Sabbath work case gives justices new chance to crack ‘separation’ of church and state

When the Supreme Court first looked at whether employees could be forced to work on their sabbath day, it was the 1970s.

Thomas Jefferson’s theory of a “wall of separation” between church and state was the dominant legal view, and the justices cast a skeptical eye on the religious requesters — in that case airline employees — wondering why their need to pray on a Sunday was more important than a fellow worker’s desire to watch their kids’ football game.

The issue comes back Tuesday, where it will find a very different lay of the land at the high court. Jefferson’s wall of separation has been breached, and a majority of justices believe their predecessors’ attempt at neutrality turned into outright hostility toward the faithful.

The tension between the approaches springs from the First Amendment’s religion clauses, which bar the “establishment” of religion even as they guarantee the free exercise of worship.

“The major shift in the Roberts court has been a rejection of any kind of separationist doctrine with regard to the Establishment Clause, and a heightened attention to the importance of free exercise,” said Robert Tuttle, a law professor at George Washington University who specializes in religion.

The case before the justices involves Gerald Groff, a mailman who celebrates a Sunday sabbath and asked the U.S. Postal Service to make sure he had that day off.

When the postal service began delivering Amazon packages on Sundays, that became tougher to arrange and supervisors told Mr. Groff he would have to pick up some shifts. He didn’t show up for at least 24 Sundays, was punished and eventually left the job.

He sued under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on several categories, including religion.

A federal district judge, and later the 3rd U.S. Circuit Court of Appeals, backed the postal service.

They cited the Supreme Court’s Hardison decision, a 1977 ruling that Trans World Airlines didn’t have to make accommodations for an employee’s religious beliefs if it involved more than de minimis cost.

The Hardison case came amid a long line of cases that scholars label “separationist,” because they ascribed to the “wall of separation” concept.

A 1947 case, Everson, was the first to suggest the wall, citing Jefferson’s words in an 1802 letter. A series of 1960s cases then upended prayer and Bible reading in schools.

Then came a 1971 case that produced the unfortunately named “Lemon” test for determining when government had got itself too entangled; 1973 and 1975 rulings against state support for tuition or books at religious schools; a 1980 decision striking down a Kentucky law mandating display of the Ten Commandments; a 1986 ruling that the military could bar religious designations, such as a yarmulke, while troops were in uniform; and a 1990 case finding that states could deny unemployment benefits to American Indians who were fired because of their religious use of peyote, an illegal drug.

By then, however, cracks were showing, with other rulings upholding a different tuition support scheme for religious schools and approving of a Christmas nativity display at a public building, in certain contexts.

In recent years the court has allowed a giant Latin cross to remain on public lands, ruled that religious entities can’t be denied access to government money solely on the basis that they are affiliated with a religion and approved a teacher’s own prayers at a school event.

Those last two cases came in June, and one included a declaration that the Lemon test has been “abandoned.”

David Schultz, a law professor at Hamline University in Minnesota, said the turning point came in the 1989 nativity scene case, and things have accelerated from there.

“What has happened over time is that the court, and especially now under Roberts, has shrunk the notions of establishment and coercion,” Mr. Schultz said. “Over time, Justices such as [Clarence] Thomas have come to see establishment as only including official state religion whereas coercion is narrowly defined to only involve real compulsion.”

Mr. Schultz also said the focus of the right has shifted from the person potentially being compelled to the speaker wanting to express their religious liberties.

Mr. Schultz said he expects the court to keep pushing deeper.

He figures the American Indian peyote case, which drew lines between religious practice and illegal conduct, will eventually be overturned, and the court will also continue to narrow the instances where prayer is forbidden in schools. That could include a case where a teacher is allowed to start class with a prayer, with students free to join in.

“Using the free exercise clause as a trump over the establishment clause is where the court is headed,” Mr. Schultz said.

Mr. Tuttle also figures the peyote decision is in the court’s sights.

He said the Groff case seems to present a more limited question, dealing chiefly with the language of Title VII of the Civil Rights Act and whether the precedent in the TWA case accurately summed up a business’s burdens.

The postal service, which is being represented by the Justice Department, said the burden goes beyond just the business and also includes other workers who have to fill in for a sabbath observer.

“This was not a hypothetical burden, this was a real burden on other people,” Mr. Tuttle said. “There were discrete people who had to shoulder the burden of the employee who requests an accommodation.”

An airline industry group, in a brief in the case, underscored that point, warning that upending that 1977 precedent could ruin the seniority system that airlines have established in their collective bargaining agreements. The seniority system is the reason airlines can run a 24/7 schedule 365 days of the year, Airlines for America told the justices.

Mr. Tuttle said Congress has repeatedly revisited Title VII language and has never sought to meddle with the high court’s standards set in the Hardison precedent.

“The question is why the court needs to do that now,” Mr. Tuttle said.