In 1972, at the encouragement of a group of religious-liberty activists, Senator Jennings Randolph of West Virginia—a member of a small Baptist denomination that observes the Sabbath from Friday night to Saturday night—pushed for an amendment to the Civil Rights Act that would require businesses to make reasonable accommodations for employees’ religious observance. Although the amendment was made law, in 1977 the Supreme Court declined to apply it to the case of Larry Hardison, fired by TWA for refusing a Sabbath shift. Nathan Lewin, who helped to draft the language of Randolph’s amendment, hopes the court will now hear the similar case of Darrell Patterson, and rule differently:
Justice Byron White wrote the court’s [1977] ruling, and he was obviously concerned that the far-reaching interpretation that the court was then giving to the First Amendment’s prohibition against the “establishment of religion” conflicted with an interpretation of the law that could impose costs on private employers to satisfy the religious observances of their employees. White’s majority opinion declared: “To require TWA to bear more than a de-minimis cost in order to give Hardison Saturdays off is an undue hardship.”
First Amendment law was very different in 1977 from what it is today. [Then] Supreme Court majorities seemed to condemn even the most remote governmental assistance to religion. But that attitude was short-lived. . . . The court [in 2000] began an era in which the exercise of religion wins greater judicial respect. . . .
The de-minimis language has, over more than four decades, ruined the careers and employment prospects of thousands of religiously observant employees. There are many reported judicial decisions that fail to apply [the law] as Senator Randolph contemplated it. They permit employers to ban religious practices they dislike and to harm Sabbath observers and employees who have other unusual prescribed religious practices.
But close scrutiny of the Supreme Court’s recent actions raises hopes that these injustices will soon be corrected. . . . In a recent opinion explaining why they rejected a publicized religious-liberty case, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh said they are ready to “revisit” the Hardison ruling. . . . Resounding vindication of Darrell Patterson would correct a decades-long injustice, granting religious Americans the protection they so richly deserve.
Read more on Tablet: https://www.tabletmag.com/jewish-news-and-politics/281122/the-right-not-to-work-on-the-sabbath/