Good afternoon. Thank you for inviting me to speak with you today. I have been asked to provide my remarks outlining the laws Congress passed that involve religious liberties. Recognizing the centrality of religious freedom to our nation, Congress has buttressed these constitutional rights with statutory protections for religious observance and practice. These protections can be found in, among other statutes:
- the Religious Freedom Restoration Act of 1993[1]
- the Religious Land Use and Institutionalized Persons Act,[2]
- Title VII of the Civil Rights Act of 1964,[3] and the
- American Indian Religious Freedom Act.[4]
Such protections ensure that the government tolerates religious observance and practice and embraces religious adherents as full members of society, able to contribute through employment, use of public accommodations, and participation in government programs. The United States considered that we are more robust through the accommodation of religion than through its segregation or isolation.
- Religious Freedom Restoration Act of 1993 (RFRA)
The Religious Freedom Restoration Act of 1993 (RFRA),[5] prohibits the federal government from “substantially burden[ing] a person’s exercise of religion” unless “it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”[6] The Act applies even when the burden arises from a “rule of general applicability” passed without animus or discriminatory intent.[7]
It applies to “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,”[8] and covers “individuals” as well as “corporations, companies, associations, firms, partnerships, societies, and joint stock companies,” 1 U.S.C. § 1, including for-profit, closely-held corporations like those involved in Hobby Lobby.
Subject to the exceptions identified below, a law “substantially burden[s] a person’s exercise of religion,”[9] if it bans an aspect of the adherent’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.”[10] The “threat of criminal sanction” will satisfy these principles, even when, as in Yoder, the prospective punishment is a mere $5 fine.[11] The denial of, or condition on receiving, government benefits may substantially burden the exercise of religion under these principles.[12]
But a law that infringes, even severely, an aspect of an adherent’s religious observance or practice that the adherent himself regards as unimportant or inconsequential imposes no substantial burden on that adherent. A law that regulates only the government’s internal affairs and does not involve any governmental compulsion on the religious adherent likewise imposes no substantial burden.[13]
As with claims under the Free Exercise Clause, RFRA does not permit a court to inquire into the reasonableness of a religious belief, including into the adherent’s assessment of the spiritual connection between a belief asserted and what the government forbids, requires, or prevents.[14] If the proffered belief is sincere, it is not the place of the government or a court to second-guess it.
A good illustration of the point is Thomas v. Review Board of Indiana Employment Security Division—one of the Sherbert line of cases, whose analytical test Congress sought, through RFRA, to restore.[15] There, the Supreme Court concluded that the denial of unemployment benefits was a substantial burden on the sincerely held religious beliefs of a Jehovah’s Witness who had quit his job after he was transferred from a department producing sheet steel that could be used for military armaments to a department producing turrets for military tanks.[16]
In doing so, the Court rejected the lower court’s inquiry into “what [the claimant’s] belief was and what the religious basis of his belief was,” noting that no one had challenged the sincerity of the claimant’s religious beliefs and that “[c]ourts should not undertake to dissect religious beliefs because the believer admits that he is struggling with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.”[17]
The Court likewise rejected the lower court’s comparison of the claimant’s views to those of other Jehovah’s Witnesses, noting that “[i]ntrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill-equipped to resolve such differences.”[18] The Supreme Court reinforced this reasoning in Hobby Lobby, rejecting the argument that “the connection between what the objecting parties [were required to] do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they [found] to be morally wrong (destruction of an embryo) [wa]s simply too attenuated.”[19] The Court explained that the plaintiff corporations had a sincerely-held religious belief that provision of the coverage was morally wrong. It was “not for us to say that their religious beliefs are mistaken or insubstantial.”[20]
Governments bear a heavy burden to justify a substantial burden on the exercise of religion. “[O]nly those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion.”[21] Such interests include, for example, the “fundamental, overriding interest in eradicating racial discrimination in education—discrimination that prevailed, with official approval, for the first 165 years of this Nation’s history,”[22] and the interest in ensuring the “mandatory and continuous participation” that is “indispensable to the fiscal vitality of the social security system.”[23]
However, “broadly formulated interests justifying the general applicability of government mandates” are insufficient.[24] The government must establish a compelling interest in denying an accommodation to the claimant.[25] For example, the military may have a compelling interest in its uniform and grooming policy to ensure military readiness and protect our national security. Still, it does not necessarily follow that those interests would justify denying a particular soldier’s request for accommodation from the uniform and grooming policy. The military must show its compelling interest in denying that particular accommodation. An asserted compelling interest in denying an accommodation to a specific claimant is undermined by evidence that exemptions or accommodations have been granted for other interests.
The compelling interest requirement applies even where the accommodation sought is “an exemption from a legal obligation requiring [the claimant] to confer benefits on third parties.”[26] Although “in applying RFRA, ‘courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries,’” the Supreme Court has explained that almost any governmental regulation could be reframed as a legal obligation requiring a claimant to confer benefits on third parties.[27] As nothing in the text of RFRA admits of an exception for laws requiring a claimant to confer benefits on third parties,[28] and such an exception would have the potential to swallow the rule; the Supreme Court has rejected the proposition that RFRA accommodations are categorically unavailable for laws requiring claimants to confer benefits on third parties.[29]
Even if the government can identify a compelling interest, the government must also show that denial of an accommodation is the least restrictive means of serving that compelling governmental interest. This standard is “exceptionally demanding.”[30] It requires the government to show that it cannot accommodate the religious adherent while achieving its interest through a viable alternative, which may include, in certain circumstances, expenditure of additional funds, modification of existing exemptions, or creation of a new program.[31] Indeed, the existence of exemptions for other individuals or entities that could be expanded to accommodate the claimant while still serving the government’s stated interests will generally defeat an RFRA defense, as the government bears the burden of establishing that no accommodation is viable.[32]
- Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)
Although Congress’s leadership in adopting RFRA led many States to pass analogous statutes, Congress recognized the unique threat to religious liberty posed by specific categories of state action and passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) to address them. Congress determined that federal legislation was needed to protect people and religious institutions from unduly burdensome, unreasonable, or discriminatory zoning, landmarking, and other land use regulations.
It heard testimony that houses of worship, particularly those of minority religions and start-up churches, were disproportionately affected adversely and were often actively discriminated against by local land use decisions. Congress also found that religious institutions were treated worse than secular places of assembly like community centers, fraternal organizations, and theaters and that zoning authorities frequently violated the United States Constitution by placing excessive burdens on the ability of congregations to exercise their faiths. RLUIPA includes a private right of action, which allows individuals to enforce its provisions. Congress also gave the Attorney General the authority to implement RLUIPA, and the Department of Justice has been active in implementing this critical civil rights law since its enactment. The Department has opened over 155 formal investigations and filed nearly 30 lawsuits related to RLUIPA’s land use provisions.
RLUIPA extends a standard analogous to RFRA to state and local government actions regulating land use. Institutionalized persons where “the substantial burden is imposed in a program or activity that receives Federal financial assistance” or “the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.”[33]
RLUIPA’s protections must “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by [RLUIPA] and the Constitution.”[34] RLUIPA applies to “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,”[35] and treats “[t]he uses, building, or conversion of real property for religious exercise” as the “religious exercise of the person or entity that uses or intends to use the property for that purpose.”[36] Like RFRA, RLUIPA prohibits the government from substantially burdening an exercise of religion unless imposing the burden on the religious adherent, which is the least restrictive means of furthering a compelling governmental interest.[37] That standard “may require a government to incur expenses in its operations to avoid imposing a substantial burden on religious exercise.” [38]
Concerning land use in particular, RLUIPA also requires that the government not “treat[] a religious assembly or institution on less than equal terms with a nonreligious assembly or institution,”[39] “impose or implement a land use regulation that discriminates against any assembly or institution based on religion or religious denomination,”[40] or “impose or implement a land use regulation that (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction,”[41] A claimant need not show a substantial burden on the exercise of religion to enforce these antidiscrimination and equal terms provisions listed in § 2000cc(b).[42] Although most RLUIPA cases involve places of worship like churches, mosques, synagogues, and temples, the law applies more broadly to religious schools, religious camps, religious retreat centers, and religious social service facilities.[43]
RLUIPA’s land use provisions provide several protections for places of worship, faith-based social service providers, religious schools, and individuals using land for religious purposes. Specifically, RLUIPA provides for:
• Protection against substantial burdens on religious exercise: Section 2(a) of RLUIPA prohibits the implementation of any land use regulation that imposes a “substantial burden” on the religious exercise of a person or institution except where justified by a “compelling government interest” that the government pursues using the least restrictive means.
• Protection against unequal treatment for religious assemblies and institutions: Section 2(b)(1) of RLUIPA provides that religious assemblies and institutions must be treated as well as nonreligious assemblies and institutions.
• Protection against religious or denominational discrimination: Section 2(b)(2) of RLUIPA prohibits discrimination “against any assembly or institution based on religion or religious denomination.” • Protection against total exclusion of religious assemblies: Section 2(b)(3)(A) of RLUIPA prohibits governments from imposing or implementing land use regulations that exclude religious assemblies from a jurisdiction.
• Protection against unreasonable limitation of religious assemblies: Section 2(b)(3)(B) of RLUIPA prohibits governments from imposing or implementing land use regulations that “unreasonably limit” religious assemblies, institutions, or structures within a jurisdiction. While most RLUIPA cases involve places of worship such as churches, synagogues, mosques, and temples, the law is written broadly to cover various religious uses and types of religious exercise. The “substantial burden” provision in Section 2(a) of the statute applies to burdens on “a person, including a religious assembly or institution.” The remaining clauses apply to any religious “assembly or institution.” Thus, RLUIPA applies widely not only to diverse places of worship but also to religious schools, religious camps, religious retreat centers, religious cemeteries, and religious social service facilities such as group homes, homeless shelters, and soup kitchens, as well as to individuals or families exercising their religion through the use of property, such as home prayer gatherings or Bible studies.
- Other Civil Rights Laws
To incorporate religious adherents fully into society, Congress has recognized that it is not enough to limit governmental action that substantially burdens the exercise of religion. It must also root out public and private discrimination based on religion.
Religious discrimination stood alongside discrimination based on race, color, and national origin as an evil to be addressed in the Civil Rights Act of 1964, and Congress has continued to legislate against such discrimination over time. Today, the United States Code explicitly prohibits religious discrimination.
- in places of public accommodation[44]
- in public facilities,[45]
- in public education[46]
- in employment,[47]
- in the sale or rental of housing,[48]
- in the provision of certain real-estate transactions or brokerage services,[49]
- in federal jury service,[50]
- in access to limited open forums for speech,[51]; and,
- in participation in or receipt of benefits from various federally-funded programs.[52]
Invidious religious discrimination may be directed at religion in general, a particular religious belief, or particular aspects of religious observance and practice.[53] A law drawn to prohibit a specific religious practice may discriminate just as severely against a religious group as a law drawn to ban the religion itself. See id. No one would doubt that a law prohibiting the sale and consumption of Kosher meat would discriminate against Jewish people. True equality may also require, depending on the applicable statutes, an awareness of, and willingness reasonably to accommodate, religious observance and practice. Indeed, the denial of reasonable accommodations may be little more than cover for discrimination against a particular religious belief or religion in general and is counter to the general determination of Congress that the United States is best served by the participation of religious adherents in society, not their withdrawal from it.
- Employment
- Protections for Religious Employees
Protections for religious individuals in employment are the most obvious example of Congress’s instruction that religious observance and practice be reasonably accommodated, not marginalized. In Title VII of the Civil Rights Act, Congress declared it an unlawful employment practice for a covered employer to:
(1) “fail or refuse to hire or to discharge any individual, or otherwise . . . discriminate against any individual concerning his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion,” as well as
(2) 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 . . . religion.[54] The protection applies “regardless of whether the discrimination is directed against [members of religious] majorities or minorities.”[55]
After several courts had held that employers did not violate Title VII when they discharged employees for refusing to work on their Sabbath, Congress amended Title VII to define “[r]eligion” broadly 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.”[56] Congress thus made clear that discrimination based on religion includes discrimination based on any aspect of an employee’s religious observance or practice, at least where such observance or practice can be reasonably accommodated without undue hardship.
Title VII’s reasonable accommodation requirement is meaningful. As an initial matter, an employer must consider what adjustment or modification to its policies would effectively address the employee’s concern, for “[a]n ineffective modification or adjustment will not accommodate” a person’s religious observance or practice within the ordinary meaning of that word.[57] “A mere assumption that many more people, with the same religious practices as the person being accommodated, may also need accommodation is not evidence of undue hardship.”[58] Likewise, the fact that an accommodation may grant the religious employee a preference is not evidence of undue hardship as “[b]y definition, any special ‘accommodation’ requires the employer to treat an employee . . . differently, i.e., preferentially.”[59]
Title VII does not, however, require accommodation at all costs. As noted above, an employer is not required to accommodate a religious observance or practice if it would pose an undue hardship on its business. An accommodation might pose an “undue hardship,” for example, if it would require the employer to breach an otherwise valid collective bargaining agreement. [60]
Likewise, an accommodation might pose an “undue hardship” if it would impose “more than a de minimis cost” on the business, such as in the case of a company where weekend work is “essential to [the] business” and many employees have religious observances that would prohibit them from working on the weekends so that accommodations for all such employees would result in significant overtime costs for the employer.[61] In general, though, Title VII expects positive results for society from a cooperative process between an employer and its employee “in the search for an acceptable reconciliation of the needs of the employee’s religion and the exigencies of the employer’s business.”[62]
The area of religious speech and expression is a valuable example of reasonable accommodation. Where speech or expression is part of a person’s religious observance and practice, it falls within the scope of Title VII.[63] Speech or expression outside of an individual’s employment scope can almost always be accommodated without undue hardship to a business.[64]
The federal government’s approach to free exercise in the workplace provides helpful guidance on such reasonable accommodations. For example, under the Guidelines issued by President Clinton, the federal government permits a federal employee to “keep a Bible or Koran on her private desk and read it during breaks” to discuss his religious views with other employees, subject “to the same rules of order as apply to other employee expression”; to display religious messages on clothing or wear religious medallions visible to others; and to hand out religious tracts to other employees or invite them to attend worship services at the employee’s church, except to the extent that such speech becomes excessive or harassing.[65]
The federal government’s successful experience applying the Clinton Guidelines over the last twenty years proves that religious speech and expression can be reasonably accommodated in the workplace without exposing an employer to liability under workplace harassment laws. Time off for religious holidays is also often an area of concern. The observance of religious holidays is an “aspect[] of religious observance and practice” and is therefore protected by Title VII.[66]
Examples of reasonable accommodations for that practice could include a change of job assignments or lateral transfer to a position whose schedule does not conflict with the employee’s religious holidays,[67] a voluntary work schedule swap with another employee,[68] or a flexible scheduling scheme that allows employees to arrive or leave early, use floating or optional holidays for religious holidays, or make up time lost on another day.[69]
Again, the federal government has demonstrated reasonable accommodation through its practice: Congress has created a flexible scheduling scheme for federal employees, which allows employees to take compensatory time off for religious observances, 5 U.S.C. § 5550a, and the Clinton Guidelines make clear that “[a]n agency must adjust work schedules to accommodate an employee’s religious observance—for example, Sabbath or religious holiday observance—if an adequate substitute is available, or if the employee’s absence would not otherwise impose an undue burden on the agency.”[70] If an employer regularly permits accommodation in work scheduling for secular conflicts and denies such accommodation for religious conflicts, “such an arrangement would display a discrimination against religious practices that is the antithesis of reasonableness.”[71]
Except for certain exceptions discussed in the next section, Title VII’s protection against disparate treatment,[72] is implicated whenever religious observance or practice is a motivating factor in an employer’s covered decision.[73] That is true even when an employer acts without knowing the need for an accommodation from a neutral policy but with “an unsubstantiated suspicion” of the same.[74]
- Protections for Religious Employers
Congress has acknowledged, however, that religion is sometimes an appropriate factor in employment decisions, and it has limited Title VII’s scope accordingly. Thus, for example, where religion “is a bona fide occupational qualification reasonably necessary to the regular operation of [a] particular business or enterprise,” employers may hire and employ individuals based on their religion.[75] Likewise, where educational institutions are “owned, supported, controlled or managed, [in whole or in substantial part] by a particular religion or by a particular religious corporation, association, or society” or direct their curriculum “toward the propagation of a particular religion,” such institutions may hire and employ individuals of a particular religion.[76] And “a religious corporation, association, educational institution, or society” may use “individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”[77]
Because Title VII defines “religion” broadly to include “all aspects of religious observance and practice, as well as the belief”[78], these exemptions include decisions “to employ only persons whose beliefs and conduct are consistent with the employer’s religious precepts.[79]” For example, in Little, the Third Circuit held that the exemption applied to a Catholic school’s decision to fire a divorced Protestant teacher who, though having agreed to abide by a code of conduct shaped by the doctrines of the Catholic Church, married a baptized Catholic without first pursuing the official annulment process of the Church.[80]
Section 702 broadly exempts religious corporations, associations, educational institutions, and societies from its reach. The statute’s terms do not limit this exemption to non-profit organizations, organizations that carry on only religious activities, or organizations established by a church or formally affiliated in addition to that.[81] The exemption applies whenever the organization is “religious,” which means that it is organized for religious purposes and engages in activity consistent with and in furtherance of such purposes.
Thus, the exemption applies to religious denominations and houses of worship, religious colleges, charitable organizations like the Salvation Army World Vision International, and many more. In that way, it is consistent with other broad protections for religious entities in federal law, including, for example, the exemption of religious entities from many of the requirements under the Americans with Disabilities Act.[82]
In addition to these explicit exemptions, religious organizations may be entitled to additional exemptions from discrimination laws.[83] For example, a religious organization might conclude that it cannot employ an individual who fails faithfully to adhere to its religious tenets because doing so might inhibit the organization’s exercise of religion or dilute an expressive message.[84] Both constitutional and statutory issues arise when governments seek to regulate such decisions.
As a constitutional matter, religious organizations’ decisions are protected from governmental interference to the extent they relate to ecclesiastical or internal governance matters.[85] It is beyond dispute that “it would violate the First Amendment for courts to apply [employment discrimination] laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary.”[86] The same is true for other employees who “minister to the faithful,” including those who are not the head of the religious congregation and are not engaged solely in religious functions.[87]
Even if a particular associational decision could be construed to fall outside this protection, the government would likely still have to show that any interference with the religious organization’s associational rights is justified under strict scrutiny.[88] The government may meet that standard concerning race discrimination, as seen in Bob Jones Univ.,[89], but it may not address other forms of discrimination. For example, at least one court has held that forced inclusion of women into a mosque’s religious men’s meeting would violate the freedom of expressive association.[90] The Supreme Court has also held that the government’s interest in addressing sexual orientation discrimination is not sufficiently compelling to justify an infringement on the expressive association rights of a private organization.[91]
As a statutory matter, RFRA, too, might require an exemption or accommodation for religious organizations from anti-discrimination laws. For example, “prohibiting religious organizations from hiring only coreligionists can ‘impose a significant burden on their exercise of religion, even as applied to employees in programs that must, by law, refrain from specifically religious activities.’”[92]
CONCLUSION
Thank you again for the opportunity to speak on Constitutional Law Day at this fine law school. Just as our Founding Fathers faced the daunting task of creating a new nation, we, too, must rise to the challenges of our time and ensure that the ideals of our Constitution endure. Thank you for having me today.
[1] 42 U.S.C. §§ 2000bb et seq.;
[2] 42 U.S.C. §§ 2000cc et seq.;
[3] 42 U.S.C. §§ 2000e et seq.;
[4] 42 U.S.C. § 1996.
[5] 42 U.S.C. § 2000bb et seq.,
[6] Id. § 2000bb-1(a), (b).
[7] See id. § 2000bb-1(a).
[8] §§ 2000bb-2(4), 2000cc-5(7)
[9] 42 U.S.C. § 2000bb-1
[10] Sherbert, 374 U.S. at 405–06.
[11] 406 U.S. at 208, 218.
[12] Sherbert, 374 U.S. at 405–06; also, Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 141 (1987); Thomas, 450 U.S. at 717–18
[13] e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 448–49 (1988); Bowen v. Roy, 476 U.S. 693, 699–700 (1986).
[14] Hobby Lobby, 134 S. Ct. at 2778.
[15] 42 U.S.C. § 2000bb.
[16] Thomas, 450 U.S. at 716–18
[17] Id. at 714–15 (internal quotation marks omitted).
[18] Id. at 715.
[19] 134 S. Ct. at 2777.
[20] Id. at 2779.
[21] Thomas, 450 U.S. at 718 (quoting Yoder, 406 U.S. at 215).
[22] Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983),
[23] United States v. Lee, 455 U.S. 252, 258–59 (1982).
[24] Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006).
[25] Id. at 430, 435–38.
[26] Hobby Lobby, 134 S. Ct. at 2781 n.37.
[27] Id. (quoting Cutter v. Wilkinson, 544 U.S. 709, 720 (2005)).
[28] 42 U.S.C. § 2000bb-1,
[29] Hobby Lobby, 134 S. Ct. at 2781 n.37.
[30] Hobby Lobby, 134 S. Ct. at 2780.
[31] —Id, at 2781.
[32] See id at 2781–82.
[33] 42 U.S.C. §§ 2000cc(a)(2), 2000cc-1(b).
[34] Id. § 2000cc- 3(g).
[35] id. § 2000cc-5(7)(A),
[36] id. § 2000cc-5(7)(B).\
[37] See id. § 2000cc-1(a).
[38] Id. § 2000cc-3(c); cf. Holt v. Hobbs, 135 S. Ct. 853, 860, 864–65 (2015).
[39] 42 U.S.C. § 2000cc(b)(1),
[40] id. § 2000cc(b)(2),
[41] id. § 2000cc(b)(3).
[42] See id. § 2000cc(b); also Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 262–64 (3d Cir. 2007), cert. Denied, 553 U.S. 1065 (2008).
[43] Letter from U.S. Dep’t of Justice Civil Rights Division to State, County, and Municipal Officials re: The Religious Land Use and Institutionalized Persons Act (Dec. 15, 2016).
[44] 42 U.S.C. § 2000a;
[45] id. § 2000b;
[46] id. § 2000c-6;
[47] id. §§ 2000e, 2000e-2, 2000e-16;
[48] id. § 3604;
[49] id. §§ 3605, 3606;
[50] 28 U.S.C. § 1862;
[51] 20 U.S.C. § 4071
[52] 15 U.S.C. § 3151; 20 U.S.C. §§ 1066c(d), 1071(a)(2), 1087-4, 7231d(b)(2), 7914; 31 U.S.C. § 6711(b)(3); 42 U.S.C. §§ 290cc-33(a)(2), 300w-7(a)(2), 300x-57(a)(2), 300x- 65(f), 604a(g), 708(a)(2), 5057(c), 5151(a), 5309(a), 6727(a), 9858l(a)(2), 10406(2)(B), 10504(a), 10604(e), 12635(c)(1), 12832, 13791(g)(3), 13925(b)(13)(A)
[53] See, e.g., Church of the Lukumi Babalu Aye, 508 U.S. at 532–33
[54] 42 U.S.C.§ 2000e-2(a); see also 42 U.S.C. § 2000e-16(a) (applying Title VII to certain federal-sector employers); 3 U.S.C. § 411(a) (applying Title VII employment in the Executive Office of the President).
[55] Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 71–72 (1977).
[56] 42 U.S.C. § 2000e(j); Hardison, 432 U.S. at 74 n.9.
[57] See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002) (considering the ordinary meaning in the context of an ADA claim). Although there is no obligation to provide an employee with his or her preferred reasonable accommodation, see Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986), an employer may justify a refusal to accommodate only by showing that “an undue hardship [on its business] would result from each available alternative method of accommodation.” 29 C.F.R. § 1605.2(c)(1) (emphasis added).
[58] Id.
[59] U.S. Airways, 535 U.S. at 397; see also E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (2015) (“Title VII does not demand mere neutrality about religious practices—that they may be treated no worse than other practices. Rather, it gives them favored treatment.”).
[60] Hardison, 432 U.S. at 79) or carve out a notable exception to a seniority system (id. at 83); see also U.S. Airways, 535 U.S. at 403.
[61] Hardison, 432 U.S. at 80, 84 & n.15
[62] Philbrook, 479 U.S. at 69 (internal quotations omitted).
[63] See 42 U.S.C. §§ 2000e, 2000e-2.
[64] Cf. Abercrombie, 135 S. Ct. at 2032.
[65] Guidelines on Religious Exercise and Religious Expression in the Federal Workplace, § 1(A), Aug. 14, 1997 (from now on “Clinton Guidelines”). The Clinton Guidelines have the force of an Executive Order. See Legal Effectiveness of a Presidential Directive, as Compared to an Executive Order, 24 Op. O.L.C. 29, 29 (2000) (“[T]here is no substantive difference in the legal effectiveness of an executive order and a presidential directive that is styled other than as an executive order.”); see also Memorandum from President William J. Clinton to the Heads of Executive Departments and Agencies (Aug. 14, 1997) (“All civilian executive branch agencies, officials, and employees must follow these Guidelines carefully.”).
[66] 42 U.S.C. §§ 2000e, 2000e-2.
[67] 29 C.F.R. § 1605.2(d)(1)(iii);
[68] id. § 1065.2(d)(1)(i);
[69] id. § 1065.2(d)(1)(ii).
[70] Clinton Guidelines § 1(C).
[71] Philbrook, 479 U.S. at 71.
[72] 42 U.S.C. § 2000e-2(a)(1),
[73] Abercrombie, 135 S. Ct. at 2033.
[74] Id at 2034.
[75] 42 U.S.C. § 2000e-2(e)(1).
[76] Id
[77] Id. § 2000e-1(a); Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335–36 (1987).
[78] 42 U.S.C. § 2000e(j)
[79] Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991); also Killinger v. Samford Univ., 113 F.3d 196, 198–200 (11th Cir. 1997).
[80] 929 F.2d at 946, 951.
[81] See Civil Rights Act of 1964, § 702(a), codified at 42 U.S.C. § 2000e-1(a); see also Hobby Lobby, 134 S. Ct. at 2773–74; Corp. of Presiding Bishop, 483 U.S. at 335–36.
[82] See 28 C.F.R. app. C; 56 Fed. Reg. 35544, 35554 (July 26, 1991) (explaining that “[t]he ADA’s exemption of religious organizations and religious entities controlled by religious organizations is extensive, encompassing a wide variety of situations”).
[83] See, e.g., Hosanna-Tabor, 565 U.S. at 180, 188–190.
[84] Cf. Boy Scouts of Am. v. Dale, 530 U.S. 640, 649–55 (2000).
[85] Hosanna-Tabor, 565 U.S. at 180, 188–90.
[86] Id. at 188.
[87] Id. at 188, 190, 194–95
[88] See Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984) (infringements on expressive association are subject to strict scrutiny); Smith, 494 U.S. at 882 (“[I]t is easy to envision a case in which Free Exercise Clause would likewise reinforce a challenge on freedom of association grounds concerns.”).
[89] 461 U.S. at 604,
[90] Donaldson v. Farrakhan, 762 N.E.2d 835, 840–41 (Mass. 2002).
[91] Boy Scouts, 530 U.S. at 659.
[92] Corp. of Presiding Bishop, 483 U.S. at 336 (noting that it would be “a significant burden on a religious organization to require it, on pain of substantial liability, to exemption.
