ESTATE OF DONALD E. THORNTON, PETITIONER V. CALDOR, INC. No. 83-1158 In the Supreme Court of the United States October Term, 1983 On Petition for a Writ of Certiorari to the Supreme Court of Connecticut Brief for the United States as Amicus Curiae TABLE OF CONTENTS Interest of the United States Statement Discussion Conclusion QUESTION PRESENTED Whether a state statute that prohibits an employer from requiring employees to work on their designated day of Sabbath violates the Establishment Clause of the First Amendment. INTEREST OF THE UNITED STATES This case involves the facial validity of a Connecticut statute protesting the rights of private employees to refrain from working on the day they designate as their Sabbath. The Connecticut Supreme Court struck down the statute under the Establishment Clause of the United States Constitution, as applied to the states through the Fourteenth Amendment. In 1972, Congress enacted legislation requiring employers to make "reasonable accommodations" to the religious needs of their employees, including attempting to accommodate employees' Sabbath observances. Sections 701(j) and 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(j) and 2000e-2(a) (1). /1/ The United States has a substantial interest in this case, therefore, because a decision upholding the Connecticut law, which goes beyond the religious accommodation requirements of Title VII, would a fortiori resolve the constitutionality of the federal law. Conversely, adoption of the reasoning of the Connecticut Supreme Court by other courts would, of necessity, prompt challenges to the validity of the religious accommodation requirements of Title VII. The constitutionality of those requirements has not been resolved by this Court. The United States has participated as amicus curiae in three prior cases before this Court concerning the religious accommodation requirements of Title VII. See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977); Parker Seal Co. v. Cummins, 429 U.S. 65 (1976); Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971). The United States has an additional independent interest in upholding state laws that prohibit conduct that may also be unlawful under Title VII. The statutory enforcement mechanisms of Title VII evince a strong congressional policy in favor of vigorous enforcement of nondiscrimination requirements at state level. Under Title VII, where a state or local law prohibits the unlawful employment practice and establishes or authorizes a state or local authority to grant relief from such practice, no federal charges may be brought for a 60-day period. 42 U.S.C. 2000e-5(c) and (d). This enables the matter to be settled "in 'a voluntary and localized manner.'" Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755 (1979) (quoting 110 Cong. Rec. 12725 (1964) (remarks of Sen. Humphrey)). It also enables the federal government to concentrate its enforcement resources more effectively on areas where they are needed. The United States therefore has a substantial interest in the enforceability of state laws that parallel or, as in this case, supplement the requirements of Title VII. /2/ Moreover, the broader issues raised by this case implicate many activities of the federal government that involve neutral and noncoercive means of accommodating private religious practices. These include the grant of tax preferences for religious institutions (see 26 U.S.C. 170(a) and (c)(2), 501 (a) and (c)(3)), the allowance of religious holidays to federal employees (see 5 U.S.C. 5550a), and the exemption of conscientious objectors from military service in times of conscription (see 50 U.S.C. App. 456(j)). The United States has participated as a party or as amicus curiae in numerous cases decided by this Court under the Religion Clauses. See briefs filed by the United States as amicus curiae in Marsh v. Chambers, No. 82-23 (July 5, 1983); St Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772 (1981); Sloan v. Lemon, 413 U.S. 825 (1973); Roemer v. Board of Public Works, 426 U.S. 736 (1976); and Lemon v. Kurtzman, 403 U.S. 602 (1971), and briefs filed as a party in United States v. Lee, 455 U.S. 252 (1982), and Tilton v. Richardson, 403 U.S. 672 (1971). STATEMENT Petitioner Donald E. Thornton, a Presbyterian who observed Sunday as his day of Sabbath, was employed from 1975 until March 8, 1980, as a department manager for respondent Caldor, Inc., a large multi-state chain of department stores (Pet. App. 2a-3a). /3/ Until 1977, the State of Connecticut prohibited most employers, including respondent, from doing business on Sundays. In 1976, the General Assembly enacted legislation permitting certain classes of businesses to remain open on Sundays, but (a) guaranteed all employees at least one day off per week (Conn. Gen. Stat. Section 53-303e(a) (1982)), and (b) guaranteed the right of any employee who "states that a particular day of the week is observed as his Sabbath" not to work on that day (id. Section 53-303e(b)). The employer is prohibited from dismissing any employee because of his "refusal to work on his Sabbath" (ibid.). An aggrieved employee may appeal a discharge to the State Board of Mediation and Arbitration, which is empowered to "order whatever remedy will make the employee whole, including but not limited to reinstatement to his former or a comparable position" (id. Section 53-303e(c)). Pursuant to this legislation, respondent began to open its doors for business on Sundays. Under a rotation system among managerial personnel, petitioner was required to work approximately one in four Sundays. In late 1979, petitioner asserted his right under Section 53-303e(b) to refrain from working on Sundays. After several meetings with petitioner, respondent refused to give him Sundays off. Instead, respondent offered him two alternatives: a transfer to a Massachusetts store, which was not open for business on Sundays, or a demotion to a nonsupervisory capacity, with a concomitant pay cut of almost $3.00 per hour. /4/ These alternatives were not acceptable to petitioner. He therefore ceased coming to work and filed a grievance with the State Board of Mediation. Pet. App. 3a. The Board and, subsequently, the trial court held that petitioner was discharged in violation of Section 53-303e(b), and ordered reinstatement with backpay and compensation for lost fringe benefits. The Board held that it did not have the authority to consider respondent's constitutional challenge to Section 53-303e(b), and the trial court expressly upheld the statute. Pet. App. 4a. The trial court commented that "the statute enables the state to protect its citizens from the dangers of uninterrupted labor without infringing upon any individual's right to practice the religion of his or her choice" (Pet. App. 22a). The Supreme Court of Connecticut reversed. Applying the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), the Connecticut Supreme Court held Section 53-303e(b) unconstitutional on its face under the Establishment Clause of the United States Constitution. See Pet. App. 5a, 9a. /5/ The court concluded, first, that the statute does not reflect a clearly secular legislative purpose. Because the employee's right under Section 53-303e(b) is expressly predicated upon a religious concept -- the Sabbath -- the court found that the statute had "religious overtones" (Pet. App. 12a) and the right "comes with religious strings attached" (id. at 13a). The court concluded (id. at 14a (footnote omitted)): The unmistakable purpose of such a provision is to allow those persons who wish to worship on a particular day the freedom to do so. We conclude that Section 53-303e(b) does not pass the "clear secular purpose" test of establishment clause scrutiny. The court found, second, that the primary effect of Section 53-303e(b) is to advance religion. The court reasoned (Pet. App. 15a): While Section 53-303e(b) does not favor one religion over another, and does not provide direct aid to religious institutions in the form of money or property, it confers its "benefit" on an explicitly religious basis. Only those employees who designate a Sabbath are entitled not to work on that particular day, and may not be penalized for so doing. Workers who do not "observe a Sabbath" may not avail themselves of the benefit provided by the subsection, and are not entitled to take a specific day off with impunity. The inescapable conclusion is that Sec. 53-303e(b) possesses the primary effect of advancing religion. Third, the court found "most troublesome" the prohibition on excessive government entanglements with religion (Pet. App. 15a). The court noted that the Board of Mediation would be required to decide the scope of religious activities which "may fairly be labeled 'observance of Sabbath,'" in order to resolve the question of the sincerity of employees' Sabbath observances (Pet. App. 15a-16a). /6/ The court concluded that this analysis would be "exactly the type of 'comprehensive, discriminating and continuing state surveillance' which creates excessive government entanglements between church and state" (id. at 16a (quoting Lemon v. Kurtzman, 403 U.S. at 619)). /7/ DISCUSSION 1a. Title VII of the Civil Rights Act of 1964, 42 U.S.C. (& Supp. V) 2000e et seq., prohibits employmers from taking adverse employment actions against applicants or employees on the basis of their religious observances and practices, including their observance of a Sabbath, /8/ "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), 2000e-2(a)(1). /9/ Congress' primary purpose in enacting the provision was to clarify that Title VII's basic prohibition against discrimination on the basis of "religion" encompasses all aspects of religious observance and practice, as well as belief, where reasonable accommodation (short of "undue hardship") is possible. Congress' attention was particularly drawn to the problem of protecting the opportunity of employees to observe their respective days of rest and worship. See Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1245 (9th Cir.), cert. denied, 454 U.S. 1098 (1981); 118 Cong. Rec. 705-706 (1972). Unlike Connecticut's Section 53-303e(b), Title VII does not create an absolute right to observance of the Sabbath; it merely requires the employer reasonably to accommodate the employee's Sabbath observance if it can do so without "undue hardship." /10/ Section 53-303e(b) goes further. It allows employees as a matter of legal right to refrain from working on their Sabbath day, and to be free from the threat of discharge for so doing. The statute admits on its face of no exception based on "undue hardship." It thereby extends to all employees the privilege formerly accorded only those whose religious observance coincided with the Sunday closing required by Connecticut law. The constitutionality of the religious accommodation requirements of Title VII has not been decided by this Court. See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) (case resolved on nonconsitutional grounds). /11/ Three courts of appeals have considered the question, and each has sustained Title VII against constitutional challenge. McDaniel v. Essex International, Inc., 696 F.2d 34, 37 (6th Cir. 1982); Tooley v. Martin-Marietta Corp., supra; Nottelson v. Smith Steel Workers, 643 F.2d 445, 453-455 (7th Cir.), cert. denied, 454 U.S. 1046 (1981). Contrary rulings, however, continue to appear. See EEOC v. Sambo's of Georgia, Inc., 530 F. Supp. 86, 91-92 (N.D. Ga. 1981) (dictum); Isaac v. Butler's Shoe Corp., 511 F. Supp. 108, 112 (N.D. Ga. 1980); Gavin v. Peoples Natural Gas Co., 464 F. Supp. 622, 626-633 (W.D. Pa. 1979), vacated on other grounds, 613 F.2d 482 (3d Cir. 1980); Anderson v. General Dynamics Convair Aerospace Division, 489 F. Supp. 782, 789 (S.D. Cal. 1980), rev'd, 648 F.2d 1247 (9th Cir. 1981), cert denied, 454 U.S. 1145 (1982); Yott v. North American Rockwell Corp., 428 F. Supp, 763 (C.D. Cal. 1977), aff'd on other grounds, 602 F.2d 904 (9th Cir. 1979), cert. denied, 445 U.S. 928 (1980). See also Nottelson, 643 F.2d at 456-458 (Pell J., dissenting); Cummins v. Parker Seal Co., 516 F.2d 544, 554-560 (6th Cir. 1975) (Celebrezze, J., dissenting), aff'd by an equally divided Court, 429 U.S. 65 (1976), vacated and remanded, 433 U.S. 903 (1977). Courts may also be according Title VII an unnecessarily narrow construction in order to obviate perceived constitutional problems (cf. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)). See e.g., Dewey v. Reynolds Metals Co., 429 F.2d 324, 334-335 (6th Cir. 1970) (opinion on petition for rehearing), aff'd by an equally divided Court, 402 U.S. 689 (1971); Turpen v. Missour-Kan.-Tex. R.R., 573 F.Supp. 820, 833 (N.D. Tex. 1983); see also Nottelson, 643 F.2d at 458 (Pell J., dissenting). Against this background, the decision below -- though rendered by a state court, concerning a state statute that goes further than Title VII -- has serious implications and thus merits plenary review by this Court. Despite the differences between Title VII and Section 53-303e(b), it can be argued that these statutes do not differ with respect to the factors deemed dispositive of the Establishment Clause issue by the Connecticut Supreme Court: purpose, effect, and entanglement. It can be argued that both have the purpose of "allow(ing) those persons who wish to worship on a particular day the freedom to do so" (Pet. App. 14a). /12/ Both "confer() (their) 'benefit(s)' on an explicitly religious basis," since "(w)orkers who do not 'observe a Sabbath' may not avail themselves of the benefit provided" by the law (id. at 15a; cf. Hardison, 432 U.S. at 81). And the statutes raise the equivalent question with respect to whether an inquiry concerning the sincerity of the employees' assertion of religious observance is required (see Pet. App. 15a-16a). With respect to the reasoning of the Connecticut Supreme Court, therefore, the two statutory schemes raise many of the same constitutional questions. The decision below therefore conflicts in material respect with the decisions of three federal appellate courts cited above, and presents an opportunity for this Court to resolve the constitutional question not reached in Hardison. /13/ We believe it is time that the question of the constitutional propriety of laws requiring religious accommodation in the workplace be resolved. /14/ An authoritative determination by this Court will remove any impediment to voluntary compliance with lingering doubts about Title VII's constitutionality may perpetuate, and will reverse the possible tendency of some courts toward an unduly narrow interpretation of Title VII, adopted for the purpose of avoiding perceived constitutional problems. Moreover, we believe that the Connecticut Supreme Court's application (we think misapplication) of the three-part test of Lemon v. Kurtzman, supra, should be corrected. The decision exemplifies a view of the Establishment Clause that is inconsistent with the very principle of religious accommodation. If the analysis typified by the decision below were generally adopted as the standard for evaluating religious accommodations, the constitutional underpinnings of Title VII -- as well as many other governmental programs and activities -- would be in doubt. /15/ b. A further reason for concern about the decision below is that many states, like Connecticut, have enacted religious accommodation laws applicable to the workplace. /16/ These provisions provide parallel or supplemental protections to those accorded by Title VII, and are consistent with and encouraged by the federal statutory policy of fostering state and local enforcement of rights also protected by Title VII. 42 U.S.C. 2000e-5(c) and (d); see generally Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979). /17/ These state laws have generally been upheld against Establishment Clause challenge. See, e.g., Rankins v. Comm'n on Professional Competence, 24 Cal. 3d 167, 593 P.2d 852, 154 Cal. Rptr. 907, appeal dismissed for want of a substantial federal question, 444 U.S. 986 (1979); Kerns Bakery, Inc. v. Kentucky Comm'n on Human Rights, 644 S.W.2d 350 (Ky. Ct. App. 1982), cert. denied, No. 82-1765 (June 20, 1983). There are various differences between Connecticut's Section 53-303e(b) and these other state statutes, but the reasoning of the court below would apply equally to each of them. The conflict created by the decision below thus has serious consequences for the cooperative federal-state enforcement of rights guaranteed under Title VII. 2. The decision below conflicts with two lines of decisions by this Court. First, the decision is at odds with Sherbert v.Review, 374 U.S. 398 (1963), recently affirmed in Thomas v. Verner, 374 Board, 450 U.S. 707 (1981). See also Rankins v. Comm'n on Professional Competence, 444 U.S. 986 (1979) (dismissing for want of a substantial federal question an Establishment Clause challenge to a state law interpreted to require employers to make reasonable accommodation to employees' religious observances); Zorach v. Clauson, 343 U.S. 306 (1952). In Sherbert, this Court held that the extension of unemployment benefits to persons who leave their jobs because they would otherwise be required to work voluntarily on their Sabbath day, where employees who leave their jobs for nonreligious reasons would receive no such compensation, does not violate the Establishment Clause. 374 U.S. at 409-410. Indeed, the Court held that a state is constitutionally required under the Free Exercise Clause to extend unemployment benefits in such circumstances. It can hardly be thought that the Establishment Clause forbids Connecticut from extending to the private workplace the same sort of accommodation to Sabbath observance that this Court required of South Carolina in Sherbert. Significantly, even the dissenters in Sherbert and Thomas would find religious accommodations of this sort permissible under the Establishment Clause, although not required under the Free Exercise Clause. See Sherbert, 374 U.S. at 422-423 (Harlan J., dissenting); Thomas, 450 U.S. at 723 (Rehnquist, J., dissenting). /18/ Second, the decision below is at odds with decisions of this court regarding Sunday closing laws. In McGowan v. Maryland, 366 U.S. 420 (1961), this Court upheld a state law requiring businesses to close on Sundays. In Arlan's Department Store, Inc. v. Kentucky, 371 U.S. 218 (1962), this Court dismissed for want of a substantial federal question an appeal challenging the constitutionality of exemptions from Sunday closing laws for the benefit of those who celebrate the Sabbath on other days. And in Braunfeld v. Brown, 366 U.S. 599, 608 (1961), Chief Justice Warren observed that it "may well be the wiser solution to the problem" for a state to allow persons who, "because of religious conviction, observe a day of rest other than Sunday" to open their businesses on Sundays and take their day off on their Sabbath. The effect of these decisions is to make clear that there is no constitutional bar to state laws that permit persons the privilege of selecting their day off on religious grounds, even though persons with equally strong -- but nonreligious -- preferences are accorded no such privilege. 3. In Zorach v. Clauson, 343 U.S. at 314, this Court affirmed the legitimacy of governmental efforts to "accommodate the public service to (our people's) spiritual needs." By contrast, the approach of the court below would make virtually every form of religious accommodation constitutionally suspect. Laws such as Title VII and Connecticut's Section 53-303e(b) reflect, we believe, an admirable tolerance for the diversity of religious practices in this country and a willingness to enable religious believers -- particularly those of minority views -- to overcome the burdens their religious observances would otherwise place on them in the workplace. Tooley v. Martin-Marietta Corp., 648 F.2d at 1244-1245. As Justice Marshall has stated, "our hospitality to religious diversity" -- as reflected in such statutes -- is "one of this Nation's pillars of strength." Hardison, 432 U.S. at 97. In enacting and enforcing this statute, the State of Connecticut plainly is not "fostering the 'establishment'" of petitioner's Presbyterian faith or of any other religion (Sherbert v. Verner, 374 U.S. at 409). On the contrary, statutes such as these increase the freedom of individuals to practice the faith of their own choosing. As such, they are fully in keeping with the spirit of the Free Exercise and Establishment Clauses. See McDaniel v. Paty, 435 U.S. 618, 638-639 (1978) (Brennan, J., concurring). CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General PAUL M. BATOR Deputy Solicitor General MICHAEL W. MCCONNELL Assistant to the Solicitor General FEBRUARY 1984 /1/ In addition, guidelines issued by the Office of Federal Contract Compliance Programs of the Department of Labor impose an obligation on contractors and subcontractors on federally-assisted construction contracts to make reasonable accommodations, short of undue hardship, to the religious needs of applicants and employees, including Sabbath observance (see 41 C.F.R. 60-50.3). See also 12 C.F.R. 268.102(9)(iii) (Federal Reserve Board policy of religious accommodation); 13 C.F.R. 113.3-2 (Small Business Administration requirement of religious accommodations by recipient of federal financial assistance); 29 C.F.R. 1613.204(g) (religious accommodation obligations of federal agencies). /2/ The Connecticut Board of Mediation and Arbitration is not itself designated as a qualified state agency under 42 U.S.C. 2000e-5(c) (see 29 C.F.R. 1601.80), but it could file an application for designation under the standards of 29 C.F.R. 1601.70. Other state laws requiring religious accommodation in the workplace are administered by state agencies so designated by the Equal Employment Opportunity Commission. /3/ Petitioner died in February 1982. This action for back pay and fringe benefits is being maintained by his estate. /4/ The collective bargaining agreement in effect for nonsupervisory employees provided that they were not obliged to work on the Sabbath (Pet. App. 3a). /5/ The Connecticut Supreme Court expressly declined to consider whether Section 53-303e(b) is in violation of the Connecticut State Constitution. Pet. App. 11a n.7. /6/ The court did not explain its construction of state law on this point. On its face, Section 53-303e(b) does not require any analysis of the "sincerity" of the employee's observances of the Sabbath. The statute simply requires employers to grant the day off to any "person who states that a particular day of the week is observed as his Sabbath" (emphasis added). /7/ Associate Justice Shea agreed with the majority that Section 53-303e violates the Establishment Clause, but dissented on the ground that the constitutional issue should have been reached in the first instance by the Board of Mediation (Pet. App. 16a-18a). /8/ The term "Sabbath," as used in Connecticut's Section 53-303e, refers to any religiously-ordained weekly day of rest and religious observance (Pet. App. 12a-13a & n.8). The right to reasonable accommodation of the employees' religious needs under Title VII likewise applies to any "conflict between work schedules and religious practices" (29 C.F.R. 1605.2(d)(1)). The right is not restricted to those who would describe their religious observance as a "Sabbath." /9/ Even prior to amendment of Title VII in 1972, EEOC guidelines interpreted Section 703(a)(1) as requiring reasonable accommodation to employees' religious needs. 29 C.F.R. 1605.1 (1968); see Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 72-73 (1977). /10/ We take no position, of course, on whether petitioner's constructive discharge would constitute an unlawful employment practice under Title VII. The answer to that question would hinge upon whether an accommodation to petitioner's Sabbath observance would be reasonable and could be made without "undue hardship" to respondent's business. That question is one of fact. Nottelson v. Smith Steel Workers, 643 F.2d 445, 452 (7th Cir.), cert. denied, 454 U.S. 1046 (1981). /11/ The pre-Hardison cases of this Court concerning the religious accommodation requirements of Title VII were decided by an equally divided Court. Parker Seal Co. v. Cummins, 429 U.S. 65 (1976) (affirming a Sixth Circuit decision upholding constitutionality of Title VII religious accommodation requirements); Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971) (affirming a Sixth Circuit decision that Title VII, before the 1972 amendments, did not require religious accommodations, partly on ground that such accommodation would violate Establishment Clause). Since Hardison, this Court has denied four petitions for certiorari to review decisions upholding the constitutionality of Title VII or similar state statutes (Kerns Bakery, Inc. v. Kentucky Comm'n on Human Rights, No. 82-1765 (June 20, 1983); International Association of Machinists v. Anderson, 454 U.S. 1145 (1982); United Steelworkers, Local 8141 v. Tooley, 454 U.S. 1098 (1981); Smith Steel Workers v. Nottelson, 454 U.S. 1046 (1981)), and has dismissed for want of a substantial federal question an appeal from a state court decision upholding the constitutionality of a construction of state law parallel to Title VII. Rankins v. Comm'n on Professional Competence, 444 U.S. 986 (1979). Three justices dissented in Rankins and would have set the case for argument. This is the Court's first opportunity to review a decision striking down a state's workplace religious accommodation requirements under the Establishment Clause. No cases invalidating the Title VII requirements have come to the Court. /12/ The Connecticut Supreme Court's treatment of "secular purpose" misses the point. As the government has pointed out in previous cases (e.g., Br. for the EEOC in Opp. at 16-17, International Association of Machinists v. Anderson, 454 U.S. 1145 (1982)), the reasonable accommodation requirement of Section 701(j) serves the same legitimate purpose that is generally served by Title VII. The fact that it protects equal employment opportunity in the context of religious practices does not make its purpose impermissibly nonsecular. The purpose of Section 701(j) was not to "advance religion" but, rather, in "the spirit of religious freedom" (118 Cong. Rec. 706 (1972)), to ensure that no individual's religious practices would needlessly restrict his employment opportunities by compelling him to choose between his job and his conscience, whenever that result could be accomplished without causing "undue hardship" to others. /13/ A decision upholding Section 53-303e(b) would, we belive, apply a fortiori to the religious accommodation requirements of Title VII. The effect on Title VII of a decision affirming the Connecticut Supreme Court in this case would depend on the reasoning of the Court. /14/ While this Court's dismissal for want of a substantial federal question in Rankins v. Comm'n on Professional Competence, 24 Cal. 3d 167, 593 P.2d 852, 154 Cal. Rptr. 907, appeal dismissed, 444 U.S. 986 (1979), might appear to have resolved this issue, subsequent cases have shown that doubts concerning the issue still persist. See Tooley v. Martin-Marietta Corp., 648 F.2d at 1244 n.8; Nottelson, 643 F.2d at 457-458 (Pell, J., dissenting); see also the decision below. /15/ In applying the formulation of the Establishment Clause test in Lemon v. Kurtzman, supra, to cases of religious accommodation, the courts have reached widely divergent results. Compare, e.g., Nottelson, 643 F.2d at 453-455, and Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981), with Brandon v. Board of Education, 635 F.2d 971, 978-979 (2d Cir. 1980), cert. denied, 454 U.S. 1123 (1981), and the decision below. /16/ See Ariz. Rev. Stat. Ann. Sections 41-1461(6), 41-1463 (1956); Conn. Gen. Stat. Section 53-303e (1982); Ga. Code Ann. Sections 10-1-570, 45-19-22 (1982); Ky. Rev. Stat. Sections 344.030(5), 344.040(1), 436.165(4)(a) and (b) (1975); Md. Ann. Code art. 27, Section 492 (Cum. Supp. 1983); id. at art. 49B, Section 14-16 (1979); Mass. Gen. Laws Ann. ch. 151B, Section 4.1A (West 1976); Mo. Ann. Stat. Section 578.115 (Vernon 1979); N.H. Rev. Stat. Ann. Section 354-A:3(4) (1955); N.Y. Exec. Law Section 296.10 (McKinney 1982); Pa. Stat. Ann. tit. 43, Section 955.1 (Purdon 1964); S.C. Code Ann. Sections 1-13-30(k), 1-13-80 (Law Co-op. 1976); Va. Code Section 40.1-28.2, 40.1-28.3 (1981); W. Va. Code Section 61-10-27 (1977); Wis. Stat. Ann. Section 111.337 (West 1974). Other state laws have been interpreted to require religious accommodation. Alaska Stat. Section 18.80.200 (1983), as interpreted in Wondzell v. Alaska Wood Products, Inc., 583 P.2d 860, 864 (Alaska 1978); Cal. Const. Art. I, Section 8, as interpreted in Rankins v. Comm'n on Professional Competence, 24 Cal. 3d 167, 173-174, 593 P.2d 852, 856, 154 Cal. Rptr. 907, 911-912, appeal dismissed for want of a substantial federal question, 444 U.S. 986 (1979); Iowa Code Ann. Section 601A.6(1)(a) (West 1975), as interpreted in King v. Iowa Civil Rights Comm'n, 334 N.W.2d 598, 602 n.1 (Iowa 1983); Me. Rev. Stat. Ann. tit. 5, Section 4572(a)(A) (1979), as interpreted in Maine Human Rights Comm'n v. Local 1361, United Paperworkers International Union, 383 A.2d 369, 378 (Me. 1978). In other states, religious accommodations are required by guideline or regulation. See (State Laws) Fair Empl. Prac. (BNA) 453:1141 (Colo. Sept. 25, 1980); id. at 453:1708 (D.C. June 11, 1976); id. at 453:2756 (Ill. Dec. 12, 1973); id. at 453:3301 (Kan. May 1, 1978); id. at 455:1094 (Mich. Dec. 12, 1973); id. at 455:1901 (Mont. July 14, 1983); id. at 455:2351 (Nev. Apr. 6, 1961); id. at 457:555-457:556 (Okla. Feb. 25, 1977); id. at 457:174 (S.D. Dec. 16, 1979); id. at 457:1887 (Tenn. Jan. 19, 1979). /17/ See also 42 U.S.C. 2000e-7 and 2000h-4. /18/ Indeed, the opinion of the Connecticut Supreme Court mirrors nearly exactly the approach to the Establishment Clause criticized by Justice Rehnquist in his Thomas dissent. 450 U.S. at 726.