Rejection of Religious Discrimination Case Irks Gorsuch, Alito

Over a dissent from two justices Monday, the Supreme Court declined to take up the case of a utility worker who chose church over work on Good Friday and was promptly suspended.

A parishioner makes an offering after outdoor mass at St. Agnes, a Catholic church in San Diego, California, during the Covid-19 pandemic. (Courthouse News photo/Barbara Leonard)

WASHINGTON (CN) — Justices Neil Gorsuch and Samuel Alito balked Monday at their colleagues’ refusal to wade into a religious-discrimination case that could fortify the right to religious exercise.

“The only mistake here is of the court’s own making — and it is past time for the court to correct it,” Gorsuch wrote this morning, saying the court should have granted a writ of certiorari to Christian electrician Jason Small.

Explaining the case background, Gorsuch notes that Small had sought a religious accommodation when an on-the-job injury put the former electrician in a new job as a dispatcher at Memphis Light, Gas & Power. Because the new hours and mandatory overtime interfered with his ability to go to church on Sunday mornings, Small requested a temporary pay reduction until he could work out a new schedule.

The utility refused, however, and ultimately suspended Small when he took the day off on Good Friday even though it had denied his request for vacation time. Small alleged a violation of the federal anti-discrimination law known as Title VII, but Gorsuch notes that his case stumbled under Supreme Court precedent that “dramatically revised — really, undid — Title VII’s undue-hardship test.”

When the court announced what is known as the de minimis standard in the 1977 case Trans World Airlines Inc. v. Hardison, it essentially said that an employer could deny any accommodation that would inconvenience it by more than a trivial amount.

Gorsuch notes that Justice Marshall noted in dissent at the time that the de minimis cost test could not be reconciled with the “plain words” of Title VII, defies “simple English usage,” and “effectively nullif[ies]” the statute’s promise.

Today, meanwhile, the undue-hardship standard undergirds new civil rights laws like the Americans with Disabilities Act of 1990, the Uniformed Services Employment and Reemployment Rights Act, and the oft-sued but still-standing federal health care law known as the Affordable Care Act.

“With these developments, Title VII’s right to religious exercise has become the odd man out. Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim,” Gorsuch wrote, joined by Alito.

“As this case illustrates, even subpar employees may wind up receiving more favorable treatment than highly performing employees who seek only to attend church. And the anomalies do not end there.”

Gorsuch expressed puzzlement at the rejection of Small’s case.

“I cannot see what more we could reasonably require,” Gorsuch continued Monday. “Mr. Small insisted that his requested accommodation would not cause an undue hardship under Title VII. Both the district court and court of appeals rejected the argument relying expressly on Hardison. There is no barrier to our review and no one else to blame.”

Courthouse News reached out to Wilson Sonsini attorney Steffen Johnson for Small and Rodrick Holmes of Boyle Brasher for Memphis Light, Gas & Water. Neither has returned a request for comment.

Small’s case was one of dozens that the Supreme Court included in its Monday order list. The justices also declined this morning to hear an appeal by famed conspiracy theorist Alex Jones over a court sanction that he was given in a defamation case brought by families affected by the Sandy Hook Elementary School shooting.

Jones has told listeners of his “Infowars” show that the killing spree that left 20 first graders and six educators dead was a hoax, but it was his angry outburst against opposing counsel that earned him sanctions.

After accusing an attorney for the families of trying to “set me up with child porn,” Jones told his podcast listeners that they were at “total war” and he would pay $1 million to see the lawyer’s head on a spike.

As part of the sanction upheld by the Connecticut Supreme Court, Jones must pay some of the families’ legal fees. A motion by Jones to dismiss the case all together remains pending.

“The families are eager to resume their case and to hold Mr. Jones and his financial network accountable for their actions,” Joshua Koskoff, a lawyer for the Sandy Hook families, said in a statement Monday. “From the beginning, our goal has been to prevent future victims of mass shootings from being preyed on by opportunists.”

Jones’ attorney, Norman Pattis, voiced disappointment.

“Judge Bellis, and the Connecticut Supreme Court, asserted frightening and standardless power over the extrajudicial statements of litigants,” Pattis said Monday. “Mr. Jones never threatened anyone; had he done so, he would have been charged with a crime. We are inching our way case-by-case toward a toothless, politically correct, First Amendment.”

Per its custom, the Supreme Court turned Jones down without comment. The justices granted certiorari this morning to a single case involving a Michigan jury’s conviction of Ervine Davenport for the murder of Annette White.

Because the state put Davenport on trial in shackles, however, the Sixth Circuit ruled that it had violated his Fifth Amendment rights. Faced with an order now to retry the case, the state insists that Davenport’s jury would have reached the same verdict regardless of the shackles.

Whereas the Sixth Circuit says a federal habeas court may grant relief to a defendant if it concludes that the defendant suffered “actual prejudice,” the Second, Third, Seventh, Ninth and 10th Circuits have given state court decisions more deference.

Davenport is represented by attorney Tasha Bahal of WilmerHale, who declined to comment. Fadwa Hammoud of the Michigan Attorney General’s Office has not returned a request for comment.

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