Amicus Brief — Trans World Airlines, Inc. v. Hardison

3307 BAR PRESS, Inc., 132 Lafayette St.. New York 10013 — 966-3906

(5865)

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IN THE

Supreme Court of the United States

October Term, 1976

No. 75-1126

TRANS WoRLD AIRLINES, INC.,

Petitioner,

v.

LarRY G. HARDISON, INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, INTERNATIONAL ASSOCIATION OF Ma-

CHINISTS AND AEROSPACE WorKERS, District 142, and INTERNA-

TIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE \VORKERS,

Loca 1650,

and Respondents.

No. 75-1385

INTERNATIONAL ASSOCIATION OF MACHINISTS AND .\EROSPACE

WorKERS, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AERO-

SPACE WorKERS, District 142, and INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WorKERS, LocaAL 1650,

Petitioners,

Vv.

LARRY G. HARDISON and TRANS WorLD ArRLINES, INC.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF OF CENTRAL CONFERENCE OF AMERICAN

RABBIS, RABBINICAL ASSEMBLY, RABBINICAL COUN-

CIL OF AMERICA, UNION OF AMERICAN HEBREW

CONGREGATIONS, UNITED SYNAGOGUE OF AMER-

ICA, AMERICAN JEWISH COMMITTEE, AMERICAN

JEWISH CONGRESS, ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH, JEWISH LABOR COMMITTEE, JEWISH

WAR VETERANS OF THE UNITED STATES OF

AMERICA AND NATIONAL COUNCIL OF

JEWISH WOMEN, AMICI CURIAE

—- —

—

Leo PFrEerrer

15 East 84th Street

New York, New York 10028

(212) 879-4500

Attorney for Amici Curiae

CN Ee

IN THE

Supreme Court of the United States

October Term, 1976

No. 75-1126

SS

Trans Wortp Arrives, Inc.,

Petitioner,

v.

Larry G. Harpison, et al.,

Respondents.

and

No. 75-1385

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AgRrosPpace WorkKERS, et al.,

Petitioners,

v.

Larry G. Harpison, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit

— rr ee —t—t—

MOTION FOR LEAVE TO FILE BRIEF

AMICI CURIAE

The undersigned, as counsel for American Jewish

Committee, American Jewish Congress, Anti-Defamation

League of B’nai B’rith, Central Conference of American

[1]

Rabbis, Jewish Labor Committee, Jewish War Veterans of

the United States of America, National Council of Jewish

Women, Rabbinical Assembly, Rabbinical Council of Amer-

ica, Union of American Hebrew Congregations and United

Synagogue of America, respectfully moves this Court for

leave to file the accompanying brief amici curiae in support

of respondent Larry G. Hardison’s claim that the statute

and regulation herein challenged, which protect employees

against discrimination because of their religious practices,

do not violate the First Amendment to the United States

Constitution. ~

Consent to the filing of the attached brief was sought

from the parties.* Counsel for respondent Hardison and

petitioner-respondent International Association of Machin-

ists consented. Counsel for petitioner-respondent Trans

World Airlines, Inc. replied that they neither consented nor

opposed the motion.

The interest of the amici is set forth in the attached

brief. All of the amici are national Jewish agencies having

a substantial interest in civil rights generally and in the

protection of the right of every American to observe and

practice the requirements of his religion. Each is able to

address the constitutional issue raised on this appeal in the

broad context of this country’s tradition of religious free-

dom and each respectively offers this Court its accumulated

experience on the issue raised by this case.

* The letters requesting consent were sent in behalf of the Syna-

gogue Council of America and the National Jewish Community Re-

lations Advisory Council. This motion and brief are being filed by

11 organizations which are affiliates of those two organizations. In

view of the fact that consent was withheld by one of the parties in

response to the initial request, thereby necessitating the making of this

motion, counsel did not deem it necessary to resubmit the request for

consent on behalf of the 11 affiliates.

[2]

The amici request permission to submit the accompany-

ing brief because they believe that this case presents a

serious challenge to measures taken by the Federal Govern-

ment to prevent a recognized evil—economic pressure on

individuals to violate religious commands which their con-

sciences require them to obey. The amici believe that their

experience enables them to make a contribution to the con-

sideration by this Court of this important challenge.

Respectfully submitted,

Leo PFEFFER

15 East 84th Street

New York, New York 10028

(212) 879-4500

Attorney for Amici Curiae

[3]

TABLE OF CONTENTS

PAGE

Interest of the Amici 000000... eee ee 2

Constitutional and Statutory Provisions and Regula-

ESI vce teint n Pe eel Rie aan NT rn 3

The Question to Which This Brief Is Addressed ........ 4

ec: deceniesasodauncunbicanncassiccnsoasn 5

a nen 7

| EERE eS eas SEEN RONEN Ig PEAT OE Re RT 8

Point One—The challenged statute and guideline

do not violate the Establishment Clause ...... ..... 8

A. The statute and guideline have a substan-

tial secular purpose .................0.....cceeee. e

B. The primary effect of the 1972 amendment

and the 1967 guideline is not to advance re-

ligion but to protect the equal employment

opportunity of those who observe a day

other than Sunday as their holy day of rest 12

C. The Statute and Guideline do not patently

require pervasive and excessive govern-

ment entanglement with religion... .......... 18

D. Consistent governmental practice, federal,

state and municipal, supports the constitu-

tionality of the challenged statute ..... a

Point Two—The challenged statute and guideline are

necessary and proper measures for the enforce-

ment of the Free Exercise Clause of the First

Amendment ................. sora Pie ES. pent 23

EE ERR re et aN Oa eee sadiieeeiianiaiale 29

II

TABLE OF AUTHORITIES

Cases:

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

RISER EE Vee ARR ners ne ar ON: Sean oye Oe Oa

Arlan’s Department Store v v. Kentucky, 371 U.S. 218

SEIS |

Board of Education v. Allen, 392 U.S. 236 (1968)

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

Claybaugh v. Pacific Northwest Bell Telephone Co.,

ee Se )

Committee for Public Education and Religious Lib-

erty v. Nyquist, 413 U.S. 756 (1973) _ me

ee Edison Co. v. Labor Board, 305 U. S. 197

“FO SREE Ein

Cruz v. Beto, 406 U.S. 939 eh I SEES

Cummins v. Parker Seal Company, 516 F’, 2d 544, aff’d

—— US. ——, 97 S. Ct. 342 (1976)

Engel v. Vitale, 370 U.S. 421 (1962) 000

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

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

Hunt v. MeNair, 413 U.S. 734 (1973) 0.

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

RUD CIN TI cece cincens:eeceasnveoneccasesersenncces a eae

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

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

Bee CW Nes BOUOD onseesesevecsussssvcrveccscscsssssesoecceess..,..

Lemon v. Kurtzman, 403 U.S. 602 (1971)

Lemon v. Sloan, 413 U.S. 825 (1973)

PAGE

Itt

Marsh v. Alabama, 326 U.S. 501 (1946) .....0.......0... 24, 25

McCollum v. Board of Education, 333 U.S. 203 (1948) 22

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) 27

McGowan v. Maryland, 366 U.S. 420 (1961) ..._.......... 8

Meek v. Pittenger, 421 U.S. 349 (1975) eee 8

Parker Seal Company v. Cummins, —— U.S. ——, 97

oe coe manpplarngientoneicions 3

Reid v. Memphis Publishing Co., 468 F. 2d 346 (6th

Cir. 1972), aff’d after remand, 521 F. 2d 512

RARER i ee coe eo AA 10

Riley v. Bendix Corp., 464 F. 2d 1113 (5th Cir. 1972) 10

Shaffield v. Northrop Worldwide Aircraft Services,

Inc., 373 F. Supp. 1284 (1974) 00.00, 10

Sherbert v. Verner, 374 U.S. 399 (1963) ............. 26, 28, 29

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

United States v. Ballard, 322 U.S. 78 (1944) .............. 18, 20

United States v. Kahane, 396 F. Supp. 687 (E.D.N.Y.

1975), afd SST WF. Bd GOS... scssccccceeccseseeeesencnees 20

United States v. Seeger, 380 U.S. 163 (1965) ............... 17,18

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

I nod cadesedcceuciuiiiewtedebelstaaintcanpostveed 9, 17, 21

Wisconsin v. Yoder, 406 U.S. 205 (1972) ............17, 20, 26

Zorach v. Clauson, 343 U.S. 306 (1952) ................9, 12, 16

IV

PAGE

Statuies:

Civil Rights Act of 1964, §701(j) (42 U.S.C. §2000e

= 4, 9, 23, 29

Civil Rights Act of 1964, §703(a), 42 U. s. C. §2000e-

2(a) , 3, 5, 24, 25

Conn. Gen. Stat. §5-250(c) 5 BR: , 21

Equal Employment Opportunity Commission Guide-

line 1605.1 (29 C.F.R. §1605.1) | ......4, 23, 25, 29

Fla. Stat. Ann. §231.40(1)(e¢) ...... | vr

N.J. Rev. Stat. 11:14-8 hers pete see TS 21

N.J. Stat. Ann. §18.14-92.2 __. eT

N.Y. Civ. Serv. Rules and Regs. 421. 6 pelea

N.Y. Edue. Law §3210 (1) (6) 23

Universal Military Training and Service Act, Section

6(j), 50 U.S.C. App. 456(j) . ae 20

U.S. Constitution, Article I, Section 18 - Sn

42 U.S.C. §300a-7 Da ete eed nD es 15

Miscellaneous:

118 Cong. Rec. H. 1861-62 2000 oooccceceecceceeee. 11

Pfeffer, The Supremacy of Free Exercise, 61 George-

town L. Rev. 1115 (1973) leis 26

IN THE

Supreme Court of the United States

October Term, 1976

No. 75-1126

$$

”

Trans Woritp Airings, Inc.,

Petitioner,

v.

Larry G. Harpison, et al.,

Respondents.

and

No. 75-1385

INTERNATIONAL AssocIATION OF MACHINISTS

AND AEROSPACE WorkKERS, et al.,

Petitioners,

v.

Larry G. Harpison, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit

> Se

BRIEF OF CENTRAL CONFERENCE OF AMERICAN

RABBIS, RABBINICAL ASSEMBLY, RABBINICAL COUN-

CIL OF AMERICA, UNION OF AMERICAN HEBREW

CONGREGATIONS, UNITED SYNAGOGUE OF AMER-

ICA, AMERICAN JEWISH COMMITTEE, AMERICAN

JEWISH CONGRESS, ANTI-DEFAMATION LEAGUE OF

B’NAI B’RITH, JEWISH LABOR COMMITTEE, JEWISH

WAR VETERANS OF THE UNITED STATES OF

AMERICA AND NATIONAL COUNCIL OF

JEWISH WOMEN, AMICI CURIAE

Interest of the Amici

This brief is submitted on behalf of:

Central Conference of American Rabbis, representing

the Reform rabbinate;

Rabbinical Assembly, representing the Conservative

rabbinate ;

Rabbinical Council of America, representing the Or-

thodox rabbinate ;

Union of American Hebrew Congregations, represent-

ing the Reform congregations; and

United Synagogue of America, representing the Con-

servative congregations;

and on behalf of the following national Jewish organiza-

tions:

American Jewish Committee

American Jewish Congress

Anti-Defamation League of B’nai B’rith

Jewish Labor Committee

Jewish War Veterans of the United States of America

National Council of Jewish Women

Our interest in the cases before this Court is two-fold.

In the first place, respondent Hardison, like members of the

Jewish faith, observes the seventh day of the week as his

Sabbath and refrains from all secular business and labor on

that day. Without the protection accorded by the Con-

gressional enactment and regulation challenged in this case,

the conscientiously observant employee would be forced to

violate a major tenet of his faith in order to secure gainful

employment.

3

However, our concern extends beyond the interests of

the particular parties to this litigation. We would be just

as concerned even if respondent Hardison were not an ob-

server of the seventh day of the week as the Sabbath. We

would be and are concerned because we are committed to the

principle of the free exercise of religion and the right of

all persons to the full protection of that principle.

For these reasons, these organizations joined in a brief

amici curiae filed, with the consent of the parties, in this

Court in the case of Parker Seal Company v. Cummins,

— U.S. —, 97 S. Ct. 342 (1976), which raised the same

issues as those raised in this case, and submit to the Court

this brief in the present case.

Constitutional and Statutory

Provisions and Regulations Involved

The First Amendment to the Constitution provides, in

part:

Congress shall make no law respecting an establish-

ment of religion or prohibiting the free exercise

thereof...

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

Section 2000e-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

privileges of employment, because of such individual’s

...Treligion....

4

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

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

[SJection 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 em-

ployees where such accommodations can be made with-

out 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)

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

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

ligious observance and practice, as well as belief, unless

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 single question of the

constitutionality, under the First Amendment, of Section

701(j) of the Civil Rights Act of 1964 (and the regulation

that preceded it), which defines ‘‘religion,’’ as used in the

section of that Act forbidding discrimination in employ-

ment because of religion, to include ‘‘all aspects of religious

observance and practice, as well as belief, unless an em-

ployer demonstrates that he is unable to reasonably accom-

5)

modate to an employee’s religious observance or practice

without undue hardship on the conduct of the employer’s

business. ”’

The question encompasses constitutionality in respect

not only to the employer, but also to labor unions claiming

that the statutorily prescribed accommodation violates col-

lective bargaining agreements.

Statement of the Case

This proceeding was initiated by respondent Hardison,

a member of a seventh-day sect, the Worldwide Church of

God, after he was discharged by petitioner Trans World

Airlines, Ine. (hereinafter TWA) because he refused to

work on Saturdays. After the discharge, Hardison filed an

unlawful employment practice charge with the United

States Equal Employment Opportunity Commission, which

deferred to the Missouri Commission on Human Rights.

On February 10, 1972, when all administrative procedures

had been exhausted, Hardison filed this suit against TWA

and the three unions (hereinafter IAM) who are petitioners

herein in the United States District Court pursuant to 42

U.S.C. Section 2000e-2. He contended that all the defend-

ants had practiced religious discrimination and, in addition,

that the unions had violated their duty of fair representa-

tion. Following a trial, primarily on stipulated facts,

judgment was entered for all defendants on the ground

that each had attempted a reasonable accommodation of

plaintiff’s religious needs, as required by the controlling

statutes and guidelines, and that undue hardships would

have resulted from any greater efforts.

6

The Court of Appeals for the Eighth Circuit, without

dissent, reversed as to TWA but affirmed as to the defend-

ant unions. In respect to TWA, it held that it had engaged

in religious discrimination by breach of its duty to make a

reasonable accommodation to the religious needs of Hardi-

son through feasible affirmative action and accordingly re-

manded the cause to the District Court for a determination

of appropriate relief.

In respect to the defendant unions, it affirmed the judg-

ment of dismissal, holding that, while in a proper case a

union may be held to a duty of reasonable accommodation,

Hardison had not directly challenged the District Court’s

finding that the duty to accommodate in this case did not

require unions to ignore their seniority system and that the

efforts of the unions in behalf of Hardison did not violate

their duty of fair representation. It reserved for future

cases the effect of a union’s refusal to modify its employee

seniority rights when no other accommodation can be ac-

complished without undue hardship to the employer’s busi-

ness. Notwithstanding this decision in their favor, the

unions have petitioned for (and been granted) certiorari on

the authority of Consolidated Edison Co. v. Labor Board,

305 U.S. 197, 232-234 (1938). .

Both the District Court and the Court of Appeals re-

jected the claim presented by the petitioners herein that the

statute and the regulation on which it was based violated

the Establishment Clause of the First Amendment.

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 administra-

tion involve excessive government entanglement with re-

ligion. By statute 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.

The same factors which require a determination in favor

of the constitutionality of the challenged statute and guide-

lines in respect to the employer are equally applicable in

respect to the labor unions. The requirement, imposed by

both the Executive and Legislative branches of our govern-

ment, to make reasonable accommodations to the religious

needs of employees, would be of no more than illusory

value if it could be nullified by the veto of labor unions.

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 ONE

The challenged statute and guideline do not vio-

late 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 io 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 but,

with the two exceptions, it has consistently been rejected.

McGowan v. Maryland, 366 U.S. 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 1963); Board of Educa-

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

9

schools) ; Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)

(same); Committee for Public Education and Religious

Liberty v. Nyquist, 413 U.S. 756, 773-74 (1973) (same) ;

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

MeNair, 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 excus-

ing children from school attendance on their Sabbath or

holy days. That the Court has not questioned the consti-

tutionality of such excusals is strongly suggested by Zorach

v. Clauson, 343 U.S. 306, 313 (1952), which is far more

apposite to the present case than Abington and Epperson.

With all due respect, the claim that the challenged

statute lacks a secular legislative purpose borders on the

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

constitutional provision seeking to protect the free exercise

of religion, logically including the Free Exercise Clause of

the First Amendment itself, lacks a secular purpose.

The only evidence submitted by petitioners in either

case to support this claim are remarks made by Senator

Randolph in 1972 in sponsoring the amendment to the 1964

Act that became Section 701(j) (TWA Brief, pp. 37-39;

10

IAM Brief, pp. 43-46). The remarks quoted in these briefs,

in the total context of the legislative history, hardly sup-

port the claim. Indeed, they reflect a profound concern for

protecting 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 petitioners’ argu-

ment. As petitioners recognize in their briefs, respondent’s

claim arose before the 1972 amendment was adopted and

accordingly was governed by the law at the time he was

discharged. The 1972 amendment is practically a verbatim

incorporation of the relevant 1967 guideline. Accordingly,

petitioners argue, as indeed they must, that the 1967 guide-

line upon which respondent’s claim was initially based was

itself lacking a secular purpose. 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 constitutionality. Jackson v.

Veri Fresh Poultry, Inc., 304 F. Supp. 1276 (E.D. La. 1969) ;

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

Reid v. Memphis Publishing Co., 468 F. 2d 346 (6th Cir.

1972), aff’d after remand, 521 F. 2d 512 (1975) ; Cummins v.

Parker Seal Company, 516 F. 2d 544, aff’d —— USS. ,

97 S. Ct. 342 (1976); Claybaugh v. Pacific Northwest Bell

Telephone Co., 365 F. Supp. 1 (1973) ; Shaffield v. Northrop

Worldwide Aircraft Services, Inc., 373 F. Supp. 1284

(1974).

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 to remove the doubts

as to EEOC’s statutory authority to issue the very guide-

11

line upon wiich 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.

In support of their position, petitioners in both cases

rely particularly on the cases upholding the constitutional-

ity of compulsory Sunday closing laws even when enforced

against persons whose religious convictions forbid them

to keep their stores open on Saturday (TWA Brief, p. 27;

IAM Brief, pp. 49, 65, 75, 78). However, in the plurality

opinion in Braunfeld v Brown, 366 U.S. 599 (1961), upon

which petitioners in both cases place most reliance, 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, Congress has done exactly that. Petitioners’ claim

that it may not constitutionally do so is plainly inconsistent

with Chief Justice Warren’s opinion. In this respect, it is

pertinent also to note that efforts to challenge the consti-

tutionality of such exemption statutes on the same ground

as that asserted by the petitioners in the present case, that

is that they constitute perferential treatment of Sabba-

12

tarians in violation of the Establishment Clause, have con-

sistently been rejected. See, e.g., Arlan’s Department Store

v. Kentucky, 371 U.S. 218 (1962).

B. The primary effect of the 1972 amendment and

the 1967 guideline is not to advance religion but

to protect the equal employment opportunity of

those who observe a day other than Sunday as

their holy a.y 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.e., where the relief would be rea-

sonable and would not impose undue hardship on the

employer) the economic burden borne by a minority of

Americans 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

Saturdays, some may attend church or synagogue on that

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

suggest, 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 v. Clauson, 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 partici-

pate in religious instruction. That law advanced religion

—_——

13

far more than one that simply excused children from

attending public schools on their days of religious observ-

ance, which would be the equivalent of the law and guideline

challenged in the present suit. Nevertheless, the Court up-

held the constitutionality of that law on the ground that its

primary purpose and effect were not to advance religion but

to accommodate the school attendance law to the religious

needs of the children and their parents.

(Parenthetically, we note that the concern of TWA that

affirmance herein ‘‘could encourage members to take ad-

vantage of the accommodation requirement to help assure

larger church attendance and correspondingly fuller col-

lection plates’? (TWA Brief, p. 41, fn. 24), is hardly rele-

vant in respect to the many Orthodox and Conservative

Jews for whom we speak, since the same Mosaie law which

forbids them to work on Saturdays also forbids them to

earry or handle money on that day.)

The crux of the petitioners’ complaint in both cases is

that ‘‘the accommodation requirement, as construed by the

court of appeals, gave Hardison special preference solely

because of his religion.’’ (TWA Brief, p. 40. Emphasis in

original.) In respect to this claim, some comments are in

order. In the first place, the statutory coverage is not

limited to those who observe the Sabbath on Saturday. The

statute does not mention Saturday. It applies equally to

Moslems, whose Sabbath is Friday and to those sects or

even individuals who may genuinely believe that Monday or

Tuesday or any other day of the week is the divinely com-

manded day of rest. Indeed, and perhaps more important,

it applies to Sunday-observing Christmas employed by a

14

Sabbatarian in a state which does not have a Sunday clos-

ing law, or in any of the many industries and other enter-

prises that are,)permitted to operate seven days a week.’

In the second place, because most states do have Sunday

closing laws or do close on Sundays because of collective

bargaining factors, the owner’s personal religious predilec-

tions, or similar reasons, the primary effect of the statute

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 majority re-

ligion and those of minority faiths.

Finally, the statute is not limited to abstention from

work on Saturdays. 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 the pharmacy

sales clerk who for religious reasons will not sell contra-

ceptives, to hospital employees who as members of the

Jehovah’s Witnesses sect refuse for religious reasons to

participate in a blood transfusion procedure or who, if

school employees, refuse to salute the flag or pledge al-

legiance to it, to the Quaker civil service employee in a state

which imposes an oath of office but does not permit an

affirmation in lieu thereof, and most aptly to the conven-

tional Sunday-observing Christian who happens to be em-

ployed by a Sabbatarian or by an employer who, like the

petitioner in the present case, keeps his business open seven

1. The New York Times, on page D 5 of its issue of January 28,

1977, reports that a department store employee filed charges of un-

lawful discrimination by reason of his dismissal for refusing to work

on Sunday in violation of his religious beliefs.

15

days a week. Without expressing an opinion one way or

the other on whether these persons should be protected from

dismissal (cf. 42 U.S.C. Section 300a-7, which gives certain

protections to persons having religious scruples concern-

ing sterilization and abortion), we submit that their obvious

inclusion in the challenged statute and guideline negates

the contention that the purpose and/or primary effect of

the statute and guideline is to advance the religion of

those who, li'-e respondent herein, observe a day other than

Sunday as their divinely ordained day of rest.

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 major-

ity of Americans. However, 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 Amendment is needed to protect members of large,

conventional religions.

Finally, we submit that petitioners are in error in re-

lying on this Court’s decisions forbidding governmental

financial aid to religious schools. Those decisions forbid

the state to pay for educational services which it may it-

self 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

a Sabbatarian performs only four days’ service weekly,

16

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

(Indeed, in the present case, Hardison did offer an appro-

priate reduction in pay for his Sabbath absence but it was

TWA which rejected the offer.) 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 de-

cisions forbid government to finance the operation of re-

ligious educational institutions. No religious institution,

educational or otherwise, is financed directly or indirectly

by the operation of the statute and guideline challenged

herein.

Note should also be taken of the assertion in the [AM

brief (at p. 50) that five of the ‘‘evils’’ against which the

Establishment Clause was fashioned are furthered by the

decision of the Court of Appeals in the present case. These

are: ‘‘(1) discriminatory preference of religious over secu-

lar reasons for absence from work; (2) facilitation of re-

ligious activity for its own sake, by removal of non-dis-

criminatory work-barriers; (3) taxation to support re-

ligious activity by imposing forfeiture of rights, expense

and hardship upon others; (4) entanglement of employers,

unions, a government agency and the courts in determina-

tion of religious questions; and (5) division of the work

force politically along religious lines.’’

In respect to the first of these assertions, we need only

refer to Zorach v. Clauson, 342 U.S. 306 (1952), in which

the Court upheld the constitutionality of a law providing

for the release of public school pupils from part of their

regular school time to participate in religious, and only in

17

religious not secular, instruction off public school premises,

and to Wisconsin v. Yoder, 406 U.S. 205 (1972), in which

the Court held that students had a constitutional right to

abstain from compulsory secondary schooling for religious

and only religious reasons.

In respect to (2), we need only note that if facilitation

of religious activity is either the purpose or effect of the

statute and regulation challenged herein, it is only in-

directly and minimally so. Nothing in them requires Hardi-

son to go to church on Saturday ; he can sit home and watch

television all day if his religious commitment permits him

to do so. Moreover, there is far more in the statute and

regulation than abstention from work on Saturdays; non-

participation in an abortion or blood transfusion procedure,

for example, in no way facilitates religious activity.

In respect to (3), far more substantial ‘‘forfeiture of

rights, expense and hardship’’ is imposed, for example,

upon non-religious objectors to military service by reason

of the exemption, upheld in United States v. Seeger, 380

U.S. 163 (1965), accorded to religious objectors; or upon

real property owners who must make up in their taxes for

the exemption accorded church properties, an exemption

held not violative of the Establishment Clause in Walz v.

Tax Commission, 397 U.S. 664 (1970). In any event, the

statute and regulation in issue here specifically provide that

the accommodation must be made only if it can be done

without ‘‘undue hardship to the conduct of the employer’s

business.’’

18

In respect to (4), we see no entanglement by employers,

unions or government agencies in any religious questions.

The only question to be decided by anybody, including a

court of law, is not the theological or doctrinal validity of

the claim but the bona fides of the claimant. The constitu-

tional competency of our courts to make such a determina-

tion is hardly open to question. United States v. Seeger,

380 U.S. 163 (1965) ; United States v. Ballard, 322 U.S. 78

(1944).

Finally, in respect to (5), it should be noted again that

the challenged statute and regulation do not protect only

a small sect of seventh-day observers but in one way or

another may very well protect the majority of Americans,

including those who for reasons of religious conscience will

not work on Sundays; will not participate in birth preven-

tion procedures or blood transfusions, or engage in a

variety of other employment activities contrary to their

sacred beliefs.

C. The Statute and Guideline do not patently require

pervasive and excessive government entanglement

with religion.

Whenever a governmental body is required to pass on a

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

specific distances of houses of worship would be unconsti-

tutional, for in each case the governmental body mandated

to enforce the law would be forbidden to determine whether

eS NS EE Re ee

19

the claimant for protection was truly a house of worship.

Laws exempting Christian Scientist and other practitioners

of faith healing from laws regulating medical practice could

not stand. Public school children could not be released for

religious instruction since the school authorities could not

determine whether the instruction was truly religious. Mili-

tary chaplaincies could be outlawed, for the military au-

thorities would be barred from passing judgment 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 petitioners rely mandates only excessive government

entanglement with religion. A statute which seeks to forbid

discrimination in employment because of religion neces-

sarily imposes upon governmental agencies, whether judi-

cial or administrative, the obligation to determine whether

a claim asserted thereunder is made in good faith, and a

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

entail forbidden excessive entanglement.

On page 42 of its brief, TWA contends that the statute

and regulation mandate unconstitutional excessive govern-

mental entanglement with religion because ‘‘those enfore-

ing the requirement will necessarily weigh and determine

whether an individual has a religious belief, whether it is

sincerely held and how that belief is manifested in the

employment relationship.’’

20

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 three decades ago, it was held by

this Court 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 re-

ligion, 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 Serv-

ice 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 involv-

ing duties superior to those arising from any human rela-

tion.’’? In Wisconsin v. Yoder, 406 U.S. 205 (1972), this

Court upheld the right of parents under the Free Exercise

Clause to withhold their children from attendance at

secondary schools if they sincerely believed that their re-

ligious conscience would be violated 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 services. 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 restric-

tions).

In all of these situations, and many others, acceptance

of the constitutional claim depends on a judgment as to

the sincerity of the asserted religious belief.

oe ne een ets

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21

D. Consistent governmental practice, federal, state

and municipal, supports the constitutionality

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 consti-

tutionality. While the practice of arranging the working

schedule of governmental employees who are Sabbatarians

so as not to compel them to violate their religious obliga-

tions may not be quite as universal as tax exemption for

churches, it is sufficiently widespread to present strong

evidence of its constitutionality. See, e.g., Conn. Gen. Stat.

§5-250(¢c); Fla. Stat. Ann. §231.40(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-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 business’’ 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 compe! 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

22

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

far more seriously those 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

be said to be truly voluntary and not under compulsion of

law. Secondly, whatever the case may be under the Free

Exercise 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

introduction of prayer recitation in public schools was

voluntary on the part of a school board nor the fact that

participation by the pupils was likewise voluntary im-

mwnized the practice from successful challenge under the

Establishment Clause. To the same effect, see McCollum v.

Board of Education, 333 U.S. 203 [1948]). Finally, in many

cases the government, federal, state or municipal, does act

in compliance with statutory law, as when it accords exemp-

tion from military service to religious pacifists, of provides

for absentee voting when a primary or election day falls on

23

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. Educ. Law §3210(1) (6).

Concluding this part of our brief, we urge that there is

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 necessary

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 statute

or other formal governmental regulation forbidding an em-

ployer from making a reasonable accommodation to an em-

ployee’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 petitioners

concede, Congress had clear power, under the Commerce

24

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

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

ment practices on the basis of religion. The power of Con-

gress under the Commerce Clause to enact Section 701(j),

we submit, is equally clear.* Petitioners are in effect argu-

ing 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 proper exercise of Congressional powers under both

clauses. Such a result would be in harmony with the prin-

ciple that the courts should read constitutional commands

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 by 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

distributing 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

2. 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.

Ae cen A ARO NM ea Ae Ar te

25

discriminate 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 follow-

ing pertinent statement: ‘‘Freedom of press and re-

ligion, explicitly guaranteed by the Constitution, must

at least be entitled to the same freedom from burden-

some taxation which it has been thought that the more

general phraseology of the commerce clause has ex-

tended to interstate commerce. Whatever doubts may

be entertained as to this Court’s function to relieve,

unaided by Congressional legislation, from burdensome

taxation under the commerce clause, .... it cannot be

thought that that function is wanting under the explicit

guaranties of freedom of speech, press and religion.’’

(Emphasis added. )

The power of Congress to protect interstate commerce

from interference, by burdensome taxation or otherwise,

extends to interference by private enterprises like petitioner

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 can

be viewed as an exercise of the 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 Sabba-

tarians 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

26

found in Marsh that the predominant position of the com-

pany in the town required applying 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 so

serious a threat to their religious freedom as to require

Congressional action, applicable to all employers alike,

preventing such an exclusion. In this respect, the 1972

amendment stands on the same footing as the basic provi-

sion in the 1964 Act prohibiting discrimination based on

religion. That provision also finds support in the power of

Congress to protect the free exercise of religion, just as

the prohibition of racial discrimination finds support in the

power of Congress to implement the Fourteenth Amend-

ment.

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), the 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), the Court held that a woman whose religious

conscience 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), the Court held that the Free

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

the Court to Pfeffer, The Supremacy of Free Exercise, 61 rge-

town L. Rev. 1115 (1973).

oe et Tee cg

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27

Exercise Clause forbade prosecution under a state’s com-

pulsory school attendance law of Amish parents whose re-

ligious consicence 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 the Court passes on

the validity of a Congressional enactment which has both

the intent and effect of protecting the free exercise of re-

ligion. In such a case, the classic words of John Marshall

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 appropri-

ate, 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 that we commend

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) furthered

First Amendment freedoms. Senator Harrison Wil-

liams in discussing §2000e(j) quoted the pertinent por-

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

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

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

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

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

28

TWA seeks to distinguish Sherbert v. Verner on the

ground that in the present case the District Court ‘‘found

that it was ‘coincidental’ that the applicable seniority

system, and hence employment relationship, acted to com-

pound Hardison’s problem in exercising his religion’’

(TWA Brief, p. 33). We are unable to see how the situa-

tion in Sherbert was less ‘‘coincidental’’ or more a direct

violation of the Free Exercise Clause than the situation

in the present case.

Nor are we able to appreciate the cogency of the other

grounds suggested in the TWA brief (in footnote 18 on p.

34) for distinguishing Sherbert. First, it notes that ‘‘the

state statutory scheme there at issue was not evenhandly

applied in that it actually and affirmatively discriminated

against Saturday as contrasted to Sunday worshippers,’’

whereas in the present case ‘‘the seniority provision was

uniformly applied.’’ We suggest, however, the fact that

TWA may be violating the Free Exercise rights of Sunday

observers does not constitutionally justify its violation of

those rights in respect to Sabbatarians.

TWA argues further that ‘‘the plaintiff would have been

‘destitute’ in Sherbert; whereas Hardison plainly could

seek out employment not requiring Saturday work.’’ We

are unaware of any authority to support the proposition

that the Free Exercise Clause protects only the destitute,

and we take note that, if Section 701(j) and the regulation

are voided, Hardison and others like him will in fact be

threatened with destitution because of difficulties in finding

employment consistent with their religious principles.

‘*Finally,’’ the TWA brief argues, ‘‘in Sherbert, unlike

here, no other person’s rights would be directly and ad-

~~ ee Pus.

ee ee Oe eens

.—e.

ae

29

versely affected by denial [sic, ‘‘granting’’ was probably

intended] of benefits.’’ This assertion is hardly accurate.

The granting of benefits to Mrs. Sherbert certainly affected

to some extent the claimed rights of the employer and the

taxpayers whose enforced contributions went to pay her

benefits. Translating Sherbert into the terms of the stat-

ute and regulation in issue here, granting Mrs. Sherbert

unemployment benefits did not impose ‘‘undue hardship”’

upon employers or taxpayers.

As it did in Sherbert, this Court in the case at bar must

protect respondent Hardison from the needless requirement

of choosing between gainful employment and following the

religious dictates of his conscience. To do less would be to

deny the principle of religious liberty which drew the earli-

est settlers to our shores.

For the Establishment and the Free Exercise Clauses of

the First Amendment are nothing more than the two sides

of that principle of religious liberty upon which our Re-

public was founded.

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 Prerrer

Attorney for Amici Curiae

15 East 84th Street

New York, New York 10028

(212) 879-4500

February, 1977