Earlier this week, Pulitzer Prize–winning New York Times journalist Linda Greenhouse came out of retirement on the opinion page of her former paper to warn Americans that their nation is now on the cusp of seeing religion “elevate[d] … over all other elements of civil society.” The “bold activism” of the Supreme Court, according to Greenhouse, has resulted in an America on the verge of a theocracy, with a High Court that understands civil society primarily through the lens of Protestant evangelical religion. This is a remarkable claim about a Court with only two Protestants, neither of whom is evangelical.
The case that Ms. Greenhouse has identified as the next vehicle for reshaping civil society with religion at it center is Groff v. DeJoy. Gerald Groff, the plaintiff in this case who is represented by my firm, First Liberty Institute, was a postal worker in Lancaster County, Pennsylvania. Mr. Groff, an evangelical Christian, believes that his faith requires him to honor Sunday as the Lord’s Day, and as a result his conscience does not allow him to work on Sundays. For several years, the U.S. Postal Service made accommodations for Mr. Groff, until 2016, when this abruptly stopped. Over the next several years, he endured mockery, hostility, and unjust disciplinary action because of his convictions until he finally resigned in January 2019.
Mr. Groff filed suit against the Postal Service, and both lower courts that heard his case applied a standard mentioned in a key case, TWA v. Hardison, which states that religious discrimination on the part of an employer is permissible if an accommodation for religious employees would cause “undue hardship” to the business. The Hardisoncourt ruled that the key phrase left undefined in the four corners of the relevant regulation meant more than a “de minimisburden” on the employer. The present Court’s “surely foreordained” rejection of the lower courts’ reasoning, according to Ms. Greenhouse, would represent a wild departure from established law and result in indirect discrimination against the nonreligious in the workplace.
Legal protection for religious freedom in the American system, Ms. Greenhouse argues, is historically oriented toward the vindication of minority rights, and a victory for Gerald Groff would signal the Court’s “complete identification” with and “[capture] by” a political movement dedicated to granting evangelical religion a place of primacy in our shared life together as Americans and in the wider jurisprudence of the Court.
Ms. Greenhouse’s analysis of the case, the issues at play, and the ramifications of a victory for Mr. Groff is deeply flawed and construed with a remarkably uncharitable bias.
First, as a reporter and observer of the Court with more than 30 years of experience, Ms. Greenhouse is surely aware that the regulations and statutes relevant to this case are not the only provisions in federal employment law to use the phrase “undue hardship.” But to interpret this phrase as “de minimis burden” is wholly inconsistent with other areas of the law. Mr. Groff is not asking for anything extraordinary or for the present Court to invent a standard like the Hardison court did. He is merely asking that the same definition of “undue hardship” applied in cases involving the Americans with Disabilities Act be applied in this and similar cases. If religion is rightly understood as “nothing special,” as she claims, Ms. Greenhouse’s objection to consistent definitions across federal employment law must be anti-religious bias. To borrow the phrase that she herself used when she imagined the exclusively religious motives of the majority in the Court’s decision to overturn Roe v. Wade: “There is no other way to understand” it.
Second, religious freedom in the American system is not and has never been reserved for a “religious minority.” Religious freedom is an absolute and, in the U.S. Constitution, an unqualified right. Free exercise attaches to all who find themselves under the jurisdiction of U.S. law—the religious and the nonreligious, minority and majority, citizen and noncitizen. Ms. Greenhouse cites the Court’s decisions throughout the COVID-19 pandemic as early evidence of the willingness of the Court’s majority to privilege religion over all other considerations. Given that the Constitution explicitly bars laws “prohibiting the free exercise” of religion without any enumerated or implied exceptions, it is difficult to see how these cases are evidence of a Court “captured” by anything but the words of the Constitution. This is hardly “bold activism.”
But, assuming for the sake of argument that the majority-minority status of an employee is relevant, the definition of “majority” is crucial to the understanding of “minority.” It is not common for evangelicals to hold convictions like Mr. Groff’s regarding sabbath observance. He is a minority within his own tradition. But, if Ms. Greenhouse is using the absolute number of Christians, Protestants, or evangelicals as the majority for her frame of reference (which she does not make clear), it is still important to define in what context these groups may be majorities or minorities.
Imagine that Mr. Groff worked in Portland, Oregon—America’s least-religious city—where evangelicals constitute only about 15% of a population dominated by atheists and agnostics. Would Ms. Greenhouse then find herself on the side of championing the rights of Mr. Groff as a religious minority? What if Mr. Groff was not an evangelical Christian but an Orthodox Jew living and working at a post office in the heavily Jewish Williamsburg neighborhood of Brooklyn, New York? His employer’s cruelty and intransigent refusal to accommodate his convictions would be equally egregious and, ultimately, illegal. In a society that is as expansive and pluralistic as the whole of America, with stark demographic variations from state to state and region to region, it is difficult to argue that a majority-minority distinction in a case such as this has much legal or theoretical significance.
Irrespective of how Ms. Greenhouse views the issues at play in Groff v. DeJoy, the current Court’s religious freedom jurisprudence, or the nebulous “movement in [American] politics” driving a particular outcome, the result that we are seeking for our client and for all Americans is that no one be forced to leave religious convictions at home when going to work. No person—religious or nonreligious—should be forced to choose between conscience and livelihood.
