The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Five Decades From Hardison to Groff
How could all of those courts get Hardison so wrong?
The most surprising case of the term was Groff v. DeJoy. I had no doubts that the postal worker would prevail. But the circuitous path by which the Court got there was shocking. Justice Alito wrote a unanimous opinion for the Court that reached a very careful compromise in a religious liberty case. Who had that on their SCOTUS bingo card?
What was the compromise? It turns out that TWA v. Hardison (1977) has been misread for five decades. Hundreds of judges throughout the federal judiciary consistently lacked the ability to read a Supreme Court decision. Even Judge Easterbrook, considered the paragon of textualism, misread the case. Justice Alito explains:
For example, two years ago, the Seventh Circuit told the EEOC that it would be an undue hardship on Wal-Mart (the Nation's largest private employer, with annual profits of over $11 billion) to be required to facilitate voluntary shift-trading to accommodate a prospective assistant manager's observance of the Sabbath. EEOC v. Walmart Stores East, L. P., 992 F. 3d 656, 659–660 (2021).
Now, in fairness, I think that Justice Alito's careful parsing of Justice White's majority opinion was illuminating. It really does seem that the "de minimis" line was not the Court's authoritative definition of "undue hardship." Justice Alito wrote:
The line read as follows: "To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship." Id., at 84. Although this line would later be viewed by many lower courts as the authoritative interpretation of the statutory term "undue hardship," it is doubtful that it was meant to take on that large role. In responding to Justice Marshall's dissent, the Court described the governing standard quite differently, stating three times that an accommodation is not required when it entails "substantial" "costs" or "expenditures." Id., at 83, n. 14. This formulation suggests that an employer may be required to bear costs and make expenditures that are not "substantial." Of course, there is a big difference between costs and expenditures that are not "substantial" and those that are "de minimis," which is to say, so "very small or trifling" that that they are not even worth noticing.
Justice Alito is correct here. But how could the Supreme Court really have gone five decades without "clarifying" the doctrine? How many thousands of employees have been denied religious accommodations over the years because "jurists of wisdom" made so many errors. Indeed, the Supreme Court has denied review in several Hardison vehicles over the past few years.
At least the Court didn't just dismiss the "de minimis" language as dicta, like Chief Justice Roberts tried to do with the "viability" line from Roe.
On the plus side, all nine Justices formally buried the Lemon test. The majority opinion contained this line:
Just over three weeks later, the Court had handed down its (now abrogated)7 decision in Lemon v. Kurtzman, 403 U. S. 602 (1971) which adopted a test under which any law whose "principal or primary effect" "was to advance religion" was unconstitutional.
7 See Kennedy v. Bremerton School Dist., 597 U. S. ___, ___ (2022) (slip op., at 22).
Kennedy only said that Lemon was abandoned. Now, the majority agrees it was "abrogated." Lower courts, take note.
