brief — Parker Seal Co. v. Cummins

JUL 15 sve

IN THE

Supreme Court of the United States

October Term, 1975

No. 75-478

PARKER SEAL COMPANY,

Petitioner,

PAUL CUMMINS,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF SYNAGOGUE COUNCIL OF AMERICA

AND NATIONAL JEWISH COMMUNITY

RELATIONS ADVISORY COUNCIL,

AMICI CURIAE*

Leo PFEFFER

15 Kast 84th Street

New York, New York 10028

(212) 879-4500

Attorney for Amici Curiae

* Constituent organizations listed on inside cover.

307 BAR PRESS, Inc., 132 Lafayette St... New York 10013 — 966-3906

(9313)

EE EEE

Constituent Organizations of Synagogue Council

of America:

CrNTRAL CONFERENCE OF AMERICAN Rassis,

representing the Reform rabbinate;

RapprnicaL AssEMBLY OF AMERICA,

representing the Conservative rabbinate;

RapsinicaL Counc, or AMERICA,

representing the Orthodox rabbinate;

Uxion or American Heprew ConGREGATIONS,

representing the Reform congregations ;

Unston or Orntuopox Jewish CoNGREGATIONS OF AMERICA,

representing the Orthodox congregations;

Usirep Synacocve or AMERICA,

representing the Conservative congregations,

Constituent Organizations of National Jewish

Community Relations Council:

AMERICAN JEWiIsh COMMITTEE:

AMERICAN JEWISH CONGRESS:

Anti-DreramMation Leacve or B’xat B’pritH

Jewish Lanor ComMMITTEE:

Jewish War VETERANS oF THE Unitep States:

Nationa, Cocnciu or Jewisn Women,

and one hundred local Jewish Community Councils,

including all the major cities in the United States.

TABLE OF CONTENTS

Interest of the Amici

Statutory Provisions and Regulations Involved

The Question to Which This Brief Is Addressed

Summary of Argument

Argument

Point One—The challenged statute and guideline do

not violate the Establishment Clause

A. The statute and guideline have a substan-

tial secular purpose

B. The primary effect of the 1972 amendment

and the 1967 guideline is not to advance re-

ligion but to protect the religious freedom

of those who observe a day other than Sun-

day as their holy day of rest

C. The challenged statute and guideline do not

foster divisive entanglement of govern-

mental and religious activity

D. Consistent governmental practice, federal,

state and municipal, supports the consti-

tutionality of the challenged statute

Point Two—The challenged statute and guideline

are necessary and proper measures for the en-

forcement of the Free Exercise Clause of the

First Amendment

Conclusion

11

15

18

21

26

II

TABLE OF AUTHORITIES

PAGE

Cases:

Abington School District v. Schempp, 374 U.S. 203

(1963) 8

Board of Education v. Allan, 392 U.S. 236, 248 (1968) 8

Braunfeld v. Brown, 366 U.S. 599 (1961) 10

Committee for Public Education and Religious Lib-

erty v. Nyquist, 415 U.S. 756, 773-74 (1973 8

Cruz v. Beto, 406 U.S. 939 (1972) 16

Engel v. Vitale, 370 U.S. 421, 428, 480 (1962) 20

Epperson v. Arkansas, 393 U.S. 97 (1968) 8

Girouard v. United States, 328 U.S. 61 (1946) 10

Hardison v. T.W.A. Inc., 527 F.2d 33 (8th Cir. 1975)

petition for cert. pending, 44 U.S.L.W. 3481 (2/

24/76) i)

Hunt v. MeNair, 413 U.S. 734, 741-742 (1973 8

Jackson v. Veri Fresh Poultry, Inc., 304 F.Supp. 1276

(B.D. La. 1969) 9g

Jenison, In re, 375 U.S. 14 (1963) 24

Jordan v. North Carolina National Bank, 399 F. Supp.

172, 179-80 (W.D.N.C. 1975) 25

Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971) 8

Lemon v. Sloan, 413 U.S. 825, 829-830 (1973 8

Marsh v. Alabama, 326 U.S. 501 (1916) 22, 23

MecColluch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) 25

McGowan v. Maryland, 366 U.S. 420, 449 (1961) s

Meek v. Pittenger, 421 U.S. 349, 358 (1975) 7

PAGE

Reid v. Memphis Publishing Co., 468 F.2d 348 (6th

Cir. 1972) aff’d after remand, 021 F.2d 512 (1975) g

Riley v. Bendix Corp., 464 F.2d 1113 (5th Cir. 1972) 9

Sherbert v. Verner, 374 U.S. 399 (1963) 24

Tilton v. Richardson, 403 U.S. 672, 678-79 (1971) 8

United States v. Ballard, 322 U.S. 78 (1944) : 16

United States v. Kahane, 396 F. Supp. 68; (E.D.N.Y.

1975), aff’d 527 F.2d 492 (2d Cir. 1975) 16

Walz v. Tax Commission of the City of New York, 397

U.S. 664, 672-73 (1970) 8,18

Wisconsin v. Yoder, 406 U.S. 205 (1972) 16, 24

Zorach v. Clauson, 343 U.S. 306, 315 (1952) 8,11

Statutes:

Civil Rights Act of 1964, Section 701(j), 42 U.S.C.

£2000e (}) 5, 6, 21

Civil Rights Act of 1964, Section 703(a), 42 U.S.C.

§2000e-2 (a) 5, 21

Conn. Gen. Stat. §5-250(c) . 18

Equal Employment Opportunity Commission Guide-

line 1605.1 (29 C.F.R. $1605.1) 5, 20

Fla. Stat. Ann. £231.40(1) (c) 18

N.J. Rev. Stat. 11:14-5 18

N.J. Stat. Ann. §18.14-92.2 20

N.Y. Civ. Serv. Rules and Regs. $21.6 18

N.Y. Edue. Law £3210(1) (6) 20

Universal Military Training and Service Act, Section

6(}), 00 U.S.C. App. 456(7) 16

42 U.S.C. §300a-7 13

ee L___l"t"#éeaéaéaé4é.4e..g..gaweeeeeeeee

IV

Miscellaneous:

118 Cong. Rec. H. 1861-62

D. Manwaring, F. G. Folsom, ‘‘Recent Restrictions

Upon Religious Liberty,’’ American Politwal Ser-

ence Review, XXXVI, December 1942, p. 1053

D. Manwaring, Render Unto Caesar; The Flag Salute

Controversy (1962) Ch. 8 .

Pfeffer, The Supremacy of Free Exercise, 61 George-

town L. Rev. 1115 (1973)

PAGE

10

17

17

24

IN THE

Supreme Court of the United States

October Term, 1975

No. 75-475

> 2 i

Parker Seat Company,

Petitioner,

v.

Pact CuMMINs,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF SYNAGOGUE COUNCIL OF AMERICA

AND NATIONAL JEWISH COMMUNITY

RELATIONS ADVISORY COUNCIL,

AMICI CURIAE

This brief amici curiae is submitted with the consent of

the parties.

This proceeding was initiated by respondent Cummins

after he was discharged by petitioner Parker Seal Company

because he refused to work on Saturday. Respondent is a

member of a seventh-day sect, the World Wide Church of

2

God. After he was discharged, he filed a charge of unlaw-

ful discrimination with the Federal Equal Employment Op-

portunity Commision (EEOC) which administers the fed-

eral fair employment law embodied in Title VII of the Civil

Rights Act of 1964 (42 U.S.C. Sections 2000e et seq.). He

also filed a charge with the Kentucky Human Rights Com-

mission alleging violation of that state’s fair employment

law.

The Kentucky Commission dismissed respondent’s

charge after a hearing. The EEOC nevertheless issued a

right-to-sue letter and respondent accordingly initiated this

suit under the federal statute in the United States District

Court for the Eastern District of Kentucky. That court,

relying on the record before the Kentucky Commission, dis-

missed respondent’s complaint. It found that petitioner

had made a reasonable accommodation to respondent’s re-

ligious needs,

The Court of Appeals for the Sixth Cireuit reversed,

with one judge dissenting. It held that: (1) the Kentucky

Commission’s order did not have res judicata effect; (2)

there was no substantial evidence to support the conclusion

that accommodation of respondent’s religious practice

would have imposed an undue hardship on the employer;

and (3) the statutory provisions regarding religious prac-

tices did not violate the Establishment Clause, either by re-

quiring employers to foster religion by deferring to their

employees’ religious requirements or by affording religious

employees preferential treatment not accorded to others.

This Court issued its writ of certiorari to review the

Court of Appeals’ deeision.

Interest of the Amici

This brief is submitted on behalf of the Synagogue

Council of America and the National Jewish Community

Relations Advisory Council.

The Synagogue Council of America is a co-ordinating

body consisting of the organizations representing the three

divisions of Jewish religious life: Orthodoz, Conservative

and Reform. It is composed of:

Central Conference of American Rabbis, representing

the Reform rabbinate;

Rabbinical Assembly of America, representing the

Conservative rabbinate ;

Rabbinical Council of America, representing the Ortho-

dox rabbinate;

Union of American Hebrew Congregations, represent-

ing the Reform congregations;

Union of Orthodox Jewish Congregations of America,

representing the Orthodox congregations ;

United Synagogue of America, representing the Con-

scivative congregations.

The National Jewish Community Relations Advisory

Council is a co-ordinating body comprised of the following

national lay Jewish organizations, in addition to the con-

gregational bodies mentioned above, concerned with Ameri-

can Jewish community relations:

American Jewish Committee

American Jewish Congress

4

Anti-Defamation League of B’nai B'rith

Jewish Labor Committee

Jewish War Veterans of the United States

National Council of Jewish Women

and one hundred local Jewish Community Councils, inelud-

ing all the major cities in the United States.

The organizations affiliated with the Synagogue Council

of America and the National Jewish Community Relations

Advisory Council include in their membership the over-

whelming majority of Americans affiliated with Jewish or-

ganizations. We believe, therefore, that in submitting this

brief we speak for the greater part of American Jewry.

Our interest in the cases before this Court is twofold.

In the first place, the appellees, like members of the Jewish

faith, observe the seventh day of the week as their Sabbath

and refrain from all secular business and labor on that day.

Enforcement of compulsory Sunday observance laws

against them constitutes, in our view, a serious infringe-

ment of the civil, religious and economic rights of Jews and

imposes a heavy burden upon them because of their adher-

ence to their religious beliefs,

However, our concern extends beyond the interests of

the particular parties to this litigation. We would be con-

cerned even if the appellees were not observers of the

seventh day of the week as the Sabbath. We believe that

the principle of religious liberty is impaired if any person

is penalized for adhering to his religious beliefs, or for not

adhering to any religious belief, so long as he neither inter-

5)

feres with the rights of others nor endangers the public

peace or security.

For these reasons we sought and obtained the consent of

counsel for the parties to submit this brief amici curiae.

Statutory Provisions and Regulations Involved

Section 703(a) of the Civil Rights Act of 1964 (42 U.S.C.

Section 2000c-2(a) provides:

It shall be an unlawful employment practice for an

employer—(1) to... discharge any individual, or

otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or priv-

ileges of employment, because of such individual’s

oo + SOUMIOR. ...

Acting under this provision, the EEOC, in 1967, adopted

Guidline 1605.1 (29 C.F.R. Section 1605.1), which provides:

[Slection 703(a)(1) of the Civil Rights Act of 1964

... includes an obligation on the part of the employer to

make reasonable accommodations to the religious needs

of employees and prospective employees where such

accommodations can be made without undue hardship

on the conduct of the employer’s business.

[T]he employer has the burden of proving that an

undue hardship renders the required accommodations

to the religious needs of the employee unreasonable.

In 1972, Title VII of the 1964 Civil Rights Act was

amended by adding the following language as Section

701(j) (U.S.C. Section 2000e(j)):

The term ‘‘religion’’ includes all aspects of reli-

gious observance and practice, as well as belief, unless

6

an employer demonstrates that he is unable to reason-

ably accommodate to an employee’s or prospective em-

ployee’s religious observance or practice without undue

hardship on the conduct of the employer’s business.

The Question to Which This Brief Is Addressed

This brief is addressed to the question of the constitu-

tionality, under the First Amendment, of Section 701(}) of

the Civil Rights Act of 1964 (and a regulation that pre-

ceded it), which defines ‘‘religion,’’ as used in the section

of that Act forbidding discrimination in employment be-

cause of religion, to include ‘‘all aspects of religious ob-

servance and practice, as well as belief, unless an employer

demonstrates that he is unable to reasonably accommodate

to an employee’s religious observance or practice without

undue hardship on the conduct of the employer’s business.”’

Summary of Argument

I. The challenged statute and guideline do not violate

the Establishment Clause of the First Amendment since they

have a clearly recognizable secular purpose, their primary

effect is neither to advance nor inhibit religion, and neither

the statute and guideline nor their administration involve

excessive government entanglement with religion. By stat-

ute and practice, the Federal government and many state

and municipal governments have long done and now do

exactly what the challenged measures mandate and it is

inconceivable that during this period they all have been

violating the Establishment Clause.

7

II. Not only do the challenged statute and guideline

not violate the Establishment Clause but their validity can

be sustained under the ‘‘necessary and proper”’ clause of

Article I, Section 18, of the Constitution, as applied to the

Free Exercise Clause of the First Amendment.

ARGUMENT

POINT CQNE

The challenged statute and guideline do not

violate the Establishment Clause.

In Meek v. Pittenger, 421 U. S. 349, 358 (1975), this

Court expressed the three-part test for validity of a statute

challenged under the Establishment Clause. ‘*First,’’ it

said, ‘‘the statute must have a secular legislative purpose.

Second, it must have a primary effect that neither advances

nor inhibits religion. Third, the statute and its administra-

tion must avoid excessive governmental entanglement with

religion.”’ - Petitioners claim that the statute and regulation

challenged herein fail under each of these tests. We believe

there is no validity to this claim in respect to any part of

the three-pronged test.

A. The statute and guideline have

a substantial secular purpose.

In respect to the first of these prongs, we note that this

Court has never found any statute enacted by Congress to

be lacking a substantial secular purpose and only twice has

it made such a finding in a challenge to a state statute.

The claim of illegitimacy of purpose has been made often

8

but, with the two exceptions, it has consistently been re-

jected. McGowan v. Maryland, 366 U. 8. 420, 449 (1961)

(Sunday closing law); Tilton v. Richardson, 403 U.S. 672,

678-79 (1971) (inclusion of church-related colleges under

the Higher Education Facilities Act of 1965); Board of

Education v. Allen, 392 U. S. 236, 243 (1968) (aid to

parochial schools); Lemon v. Kurtzman, 403 U.S. 602, 612-

13 (1971) (same); Committee for Public Education and

Religious Liberty v. Nyquist, 418 U. 8. 756, 773-74 (1973)

(same): Lemon v. Sloan, 413 U.S. 825, 829-30 (same) ; Hunt

v. McNair, 413 U. S. 734, 741-42 (1973) (aid to church-

related colleges); Walz v. Tax Commission of the City of

New York. 397 U.S. 664, 672-73 (1970) (tax exemption for

houses of worship).

The two exceptions are Abington School District v.

Schempp, 374 U.S. 203 (1963) (law requiring Bible reading

in public schools), and Epperson v. Arkansas, 393 U.S. 97

(1968) (law banning teaching of evolution in public schools).

Both of these cases involved affirmative religious intrusions

into the public schools. Neither involved excusing children

from school attendance on their Sabbath or holy days. That

the Court has not questioned the constitutionality of such

excusals is strongly suggested by Zorach v. Clauson, 348

U.S. 506, 515 (1952), which is far more apposite to the

present case than Abmgton and Epperson.

With all due respect, the claim that the challenged stat-

ute lacks a secular legislative purpose borders on the

frivolous. The logic of the claim is that any statute or

constitutional claim seeking to protect the free exercise of

religion, including the Free Exercise Clause of the First

Amendment, lacks a secular purpose.

9

The only evidence submitted by petitioner to support

this claim are remarks made in 1972 by Senator Randolph in

sponsoring the amendment to the 1964 Act that became See-

tion 701(j). The remarks quoted in the petitioner's brief

(pp. 21-23), hardly support the claim and they are at least

equally understandable as support of an amendment seeking

to protect the religious liberty of those observing a day

other than Sunday as their holy day of rest.

But there is a more serious flaw in petitioner’s argu-

ment. As petitioner recognizes in its brief (pp. 17-18),

respondent’s claim arose before the 1972 amendment was

adopted and accordingly was governed by the law at the

time he was discharged. Hence, petitioner argues, as indeed

it must, that the 1967 guideline upon which respondent’s

claim was initially based was itself lacking a secular pur-

pose. The 1972 amendment is practically a verbatim in-

corporation of the relevant 1967 guideline. The Federal

District Courts and Courts of Appeal passing upon claims

under the guideline identical with that of the respondent

herein had no difficulty regarding its constjtutionality.

Jackson v. Vert Fresh Poultry, Inc., 304 F. Supp. 1276

(E.D. La. 1969); Riley v. Bendix Corp., 464 F. 2d 1113 (Sth

Cir. 1972); Reid v. Memphis Publishing Co., 468 F. 2d 346

(6th Cir. 1972), aff’d after remand, 521 F. 2d 512 (1975).

Accord, Hardison v. T.W.A. Inc., 527 F. 2d 33 (8th Cir.

1975), petition for cert. pending, 44 U.S.L.W. 3481 (2/24/

76).

Petitioner herein recognizes this and explains the amend-

ment as only an effort to remove some doubts as to whether

the 1967 guideline was authorized by Title VII as it then

read (Brief, p. 17). If this is so, and we have no doubt

10

that it is, Senator Randolph’s remarks in 1972 are clearly

irrelevant.

The purpose of the 1972 amendment is quite obvious—

and plainly secular. It was not to change existing law but

to codify it. Its specific purpose was, as petitioner notes,

to remove the doubts as to EEOC’s statutory authority to

issue the very guideline upon which respondent herein based

his claim in the first instance. See 118 Cong. Rec. H. 1861-62.

An analogous situation was the enactment by Congress

in 1952 of a provision in the Immigration and Nationality

Act codifying the decision of this Court in Girouard v.

United States, 328 U. S. 61 (1946), which had held that the

existing law did not bar naturalization of religious pacifists.

The only difference between the two situations is that, in

the present case, Congress sought to codify a number of

consistent District Court and Court of Appeals decisions

rather than a single decision of this Court. We suggest

that this difference hardly supports a claim that the pur-

pose of the 1972 amendment was purely sectarian.

Finally, we submit that petitioner’s reliance on the

‘*Sunday closing’’ cases (Brief, pp. 27-28) is likewise un-

sound. Petitioner particularly relies on Braunfeld vy.

Brown, 366 U. S. 599 (1961), in support of its position.

However, in the plurality opinion in that case, Chief Justice

Warren noted that a number of states provide by statute

for an exemption for Sabbatarians ‘‘and this may well be

the wisest solution to the problem”’ (at p. 608). Here, Con-

eress has done exactly that. Petitioner’s claim that it may

not constitutionally do so is plainly inconsistent with Chief

Justice Warren’s opinion.

11

B. Theprimary effect of the 1972 amendment and the

1967 guideline is not to advance religion but to

protect the religious freedom of those who observe

a day other than Sunday as their holy day of rest.

The immediate obvious effect of the challenged statute

and guideline, we submit, is not to advance religion but to

relieve to some extent (i.¢., where the relief would be rea-

sonable and would not impose undue hardship on the em-

ployer) the economic burden borne by a minority of Ameri-

cans by reason of their faithful adherence to religions which

do not conform to the majority’s belief as to which day of

the week God commanded abstention from labor. (As we

seek to show below, the relief actually extends to a much

broader class.) Of course, of those relieved by the statute

and guideline from being required to go to work on Satur-

days, some may attend church or synagogue on that day

where otherwise they would be at work. But this, we sug-

gest, is a slim reed to support a contention that this Court

should nullify an act of the Congress, particularly one

which does no more than codify existing practices of the

Executive Department.

In Zorach vy. Clausen, 343 U.S. 306 (1952), this Court

upheld the constitutionality under the Establishment Clause

of a law permitting the release of public school pupils if

and only if they used the released period to participate in

religious instruction. That law advanced religion far more

than one that simply excused children from attending pub-

lie schools on their days of religious observance, which

would be the equivalent of the law and guideline challenged

in the present suit. Nevertheless, the Court upheld the con-

stitutionality of that law on the ground that its substantial

12

purpose and effect were not to advance religion but to ac-

conmiodate the school attendance law to the religious needs

of the children and their parents.

(Parenthetically we note that petitioner’s concern that

‘*churches holding services on Saturdays may enjoy a some-

what larger attendance with a correspondingly fuller col-

lection plate’’ (Brief, p. 29) is hardly relevant in respect to

the Orthodox and many Conservative Jews for whom we

speak, since the same Mosaic law which forbids them te

work on Saturdays also forbids them to carry or handle

money on that day.)

Petitioner asserts that the challenged provisions ‘‘ effect

favoritism among the sects’’ and ‘‘impose on employers the

views of those who observe the Sabbath on Saturdays, or

who otherwise believe that their religious views mandate

deference by others”’ (Brief, p. 30). There are many things

wrong with that argument. In the first place, the statutory

coverage is not limited to those who observe the Sabbath

on Saturday. The statute does not even mention Saturday.

It applies equally to Moslems, whose Sabbath is Friday and

to those sects or even individuals who genuinely believe

that Monday or Tuesday or any other day of the week is

the divinely commanded day of rest. Indeed, perhaps most

important, it applies to Sunday-observing Christians em-

ployed by a Sabbatarian in a state which does not have a

Sunday closing law, or in any of the many industries and

other enterprises that are permitted to operate seven days

a week.

In the second place, because most states do have Sun-

day closing laws or do close on Sundays because of collec-

13

tive bargaining factors, the owner’s personal religious pred-

ilections, or similar reasons, the primary effect of the stat-

ute is not to advance the religion of Saturday-observers but

is rather to equalize or, more accurately, to diminish to

some extent the inequality between adherents of the ma-

jority religion and those of minority faiths.

Finally, the statute is net limited to abstention from

work on a Sabbath, whether it be Saturday, Sunday or any

other day of the week. It applies equally, for example, to

Catholic and many non-Catholic physicians, nurses and

other hospital employees who for religious reasons refuse

to participate in an abortion procedure, to hospital em-

ployees who as members of the Jehuvah’s Witness sect re-

fuse for religious reasons to participate in a blood trans-

fusion procedure, and to sales clerks in pharmacies who

have religious scruples against selling contraceptives.

Without expressing an opinion one way or the other on

whether these persons should be protected from dismissal

(cf. 42 U.S.C. (300a-7, which gives certain protections to

persons having religious scruples concerning sterilization

and abortion), we submit that their obvious inclusion in the

challenged statute and guideline negates the contention that

their purpose and or primary effect is to advance the re-

ligion of those who, like respondent herein, observe a day

other than Sunday as their divinely ordained day of rest.

On page 33 of its brief, petitioner asserts that the ‘‘very

narrowness of the class benefited by the accommodation

provisions underscores that the primary impact is forbid-

den religious advancement.’’ But, as we have shown, the

class benefited is not narrow at all; it extends to all whose

14

religious convictions impel some accommodation on the part

of the employer. It benefits, for example, the conventional

Sunday-observing Christian who happens to be employed

by a Sabbatarian or by an employer who keeps his business

open seven days a week. It benefits the Catholic or member

of any other faith that forbids participation in abortions,

the store clerk who will not sell contraceptives, the Jeho-

vah’s Witness who will not salute the flag or pledge al-

legiance to it or cooperate in a blood transfusion and the

Quaker civil service employee in a state which imposes an

oath of office but does not permit an affirmation in lieu

thereof. In all these instances and others that could be

cited, the statute and guideline benefit not a narrow class

but a class which in one instance or another may encompass

a majority of Americans.

Moreover, even if the purpose of the challenged statute

were to benefit a narrow class, that would hardly require

its invalidation. The very purpose of the Establishment

Clause, and of the Free Exercise Clause as we will shortly

indicate, is to benefit ‘‘narrow’’ classes. No First Amend-

ment is needed to protect members of large, conventional

religions.

Finally, we submit that petitioner is in error in relying

on this Court’s decisions forbidding governmental financial

aid to religious schools (Brief, pp. 32-33). Those decisions

forbid the state to pay for educational services which it may

itself not constitutionally furnish. The statute challenged

here makes no such demand. It does not compel the em-

ployer to pay for services which, by reason of his religious

convictions, the employee may not furnish or which, because

of the First Amendment, the employer may not accept. If

15

a Sabbatarian performs only four days’ service weekly, the

statute does not compel the employer to pay him for five.

And, if the employee’s absence from work on his Sabbath

causes undue hardship on the conduct of the employer’s

business, the employer may lawfully discharge him. The

religious school aid decisions forbid government to finance

the operation of religious educational institutions. No re-

ligious institution, educational or otherwise, is financed di-

rectly or indirectly by the operation of the statute and

guideline challenged herein.

C. The challenged statute and guideline

do not foster divisive entanglement of

governmental and religious activity.

In support of its claim that the challenged statute fosters

divisive entanglement of government in religious matters,

petitioner quotes from the dissenting opinion in the court

below that ‘‘[dJisposition of complaints under the [1972]

amendment will require inquiry into the sincerity with

which beliefs are held and force consideration of the validity

of the religious nature of the claims ...’’ (Brief, p. 35).

We are not certain what is meant by the phrase ‘‘the valid-

ity of the religious nature of the claim,’’ but we assume

that it means no more than that the claim is motivated by

religious rather than nonreligious factors, and not that the

employee’s claimed religion does in fact impel him not

to work on Saturdays. If we are correct in our assumption,

it is simply another way of saying that the belief contem-

plated by the 1972 amendment must be sincerely held. The

necessity imposed on government to make this inquiry and ,

reach a determination thereon, petitioner asserts, will result

in excessive government entanglement with religion.

16

Acceptance of this contention, we submit, would make

an absurdity of the Free Exercise Clause, for it would

mandate acceptance of any claim, no matter how frivolous,

or rejection of all claims, no matter how sincere, made

thereunder. More than 30 years ago, this Court held in

United States v. Ballard, 322 U.S. 78 (1944), that it is

constitutional to allow a jury, in a prosecution for obtaining

property under false pretenses relating to religion, to

decide whether the defendants believed in the truth of the

representations they made. In many thousands of cases,

Selective Service boards have been required under Section

6(j) of the Universal Military Training and Service Act,

50 U.S.C. App. 456(j), to pass on the sincerity of claims to

a ‘‘belief in a relation to a Supreme Being involving duties

superior to those arising from any human relation.’’ In

Wisconsin v. Yoder, 406 U.S. 205 (1972), this Court upheld

the right of parents under the Free Exercise Clause to with-

hold their children from attendance at secondary. schools if

they believed that their religious conscience would be vio-

lated by allowing them to attend. In Cruz v. Beto, 406 U.S.

939 (1972), this Court held that the Free Exercise Clause

protected a prisoner’s right to participate in religious serv-

ices. See also United States v. Kahane, 396 F. Supp. 687

(E.D.N.Y. 1975), aff’d, 527 F. 2d 492 (prisoner’s right to

nutritionally adequate food which is compatible with

religious dietary restrictions).

In all of these situations, acceptance of the constitu-

tional claim depends on a judgment as to the sincerity of

the asserted religious belief.

On p. 37 of its brief, petitioner notes that the exemption

from Saturday service enjoyed by respondent caused resent-

ment on the part of his fellow-workers. Any such resent-

17

ment can hardly be compared to the resentment expressed

by millions of draftees (and their parents) who could not

validly claim religious exemption and were therefore re-

quired to serve. The arousal of resentment by religious

minorities asserting their constitutional or statutory rights

is by no means unusual. The sad history of the reaction to

the refusal of Jehovah’s Witnesses to allow their children

to salute the flag in publie schoo] exercises testifies to that.

See D. Manwaring and F. G. Folsom, ‘*‘ Recent Restrictions

Upon Religious Liberty,’’ American Political Science

Review, XXXVI, December 1942, p. 1053; D. Manwaring,

Render Unto Caesar: The Flag-Salute Controversy (1962),

Chapter 8. This, however, is the price which must be paid

for the preservation of religious freedom, a price which our

history establishes the people have been willing to pay.

Whenever a governmental body is required to pass on 6

religion-based claim, some entanglement with religion is

unavoidable. Were that entanglement fatal, no law exempt-

ing religious institutions from taxation would be constitu-

tional. All religious incorporation laws would be invalid.

Laws forbidding the sale of alcoholic beverages within

specified distances of houses of worship would be uncon-

stitutional, for in each case the governmental body man-

dated to enforce the law would be forbidden to determine

whether the claimant for protection was truly a house of

worship. Laws exempting Christian Scientist and other

practit oners of faith healing from laws regulating medical

practice could not stand. Public school children could not

be released for religious instruction since the school author-

ities could not determine whether the instruction was truly

religious. Military chaplaincies could be outlawed, for the

military authorities would be barred from passing judgment

18

on whether the applicant was truly a chaplain and, if so,

whether he was a competent one. Ministers could not be

exempt from military or jury service. ‘‘Church Entrance—

No Parking’’ signs would have to be removed. And in-

numerable other instances of legal determinations of claims

based upon religion would have to be discontinued.

It is for this reason that the third prong of the test upon

which petitioner relies mandates only excessive govern-

ment entanglement with religion. A statute which seeks

to forbid discrimination in employment because of religion

necessarily imposes upon governmental agencies, whether

judicial or administrative, the obligation to determine

whether a claim asserted thereunder is valid and a review

of the claim for that purpose can hardly be held to entail

forbidden excessive entanglement.

D. Consistent governmental practice, federal,

state and municipal, supports the constitu-

tionality of the challenged statute.

In Walz v. Tax Commission, 397 U.S. 664 (1970), this

Court held that the practical universality of tax exemption

for religious institutions is strong evidence of its con-

stitutionality. While the practice of arranging the work-

ing schedule of governmental employees who are Sab-

batarians so as not to compel them to violate their re-

ligious obligations may not be quite as universal as tax

exemption for churches, it is sufficiently widespread so as

to present strong evidence that it is constitutional. See,

e.g., Conn. Gen. Stat. §5-250(c); Fla. Stat. Ann. 6231.40

(1)(c); N.J. Rev. Stat. 11:14-8; N.Y. Civ. Serv. Rules and

Regs. §21.6. Generally, only where the employee’s seven-

19

day availability for service is critically important to the

performance of his duties—the functional equivalent of

‘‘undue hardship on the conduct of the employer’s busi-

ness’’ in the statute challenged herein—is a Sabbatarian

compelled to choose between the loss of his position or the

violation of his religious obligation.

Government, under our system, must act in accordance

with law, and the Constitution is the supreme law of the

land. If it is a violation of the Establishment Clause for

the government to require other employers to make reason-

able accommodations so as not to compel their employees

to violate their religious obligations by working on their

holy day of rest, it is no less a violation if the government,

as employer itself, makes such accommodations.

It is no answer that the accommodation made by the

government does not injure anyone whereas, if it is made

by a private employer, he and/or the Sabbatarian’s fellow

employees may be injured by it. Under the statutory pro-

vision challenged herein, the Sabbatarian employee is not

entitled to relief if accommodation would be unreasonable

or would cause undue hardship on the conduct of the em-

ployer’s business. Conversely, it can hardly be urged that

the exemption from military service enjoyed by clergymen

and religious objectors to military service does not injure

draftees who otherwise would not have been called to

service.

Nor is it a sufficient answer that the government acts

voluntarily whereas the private employer acts under com-

pulsion of statutory law. In the first place, it is doubtful

that, in our political system, any action of government can

20

be said to be voluntary and not under compulsion of law.

Secondly, whatever the case may be under the Free Ex-

ercise Clause, the voluntariness of the challenged action

is irrelevant in judging whether it is violative of the Estab-

lishment Clause. See Engel v. Vitale, 370 U.S. 421, 423, 430

(1962), where it was held that neither the fact that intro-

duction of prayer recitation in publie schools was volun-

tary on the part of a school board nor the fact that par-

ticipation by the pupils was likewise voluntary immunized

the practice from successful challenge under the Establish-

ment Clause. Finally, in many cases the government,

federal, state or municipal, does act in compliance with

statutory law, as when it accords exemption from military

service to religious pacifists, or provides for absentee vot-

ing when a primary or election day falls on a religious

holiday, or exempts from the sanctions of the compulsory

school attendance law those children whose absence is

dictated by the fact that a particular school day. falls on a

holiday sacred to them. See, e.g., N.J. Stat. Ann.

$£18.14-92.2; N.Y. Edue. Law °3210(1)(6).

Concluding this part of our brief, we urge that there

ix no validity to the claim that either Section 701(j) of the

Civil Rights Act of 1964 or Guideline 1605.1 of the United

States Equal Employment Opportunity Commission which

preceded it, violates the Establishment Clause of the First

Amendment to the Constitution.

POINT TWO

The challenged statute and guideline are neces-

sary and proper measures for the enforcement of

the Free Exercise Clause of the First Amendment.

The First Amendment bars not only laws respecting an

establishment of religion but also measures that prohibit

its free exercise. While we do not have in this case a stat-

ute or other formal governmental regulation forbidding an

employer from making a reasonable accommodation to an

employee's religious observance or practice, we believe that

enactment of the statute challenged here was within the

power of Congress, under the Necessary and Proper Clause

of Article I, Section 8 of the Constitution, to carry out the

provisions of the Free Exercise Clause of the First Amend-

ment.

Preliminarily, it should be noted that, as petitioner

concedes, Congress had clear power, under the Commerce

Clause, to enact that part of the 1964 Civil Rights Act

(Section 703(a)(1)) which forbids discriminatory em-

ployment practices on the basis of religion. The power of

Congress under the Commerce Clause to enact Section

701(j), we submit, is equally clear.’ Petitioner is in effect

arguing here that this Court must restrict Congress’ powers

under the Commerce Clause in order to prevent an impair-

ment of the Religion Clause. We suggest that, on the con-

trary, this Court may and should uphold the statute as a

1. We do not. of course, suggest that, if Section 701(j) violates

the Establishment Clause, it may nevertheless be upheld under the

Commerce Clause. We believe we have shown, in Point One above,

that it does not.

22

proper and consistent exercise of Congressional powers

under both clauses. Such a result would be consistent with

the principle that the courts should read constitutional com-

mands in a way that makes them consistent with each other

rather than in a way that would require the sacrifice of one

in order to carry out the other.

The power of Congress to act affirmatively to protect

freedom of religion was strongly suggested hy this Court

in Marsh v. Alabama, 326 U.S. 501 (1946). The Court there

held that, under the Free Exercise Clause, a company

wholly owning a town could not bar colporteurs from dis-

tributing religious tracts on its streets. In reaching that

result, the Court specifically suggested (although Justice

Frankfurter expressed the view (at p. 511) that it was not

necessary to do so) that the same result could have been

reached by Congressional action under the Free Exercise

Clause. It said (p. 507, n.4):

And certainly the corporation can no more deprive

people of freedom of press and religion than it can dis-

criminate against commerce. In his dissenting opin-

ion in Jones v. Opelika, 316 U.S. 584, 600, .... which

later was adopted as the opinion of the Court, 319 U.S.

103, 194,.... Mr. Chief Justice Stone made the fol-

lowing pertinent statement: ‘*Freedom of press and

religion, explicitly guaranteed by the Constitution,

must at least be entitled to the same freedom from

burdensome taxation which it has been thought that

the more general phraseology of the commerce clause

has extended to interstate commerce. Whatever doubts

may be entertained as to this Court’s function to

relieve, unaided by Congressional legislation, from bur-

densome taxation under the commerce clause,... .

it eannot be thought that that function is wanting under

23

the explicit guaranties of freedom of speech, press and

religion.’’ (citations omitted; emphasis added.)

The power of Congress to protect interstate commerce

from interference, by burdensome taxation or otherwise,

extends to interference by private enterprises like peti-

tioner as well as to interference by states. In the present

case, Congress has enacted legislation of the kind suggested

in Marsh. What we are here suggesting is that that action

ean be viewed as an exercise of Congressional powers under

both the Commerce and Free Exercise Clauses.

We do not urge, nor is it necessary for this Court to

decide, that, if Section 703(a)(1), the EEOC Guidelines and

the 1972 amendment had not been adopted, an employer

would nevertheless be prohibited from barring Sab-

batarians from employment by virtue of the Free Exercise

Clause alone. We submit only that the Necessary and

Proper Clause, invoked under the Free Exercise Clause,

empowers Congress and the EEOC to adopt the statute and

regulations that are challenged here. Just as this Court

found in Marsh that the predominant position of the com-

pany in the town required invoking the protections of the

Free Exercise Clause, Congress could properly find that the

power of employers operating in interstate commerce to

exclude Sabbatarians from employment constituted such a

threat to their religious freedom as to require Congres-

sional action, applicable to all such employers alike, pre-

venting such an exclusion. In this respect, the 1972 amend-

ment stands on the same footing as the basic provision in

the 1964 Act prohibiting discrimination based on religion.

That provision also finds support in the power of Congress

24

to protect the free exercise of religion,’ just as the prohibi-

tion of racial discrimination finds support in the power of

Congress to implement the Fourteenth Amendment.

The trend of this Court’s decisions in recent years has

been toward broad interpretation and application of the

Free Exercise Clause.* Thus, in Sherbert v. Verner, 374

U.S. 399 (1963), this Court held that a denial of unemploy-

ment compensation benefits to a worker who, like respond-

ent herein, could not conscientiously accept employment

that required her to work on Saturday, violated the Free

Exercise Clause. In the case of In re Jenison, 375 U.S, 14

(1963), this Court held that a woman whose religious con-

science forbade her from serving on juries because it would

violate the Biblical command, ‘‘ Judge not that ye be not

judged,’’ could not, consistent with the Free Exercise

Clause, be held in contempt of court. And in Wisconsin

v. Yoder, 406 U.S. 205 (1972), this Court held that the Free

Exercise Clause forbade prosecution under a state’s com-

pulsory school attendance law of Amish parents whose

religious conscience would not allow them to send their

children to secondary schools.

We submit that equal liberality in the interpretation of

the First Amendment is called for when this Court is pass-

ing on the validity of a Congressional enactment which has

both the intent and effect of protecting the free exercise

2. Although petitioner argues at page 38 of its Brief that Title

VII was not designed “to implement the Bill of Rights,” it states at

an earlier point (page 15) that “the free exercise interests of em-

plovees ... are already served by the original proscription in Title

VII of religious discrimination in private employment.”

3. For a fuller development of this point, we respectfully refer

the Court to Pieffer, The Supremacy of Free Exercise, 61 George-

town Law Rev. 1115 (1973).

25

of religion. In such a case, the classic words of John Mar-

shall in McColluch v. Maryland, 17 U.S. (4 Wheat.) 316, 421

(1819), are particularly appropriate:

.. . Let the end be legitimate, let it be within the

scope of the Constitution, and all means which are ap-

propriate, which are plainly adopted to that end, which

are not prohibited, but consist with the letter and spirit

of the Constitution, are constitutional.

The conclusion we urge here was reached in Jordan v.

North Carolina National Bank, 399 F. Supp. 172, 179-80

(W.D.N.C. 1975), a well-reasoned decision which we com-

mend to the Court’s attention. In the last paragraph of

that part of the District Court’s opinion which deals with

the Free Exercise claim, the Court said:

Congress, as evidenced by the debates relating to the

1972 Amendments to Title VII felt §2000e(j) fur-

thered First Amendment freedoms. Senator Harrison

Williams in discussing §2000e(j) quoted the pertinent

portion of the First Amendment and stated ‘‘In deal-

ing with the free exercise thereof, really, this [t.e.,

§2000e(j)] promotes the constitutional demand in that

regard.’’ ‘‘Legislative History of the Equal Employ-

ment Opportunity Act of 1972’’, p. 715.

ee,

26

Conclusion

It is respectfully submitted that, for the reasons

stated above, this Court should affirm the ruling of

the court below upholding the constitutionality of

§701(j) of the Civil Rights Act of 1964, as amended,

and EEOC Guideline 1605.1.

Respectfully submitted,

Leo PFEFFER

15 East S4th Street

New York, New York 10028

(212) 879-4500

Attorney for Amici Curiae

July, 1976