and                                 CAUSE NO. 3:01-CV-0518


                                         Hon. Robert L. Miller, Jr.                                          U.S. District Judge







Pursuant to the Court's September 28, 2001 Order, Intervenor United States of America ("United States") respectfully submits this memorandum of law supporting the constitutionality of the prohibition of discrimination on the basis of religion under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). See 42 U.S.C. §§ 2000e-2(a); 2000e(j) (defining "religion"). Contrary to the position advocated by Defendant, the Eleventh Amendment does not bar Plaintiff's claim. Defendant has conceded that, in extending the reach of Title VII to cover state employers, Congress expressly abrogated Defendant's Eleventh Amendment immunity. Thus, the only issue before this Court is whether Congress had the authority to effect that abrogation under Section 5 of the Fourteenth Amendment. The answer is clearly yes.


Plaintiff Benjamin P. Endres filed a Complaint for religious discrimination (including, inter alia, a claim under Title VII's prohibitions on religious discrimination) and for breach of contract ("Complaint") against Defendant Indiana State Police on July 17, 2001. In his Complaint, Plaintiff alleges that Defendant hired him as a certified Indiana State Trooper in 1991 and that, in March 2000, he received notification from Defendant "of his assignment as a Gaming Commission Agent to the Blue Chip Casino, in Michigan City, Indiana." Complaint, ¶¶ 5, 9. Plaintiff further alleges that he is a member of the Community Baptist Church in South Bend, Indiana, a "religious organization that holds as a tenant of its faith the position that gambling is a vice which is contrary to the principles of the Bible and that its members should not, in any way, participate in and/or facilitate gambling." Id. ¶ 8. He claims that he "informed the Defendant of his religious convictions and beliefs that would prevent him from accepting the assignment as a Gaming Commission Agent," id. ¶ 10; that he requested an alternative assignment, id. ¶ 11; that Defendant "failed or refused to attempt to make any reasonable accommodation to Plaintiff's sincerely held religious beliefs," id. ¶ 12; and that Defendant charged him "with [a] refusal to comply with a written order and insubordination" and "subsequently terminated . . . his employment." Id. ¶ 13. He further maintains that Defendant's acts "were performed . . . with malice and/or with intentional indifference and/or with reckless indifference to the civil rights, state and federal, of the Plaintiff." Id. ¶ 19.

Subsequently, on August 10, 2001, Defendant filed a Motion to Dismiss ("Motion"), as well as a Memorandum in Support of Motion to Dismiss ("Memorandum"). In its Motion, Defendant claims that "[t]he Court lacks subject matter over plaintiff's claim of religious discrimination under Title VII . . . because Congress was not authorized to abrogate the States' sovereign immunity as to claims of religious discrimination." (1) Motion, ¶ 1.

That same date, Defendant filed a Motion to Certify Question to the Attorney General of the United States and the United States Attorney ("Motion to Certify"). Defendant's Motion to Certify indicated that Defendant is "specifically challenging the constitutionality of 42 U.S.C. § 2000e(j), and is claiming that Congress exceeded its authority under Section 5 of the Fourteenth Amendment by authorizing private damages claims against States for Title VII religious discrimination." Id., ¶ 2. The Court granted Defendant's Motion to Certify on August 29, 2001, directing the United States to intervene, if it chose to do so, within thirty days of the date of the Order. On September 27, 2001, the United States moved to intervene as of right, based on 28 U.S.C. § 2403(a), in order to defend the constitutionality of Title VII's religion prong. The Court granted intervention to the United States on September 28, 2001.

  • Introduction

Section I of the Fourteenth Amendment to the U.S. Constitution prohibits States from "depriv[ing] any person of life, liberty, or property without due process of law," or from "deny[ing] to any person within its jurisdiction the equal protection of the laws." Section 5 of that Amendment provides Congress with the "power to enforce, by appropriate legislation, the provisions of this article." Under Section 5, Congress may pass "corrective legislation . . . such as may be necessary and proper for counteracting . . . such acts and proceedings as the states may commit or take, and which by the amendment they are prohibited from committing or taking." The Civil Rights Cases, 109 U.S. 3, 13-14 (1883). As the Supreme Court recently reaffirmed, "[i]t is for Congress in the first instance to 'determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference." (2) Kimel v. Florida Bd. of Regents, 528 U.S. 62, 80-81 (2000) (citing City of Boerne v. Flores, 521 U.S. 507, 518 (1997)).

It is now firmly established that Congress may abrogate States' Eleventh Amendment immunity to suit by private parties in federal court where Congress has both "unequivocally expresse[d] its intent to abrogate the immunity" and "acted 'pursuant to a valid exercise of power.'" Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996) (citation omitted). In subjecting States (3) to liability for discrimination on the basis of religion under Title VII, Congress both expressed its intent to abrogate Eleventh Amendment immunity and validly exercised its power under Section 5 of the Fourteenth Amendment.

  • There is No Dispute that Congress Intended to Abrogate States' Eleventh Amendment Immunity to Title VII Claims

Defendant has conceded, as it must, that Congress intended to abrogate States' Eleventh Amendment immunity for Title VII claims, including religious discrimination claims. Memorandum, at 2 ("There is little doubt that Congress intended to allow suits against the States under Title VII, as [it] expressly added them to the employers suable under that law."). Title VII prohibits employers (including state employers) from discriminating on the basis of religion in the "compensation, terms, conditions or privileges of employment." See 42 U.S.C.§ 2000e-2(a); see also id. § 2000e-5(f)(1) (discussing procedures where "respondent" is a "government, governmental agency, or political subdivision"). In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Supreme Court held that Congress's 1972 amendment to Title VII, which amended the definition of "person" to include "governments [and] governmental agencies," 42 U.S.C. § 2000e(a), was sufficient to demonstrate that "'congressional authorization' . . . to sue the State as employer is clearly present." Id. at 452 (citation and quotations omitted). Indeed, the Supreme Court later explained that "[i]n Fitzpatrick . . . the Court found present in Title VII of the Civil Rights Act of 1964 . . . the 'threshold fact of congressional authorization' to sue the State as employer, because the statute made explicit reference to the availability of a private action against state and local governments in the event the Equal Employment Opportunity Commission or the Attorney General failed to bring suit or effect a conciliation agreement." Quern v. Jordan, 440 U.S. 332, 344 (1979) (citation omitted). Likewise, the Seventh Circuit has held, relying on Fitzpatrick, that Title VII abrogates States' Eleventh Amendment immunity. See, e.g., Varner v. Illinois State Univ., 150 F.3d 706, 717-18 (7th Cir. 1998), vacated and remanded, 528 U.S. 1110 (2000), reinstated, 226 F.3d 927 (7th Cir. 2000) ("Varner II"), cert. denied, 121 S. Ct. 2241 (2001). It is clear that Congress abrogated States' Eleventh Amendment immunity for Title VII claims, including those for religious discrimination.

  • Title VII's Prohibition of Discrimination Because of Religion is a Valid Exercise of Congress's Authority to Enforce the Fourteenth Amendment

Title VII makes it unlawful for employers (including state employers) "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." 42 U.S.C. § 2000e-2(a). The term "religion" is further defined 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 . . . religious observance or practice without undue hardship on the conduct of the employer's business." (4) 42 U.S.C. § 2000e(j). Title VII therefore both prohibits disparate treatment of employees on the basis of religion, see, e.g., Venters v. City of Delhpi, 123 F.3d 956, 972 (7th Cir. 1997), and places a duty on covered employers to reasonably accommodate employees' religious observances unless providing such an accommodation would create an "undue hardship" for the employer. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 67 (1986); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 71-76 (1977).

While Plaintiff alleges in his Complaint that "Defendant failed or refused to attempt to make any reasonable accommodation to Plaintiff's sincerely held religious beliefs," Complaint, ¶ 12, he also claims that he is a victim of disparate treatment on the basis of religion. (5) Given that it is unclear whether Plaintiff is pursing both a Title VII claim for disparate treatment on the basis of religion and a Title VII religious accommodations claim, we address the constitutionality of both Title VII discrimination theories in this memorandum.

  • Title VII's Prohibition of Disparate Treatment in Employment on the Basis of Religion in Employment Codifies Constitutional Guarantees

Congress has the power to abrogate States' Eleventh Amendment immunity to private suits under federal statutes enacted pursuant to Section 5 of the Fourteenth Amendment. See Kimel, 528 U.S. at 80-81. Section 5 of the Fourteenth Amendment is "'a positive grant of legislative power,'" and Congress's power to enforce the Fourteenth Amendment, while not unlimited, is broad. City of Boerne, 521 U.S. at 517.

The central inquiry in determining whether legislation is a valid exercise of Congress's Section 5 authority is whether the legislation is an appropriate means of deterring or remedying constitutional violations or whether it is "'so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.'" Kimel, 528 U.S. at 82 (quoting City of Boerne, 521 U.S. at 532). Although "the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern . . . Congress must have wide latitude in determining where it lies . . . ." Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 639 (1999). So long as there is a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end," enforcement legislation is appropriate within the meaning of the Fourteenth Amendment. City of Boerne, 521 U.S. at 520. Because Title VII's prohibition of disparate treatment on the basis of religion codifies Fourteenth Amendment guarantees, it is by definition congruent and proportional to the constitutional harm being remedied, and this Court need inquire no further in order to uphold Title VII's abrogation of Eleventh Amendment Immunity. (6)

1. Title VII's Prohibition on Disparate Treatment on the Basis of Religion Codifies Equal Protection Clause Guarantees

Like Title VII, the Equal Protection Clause prohibits intentional discrimination on the basis of religion in government employment. See Kelly v. Municipal Courts of Marion County, 97 F.3d 902, 910 (7th Cir. 1996); Helland v. South Bend Comm. School Corp., 93 F.3d 327, 329 (7th Cir. 1996). Indeed, the Seventh Circuit has stated that, in employment discrimination cases under both Title VII and 42 U.S.C. § 1983--which provides a cause of action to enforce constitutional guarantees--disparate treatment analysis follows the same general contours. McPhaul v. Bd. of Comm'rs of Madison County, 226 F.3d 558, 567 n.6 (7th Cir. 2000), cert. denied, 121 S. Ct. 1358 (2001); see also Helland, 93 F.3d at 329-30; King v. Bd. of Regents of Univ. of Wisc. Sys., 898 F.2d 533, 537 (7th Cir. 1990) ("applicable law . . . is largely the same").

Contrary to Defendant's contention that the Supreme Court has "distinguished claims involving differential treatment on the basis of race and speech from those involving religion," Memorandum, at 3, there can be no doubt that the Equal Protection Clause subjects State governments engaging in intentional discrimination on the basis of religion to strict scrutiny. (7) United States v. Batchelder, 442 U.S. 114, 125 n.9 (1979); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976); Sklar v. Byrne, 727 F.2d 633, 636 (7th Cir. 1984) (citing Plyler v. Doe, 457 U.S. 202, 216-17 & n.14 (1982)); Smothers v. Benitez, 806 F. Supp. 299, 305 (D.P.R. 1992). As a result, Title VII's prohibition of disparate treatment on the basis of religion in employment simply codifies constitutional guarantees.

2. Title VII's Prohibition on Disparate Treatment on the Basis of Religion Codifies Free Exercise Clause Guarantees

Title VII's prohibition on disparate treatment also codifies the protections of the First Amendment's right to free exercise of religion as applied to the States by the Fourteenth Amendment. (8) Specifically, the prohibition of disparate treatment enforces the First Amendment's general prohibition of the intentional uneven application of government rules to infringe upon religious observance. (9) In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court held that the Free Exercise Clause is violated when a government exempts numerous secular activities from a law's requirements but denies an exemption for a religious activity, despite the fact that the permitted secular activities cause the same or greater harm to the governmental interests underlying the legal requirement than the proposed religious activity would cause. 508 U.S. at 542-43 ("The Free Exercise Clause 'protect[s] religious observers against unequal treatment . . . and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.'") (citation omitted). The extension of exemptions to secular activities but not to analogous religious activities that would cause the same or lesser harm to the governmental interest at stake constitutes impermissible discrimination. See id. at 545 (stating that the ordinances at issue "'ha[d] every appearance of a prohibition that society is prepared to impose upon [religious worshipers] but not upon itself'") (citation omitted); see also Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 877 (1990)("[A] State would be prohibiting the 'free exercise [of religion]' if it sought to ban such acts. . . only when they are engaged in for religious reasons, or only because of the religious belief they display."). Indeed, the Court was careful in Lukumi to note that situations of unequal treatment involving even fewer secular exemptions than the ordinances at issue in Lukumi nevertheless could constitute unconstitutional religious discrimination. See 508 U.S. at 543 (declining to "define with precision the standard used to evaluate whether a prohibition is of general application," but noting that challenged ordinances fell "well below the minimum standard necessary to protect First Amendment rights").

The Third Circuit's decision in Fraternal Order of Newark Police Lodge No. 12 ("F.O.P.") v. City of Newark, 170 F.3d 359 (3d Cir.), cert. denied, 528 U.S. 817 (1999), applied this same principle in a case where only a single secular interest was accommodated to the exclusion of religion. In F.O.P., the Third Circuit held that a police department policy that prohibited officers from wearing beards, but allowed an exception for health reasons, violated the Free Exercise Clause by not also allowing an exception for Sunni Muslim officers who were required to wear beards for religious reasons. See id. at 360, 367. The Third Circuit explained that such unequal treatment of otherwise analogous activities "indicates that the [government] has made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not." Id. at 366. The Third Circuit concluded that "when the government makes a value judgment in favor of secular motivations, but not religious motivations, the government's actions must survive heightened scrutiny." Id. Title VII's prohibition of disparate treatment on the basis of religion thus codifies, in the employment context, constitutional guarantees preventing government from treating religious activity on less than equal terms with similar nonreligious activity.

Because disparate treatment on the basis of religion triggers the application of strict scrutiny under both the Equal Protection Clause and the Free Exercise Clause, such discrimination is "presumed to be unconstitutional unless the State can demonstrate 'an exceedingly persuasive justification for [it].'" Cherry v. Univ. of Wisconsin Sys. Bd. of Regents, 2001 WL 1,028,282, at *6 (7th Cir. Sept. 7, 2001) (citing Varner II, 226 F.3d at 934); see also Lukumi, 508 U.S. at 546 ("A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases."). Accordingly, this Court should reach the same conclusion that numerous Courts of Appeals have reached with respect to Title VII's race and sex discrimination prongs: (10) that Title VII's prohibition on disparate treatment because of religion targets unconstitutional religious discrimination and codifies Fourteenth Amendment protections and, therefore, that Congress's abrogation of Eleventh Amendment immunity is valid. See Varner II, 226 F.3d at 934-35.

3. Title VII's Abrogation of Eleventh Amendment Immunity for Religious Discrimination Claims Need Not Be Supported by a Legislative Record of Unconstitutional State Conduct

Defendant misses the boat in claiming that the legislative record of Title VII's prohibition on religious discrimination "does not provide evidence of a pattern of religious discrimination in this country." Memorandum, at 4. This is not the correct inquiry when the statute in question simply codifies Fourteenth Amendment guarantees. In assessing whether a statute is "remedial or preventive," the Court has held only that there must be a "congruence and proportionality" between the statutory prohibitions and the constitutional harm being prevented or remedied. See Kimel, 528 U.S. at 81-82, 86. It has not held, as Defendant appears to suggest, that there must be a congruence and proportionality between the statutory prohibition at issue and a historical pattern of violations.

Where a statute prohibits nothing more than unconstitutional conduct, Congress has no duty to create a legislative record of unconstitutional violations by the States, and a court need not inquire about the frequency of such constitutional violations. Thus, for example, the Supreme Court has twice upheld as a proper exercise of Congress's Section 5 authority 18 U.S.C. § 242, a criminal statute that prohibits persons acting under color of law from depriving individuals of constitutional rights, without inquiring into the extent to which such criminal acts occurred or the availability of state remedies. See Williams v. United States, 341 U.S. 97 (1951); Screws v. United States, 325 U.S. 91 (1945).

Nor did Congress have to determine that state actors were violating the Fourteenth Amendment in order to establish a cause of action for such violations in 42 U.S.C. § 1983. A violation of a single individual's constitutional rights can cause devastating harm and is a proper subject of Congress's enforcement authority, regardless of whether it is part of a larger pattern of unlawful conduct. The extent to which States have engaged in widespread constitutional violations may be relevant in determining whether a prophylactic remedy that sweeps far beyond what the Constitution requires is appropriate. But neither the language of Section 5 nor the Supreme Court's decisions support the idea that Congress's power is limited to attacking widespread constitutional violations.

Defendant's reliance (Memorandum, at 2) on City of Boerne, Kimel, and Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356 (2001), is misplaced for precisely these reasons. These cases simply recognize that when a statute regulates a significant amount of conduct that is not prohibited by the Constitution, it may be necessary to examine the record before Congress to determine if Congress could have reasonably concluded that such a prophylactic remedy was appropriate.

In City of Boerne, the Supreme Court determined that RFRA's provisions went beyond the requirements of the Constitution as to neutral laws of general applicability having an incidental effect of burdening a particular religious practice, as interpreted by the Supreme Court in Smith. See 521 U.S. at 513-14. The Court determined that "[l]aws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise," id. at 534, and that "[i]n most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry." Id. at 535. Accordingly, the Court deemed RFRA's provisions to go far beyond redressing unconstitutional infringements of religious exercise. See id. at 531-33.

The Court also noted that the legislative record for RFRA "contained very little evidence of the unconstitutional conduct purportedly targeted by RFRA's substantive provisions," Kimel, 528 U.S. at 645, and that the evidence before Congress "did not reveal a 'widespread pattern of religious discrimination in this country.'" Id. (citing City of Boerne, 521 U.S. at 531). But there can be no dispute that the Court's inquiry into the legislative record of RFRA would have been unnecessary had RFRA simply codified Fourteenth Amendment protections.

The Supreme Court's more recent Eleventh Amendment decisions confirm that an exploration of the record before Congress is necessary only when the statute in question makes unlawful a significant amount of constitutional conduct. In Kimel, the Supreme Court held that the Age Discrimination in Employment Act ("ADEA"), which prohibits employers, subject to a limited bona fide occupational qualification defense, from taking age into account in making employment decisions, was not appropriate Section 5 legislation. The Court emphasized that intentional discrimination based on age is subject to rational basis review under the Equal Protection Clause and that the Court had upheld as constitutional governmental age classifications in each of the three cases that had come before it. 528 U.S. at 83. Measuring the scope of the ADEA's requirements "against the backdrop of . . . equal protection jurisprudence," id. at 86, the Court concluded that the ADEA prohibited "substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard." Id.

The Court therefore found it necessary to analyze whether a "[d]ifficult and intractable" problem of unconstitutional age discrimination existed that would justify the broad and "powerful" regulation imposed by the ADEA. Id. at 88. Surveying the record before Congress, however, the Court determined that "Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation." Id. at 89 (emphasis added). The Supreme Court thus concluded that the application of the ADEA to the States "was an unwarranted response to a perhaps inconsequential problem." Id..

Most recently, in Garrett, the Court held that Congress did not validly abrogate States' Eleventh Amendment immunity to suits by private individuals for money damages under Title I of the Americans with Disabilities Act ("ADA"). 121 S. Ct. at 960. The Court in Garrett reaffirmed that in assessing the validity of Congress's Section 5 legislation, it is important to identify the constitutional rights at stake. Id. at 963. Because there is no constitutional right to state employment, the Court looked to the Equal Protection Clause as the sole constitutional provision that Congress sought to enforce through Title I of the ADA. Id. And because classifications based on disability are not subject to heightened scrutiny, the Court faulted Congress for failing to identify incidents when state action did not satisfy the "minimum 'rational-basis' review applicable to general social and economic legislation." Id.

Only after the Court determined that Title I of the ADA did not codify constitutional prohibitions did the Court proceed to determine the adequacy of the legislative record. See id. (stating that "§ 5 legislation reaching beyond the scope of § 1's actual guarantees must exhibit 'congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'") (emphasis added). The Court then concluded that Congress had identified only "half a dozen" incidents of relevant conduct (i.e., potentially unconstitutional discrimination by States as employers against people with disabilities), id. at 965, and had not made a specific finding that discrimination in public sector employment was pervasive. Id. at 966. Thus, the Court held, Congress did not assemble a sufficient basis to justify Title I's abrogation of Eleventh Amendment immunity for its prophylactic statutory remedies. Id. at 967-68.

It is clear that the Court looked for evidence of constitutional violations in City of Boerne, Kimel and Garrett only because it determined that some evidence of constitutional violations was necessary to justify the breadth of the statutory remedy. See Cherry, 2001 WL 1,028,282, at * 8 ("all Garrett does is further demonstrate that the legislative record is an important factor when the statute in question pervasively prohibits constitutional State action." (emphasis added)). As demonstrated above, however, Title VII's abrogation of Eleventh Amendment immunity, as applied to intentional religious discrimination, is effective because it prohibits state action that is itself unconstitutional.

B. Title VII's Religious Accommodation Provision Prohibits Little or No Constitutional Conduct and Essentially Codifies Constitutional Guarantees of Free Exercise of Religion

The religious accommodation provision of Title VII applies to two categories of factual scenarios: those in which an employer has in place a mechanism for handling employee requests for individualized, discretionary exemptions from broadly applicable rules, and those in which an employer has established no such mechanism. As discussed more fully below, with respect to the first category of cases, the protections afforded in Title VII not only do not go beyond the guarantees of the Free Exercise Clause, but are in fact less protective than the Constitution itself. With respect to the second category, although Title VII may impose liability on a small subsection of those cases that would not be subject to liability under the Free Exercise Clause, the religious accommodation provision is well within Congress's Section 5 powers because it is intended to root out unconstitutional state action and prohibits very little conduct that is constitutionally permissible.

First, as applied to situations in which an employer has in place a system for discretionary consideration of employee requests for religion-based or other exemptions from general rules, Title VII's duty to accommodate the religious observances of employees codifies the mandates of the Free Exercise Clause in the context of individualized assessments. The Supreme Court has long recognized that, because state legislative schemes that employ individualized assessments often are employed by government officials to discriminate against religious adherents, the application of such a system of individualized determinations to substantially burden religious exercise must be justified by a compelling interest. In Sherbert v. Varner, 374 U.S. 398 (1963), for example, the Court ruled that a state could not constitutionally deny unemployment benefits to a member of the Seventh Day Adventist Church who could not find work because her religious convictions prevented her from working on Saturdays. The Court reasoned that, because the statute's distribution of benefits permitted individualized exemptions based on "good cause," id. at 400, the state could not refuse to accept plaintiff's religious reason for not working on Saturdays unless the state could show that the denial of the exemption furthered a compelling state interest and did so by the least restrictive means available. Id. at 405-407 ("For even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.") (emphasis added).

The Supreme Court's decision in Smith is not to the contrary. In the Title VII context, Smith mandates that strict scrutiny would not apply only to those religious accommodations claims requesting exemptions from government employers' neutral rules of general applicability that incidentally affect religious practice where the employer does not have in place a system for handling such requests. See Smith, 494 U.S. at 885. However, the Court in Smith specifically distinguished situations involving systems of "individualized exemptions" by the government, and expressly affirmed the applicability of strict scrutiny used in Sherbert to such cases. (11) Id. at 884 ("[W]here the State has in place such a system of individualized assessments, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason.") (citation omitted). In Lukumi, the Court reaffirmed this distinction between neutral rules of general applicability and cases involving individualized assessments. See 508 U.S. at 537. As a result, Title VII's duty of reasonable religious accommodation in great part codifies the Supreme Court's "individualized assessments" doctrine as applied to employment and, therefore, is a valid constitutional enactment under Section 5 of the Fourteenth Amendment.

Indeed, the limited requirement in Title VII that an employer provide a reasonable accommodation unless doing so would impose an "undue burden" on the employer imposes a much lighter burden on employers than does the Free Exercise individualized assessment scheme. Whereas a State would be required to satisfy strict scrutiny under the Free Exercise Clause--a standard that will be satisfied "only in rare cases," Lukumi, 508 U.S. at 546--the Supreme Court has determined "that an accommodation causes 'undue hardship' whenever that accommodation results in 'more than a de minimis cost' to the employer." Ansonia Bd. of Educ., 479 U.S. at 67 (citing Hardison, 432 U.S. at 84). The Seventh Circuit has held that "Title VII . . . requires only 'reasonable accommodation,' not the satisfaction of an employee's every desire." Wright v. Runyon, 2 F.3d 214, 217 (7th Cir.1993). An employer "discharge[s] its obligations" by "providing at least one reasonable accommodation." Id.

Further, the Supreme Court has recognized "that the phrase 'de minimis cost' entails not only monetary concerns, but also the employer's burden in conducting its business." Beadle v. City of Tampa, 42 F.3d 633, 636 (11th Cir. 1995) (citing Hardison, 432 U.S. at 84 n.15). Employers have been able to demonstrate such non-pecuniary burdens. For example, although a majority of the panel did not reach the "de minimis burden" question, then-Chief Judge Posner argued in a concurrence that government employers may demonstrate the existence of "undue hardship in spades" based on the potential for loss in public confidence in law enforcement officers if they are allowed to choose their own work assignments. Rodriguez v. City of Chicago, 156 F.3d 771, 779 (7th Cir. 1998) (Posner, C.J., concurring) ("The importance of public confidence in the neutrality of its protectors is so great that a . . . public-safety agency that decides not to allow recusal by its employees should be able to . . . escape any duty of accommodation.") (citing Ryan v. Dep't of Justice, 950 F.2d 458, 462 (7th Cir. 1991)); see also Beadles, 42 F.3d at 637-38. Thus, as applied to employers who have established a process for considering requests for individual exemptions from general rules, the requirements of Title VII are less stringent than the requirements of the Constitution.

Second, even with respect to employers who are not equipped to receive and consider requests for individual accommodations, Title VII's religious accommodations requirement prohibits little constitutional conduct and essentially targets intentional discrimination, even though a claim for religious accommodation does not require a showing of purposeful discrimination. The Supreme Court repeatedly has affirmed that "Congress' § 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment. Rather, Congress' power 'to enforce' the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Kimel, 528 U.S. at 81 (citing City of Boerne, 521 U.S. at 518 (1997)) (emphasis added); see also Garrett, 121 S. Ct. at 963. Section 5 legislation that reaches beyond the scope of Section 1's actual guarantees and prohibitions is valid so long as there is a "congruence and proportionality between the injury to be prevented and the means adopted to that end." Boerne, 521 U.S. at 520. Where, as here, Section 5 legislation closely tracks constitutional guarantees, the statute's coverage of any marginal conduct that is not covered by the Constitution easily is justified as proportional and congruent.

This is particularly true where Congress has designed legislation to ensure the full vindication of constitutional rights through easing proof requirements to facilitate enforcement. In Varner II, the Seventh Circuit reaffirmed its original decision that Congress validly abrogated Eleventh Amendment immunity in passing the Equal Pay Act ("EPA"), which "prohibits discrimination in wages based on gender," 226 F.3d at 932, after the Supreme Court vacated the Seventh Circuit's original decision and remanded in light of Kimel. The Court noted that "[i]n effect, the provisions of the [EPA] establish a rebuttable presumption of sex discrimination such that once an employee has demonstrated that an employer pays members of one sex more than members of the opposite sex, the burden shifts to the employer to offer a gender neutral justification for that wage differential." Id. Thus, although the prima facie showing under the EPA does not require a showing of discriminatory intent, id. at 932, the Seventh Circuit nevertheless concluded that "by providing a broad exemption from liability under the [EPA] for any employer who can provide a neutral explanation for a disparity in pay, Congress has effectively targeted employers who intentionally discriminate against women," thereby addressing the same kind of discrimination prohibited by the Constitution. Id. at 934. The Seventh Circuit reached this conclusion notwithstanding the lack in the legislative record of the EPA of "explicit findings as to the problem of gender discrimination by the States," because "the value of congressional findings is greatly diminished by the fact that the Act prohibits very little constitutional conduct." (citation omitted). Id. at 935.

In Cherry, the Seventh Circuit refused to disturb its holding in Varner II based on the Supreme Court's intervening decision in Garrett. Indeed, the Seventh Circuit reaffirmed that "unlike the statutes in [Kimel and Garrett], which pervasively prohibit constitutional State action, the EPA 'prohibits very little constitutional conduct.'" 2001 WL 1,028,282, at *8 (citing Varner II, 226 F.3d at 935). The court concluded that "because the EPA essentially targets unconstitutional gender discrimination, the importance of congressional findings of unconstitutional State action is 'greatly diminished.'" Id.

Like the EPA, Title VII's religious accommodations prong prohibits little constitutional conduct and is intended to root out unconstitutional intentional discrimination. Once a plaintiff has presented a prima facie case demonstrating that: (1) she has a bona fide religious practice or belief that conflicts with an employment requirement; (2) she brought the practice or belief to the employer's attention; and (3) the religious practice or belief was the basis for an adverse employment decision, EEOC v. United Parcel Serv., 94 F.3d 314, 317 (7th Cir. 1996), the burden shifts to the employer to prove "that it was unable to provide a reasonable accommodation without undue hardship or that it offered a reasonable accommodation which was not accepted by the employee." Id. at 318. As discussed supra, at 19-20, an employer's onus in satisfying the "undue burden" requirement is light indeed. (12)

Because Title VII essentially provides a "broad exemption from liability" in religious accommodations claims for employers who can offer essentially a "neutral explanation" for a decision not to provide accommodations--i.e., anything more than either a de minimis cost or a non-pecuniary, justified burden in conducting its business--Congress has effectively targeted employers who intentionally discriminate on the basis of religion. (13) See Varner II, 226 F.3d at 934. Like the EPA, "the broad exemption from liability" in Title VII religious accommodations provision indicates that it "is intended to address the same kind of 'purposeful [religious] discrimination' . . . prohibited by the Constitution." Id. at 934 (citation omitted). Accordingly, Title VII's religious accommodation provision is a "'piece of 'remedial or preventative legislation aimed at securing the protections of the Fourteenth Amendment,'" id. at 936, and should be upheld as valid Section 5 legislation.

The Court should deny Defendant's Motion and uphold the constitutionality of Title VII's prohibition of discrimination on the basis of religion.

Respectfully submitted,

Washington, D.C.                                 RALPH F. BOYD, JR.
                                                            Assistant Attorney General
                                                            Civil Rights Division

October 26, 2001

By: ____________________________________

D.C. Bar Registration No. 461285
U.S. Department of Justice
Civil Rights Division
Employment Litigation Section
P.O. Box 65968
Washington, D.C. 20035-5968
Telephone: (202) 514-3878
Telefax: (202) 514-1005

United States Attorney
Attorney No. 5007-98
Assistant United States Attorney
M01 Robert A. Grant Federal Bldg.
204 South Main Street
South Bend, Indiana 46601
Telephone: (219) 236-8287
Telefax: (219) 236-8155


I hereby certify that on October 26, 2001, I served a copy of Intervenor United States' Memorandum of Law in Support of Constitutionality of Prohibition on Discrimination Because of Religion under Title VII of the Civil Rights Act of 1964 in Benjamin P. Endres, Jr. v. Indiana State Police, No. 3:01-CV-0518 (N.D. Ind.) (Miller, J.), by sending same by Federal Express overnight service, as follows:

David C. Kolbe, Esq.
Law Offices of Kolbe & Kolbe
302 West Center Street
Warsaw, Indiana 46580
(219) 267-5353

Suzannah B. Wilson, Esq.
Office of the Indiana Attorney General
Indiana Government Center South
402 West Washington Street
Fifth Floor
Indianapolis, Indiana 46204-2770
(317) 232 6201

Clifford D. Johnson, Esq.
Office of the United States Attorney
Northern District of Indiana
M01 Robert A. Grant Federal Bldg.
204 South Main Street
South Bend, Indiana 46601
(219) 236-8287


U.S. Department of Justice
Civil Rights Division
Employment Litigation Section
P.O. Box 65968
Washington, D.C. 20035-5968
(202) 514-3878

1. The Office of the Indiana Attorney General filed a motion to dismiss a Title VII claim pending in the United States District Court for the Southern District of Indiana based on a similar Eleventh Amendment challenge to Title VII's prohibition on religious discrimination at issue here. See Patricia Holmes and United States of America v. Marion County Office of Family and Children, File No. IP00-677-C-M/S (S.D. Ind.) (McKinney, C.J.). The United States intervened in Holmes on August 27, 2001 to defend the constitutionality of Title VII's prohibition on religious discrimination and, on October 16, 2001, filed its brief opposing Defendant Marion County Office of Family and Children's motion to dismiss on Eleventh Amendment grounds. That motion currently is pending before the Court.

2. The power to enforce the Fourteenth Amendment also allows Congress to prohibit "a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text," as long as such "prophylactic" legislation is "congruen[t]" and "proportional[]" to the "injury to be prevented or remedied." Kimel, 528 U.S. at 81 (citing City of Boerne, 521 U.S. at 518 (1997)).

3. The United States does not dispute that Defendant is an arm of the State of Indiana for Eleventh Amendment purposes.

4. Thus, Defendant's statement (Memorandum, at 4) that 42 U.S.C. § 2000e(j) "is the provision that added religion to Title VII," is incorrect. It is Title VII's wholesale prohibition on employment discrimination contained in 42 U.S.C. § 2000e-2(a) that makes employment discrimination because of religion unlawful; 42 U.S.C. § 2000e(j) simply defines "religion."

5. Specifically, Plaintiff maintains that Defendant acted "with malic and/or with intentional indifference and/or with reckless indifference to the civil rights, state and federal, of the Plaintiff." Complaint, ¶ 19. The Court must accept this and all of Plaintiff's allegations in his Complaint as true for purposes of evaluating Defendant's Motion to Dismiss. Echevarria v. Chicago Title & Trust Co., 256 F.3d 623, 625 (7th Cir. 2001).

6. As the Supreme Court has held, "[t]here is no dispute that in enacting the 1972 Amendments to Title VII to extend coverage to the States as employers, Congress exercised its power under § 5 of the Fourteenth Amendment." Fitzpatrick, 427 U.S. at 453 n.9.

7. Defendant's apparent claim (Memorandum, at 2-3) that City of Boerne undermined the application of strict scrutiny to intentional classification based on religion lacks merit. In City of Boerne, the Supreme Court invalidated the Religious Freedom Restoration Act ("RFRA") as applied to the States because the Court deemed it to be an explicit effort by Congress "to attempt a substantive change in constitutional protections," 521 U.S. at 532, namely those enunciated earlier by the Supreme Court in Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). In Smith, the Court established the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has an incidental effect of burdening a particular religious exercise. City of Boerne, 521 U.S. at 513-14; Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531 (1993). But Smith does not apply to cases of intentional discrimination by government officials or to laws targeting religion for special duties or limitations not shared by similar secular entities or to laws distinguishing between different religions See, e.g., Lukumi, 508 U.S. 520 at 532-38 (ordinance lacked neutrality because it was enacted for the purpose of barring a fundamental practice of the Santeria faith: ritual animal sacrifice). Indeed, the Court in Smith distinguished situations involving a system of "individualized government exemptions"--where the possibility that discrimination could affect the decision of accommodating religion is great--from neutral laws of general applicability and expressly affirmed the application of strict scrutiny to such individualized assessments. Smith, 494 U.S. at 884. Thus, the constitutional standard for neutral laws of general applicability announced in Smith, and relied upon by the Court in City of Boerne, is inapplicable to cases involving intentional religious discrimination, including those advanced under the Equal Protection Clause.

8. The First Amendment right to free exercise of religion is protected against infringement by States by the "fundamental concept of liberty" under Section 1of the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

9. Title VII's prohibition of disparate treatment on the basis of religion also codifies the Establishment Clause's prohibition of discrimination among religious sects. See, e.g., Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 704 (1994) (stating that "it is clear that neutrality as among religions must be honored"); Larson v. Valente, 456 U.S. 228, 244 (1982) ("The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.").

10. See, e.g., Okruhlik v. Univ. of Arkansas, 255 F.3d 615, 627 (8th Cir. 2001); Liberles v. County of Cook, 709 F.2d 1122, 1135 (7th Cir. 1983); United States v. City of Chicago, 573 F.2d 416, 423 (7th Cir. 1978).

11. Since Smith, district courts have applied the "individualized assessments" doctrine in reviewing discretionary determinations. See, e.g., Keeler v. Mayor & City Council of Cumberland, 940 F. Supp. 879, 886 (D. Md. 1996); Rader v. Johnston, 924 F. Supp. 1540, 1551-58 & n.23 (D. Neb. 1996); Alpine Christian Fellowship v. County Comm'rs of Pitkin County, 870 F. Supp. 991, 994-95 (D. Colo. 1994).

12. Thus, for two independent reasons, the Court should reject Defendant's assertion that "[b]ecause the Supreme Court had already found that Congress exceeded its authority in passing the . . . ADA, logic dictates that Title VII, which imposes a requirement that State employers reasonably accommodate the religious beliefs and practices of their employees, goes beyond the protections afforded by the Equal Protection Clause and exceeds Congress' authority to enforce that provision." Memorandum, at 5. First, unlike governmental classifications based on disability, which receive rational-basis review, see Garrett, 121 S. Ct at 963-64, as demonstrated supra, at 9, governmental classifications based on religion are subject to strict scrutiny.

Second, Title VII's religious accommodations requirement prohibits far less constitutional conduct than does the ADA's employment accommodations requirement. The ADA requires all covered employers to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer's] business." 42 U.S.C. § 12112(b)(5)(A). By contrast to Title VII's "undue burden"/de minimis cost standard, the ADA defines "undue hardship" as "an action requiring significant difficulty or expense . . . ." 42 U.S.C. § 12111(10)(A) (emphasis added); see also Garrett, 121 S. Ct. at 960, 967 (ADA's "accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of alternative responses that would be reasonable but would fall short of imposing an 'undue burden' on the employer").

13. In fact, the Seventh Circuit has recognized that Title VII religious accommodations claims essentially may be characterized as intentional discrimination claims:

[T]he standard prima facie case requires a showing that the employer was made aware of the employee's religious practice and was given an opportunity to accommodate it. Though the employer bears the burden of proving that it was unable to reasonably accommodate without undue hardship, the employee, in the prima facie case, must show that the employer consciously failed to make an accommodation. In this respect, these cases are somewhat analogous to 'disparate treatment' cases, which require proof of intent.

United Parcel Serv., 94 F.3d at 317 n.3 (emphasis in original).

Updated August 6, 2015

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