No.

22-174

In the Supreme Court of the United States

_____________
GERALD E. GROFF
Petitioner,
v.
LOUIS DEJOY, POSTMASTER GENERAL,
UNITED STATES POSTAL SERVICE,
Respondent.
_____________
On Writ of Certiorari to the United States
Court of Appeals for the Third Circuit
___________________________

BRIEF OF CITIZENS UNITED, CITIZENS

UNITED FOUNDATION, AND THE
PRESIDENTIAL COALITION AS AMICI
CURIAE IN SUPPORT OF PETITIONER
_____________
GARY M. LAWKOWSKI MICHAEL BOOS
Counsel of Record DANIEL H. JORJANI
Supreme Court Bar No. Citizens United
315998 Citizens United Foundation
Dhillon Law Group, Inc. The Presidential Coalition
2121 Eisenhower Avenue, 1006 Pennsylvania Avenue, S.E.
Suite 608 Washington, D.C. 20003
Alexandria, VA 22314 Telephone: 202-547-5420
Telephone: 703-574-1654 [email protected]
[email protected] [email protected]
Counsel for amici curiae Citizens United, Citizens
United Foundation, and The Presidential Coalition
 i

TABLE OF CONTENTS
STATEMENT OF INTEREST .................................... 1

INTRODUCTION ........................................................ 2

SUMMARY OF THE ARGUMENT ............................ 4

ARGUMENT ................................................................ 7

I. Hardison Is and Was Egregiously Wrong ........ 7

a. The Plain Meaning of the Civil Rights Act

Requires a Showing of a Significant or
Substantial Difficulty or Costs ............................. 8

b. Sincere Religious Beliefs are Not Mere

Preferences ............................................................ 9

i. The Textual Context of the Civil Rights Act

Confirms that Religion is Not a Mere
Preference ........................................................ 13

ii. The Importance of Religious Liberty is Also

Reflected in Other Statutes ............................. 14

c. Hardison Relies on a False Belief that

Congress Had to Be Neutral Toward Religious
Beliefs .................................................................. 18

II. Hardship for Purposes of Title VII Must

Burden an Employer’s Business Itself, Not Just
Inconvenience an Employee’s Coworkers.............. 23

CONCLUSION .......................................................... 25
 ii

TABLE OF AUTHORITIES

Cases

Adeyeye v. Heartland Sweeteners, LLC,

721 F.3d 444 (7th Cir. 2013) ................................. 12

Am. Legion v. Am. Humanist Ass’n,

139 S. Ct. 2067 (2019) ............................... 19, 20, 22

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ................................................. 1

City of Boerne v. Flores,

521 U.S. 507 (1997) ............................................... 15

Davis v. Beason,
133 U.S. 333 (1890) ............................................... 10

Davis v. Michigan Dep’t of Treasury,

489 U.S. 803 (1989) ............................................... 13

Employment Div., Dep’t of Human Res. of Oregon v.

Smith,
494 U.S. 872 (1990) ............................................... 15

Equal Emp. Opportunity Comm’n v. Abercrombie &

Fitch Stores, Inc.,
575 U.S. 768 (2015) ......................................... 12, 23

Estate of Thornton v. Caldor, Inc.,

472 U.S. 703 (1985) ......................................... 18, 19

Everson v. Bd. of Educ. of Ewing,

330 U.S. 1 (1947) ................................................... 20
 iii

Frontiero v. Richardson,
411 U.S. 677 (1973) ............................................... 14

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001) ................................................. 25

Groff v. DeJoy,
35 F.4th 162 (3d Cir. 2022) ....................... 23, 24, 25

Groff v. DeJoy,
Civ. No. 19-1879, 2021 WL 1264030 (E.D. Pa. Apr.
6, 2021) ................................................................... 23

Holt v. Hobbs,
574 U.S. 352 (2015) ............................................... 16

K Mart Corp. v. Cartier, Inc.,

486 U.S. 281 (1988) ............................................... 13

Kennedy v. Bremberton Sch. Dist.,

142 S. Ct. 2407 (2022) ......................... 19, 20, 23, 25

Lemon v. Kurtzman,
403 U.S. 602 (1971) ............................................... 19

Lynch v. Donnelly,
465 U.S. 668 (1984) ............................................... 21

Ramirez v. Collier,
142 S. Ct. 1264 (2022) ..................................... 15, 16

Sherbert v. Verner,
374 U.S. 398 (1963) ......................................... 10, 15

Small v. Memphis Light, Gas & Water,

141 S. Ct. 1227 (2021) ............................................. 7
 iv

Small v. Memphis Light, Gas and Water,

952 F.3d 821 (6th Cir. 2020) ............................. 8, 18

Town of Greece, New York v. Galloway,

572 U.S. 565 (2014) ................................... 19, 20, 22

Trans World Airlines, Inc. v. Hardison,

432 U.S. 63 (1977) ......................................... 3, 8, 10

United States v. McIntosh,

283 U.S 605 (1931) ...................................... 3, 10, 11

United States v. Seeger,

380 U.S. 163 (1965) ..................................... 3, 10, 11

Van Orden v. Perry,

545 U.S. 677 (2005) ............................................... 21

Wallace v. Jaffree,
472 U.S. 38 (1985) ........................................... 21, 22

West Virginia v. Env’t Prot. Agency,

142 S. Ct. 2587 (2022) ........................................... 13

Wisconsin v. Yoder,
406 U.S. 205 (1972) ........................................... 9, 15

Statutes

29 U.S.C. § 207(r)(3) .................................................... 9

38 U.S.C. § 4303(16) .................................................... 9

42 U.S.C. § 12111(10)(A) ............................................. 9

42 U.S.C. § 2000bb ...................................................... 3

 v

42 U.S.C. § 2000bb(a)(2) ............................................ 15

42 U.S.C. § 2000bb(b)(1) ............................................ 15

42 U.S.C. § 2000bb-1 ................................................. 15

42 U.S.C. § 2000cc ....................................................... 3

42 U.S.C. § 2000cc(a)(1)............................................. 16

42 U.S.C. § 2000cc-1(a) .............................................. 16

42 U.S.C. § 2000e(j) ............................................... 7, 24

42 U.S.C. § 2000e-2(a) ................................................. 7

42 U.S.C. §§ 2000bb, et seq. ....................................... 15

42 U.S.C. §§ 2000cc, et seq. ....................................... 15

42 U.S.C. §§ 2000e-2(a)(1) ......................................... 13

42 U.S.C. §§ 2000e-2(a)(2) ......................................... 13

50 U.S.C. § 3806(j) ....................................................... 3

IRC § 501(c)(3) ............................................................. 2

IRC § 501(c)(4) ............................................................. 2

Other Authorities

An Act to Provide for the Government of the

Territory of the North-West of the River Ohio, 1
Stat. 50 (Aug. 7, 1789)............................................ 22
 vi

Antonin Scalia & Bryan A. Garner, READING LAW:

THE INTERPRETATION OF LEGAL TEXTS (2012) ....... 13

BLACK’S LAW DICTIONARY (5th ed. 1979)................. 8, 9

Brief of Citizens United and Citizens United

Foundation as Amici Curiae in Support of
Respondent, Securities and Exchange Commission
v. Cochran, No. 21-1239 (U.S. Jul. 7, 2022) ............ 1

Brief of Citizens United, Citizens United Foundation,

and The Presidential Coalition as Amici Curiae in
Support of Appellants and Petitioners, Merrill, et
al. v. Milligan, et al., Nos. 21-1086, 21-1087, 2022
WL 1432037 (U.S. May 2, 2022)) ............................. 1

Brief of Citizens United, Citizens United Foundation,

and the Presidential Coalition as Amici Curiae in
Support of Petitioner, Percoco v. United States, No.
21-1158 (U.S. Sept. 7, 2022)..................................... 1

Brief of Citizens United, Citizens United Foundation,

and the Presidential Coalition as Amici Curiae in
Support of Petitioners, Moore, et al. v. Harper, et
al., No. 21-1271 (U.S. Sept. 6, 2022)........................ 1

Harlan Fiske Stone, The Conscientious Objector, 21

Col. Univ. Q. 253 (1919) ......................................... 11

John Locke, A LETTER CONCERNING TOLERATION

(1689),
https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/l
ocke/toleration.pdf .............................................. 3, 12
 vii

LETTER FROM GEORGE WASHINGTON TO THE SOCIETY

OF THE QUAKERS (Oct. 13, 1789),
https://founders.archives.gov/documents/Washingto
n/05-04-02-0188 ........................................................ 2

Senator Jennings Randolph, 118 Cong. Rec. 705

(1972) ...................................................................... 17

THE AMERICAN HERITAGE DICTIONARY OF THE

ENGLISH LANGUAGE (1969)................................... 8, 9

WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY OF

THE ENGLISH LANGUAGE (2d ed. 1975) ................. 8, 9
 1

STATEMENT OF INTEREST 1

Citizens United and Citizens United

Foundation are dedicated to restoring government to
the people through a commitment to limited
government, federalism, individual liberty, and free
enterprise. Citizens United and Citizens United
Foundation regularly participate as litigants (e.g.,
Citizens United v. Fed. Election Comm’n, 558 U.S. 310
(2010)) and amici in important cases in which these
fundamental principles are at stake (See, e.g., Brief of
Citizens United, Citizens United Foundation, and the
Presidential Coalition as Amici Curiae in Support of
Petitioner, Percoco v. United States, No. 21-1158 (U.S.
Sept. 7, 2022); Brief of Citizens United, Citizens
United Foundation, and the Presidential Coalition as
Amici Curiae in Support of Petitioners, Moore, et al. v.
Harper, et al., No. 21-1271 (U.S. Sept. 6, 2022); Brief
of Citizens United and Citizens United Foundation as
Amici Curiae in Support of Respondent, Securities and
Exchange Commission v. Cochran, No. 21-1239 (U.S.
Jul. 7, 2022); Brief of Citizens United, Citizens United
Foundation, and The Presidential Coalition as Amici
Curiae in Support of Appellants and Petitioners,
Merrill, et al. v. Milligan, et al., Nos. 21-1086, 21-1087,
2022 WL 1432037 (U.S. May 2, 2022)).

1 No counsel for a party authored this brief in whole or in part.

No person other than amici curiae, its members, or its counsel

contributed money that was intended to fund preparing or
submitting this brief. Consistent with Rule 37.3, neither consent
of the parties nor a motion for leave to file an amicus curiae brief
is necessary.
 2

Citizens United is a nonprofit social welfare

organization exempt from federal income tax under
Internal Revenue Code (“IRC”) § 501(c)(4). Citizens
United Foundation is a nonprofit educational and
legal organization exempt from federal income tax
under IRC § 501(c)(3). These organizations were
established to, among other things, participate in the
public policy process, including conducting research,
and informing and educating the public on the proper
construction of state and federal constitutions, as well
as statutes related to the rights of citizens, and
questions related to human and civil rights secured by
law.

The Presidential Coalition, LLC is an IRC

section 527 political organization founded to educate
the American public on the value of having principled
leadership at all levels of government.

INTRODUCTION

Early in his Presidency, George Washington

wrote “Government being, among other purposes,
instituted to protect the Persons and Consciences of
men from oppression, it certainly is the duty of Rulers,
not only to abstain from it themselves, but according
to their Stations, prevent it in others.” LETTER FROM
GEORGE WASHINGTON TO THE SOCIETY OF THE QUAKERS
(Oct. 13, 1789),
https://founders.archives.gov/documents/Washington/
05-04-02-0188.

Deeply held religious views are not mere

preferences, akin to liking Pepsi over Coke or being a
night owl who desires a late start to his or her
 3

workday. They concern the transcendental duties and

obligations owed to one’s Creator, however conceived,
that implicate what John Locke referred to as “the
highest obligation that lies upon mankind.” John
Locke, A LETTER CONCERNING TOLERATION 31 (1689),
https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/loc
ke/toleration.pdf. These views are, and are recognized
to be, of such paramount importance to the individual
that they can excuse citizens of some of the most
fundamental civic duties, including taking up of arms
in the nation’s defense when called upon to do so. See
50 U.S.C. § 3806(j); see also United States v. Seeger,
380 U.S. 163 (1965).

The necessity and advisability of protecting the

ability of an individual to fulfill his or her obligations
to their Creator as he or she understands them has
long been recognized as a core component of American
liberty. To wit, it formed the basis of the Free Exercise
and Establishment Clauses of the First Amendment.
It was reflected in Congressional debates and
recognized in draft acts going back to the early 19th
century. See generally United States v. McIntosh, 283
U.S 605, 633 (1931) (Hughes, C.J., dissenting). It has
been repeatedly reiterated by Congress through the
Religious Freedom Restoration Act, 42 U.S.C. §
2000bb, et seq., and the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. § 2000cc, et
seq. And it is recognized in Title VII of the Civil Rights
Act.

The Court in Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63 (1977), disregarded this
fundamental element of American liberty and
 4

demeaned the significance of sincerely held religious

beliefs to eviscerate the substantive meaning of Title
VII by adopting a “more-than-de-minimis” test for
religious accommodations. This interpretation was
egregiously wrong when it was adopted and should be
reversed today.

Moreover, the lower courts have further

undercut the substantive protections afforded to
people of faith by effectively granting co-workers a
heckler’s veto over their sincerely held religious
practices.

The text and history of Title VII are clear:

employers have an obligation to accommodate
sincerely held religious practices unless doing so
would impose an undue burden on the employer’s
business – not a mere inconvenience, not indistinct
grumbling among other employees. Accordingly, the
judgment of the Court of Appeals should be reversed.

SUMMARY OF THE ARGUMENT

Hardison was egregiously wrong when it

adopted a more-than-de-minimis test for evaluating
claims of religious discrimination under Title VII.

First, the test set forth in Hardison is

irreconcilable with the text of Title VII of the Civil
Rights Act. The text of Title VII refers to “undue
hardship” on an employers’ business. The words
“undue hardship” mean a burden that is significant or
substantial. A significant or substantial burden is a
materially higher bar than a mere more-than-de-
minimis burden.
 5

Second, the test set forth in Hardison

improperly conflates religious beliefs with mere
personal preferences and, in doing so, misses the point
of Title VII. Religious beliefs relate to the duties and
obligations individuals owe to their Creator, however
conceived. In many faith traditions, these duties and
obligations take on supreme importance directly
related to the fate of the individual in the hereafter.
Accordingly, they are immutable obligations imposed
from without that are not analogous to mere personal
preferences, such as a desire to wear a head covering
as a matter of sartorial expression.

This view is reinforced by the intertextual

context of Title VII. In Title VII, religion is grouped
alongside race, national origin, and sex. At the time
Title VII was adopted, race, national origin, and sex
were all considered immutable characteristics
determined at birth. Put differently, they were all
viewed as things that an individual cannot change.
Applying the canon of noscitur a sociis, it may be
reasonably inferred that “religion,” as used in Title
VII, refers to a perceived Truth that exists outside of
the individual that cannot be changed by the
individual.

It is also reinforced by the protection of religious

liberty in other statutes, particularly the Religious
Freedom Restoration Act and the Religious Land Use
and Institutionalized Persons Act. Together, these
Congressional actions express unambiguous concern
that purportedly neutral laws and policies can burden
religious expression. In response, these statutes
provide additional protection for religious practices
 6

from encroachment by State governments and the

federal government. Title VII fills in a missing piece
– providing protection for the free exercise of religion
from discrimination by private employers.

Third, Hardison is – at least implicitly –

premised on the incorrect belief that Congress needed
to be entirely neutral or indifferent to religion. This
view appears to be influenced by views of the
Establishment Clause expressed in the now-
discredited Lemon test. A review of historical
practices and understandings, particularly those of
the First Congress, show that strict neutrality and/or
indifference to religion is not compelled by the First
Amendment.

Finally, the Court of Appeals in this case erred

by looking to the burden on an employee’s coworkers,
rather than the burden on an employer’s business
itself. Examining the impact on an employee’s
coworkers, without reference to the magnitude of that
impact on the employer’s business, is contrary to the
text of Title VII. Moreover, doing so effectively
subverts the purpose of Title VII by giving coworkers
a heckler’s veto over religious accommodations.

In light of the text, history, and purpose of Title

VII, the Court should firmly and conclusively
disapprove of Hardison’s more-than-de-minimis test,
clarify that the proper analysis of undue hardship
focuses on the impact to an employer’s business, not
an employee’s coworkers, and reverse the decision of
the Court of Appeals.
 7

ARGUMENT

I. Hardison Is and Was Egregiously

Wrong

Title VII of the Civil Rights Act provides in part

that it shall be an unlawful employment practice for
an employer “to fail or refuse to hire or 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 race, color, religion, sex,
or national origin” or “to limit, segregate, or classify
his employees or applicants for employment in any
way which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because of
such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a). The statute further
defines “religion” to include “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.” 42 U.S.C. § 2000e(j).

As Justice Gorsuch noted, the Court in

Hardison “dramatically revised – really, undid – Title
VII’s undue hardship test.” Small v. Memphis Light,
Gas & Water, 141 S. Ct. 1227, 1228 (2021) (Gorsuch,
J., dissenting from denial of certiorari). Specifically,
Hardison concluded that requiring a company “to bear
more than a de minimis cost in order to give Hardison
 8

Sundays off is an undue hardship,” Hardison, 432 U.S.

at 84, effectively replacing the undue hardship
standard with a more-than-de-minimus test.

Hardison’s more-than-de-minimus test is

contrary to the plain text of the Title VII, improperly
conflates religious needs with mere personal
preferences, and appears to be premised on an
outdated view of the Establishment Clause.
Accordingly, Hardison is and was egregiously wrong
and should be clearly and conclusively disapproved.

a. The Plain Meaning of the Civil Rights Act

Requires a Showing of a Significant or
Substantial Difficulty or Costs

By its plain terms, Title VII broadly protects

religious affiliation and religious practices. Under the
Civil Rights Act, employers must accommodate
religious practices unless doing so would result in
“undue hardship.” As Judge Thapar observed,
“[d]ictionaries from the period define a ‘hardship’ as
‘adversity,’ ‘suffering’ or ‘a thing that is hard to bear,’”
which indicates that “[o]n its own terms . . . the word
‘hardship’ would imply some pretty substantial costs.”
Small v. Memphis Light, Gas and Water, 952 F.3d 821,
827 (6th Cir. 2020) (Thapar, J. concurring), cert.
denied 141 S. Ct. 1227 (2021) (quoting THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 601
(1969); BLACK’S LAW DICTIONARY 646 (5th ed. 1979);
WEBSTER’S NEW TWENTIETH CENTURY DICTIONARY OF
THE ENGLISH LANGUAGE 826 (2d ed. 1975)). Moreover,
the word “undue” refers to that which “‘exceed[s] what
is appropriate or normal” or is “excessive.” Id.
 9

(quoting THE AMERICAN HERITAGE DICTIONARY OF THE

ENGLISH LANGUAGE 1398; BLACK’S LAW DICTIONARY
1370; WEBSTER’S NEW TWENTIETH CENTURY
DICTIONARY OF THE ENGLISH LANGUAGE 826)).

The phrase “undue hardship” is not unique to

the Civil Rights Act. Rather, it is defined for purposes
of the Americans with Disabilities Act, Fair Labor
Standards Act, and for purposes of veterans’
employment by reference to “significant difficulty or
expense.” See 42 U.S.C. § 12111(10)(A); 29 U.S.C. §
207(r)(3); 38 U.S.C. § 4303(16).

Thus, the plain meaning of the statutory text

indicates that “undue hardship” requires a significant,
substantial, excessive imposition of cost that is
difficult, if not impossible, for an employer to bear.

b. Sincere Religious Beliefs are Not Mere

Preferences

In defiance of the plain text of Title VII,

Hardison demeans the import of sincere religious
beliefs by analogizing them to mere preferences. For
sincere believers, religious needs reflect the duties and
obligations that one owes to one’s Creator. Many
believe that faithful adherence to these duties and
obligations is directly related to their own eternal
salvation. Thus, religious beliefs are not preferences
akin to wanting an earlier or later shift on the job site;
they are paramount demands. See generally
Wisconsin v. Yoder, 406 U.S. 205, 216 (1972) (drawing
a distinction between religious beliefs and mere
personal preferences, noting “we see that the record in
this case abundantly supports the claim that the
 10

traditional way of life of the Amish is not merely a

matter of personal preference, but one of deep
religious conviction.”)

In Hardison, the Court stated “[i]t would be

anomalous to conclude that by ‘reasonable
accommodation’ Congress meant that an employer
must deny the shift and job preference of some
employees, as well as deprive them of their
contractual rights, in order to accommodate or prefer
the religious needs of others.” Hardison, 432 U.S. at
81. In doing so, the Court failed to account for why
Congress sought to protect “religious needs” in the
first place, and what distinguishes “religious needs”
from mere “shift and job preference[s].”

In a different case concerning Sabbatarian

beliefs, Justice Douglas noted that “[t]he harm is the
interference with the individual’s scruples or
conscience.” Sherbert v. Verner, 374 U.S. 398, 412
(1963) (Douglas, J., concurring). As the Court has
previously stated, “[t]he term ‘religion’ has reference
to one’s views of his relations to his Creator, and to the
obligations they impose of reverence for his being and
character, and of obedience to his will.” Davis v.
Beason, 133 U.S. 333, 342 (1890). The “essence of
religion is a belief in a relation to God involving duties
superior to those arising from any human relation.”
Seeger, 380 U.S. at 175 (quoting McIntosh, 283 U.S. at
633-34 (Hughes, C.J., dissenting)). Even “putting
aside dogmas with their particular conceptions of
deity, freedom of conscience implies respect for an
innate conviction of paramount duty.” Id. at 176
 11

(quoting McIntosh, 283 U.S. at 634 (Hughes, C.J.,

dissenting)).

Given the “paramount” nature of these duties,

“in the forum of conscience, duty to a moral power
higher than the state has always been maintained.”
Id. at 170 (quoting McIntosh, 283 U.S. at 633 (Hughes,
C.J., dissenting)). Accordingly, then-future Chief
Justice Harlan Fiske Stone wrote “[a]ll our history
gives confirmation to the view that liberty of
conscience has a moral and social value which makes
it worthy of preservation at the hands of the state. So
deep in its significance and vital, indeed, is it to the
integrity of man’s moral and spiritual nature that
nothing short of the self-preservation of the state
should warrant its violation; and it may well be
questioned whether the state which preserves its life
by a settled policy of violation of the conscience of the
individual will not in fact ultimately lose it by the
process.” Id. (quoting Harlan Fiske Stone, The
Conscientious Objector, 21 Col. Univ. Q. 253, 269
(1919)).

For many people of faith, attending to their

“religious needs” is a weightier matter than even life
and death. Their duties and obligations owed to their
Creator are directly tied to the salvation of their
immortal souls. As an example of this line of thinking
familiar to the Framers, John Locke wrote “[e]very
man has an immortal soul, capable of eternal
happiness or misery; whose happiness depending
upon his believing and doing those things in this life
which are necessary to the obtaining of God’s favour,
and are prescribed to God for that end. It follows from
 12

thence, first, that the observance of these things is the

highest obligation that lies upon mankind and that
our utmost care, application, and diligence ought to be
exercised in the search and performance of them;
because there is nothing in this world that is of any
consideration in comparison with eternity.” John
Locke, A LETTER CONCERNING TOLERATION 31 (1689),
https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/loc
ke/toleration.pdf.

The “paramount” importance of religious duties

is central to understanding what Congress sought to
protect in Title VII of the Civil Rights Act. Congress
was not creating a jump ball. As the Court has
recognized, “Title VII does not demand mere
neutrality with regard to religious practices – that
they be treated no worse than other practices. Rather,
it gives them favored treatment.” Equal Emp.
Opportunity Comm’n v. Abercrombie & Fitch Stores,
Inc., 575 U.S. 768, 775 (2015). It does so in recognition
that asking individuals to violate their sense of
religious obligation is a big, potentially very
consequential deal, and based on a policy
determination that in a pluralistic society individuals
should not be forced to violate their consciences unless
it is absolutely necessary.

Thus, “[a]t the risk of belaboring the obvious,

Title VII aimed to ensure that employees would not
have to sacrifice their jobs to observe their religious
practices.” Adeyeye v. Heartland Sweeteners, LLC, 721
F.3d 444, 456 (7th Cir. 2013) (emphasis in the
original). By disregarding this aim and the purpose
behind it, Hardison misinterprets Title VII.
 13

i. The Textual Context of the Civil

Rights Act Confirms that Religion is
Not a Mere Preference

“It is a fundamental canon of statutory

construction that the words of a statute must be read
in their context and with a view to their place in the
overall statutory scheme.” West Virginia v. Env’t Prot.
Agency, 142 S. Ct. 2587, 2607 (2022) (quoting Davis v.
Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989));
see also Antonin Scalia & Bryan A. Garner, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 56 (“The
words of a governing text are of paramount concern,
and what they convey, in their context, is what the
text means.”). “In ascertaining the plain meaning of
the statute, the court must look to the particular
statutory language at issue, as well as the language
and design of the statute as a whole.” K Mart Corp. v.
Cartier, Inc., 486 U.S. 281, 291 (1988); see also
Antonin Scalia & Bryan A. Garner, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 167-69 (2012)
(describing the “whole-text canon” of statutory
construction). Moreover, consistent with the canon of
noscitur a sociis, “[a]ssociated words bear on one
another’s meaning.” Antonin Scalia & Bryan A.
Garner, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 195 (2012).

The significance and transcendental nature of

religious needs is further confirmed by the textual
context of Title VII. “Religion” appears in Title VII in
a list, alongside “race, color, . . . sex, or national
origin.” 42 U.S.C. §§ 2000e-2(a)(1), (2). When the Civil
Rights Act was adopted (and until fairly recently),
 14

race, color, sex, and national origin all referred to

innate and immutable characteristics. See Frontiero
v. Richardson, 411 U.S. 677, 686 (1973) (“[S]ex, like
race and national origin, is an immutable
characteristic determined solely by the accident of
birth.”). By virtue of its appearance alongside these
other immutable characteristics, religion is best
understood as referring to something more substantial
than mere personal preference. It is something that
exists outside of the individual and references an
understanding of Truth for sincere believers that can
no more be changed than a person’s race or birthplace.

With this understanding, Hardison’s dismissal

of “religious need” as analogous to a shift preference is
contrary to the text and demeaning to sincere religious
belief.

ii. The Importance of Religious

Liberty is Also Reflected in
Other Statutes

Title VII’s protection of religion and religious

practices is best understood in the context of a long-
standing effort by Congress to protect the free exercise
rights of Americans from undue coercion. Congress
has long debated and protected the rights of
conscientious objectors from compulsory combat
service. Congress has also acted expeditiously to
protect religious practices from encroachment by both
State and federal authorities. In this context, Title
VII’s protection of religious practices is best
understood as one piece of a comprehensive effort to
protect religious expression.
 15

To wit, in response to the Court’s decision in

Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872 (1990),
Congress adopted the Religious Freedom Restoration
Act of 1993, 42 U.S.C. §§ 2000bb, et seq., Pub. L. 103-
141 (Nov. 16, 1993) (“RFRA”). In RFRA, Congress
declared “laws ‘neutral’ toward religion may burden
religious exercise as surely as laws intended to
interfere with religious exercise.” 42 U.S.C. §
2000bb(a)(2). Congress went on to restore the
compelling interest test derived from Sherbert v.
Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder,
406 U.S. 205 (1972). See 42 U.S.C. §§ 2000bb(b)(1);
2000bb-1.

When the Court held that portions of RFRA

exceeded Congress’ authority under Section 5 of the
Fourteenth Amendment in City of Boerne v. Flores,
521 U.S. 507 (1997), Congress again reacted to restore
protections for religious practices imperiled by facially
neutral law and policies by adopting the Religious
Land Use and Institutionalized Persons Act of 2000,
42 U.S.C. §§ 2000cc, et seq., Pub. L. 106-274 (Sept. 22,
2000) (“RLUIPA”); see generally Ramirez v. Collier,
142 S. Ct. 1264, 1277 (2022) (noting “Congress enacted
RLUIPA, and its sister statute the Religious Freedom
Restoration Act of 1993 . . . in the aftermath of our
decisions in Employment Division, Department of
Human Resources of Oregon v. Smith . . . and City of
Boerne v. Flores.” (citations omitted)).

RLUIPA provided “[n]o government shall

impose or implement a land use regulation in a
manner that imposes a substantial burden on the
 16

religious exercise of a person . . . unless the

government demonstrates that the imposition of the
burden” is in furtherance of a compelling state interest
and the least restrictive means of furthering that
interest. 42 U.S.C. § 2000cc(a)(1). RLUIPA also
provided similar protections for incarcerated persons,
stating “[n]o government shall impose a substantial
burden on the religious exercise of a person residing in
or confined to an institution . . . even if the burden
results from a rule of general applicability, unless the
government demonstrates that imposition of the
burden” is in furtherance of a compelling state interest
and is the least restrictive means of furthering that
interest. 42 U.S.C. § 2000cc-1(a).

As the Court recognized, Congress enacted both

RFRA and RLUIPA “to ensure ‘greater protection for
religious exercise than is available under the First
Amendment.’” Ramirez, 142 S. Ct. at 1277 (quoting
Holt v. Hobbs, 574 U.S. 352, 357 (2015)). To wit,
“[s]everal provisions of RLUIPA underscore its
expansive protection for religious liberty,” including
its clarification that the term “religion” includes “any
exercise of religion, whether or not compelled by, or
central to, a system of religious belief,” Congress’s
“mandate[] that this concept ‘shall be construed in
favor of a broad protection of religious exercise, to the
maximum extent permitted by the terms of this
chapter and the Constitution,” and Congress’s
direction that RLUIPA “‘may require a government to
incur expenses in its own operations to avoid imposing
a substantial burden on religious exercise.’” Holt, 574
U.S. at 358 (citations omitted).
 17

Congress has repeatedly emphasized the

importance of protecting the free exercise of religion
and adopted broad statutes to ensure the free exercise
of religious practices is protected.

The limited legislative history for the 1972

amendments to Title VII make clear that it was
intended to be part of this same tradition. For
example, the amendment’s sponsor, Senator
Randolph, stated in support of the amendment
“freedom from religious discrimination has been
considered by most Americans from the days of the
Founding Fathers as one of the fundamental rights of
the people of the United States.” Senator Jennings
Randolph, 118 Cong. Rec. 705 (1972). He further
stated “I think it is an appropriate time for the Senate,
and hopefully the Congress of the United States, to go
back, as it were, to what the Founding Fathers
intended. The complexity of our industrial life, the
transition of our whole are [sic] of employment, of
course are matters that were not always understood
by those who led our Nation in the earlier days.” Id.
at 706. Title VII is thus best understood as extending
the protections of the equities guarded by the Free
Exercise clause to the private sector.

While statutes like RFRA, RLUIPA, and Title

VII are separate and have their own nuances, they
should be understood together as part of a
comprehensive approach to protecting the free
exercise of religion from undue intrusion from the
federal government, state governments, and private
employers, respectively. Consistent with the nature
of the equities involved, the standard for protecting
 18

free exercise from government is more stringent that

the standard for protecting free exercise from private
conduct. Nevertheless, Congress’ approach to
protecting the free exercise of religion from
government intrusion highlights that religious beliefs
are not mere preferences, to be dispensed with
whenever mildly inconvenient.

Congress has repeatedly adopted a policy that

religious practices should be respected unless they
impose a substantial cost. That policy judgment
should be respected in the Title VII context.

c. Hardison Relies on a False Belief that

Congress Had to Be Neutral Toward
Religious Beliefs

As Judge Thapar observed, Hardison appears

to have adopted the more than de minimis test for two
reasons: concern that “religious accommodations that
involved more than ‘de minimis’ costs would cause
employers to ‘discriminate’ against their non-religious
employees” and an “implicit” concern that a broader
reading of Title VII would conflict with the
Establishment Clause of the First Amendment.
Small, 952 F.3d at 828 (Thapar, J., concurring). See
also generally Estate of Thornton v. Caldor, Inc., 472
U.S. 703 (1985) (holding that a statute providing an
absolute and unqualified right not to work on the
Sabbath violates the Establishment Clause); Estate of
Thornton, 472 U.S. at 711-12 (O’Conner, J,
concurring) (distinguishing Title VII from the law at
issue in Caldor). Both of these justifications are
unavailing.
 19

This “implicit” concern is fueled in part by the

Court’s “ambitious[] attempt[] to find a grand unified
theory of the Establishment Clause” in Lemon v.
Kurtzman, 403 U.S. 602 (1971). Am. Legion v. Am.
Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019). Under
the Lemon test, the Court looked to “whether a
challenged government action (1) has a secular
purpose; (2) has a ‘principal or primary effect’ that
‘neither advances nor inhibits religion’; and (3) does
not foster ‘an excessive government entanglement
with religion.’” Id. at 2078-79 (quoting Lemon, 403
U.S. at 612-13). It is difficult to square Title VII’s
statutory protection of religious practices with Lemon,
particularly its command that laws have a secular
purpose and have a principle or primary effect that
neither advances nor inhibits religion. See id. at 2092
(Kavanaugh, J., concurring) (“Lemon, fairly applied,
does not justify” many of the Court’s past decisions
regarding religious accommodations.); but see
generally Estate of Thornton, 472 U.S. at 712
(O’Connor, J., concurring) (stating in reference to Title
VII “[i]n my view, a statute outlawing employment
discrimination based on race, color, religion, sex, or
national origin has the valid secular purpose of
assuring equal opportunity to all groups in our
pluralistic society.”).

But as the Court has subsequently recognized,

Lemon is not the proper framework for understanding
the Establishment clause. See Kennedy v. Bremberton
Sch. Dist., 142 S. Ct. 2407 (2022); Am. Legion v. Am.
Humanist Ass’n, 139 S. Ct. 2067 (2019); Town of
Greece, New York v. Galloway, 572 U.S. 565 (2014).
Instead, “this Court has instructed that the
 20

Establishment Clause must be interpreted by

‘reference to historical practices and understandings.’”
Kennedy, 142 S. Ct. at 2428 (quoting Town of Greece,
572 U.S. at 576).

Historical practices and understandings

support a more robust Title VII. As the Court has
noted, “[t]he Religion Clauses of the Constitution aim
to foster a society in which people of all beliefs can live
together harmoniously.” Am. Humanist Ass’n, 139 S.
Ct. at 2074. When properly read in pari materia, the
Establishment Clause and the Free Exercise Clause
serve similar functions: ensuring that government
does not dictate what religious beliefs citizens hold or
how they fulfil their duties to their Creator, as each
citizen understands them. See generally Kennedy, 142
S. Ct. at 2426 (“A natural reading of that sentence [in
the First Amendment] would seem to suggest the
Clauses have ‘complementary’ purposes,” (quoting
Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15
(1947)).

In this context, the Establishment Clause

serves to protect the American people from coercive
religious practices, such as the imposition of a single
national religion or creed. See generally Kennedy, 142
S. Ct. at 2429 (“No doubt, too, coercion along these
lines [coercing individuals to attend church or forcing
citizens to engage in a formal religious exercise] was
among the foremost hallmarks of religious
establishments the framers sought to prohibit when
they adopted the First Amendment.”); Am. Humanist
Ass’n, 139 S. Ct. at 2096 (Thomas, J., concurring)
(“The sine qua non of an establishment of religion is
 21

‘actual legal coercion’” such as making church

attendance mandatory, levying taxes to generate
church revenue, barring dissenting ministers from
preaching, or limiting political participation to
members of an established church. (quoting Van
Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J.,
concurring)).

A proper historical understanding of the

Establishment clause does not require a strict
neutrality or indifference to religion and religious
practices. See Wallace v. Jaffree, 472 U.S. 38, 106
(1985) (Rehnquist, J., dissenting) (“The
Establishment Clause did not require government
neutrality between religion and irreligion nor did it
prohibit the Federal Government from providing
nondiscriminatory aid to religion.”); Van Orden, 545
U.S. at 692 (Scalia, J., concurring) (noting that the
“central . . . feature” of “our Nation’s past and present
practices . . . is that there is nothing unconstitutional
in a State’s favoring of religion generally, honoring
God through public prayer and acknowledgement, or,
in a nonproselytizing manner, venerating the Ten
Commandments.”). Rather, “[t]here is an unbroken
history of official acknowledgement by all three
branches of government of the role of religion in
American life from at least 1789.” Van Orden, 545
U.S. at 686 (quoting Lynch v. Donnelly, 465 U.S. 668,
674 (1984)).

For example, then-Justice Rehnquist referred

to James Madison as “undoubtedly the most
important architect among the Members of the House
of the Amendments which became the Bill of Rights.”
 22

Wallace, 472 U.S. at 97-98 (Rehnquist, J., dissenting).

After a lengthy discussion of the debate leading up to
the approval of the First Amendment, he concluded
“[i]t seems indisputable from these glimpses of
Madison’s thinking, as reflected by his actions on the
floor of the House in 1789, that he saw the [First]
Amendment as designed to prohibit the establishment
of a national religion, and perhaps to prohibit
discrimination among sects. He did not see it as
requiring neutrality on the part of government
between religion and irreligion.” Id. at 98.

“The prevalence of this philosophy at the time

of the founding is reflected in other prominent actions
taken by the First Congress.” Am. Humanist Ass’n,
139 S. Ct. at 2087. For example, “only days after
approving language for the First Amendment,” the
“First Congress made it an early item of business to
appoint and pay official chaplains, and both the House
and Senate have maintained the office virtually
uninterrupted since that time.” Town of Greece, 572
U.S. at 575, 576. The First Congress requested that
President Washington proclaim a National Day of
Prayer and beginning its own sessions with a prayer.
See Am. Humanist Ass’n, 139 S. Ct. at 2087-88. The
same Congress also reenacted the Northwest
Ordinance, which provided that “[r]eligion, morality,
and knowledge, being necessary to good government
and the happiness of mankind, schools and the means
of education shall forever be encouraged.” An Act to
Provide for the Government of the Territory of the
North-West of the River Ohio, 1 Stat. 50 (Aug. 7,
1789); see Am. Humanist Ass’n, 139 S. Ct. at 2087;
Wallace, 472 U.S. at 100 (Rehnquist, J., dissenting).
 23

To paraphrase the Court in Kennedy, in the

name of protecting religious liberty (at least
implicitly), the Court in Hardison would effectively
suppress it by forcing citizens to choose between their
sincere religious beliefs and their livelihoods at the
slightest conflict. See Kennedy, 142 S. Ct. at 2431.
This approach is contrary to the plain text of Title VII
and is not supported or compelled by the
Establishment Clause. “Title VII does not demand
mere neutrality with regard to religious practices . . .
. Rather, it gives them favored treatment,
affirmatively obligating employers not ‘to fail or refuse
to hire or discharge any individual . . . because of such
individual’s’ ‘religious observances and practice.’”
Abercrombie & Fitch Stores, Inc., 575 U.S. at 775. The
more-than-de-minimis test in Hardison is contrary to
the text and purpose of Title VII and should be
jettisoned.

II. Hardship for Purposes of Title VII

Must Burden an Employer’s Business
Itself, Not Just Inconvenience an
Employee’s Coworkers

The district court in this case asserted “[m]any

courts have recognized that an accommodation that
causes more than a de minimus impact on co-workers
creates an undue hardship.” Groff v. DeJoy, Civ. No.
19-1879, 2021 WL 1264030, at *12 (E.D. Pa. Apr. 6,
2021). The Court of Appeals “cite[d] cases echoing the
District Court’s observation.” Groff v. DeJoy, 35 F.4th
162, 176 (3d Cir. 2022) (Hardiman, J., dissenting).
 24

This approach is effectively a bait-and-switch

that undercuts the Title VII’s protections. First, it is
contrary to the text of Title VII. As described above,
the text of Title VII refers to “undue hardship on the
conduct of the employer’s business.” 42 U.S.C. §
2000e(j) (emphasis added). While a negative impact
on coworkers may eventually rise to the level of
impacting an employer’s business, the two categories
are not coextensive. See Groff, 35 F.4th at 177
(Hardiman, J., dissenting) (“Simply put, a burden on
coworkers isn’t the same thing as a burden on the
employer’s business.”).

Nearly every accommodation may have some

negative impact on an employee’s coworkers. As a
practical matter, if it never did, Title VII would rarely
be necessary: employees could simply make their own
adjustments to obviate the need for a legal right to
accommodation. To wit, an accommodation allowing
an employee not to work on the Sabbath or another
religious holiday necessarily means some other
employee must fill in or do the work that arises on
those days. An accommodation allowing an employee
to wear a headscarf for religious reasons may
engender resentment from an employee who is not
allowed to wear a headscarf as a sartorial statement.
By impacting “morale,” these accommodations impose
some level of burden on an employees’ co-workers, but
they do not necessarily impose the same burden on the
employer’s business.

As Judge Hardiman noted, “[b]y affirming the

District Court’s atextual rule, the Majority renders
any burden on employees sufficient to establish undue
 25

hardship, effectively subjecting Title VII religious

accommodation to a heckler’s veto by disgruntled
employees.” Id. As the Court has recognized, “[t]his
Court has since made plain, too, that the
Establishment Clause does not include anything like
a ‘modified heckler’s veto, in which . . . religious
activity can be proscribed’ based on ‘perceptions’ or
‘discomfort.’” Kennedy, 142 S. Ct. at 2427 (quoting
Good News Club v. Milford Cent. Sch., 533 U.S. 98,
119 (2001)). Neither does Title VII. Accordingly, the
relevant basis for evaluating undue hardship under
Title VII is properly the impact on the business, not
merely on an employee’s coworkers.

CONCLUSION

For the foregoing reasons, the Court should

disapprove of the test set forth in Trans World
Airlines, Inc. v. Hardison and reverse the opinion of
the Court of Appeals.
 26

Respectfully submitted,

GARY M. LAWKOWSKI MICHAEL BOOS

Counsel of Record DANIEL H. JORJANI
Supreme Court Bar No. Citizens United
315998 Citizens United Foundation
Dhillon Law Group, Inc. The Presidential Coalition
2121 Eisenhower Avenue, 1006 Pennsylvania Avenue, S.E.
Suite 608 Washington, D.C. 20003
Alexandria, VA 22314 Telephone: 202-547-5420
Telephone: 703-574-1654 [email protected]
[email protected] [email protected]

Counsel for amici curiae Citizens United, Citizens

United Foundation, and the Presidential Coalition

February 28, 2023