Following up on my previous posts (links below):  Law & Liberty Op-Ed:  Refreshing Unity on Religious Liberty, by Richard W. Garnett (Notre Dame; Google Scholar):

The high-profile Supreme Court decisions announced each year in late June tend to reinforce a narrative—one that, to be clear, is false—that the Court’s justices are merely partisan actors and that all significant cases divide them into strictly political camps. The term-closing rulings on racial preferences in college admissions, the president’s move to cancel many student-loan obligations, and the free-speech rights of a Colorado website designer fit the press’s favored “liberals versus conservatives” narrative, but most of the Court’s decisions do not. And, significantly, neither did this year’s most important religious-freedom case, which was decided unanimously.

In Groff v. DeJoy, the Supreme Court returned to a landmark, almost-six-decades-old statute, the Civil Rights Act of 1964. That law forbids, among other things, discrimination “because of . . . religion,” and it was interpreted from the outset by the Equal Employment Opportunity Commission to require employers “to make reasonable accommodations to the religious needs of employees” so long as doing so would not involve an “undue hardship on the conduct of the employer’s business.” And, in 1972, Congress codified the Commission’s interpretation.

This accommodation requirement complements the Act’s antidiscrimination provisions and was part of the law’s comprehensive effort to make the American workplace and employment opportunities accessible and available to all. This effort was undermined, however, in 1977, when the Court decided a case called Trans World Airlines, Inc. v. Hardison. That dispute involved complicated questions about labor-union rights, overtime wages, and seniority systems but, for present purposes, its most important feature turned out to be a throwaway line suggesting that it could constitute an “undue hardship” on the airline to require it to “bear more than a de minimis cost” to accommodate an employee’s religious objection to working on his Sabbath. In the years that followed, this line became the law, and the Act’s accommodation mandate and accessibility promise were stymied. The law called for meaningful accommodation, but the regrettable Hardison phrase effectively excused employers from meaningful efforts.

Jump ahead to 2023: Gerald Groff was for years a mail carrier with the United States Postal Service. He is also an Evangelical Christian who objects to working on Sundays. (Sunday mail is, as it happens, one of our country’s oldest and most interesting law-and-religion controversies. Many Protestants were troubled by Catholic immigrants’ habit of gathering in post offices on Sundays, after Mass, and drinking.) The USPS struck a deal with Amazon, though, and Sunday work became a standard part of a mail carrier’s job. After years of wrangling, Groff resigned, sued, and—at first—lost. Accommodating his religious beliefs, the lower court concluded, had “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale”—in other words, it had involved more than “de minimis” costs.

When the Court agreed to review Groff’s case, many observers (including me) believed that the justices had Hardison in their sights. And, after tolerating for many years of confusion and inconsistency in lower courts and agencies about employees’ religious freedoms, the Court in Groff clarified …—with all nine justices agreeing—that Hardison and the Civil Rights Act have regulatory teeth and that religious exercise in the workplace should be respected and accommodated unless doing so would impose a “substantial” burden on the employer, that is, “would result in substantial increased costs in relation to the conduct of its particular business.” As it happened, the Court was able to clarify, rather than overrule, their earlier decision. …

To be sure, there have been plenty of religious-freedom cases that have divided the justices and, certainly, there will be more. (Should there be exemptions for religious objectors from vaccine requirements? From public-health-related restrictions on gatherings? From abortion regulations? Stay tuned.) Still, it is important for commentators and citizens alike to remember that religious freedom is, and has long been, notwithstanding our divisions and disagreements, at the heart of the American experiment. We disagree today, as we did at the Founding and as we have ever since, over what, precisely, our Constitution’s promise of religious liberty under and through law means, but we know that the promise matters.  …

Some critics complain about the current Court’s “privileging” of religion, but they fail to appreciate that our Constitution singles out religion as special. As James Madison put it, in one of America’s most famous op-eds, “the duty of every man” to “the Creator” is “precedent . . . to the claims of Civil Society.” It is striking that, in Groff, no justice relied on, or even discussed, the constitutional theory, which has been endorsed and promoted by several prominent scholars, that accommodations of religion violate the Establishment Clause if they impose costs or burdens on third parties. Clearly, given the Groff Court’s interpretation of the Civil Rights Act, not all requested accommodations are feasible, or required. But, the mere fact that appropriate respect for religious employees’ obligations or beliefs involves some costs does not eliminate the law’s requirement of that respect. Protecting fundamental rights need not be—and, in fact, rarely is—costless. … [T]the Groff case was important, and welcome.  

Prior TaxProf Blog coverage:

• Two Perspectives On How Far Employers Must Go In Providing Religious Accommodations To Employees (Feb. 5, 2023)
• Religious Liberty Clinics At Notre Dame, Pepperdine, Texas, And Yale File Supreme Court Amicus Briefs: Post Office Must Accommodate Employee's Sabbath Observance (Mar. 12, 2023)