As we have seen before, Linda Greenhouse is fond of using the incendiary term crusade to stigmatize the cause of religious liberty, and she has even faulted other liberal commentators for giving effect to an “impulse not to appear unduly antagonistic toward religion.” So it’s not surprising to see her (or her editors) miscast a new case on the Court’s docket, Groff v. DeJoy, as “The Latest Crusade to Place Religion Over the Rest of Civil Society.”
Greenhouse’s analysis is once again as shoddy as her anti-religious bigotry. The legal issue in Groff concerns the scope of protection that Title VII of the Civil Rights Act of 1964 provides employees. Title VII forbids employers from discriminating against (or otherwise adversely affecting the status of) an employee because of the employee’s religion. In 1972 Congress added this definition of “religion” to Title VII:
The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. [Emphasis added.]
The grand crusader in the case is a postal worker, Gerald E. Groff, whose religious beliefs call for him to observe Sunday as his sabbath. His terrifying crusade seeks to have the Postal Service accommodate his religious observance. (Amazon hired the Postal Service to do Sunday deliveries.) The legal question posed by Groff’s certiorari petition is whether the Court should revisit the statement in its 1977 decision in Trans World Airlines v. Hardison that an employer faces an “undue hardship” whenever accommodating an employee’s religious observance would require it “to bear more than a de minimis cost.”
I’m not going to undertake here to present a full account of the competing arguments in Groff. (The merits briefs haven’t been filed yet.) I’ll instead just note some of Greenhouse’s errors and omissions:
1. Perhaps most striking, Greenhouse fails to mention that her usual judicial heroes, Thurgood Marshall and William Brennan, vigorously dissented in Hardison. In his dissent, Marshall (joined by Brennan) expressed bewilderment that “simple English usage permits ‘undue burden’ to be interpreted to mean ‘more than de minimis cost,’” and he condemned the decision as “deal[ing] a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices.”
2. Greenhouse observes, as though it were a defense rather than an indictment, that the decision in Hardison “reflected the spirit of the times” by “[t]reating religion as nothing particularly special.”
3. Greenhouse charges that disapproving the “de minimis” statement in Hardison would be “bold activism” that would deviate from the strong stare decisis to which statutory interpretations are entitled. She does not inform her readers of (much less offer any response to) Groff’s argument that the statement was dicta—about a then-existing EEOC guideline, not Title VII’s definition of “religion”—and is entitled to no precedential weight.
4. Greenhouse contends that Hardison “is clearly in tension with the current court’s [supposed] privileging of religious claims above all others.” But as Justice Gorsuch explained two years ago (in a dissent from denial of certiorari in another case), the courts “are far more demanding” in applying the undue-hardship standard under other civil-rights statutes that Congress has enacted since Hardison, so “Title VII’s right to religious exercise has become the odd man out.” Far from “privileging … religious claims above all others” (Greenhouse’s charge), overruling Hardison would enable the Court to ensure that religious claims under Title VII are treated the same as claims under those other statutes.
5. Even as she states that “[i]t may just be a coincidence,” Greenhouse insinuates that there might be something nefarious about the fact that the Court, after denying review in cases involving a Jehovah’s Witness and Seventh-day Adventists, granted certiorari in a case in which the plaintiff is an evangelical Christian. But the Court has all sorts of procedural reasons for denying review. More to the point, a victory for rural postal carrier Groff would, contra Greenhouse, be “a vindication of minority rights”—a powerless individual standing up to the combined force of the Postal Service and Amazon—and it would redound to the benefit of all religious claimants.
6. Greenhouse asserts that a victory for Groff would “signify the court’s complete identification with the movement in the country’s politics to elevate religion over all other elements of civil society.” I have no idea what that means. Does she think that employment with the Postal Service is an important part of “civil society”?
7. Greenhouse closes by declaring that “Religion is the lens through which the current [Supreme Court] majority views American society.” I also have no idea what that means. But she cites—tada!—herself as authority: she links to what I will very charitably call an unpersuasive piece of hers on Dobbs as she harrumphs that “there is no other way to understand the overturning of Roe v. Wade.”