Religion & Antidiscrimination Law
Religion & Antidiscrimination Law
Week IV: Accommodation & Establishment
A) Accommodation of Religious Belief Under Title VII
TRANS WORLD AIRLINES v. HARDISON
432 U.S. 63 (1977)
JUSTICE WHITE delivered the opinion of the Court. … 42 U.S.C. §2000e-2(a)(1), makes it an unlawful employment practice for an employer to discriminate against an employee or a prospective employee on the basis of his or her religion. At the time of the events involved here, a guideline of the Equal Employment Opportunity Commission (EEOC), 29 CFR §1605.1(b), required, as the Act itself now does, 42 U.S.C. §2000e(j), that an employer, short of “undue hardship,” make “reasonable accommodations” to the religious needs of its employees. The issue in this case is the extent of the employer’s obligation under Title VII to accommodate an employee whose religious beliefs prohibit him from working on Saturdays.
I. … Petitioner Trans World Airlines (TWA) operates a large maintenance and overhaul base in Kansas City, Mo. … [R]espondent Larry G. Hardison was hired by TWA to work as a clerk in the Stores Department at its Kansas City base. Because of its essential role in the Kansas City operation, the Stores Department must operate 24 hours per day, 365 days per year, and whenever an employee’s job in that department is not filled, an employee must be shifted from another department, or a supervisor must cover the job, even if the work in other areas may suffer.
Hardison, like other employees at the Kansas City base, was subject to a seniority system contained in a collective-bargaining agreement that TWA maintains with petitioner International Association of Machinists and Aerospace Workers (IAM). The seniority system is implemented by the union steward through a system of bidding by employees for particular shift assignments as they become available. The most senior employees have first choice for job and shift assignments, and the most junior employees are required to work when the union steward is unable to find enough people willing to work at a particular time or in a particular job to fill TWA’s needs.
[After he was hired,] Hardison began to study the religion known as the Worldwide Church of God. One of the tenets of that religion is that one must observe the Sabbath by refraining from performing any work from sunset on Friday until sunset on Saturday. The religion also proscribes work on certain specified religious holidays.
When Hardison informed Everett Kussman, the manager of the Stores Department, of his religious conviction regarding observance of the Sabbath, Kussman agreed that the union steward should seek a job swap for Hardison or a change of days off; that Hardison would have his religious holidays off whenever possible if Hardison agreed to work the traditional holidays when asked; and that Kussman would try to find Hardison another job that would be more compatible with his religious beliefs. The problem was temporarily solved when Hardison transferred to the 11 p.m.-7 a.m. shift. Working this shift permitted Hardison to observe his Sabbath.
The problem soon reappeared when Hardison bid for and received a transfer from Building 1, where he had been employed, to Building 2, where he would work the day shift. The two buildings had entirely separate seniority lists; and while in Building 1 Hardison had sufficient seniority to observe the Sabbath regularly, he was second from the bottom on the Building 2 seniority list.
In Building 2 Hardison was asked to work Saturdays when a fellow employee went on vacation. TWA agreed to permit the union to seek a change of work assignments for Hardison, but the union was not willing to violate the seniority provisions set out in the collective-bargaining contract, and Hardison had insufficient seniority to bid for a shift having Saturdays off.
A proposal that Hardison work only four days a week was rejected by the company. Hardison’s job was essential, and on weekends he was the only available person on his shift to perform it. To leave the position empty would have impaired supply shop functions, which were critical to airline operations; to fill Hardison’s position with a supervisor or an employee from another area would simply have undermanned another operation; and to employ someone not regularly assigned to work Saturdays would have required TWA to pay premium wages.
When an accommodation was not reached, Hardison refused to report for work on Saturdays. A transfer to the twilight shift proved unavailing since that schedule still required Hardison to work past sundown on Fridays. After a hearing, Hardison was discharged on grounds of insubordination for refusing to work during his designated shift.
Hardison … brought this action for injunctive relief … against TWA and IAM, claiming that his discharge by TWA constituted religious discrimination in violation of Title VII…. Hardison’s claim of religious discrimination rested on 1967 EEOC guidelines requiring employers “to make reasonable accommodations to the religious needs of employees” whenever such accommodation would not work an “undue hardship,” 29 CFR §1605.1, and on similar language adopted by Congress in the 1972 amendments to Title VII, 42 U.S.C. §2000e(j).
After a bench trial, the District Court ruled in favor of the defendants. … [T]he District Court rejected at the outset TWA’s contention that requiring it in any way to accommodate the religious needs of its employees would constitute an unconstitutional establishment of religion. As the District Court construed the Act, however, TWA had satisfied its “reasonable accommodations” obligation, and any further accommodation would have worked an undue hardship on the company.
The Court of Appeals for the Eighth Circuit reversed the judgment for TWA. It agreed with the District Court’s constitutional ruling, but held that TWA had not satisfied its duty to accommodate. … [W]e agree with [TWA and IAM] that their conduct was not a violation of Title VII….
II. The Court of Appeals found that TWA had committed an unlawful employment practice under … 42 U.S.C. §2000e-2 (a) (1), which provides:
(a) It shall be an unlawful employment practice for an employer -
(1) 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.
The emphasis of both the language and the legislative history of the statute is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin. This is true regardless of whether the discrimination is directed against majorities or minorities.
The prohibition against religious discrimination soon raised the question of whether it was impermissible … to discharge or refuse to hire a person who for religious reasons refused to work during the employer’s normal work-week. … In 1967 the EEOC amended its guidelines to require employers “to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business.” 29 CFR §1605.1. The EEOC did not suggest what sort of accommodations are “reasonable” or when hardship to an employer becomes “undue.”
This question - the extent of the required accommodation - remained unsettled when this Court, in Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971), affirmed by an equally divided Court the Sixth Circuit’s decision in 429 F.2d 324 (1970). The discharge of an employee who for religious reasons had refused to work on Sundays was there held by the Court of Appeals not to be an unlawful employment practice because the manner in which the employer allocated Sunday work assignments was discriminatory in neither its purpose nor effect; and consistent with the 1967 EEOC guidelines, the employer had made a reasonable accommodation of the employee’s beliefs by giving him the opportunity to secure a replacement for his Sunday work.8
In part “to resolve by legislation” some of the issues raised in Dewey, Congress included the following definition of religion in its 1972 amendments to Title VII:
The term ‘religion’ includes 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. 42 U.S.C. §2000e(j).
The intent and effect of this definition was to make it an unlawful employment practice … for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees. But like the EEOC guidelines, the statute provides no guidance for determining the degree of accommodation that is required of an employer. The brief legislative history … is likewise of little assistance in this regard.9 The proponent of the measure, Senator Jennings Randolph, expressed his general desire “to assure that freedom from religious discrimination in the employment of workers is for all time guaranteed by law,” but he made no attempt to define the precise circumstances under which the “reasonable accommodation” requirement would be applied.
In brief, the employer’s statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear, but the reach of that obligation has never been spelled out by Congress or by EEOC guidelines. With this in mind, we turn to a consideration of whether TWA has met its obligation under Title VII to accommodate the religious observances of its employees.
III. The Court of Appeals held that TWA had not made reasonable efforts to accommodate Hardison’s religious needs under the 1967 EEOC guidelines in effect at the time the relevant events occurred.11 In its view, TWA had rejected three reasonable alternatives, any one of which would have satisfied its obligation without undue hardship.
First, within the framework of the seniority system, TWA could have permitted Hardison to work a four-day week, utilizing in his place a supervisor or another worker on duty elsewhere. That this would have caused other shop functions to suffer was insufficient to amount to undue hardship in the opinion of the Court of Appeals.
Second - according to the Court of Appeals, also within the bounds of the collective-bargaining contract - the company could have filled Hardison’s Saturday shift from other available personnel competent to do the job, of which the court said there were at least 200. That this would have involved premium overtime pay was not deemed an undue hardship.
Third, TWA could have arranged a “swap between Hardison and another employee either for another shift or for the Sabbath days.” In response to the assertion that this would have involved a breach of the seniority provisions of the contract, the court noted that it had not been settled in the courts whether the required statutory accommodation to religious needs stopped short of transgressing seniority rules, but found it unnecessary to decide the issue because, as the Court of Appeals saw the record, TWA had not sought, and the union had therefore not declined to entertain, a possible variance from the seniority provisions of the collective-bargaining agreement. The company had simply left the entire matter to the union steward who the Court of Appeals said “likewise did nothing.”
We disagree with the Court of Appeals in all relevant respects. It is our view that TWA made reasonable efforts to accommodate and that each of the Court of Appeals’ suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines.
A. It might be inferred from the Court of Appeals’ opinion and from the brief of the EEOC in this Court that TWA’s efforts to accommodate were no more than negligible. The findings of the District Court, supported by the record, are to the contrary. In summarizing its more detailed findings, the District Court observed:
TWA established as a matter of fact that it did take appropriate action to accommodate as required by Title VII. It held several meetings with plaintiff at which it attempted to find a solution to plaintiff’s problems. It did accommodate plaintiff’s observance of his special religious holidays. It authorized the union steward to search for someone who would swap shifts, which apparently was normal procedure.
It is also true that TWA itself attempted without success to find Hardison another job. The District Court’s view was that TWA had done all that could reasonably be expected within the bounds of the seniority system. …
We shall say more about the seniority system, but at this juncture it appears to us that the system itself represented a significant accommodation to the needs, both religious and secular, of all of TWA’s employees. As will become apparent, the seniority system represents a neutral way of minimizing the number of occasions when an employee must work on a day that he would prefer to have off. Additionally, recognizing that weekend work schedules are the least popular, the company made further accommodation by reducing its work force to a bare minimum on those days.
B. We are also convinced, contrary to the Court of Appeals, that TWA itself cannot be faulted for having failed to work out a shift or job swap for Hardison. Both the union and TWA had agreed to the seniority system; the union was unwilling to entertain a variance over the objections of men senior to Hardison; and for TWA to have arranged unilaterally for a swap would have amounted to a breach of the collective-bargaining agreement.
(1) Hardison and the EEOC insist that the statutory obligation to accommodate religious needs takes precedence over both the collective-bargaining contract and the seniority rights of TWA’s other employees. We agree that neither a collective-bargaining contract nor a seniority system may be employed to violate the statute,12 but we do not believe that the duty to accommodate requires TWA to take steps inconsistent with the otherwise valid agreement. Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy, and seniority provisions are universally included in these contracts. Without a clear and express indication from Congress, we cannot agree with Hardison and the EEOC that an agreed-upon seniority system must give way when necessary to accommodate religious observances. The issue is important and warrants some discussion.
Any employer who, like TWA, conducts an around-the-clock operation is presented with the choice of allocating work schedules either in accordance with the preferences of its employees or by involuntary assignment. Insofar as the varying shift preferences of its employees complement each other, TWA could meet its manpower needs through voluntary work scheduling. In the present case, for example, Hardison’s supervisor foresaw little difficulty in giving Hardison his religious holidays off since they fell on days that most other employees preferred to work, while Hardison was willing to work on the traditional holidays that most other employees preferred to have off.
Whenever there are not enough employees who choose to work a particular shift, however, some employees must be assigned to that shift even though it is not their first choice. Such was evidently the case with regard to Saturday work; even though TWA cut back its weekend work force to a skeleton crew, not enough employees chose those days off to staff the Stores Department through voluntary scheduling. In these circumstances, TWA and IAM agreed to give first preference to employees who had worked in a particular department the longest.
Had TWA nevertheless circumvented the seniority system by relieving Hardison of Saturday work and ordering a senior employee to replace him, it would have denied the latter his shift preference so that Hardison could be given his. The senior employee would also have been deprived of his contractual rights under the collective-bargaining agreement.
It was essential to TWA’s business to require Saturday and Sunday work from at least a few employees even though most employees preferred those days off. Allocating the burdens of weekend work was a matter for collective bargaining. In considering criteria to govern this allocation, TWA and the union had two alternatives: adopt a neutral system, such as seniority, a lottery, or rotating shifts; or allocate days off in accordance with the religious needs of its employees. TWA would have had to adopt the latter in order to assure Hardison and others like him of getting the days off necessary for strict observance of their religion, but it could have done so only at the expense of others who had strong, but perhaps nonreligious, reasons for not working on weekends. There were no volunteers to relive Hardison on Saturdays, and to give Hardison Saturdays off, TWA would have had to deprive another employee of his shift preference at least in part because he did not adhere to a religion that observed the Saturday Sabbath.
Title VII does not contemplate such unequal treatment. The repeated, unequivocal emphasis of both the language and the legislative history of Title VII is on eliminating discrimination in employment, and such discrimination is proscribed when it is directed against majorities as well as minorities. Indeed, the foundation of Hardison’s claim is that TWA and IAM engaged in religious discrimination … when they failed to arrange for him to have Saturdays off. It would be anomalous to conclude that by “reasonable accommodation” Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far.
(2) Our conclusion is supported by the fact that seniority systems are afforded special treatment under Title VII itself, [which] provides in pertinent part:
Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system ... provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin... . 42 U.S.C.§2000e-2(h).
“[T]he unmistakable purpose of [this provision] was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII.” Teamsters v. United States, 431 U.S. 324, 352 (1977). … Thus, absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.
There has been no suggestion of discriminatory intent in this case. … The Court of Appeals’ conclusion that TWA was not limited by the terms of its seniority system was in substance nothing more than a ruling that operation of the seniority system was itself an unlawful employment practice even though no discriminatory purpose had been shown. That ruling is plainly inconsistent with the dictates of [§2000e-2](h), both on its face and as interpreted in the recent decisions of this Court. … 14
C. The Court of Appeals also suggested that TWA could have permitted Hardison to work a four-day week if necessary in order to avoid working on his Sabbath. Recognizing that this might have left TWA short-handed on the one shift each week that Hardison did not work, the court still concluded that TWA would suffer no undue hardship if it were required to replace Hardison either with supervisory personnel or with qualified personnel from other departments. Alternatively, the Court of Appeals suggested that TWA could have replaced Hardison on his Saturday shift with other available employees through the payment of premium wages. Both of these alternatives would involve costs to TWA, either in the form of lost efficiency in other jobs or higher wages.
To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.15 Like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. By suggesting that TWA should incur certain costs in order to give Hardison Saturdays off the Court of Appeals would in effect require TWA to finance an additional Saturday off and then to choose the employee who will enjoy it on the basis of his religious beliefs. While incurring extra costs to secure a replacement for Hardison might remove the necessity of compelling another employee to work involuntarily in Hardison’s place, it would not change the fact that the privilege of having Saturdays off would be allocated according to religious beliefs.
As we have seen, the paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment. In the absence of clear statutory language or legislative history to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath. Reversed.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting. … Today’s decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices. The Court holds, in essence, that although the EEOC regulations and the Act state that an employer must make reasonable adjustments in his work demands to take account of religious observances, the regulation and Act do not really mean what they say. An employer, the Court concludes, need not grant even the most minor special privilege to religious observers to enable them to follow their faith. As a question of social policy, this result is deeply troubling, for a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job. And as a matter of law today’s result is intolerable, for the Court adopts the very position that Congress expressly rejected in 1972, as if we were free to disregard congressional choices that a majority of this Court thinks unwise. I therefore dissent.
I. With respect to each of the proposed accommodations to respondent Hardison’s religious observances that the Court discusses, it ultimately notes that the accommodation would have required “unequal treatment,” in favor of the religious observer. That is quite true. But if an accommodation can be rejected simply because it involves preferential treatment, then the regulation and the statute, while brimming with “sound and fury,” ultimately “signif[y] nothing.”
The accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee. In some of the reported cases, the rule in question has governed work attire; in other cases it has required attendance at some religious function; in still other instances, it has compelled membership in a union; and in the largest class of cases, it has concerned work schedules. What all these cases have in common is an employee who could comply with the rule only by violating what the employee views as a religious commandment. In each instance, the question is whether the employee is to be exempt from the rule’s demands. To do so will always result in a privilege being “allocated according to religious beliefs,” unless the employer gratuitously decides to repeal the rule in toto. What the statute says, in plain words, is that such allocations are required unless “undue hardship” would result.
The point is perhaps best made by considering a not altogether hypothetical example. Assume that an employer requires all employees to wear a particular type of hat at work in order to make the employees readily identifiable to customers. Such a rule obviously does not, on its face, violate Title VII, and an employee who altered the uniform for reasons of taste could be discharged. But a very different question would be posed by the discharge of an employee who, for religious reasons, insisted on wearing over her hair a tightly fitted scarf which was visible through the hat. In such a case the employer could accommodate this religious practice without undue hardship - or any hardship at all. Yet as I understand the Court’s analysis - and nothing in the Court’s response, see footnotes 14-15, is to the contrary - the accommodation would not be required because it would afford the privilege of wearing scarfs to a select few based on their religious beliefs. The employee thus would have to give up either the religious practice or the job. This, I submit, makes a mockery of the statute.
In reaching this result, the Court seems almost oblivious of the legislative history of the 1972 amendments to Title VII which is briefly recounted in the Court’s opinion. That history is far more instructive than the Court allows. After the EEOC promulgated its second set of guidelines requiring reasonable accommodations unless undue hardship would result, at least two courts issued decisions questioning, whether the guidelines were consistent with Title VII. Dewey v. Reynolds Metals Co., 429 F.2d 324 (CA6 1970), aff’d by equally divided Court, 402 U.S. 689 (1971); Riley v. Bendix Corp., 330 F. Supp. 583 (MD Fla. 1971), rev’d, 464 F.2d 1113 (CA5 1972). These courts reasoned, in language strikingly similar to today’s decision, that to excuse religious observers from neutral work rules would “discriminate against ... other employees” and “constitute unequal administration of the collective-bargaining agreement.” Dewey v. Reynolds Metals Co., supra, at 330. They therefore refused to equate “religious discrimination with failure to accommodate.” 429 F.2d, at 335.
When Congress was reviewing Title VII in 1972, Senator Jennings Randolph informed the Congress of these decisions which, he said, had “clouded” the meaning of religious discrimination. He introduced an amendment, tracking the language of the EEOC regulation, to make clear that Title VII requires religious accommodation, even though unequal treatment would result. The primary purpose of the amendment, he explained, was to protect Saturday Sabbatarians like himself from employers who refuse “to hire or to continue in employment employees whose religious practices rigidly require them to abstain from work in the nature of hire on particular days.” His amendment was unanimously approved by the Senate on a roll-call vote, and was accepted by the Conference Committee, whose report was approved by both Houses. Yet the Court today, in rejecting any accommodation that involves preferential treatment, follows the Dewey decision in direct contravention of congressional intent. …
II. Once it is determined that the duty to accommodate sometimes requires that an employee be exempted from an otherwise valid work requirement, the only remaining question is whether this is such a case: Did TWA prove that it exhausted all reasonable accommodations, and that the only remaining alternatives would have caused undue hardship on TWA’s business? To pose the question is to answer it, for all that the District Court found TWA had done to accommodate respondent’s Sabbath observance was that it “held several meetings with [respondent] ... [and] authorized the union steward to search for someone who would swap shifts.” To conclude that TWA, one of the largest air carriers in the Nation, would have suffered undue hardship had it done anything more defies both reason and common sense.
The Court implicitly assumes that the only means of accommodation open to TWA were to compel an unwilling employee to replace Hardison; to pay premium wages to a voluntary substitute; or to employ one less person during respondent’s Sabbath shift.5 Based on this assumption, the Court seemingly finds that each alternative would have involved undue hardship not only because Hardison would have been given a special privilege, but also because either another employee would have been deprived of rights under the collective-bargaining agreement, or because “more than a de minimis cost,” would have been imposed on TWA. But the Court’s myopic view of the available options is not supported by either the District Court’s findings or the evidence adduced at trial. Thus, the Court’s conclusion cannot withstand analysis, even assuming that its rejection of the alternatives it does discuss is justifiable.6
To begin with, the record simply does not support the Court’s assertion, made without accompanying citations, that “[t]here were no volunteers to relieve Hardison on Saturdays.” Everett Kussman, the manager of the department in which respondent worked, testified that he had made no effort to find volunteers, and the union stipulated that its steward had not done so either. Thus, contrary to the Court’s assumption, there may have been one or more employees who, for reasons of either sympathy or personal convenience, willingly would have substituted for respondent [or] who preferred respondent’s Thursday-Monday daytime shift to his own…. Thus, respondent’s religious observance might have been accommodated by a simple trade of days or shifts without necessarily depriving any employee of his or her contractual rights and without imposing significant costs on TWA. Of course, it is also possible that no trade - or none consistent with the seniority system - could have been arranged. But the burden under the EEOC regulation is on TWA to establish that a reasonable accommodation was not possible. Because it failed either to explore the possibility of a voluntary trade or to assure that its delegate, the union steward, did so, TWA was unable to meet its burden.
Nor was a voluntary trade the only option open to TWA that the Court ignores; to the contrary, at least two other options are apparent from the record. First, TWA could have paid overtime to a voluntary replacement for respondent … and passed on the cost to respondent. … Alternatively, TWA could have transferred respondent back to his previous department where he had accumulated substantial seniority, as respondent also suggested.11 Admittedly, both options would have violated the collective-bargaining agreement; the former because the agreement required that employees working over 40 hours per week receive premium pay, and the latter because the agreement prohibited employees from transferring departments more than once every six months. But neither accommodation would have deprived any other employee of rights under the contract or violated the seniority system in any way.12 Plainly an employer cannot avoid his duty to accommodate by signing a contract that precludes all reasonable accommodations; even the Court appears to concede as much. Thus I do not believe it can be even seriously argued that TWA would have suffered “undue hardship” to its business had it required respondent to pay the extra costs of his replacement, or had it transferred respondent to his former department.
What makes today’s decision most tragic, however, is not that respondent Hardison has been needlessly deprived of his livelihood simply because he chose to follow the dictates of his conscience. Nor is the tragedy exhausted by the impact it will have on thousands of Americans like Hardison who could be forced to live on welfare as the price they must pay for worshiping their God.14 The ultimate tragedy is that despite Congress’ best efforts, one of this Nation’s pillars of strength - our hospitality to religious diversity - has been seriously eroded. All Americans will be a little poorer until today’s decision is erased. I respectfully dissent.
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ANSONIA BOARD OF EDUCATION v. PHILBROOK
479 U.S. 60 (1986)
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Petitioner Ansonia Board of Education has employed respondent Ronald Philbrook since 1962 to teach high school business and typing classes in Ansonia, Connecticut. In 1968, Philbrook was baptized into the Worldwide Church of God. The tenets of the church require members to refrain from secular employment during designated holy days, a practice that has caused respondent to miss approximately six schooldays each year. We are asked to determine whether the employer’s efforts to adjust respondent’s work schedule in light of his belief fulfill its obligation under 42 U.S.C. §2000e(j), to “reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.”
Since the 1967-1968 school year, the school board’s collective-bargaining agreements with the Ansonia Federation of Teachers have granted to each teacher 18 days of leave per year for illness, cumulative to 150 and later to 180 days. Accumulated leave may be used for purposes other than illness as specified in the agreement. A teacher may accordingly use five days’ leave for a death in the immediate family, one day for attendance at a wedding, three days per year for attendance as an official delegate to a national veterans organization, and the like. With the exception of the agreement covering the 1967-1968 school year, each contract has specifically provided three days’ annual leave for observance of mandatory religious holidays, as defined in the contract. Unlike other categories for which leave is permitted, absences for religious holidays are not charged against the teacher’s annual or accumulated leave.
The school board has also agreed that teachers may use up to three days of accumulated leave each school year for “necessary personal business.” Recent contracts limited permissible personal leave to those uses not otherwise specified in the contract. This limitation dictated, for example, that an employee who wanted more than three leave days to attend the convention of a national veterans organization could not use personal leave to gain extra days for that purpose. Likewise, an employee already absent three days for mandatory religious observances could not later use personal leave for “[a]ny religious activity,” or “[a]ny religious observance.” Since the 1978-1979 school year, teachers have been allowed to take one of the three personal days without prior approval; use of the remaining two days requires advance approval by the school principal.
The limitations on the use of personal business leave spawned this litigation. Until the 1976-1977 year, Philbrook observed mandatory holy days by using the three days granted in the contract and then taking unauthorized leave. His pay was reduced accordingly. In 1976, however, respondent stopped taking unauthorized leave for religious reasons, and began scheduling required hospital visits on church holy days. He also worked on several holy days. Dissatisfied with this arrangement, Philbrook repeatedly asked the school board to adopt one of two alternatives. His preferred alternative would allow use of personal business leave for religious observance, effectively giving him three additional days of paid leave for that purpose. Short of this arrangement, respondent suggested that he pay the cost of a substitute and receive full pay for additional days off for religious observances.3 Petitioner has consistently rejected both proposals.
… Philbrook filed a complaint … alleging that the prohibition on the use of “necessary personal business” leave for religious observance violated 42 U.S.C. §2000e-2(a)(1), (2) …. After a 2-day trial, the District Court concluded that Philbrook had failed to prove a case of religious discrimination because he had not been placed by the school board in a position of violating his religion or losing his job.
The Court of Appeals for the Second Circuit reversed and remanded for further proceedings. It held … that “[w]here the employer and the employee each propose a reasonable accommodation, Title VII requires the employer to accept the proposal the employee prefers unless that accommodation causes undue hardship on the employer’s conduct of his business.” The Court of Appeals remanded for consideration of the hardship that would result from Philbrook’s suggestions.
We granted certiorari to consider … whether the Court of Appeals erred in … opining that an employer must accept the employee’s preferred accommodation absent proof of undue hardship. We find little support in the statute for the approach adopted by the Court of Appeals….
In Hardison, we determined that an accommodation causes “undue hardship” whenever that accommodation results in “more than a de minimis cost” to the employer. Hardison had been discharged because his religious beliefs would not allow him to work on Saturdays and claimed that this action violated the employer’s duty to effect a reasonable accommodation of his beliefs. Because we concluded that each of the suggested accommodations would impose on the employer an undue hardship, we had no occasion to consider … whether an employer is required to choose from available accommodations the alternative preferred by the employee. The employer in Hardison simply argued that all conceivable accommodations would result in undue hardship, and we agreed.
… [T]he Court of Appeals assumed that the employer had offered a reasonable accommodation of Philbrook’s religious beliefs. This alone, however, was insufficient in that court’s view to allow resolution of the dispute. The court observed that the duty to accommodate “cannot be defined without reference to undue hardship.” It accordingly determined that the accommodation obligation includes a duty to accept “the proposal the employee prefers unless that accommodation causes undue hardship on the employer’s conduct of his business.” Cf. American Postal Workers Union v. Postmaster General, 781 F.2d 772, 776 (CA9 1986) (Title VII does not dictate that “an employer must accept any accommodation, short of ‘undue hardship,’ proposed by an employee...”). Because the District Court had not considered whether Philbrook’s proposals would impose undue hardship, the Court of Appeals remanded for further consideration of those proposals.
We find no basis in either the statute or its legislative history for requiring an employer to choose any particular reasonable accommodation. By its very terms the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation. The employer violates the statute unless it “demonstrates that [it] is unable to reasonably accommodate . . . an employee’s . . . religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. §2000e(j). Thus, where the employer has already reasonably accommodated the employee’s religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee’s alternative accommodations would result in undue hardship. As Hardison illustrates, the extent of undue hardship on the employer’s business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship. Once the Court of Appeals assumed that the school board had offered to Philbrook a reasonable alternative, it erred by requiring the Board to nonetheless demonstrate the hardship of Philbrook’s alternatives.
The legislative history of [§2000e(j)], as we noted in Hardison, is of little help in defining the employer’s accommodation obligation. To the extent it provides any indication of congressional intent, however, we think that the history supports our conclusion. Senator Randolph, the sponsor of the amendment that became [§2000e(j)], expressed his hope that accommodation would be made with “flexibility” and “a desire to achieve an adjustment.” Consistent with these goals, courts have noted that “bilateral cooperation is appropriate in the search for an acceptable reconciliation of the needs of the employee’s religion and the exigencies of the employer’s business.” Brener v. Diagnostic Center Hospital, 671 F.2d 141, 145-146 (5th Cir. 1982). See also American Postal Workers, supra, at 777. Under the approach articulated by the Court of Appeals, however, the employee is given every incentive to hold out for the most beneficial accommodation, despite the fact that an employer offers a reasonable resolution of the conflict. This approach, we think, conflicts with both the language of the statute and the views that led to its enactment. We accordingly hold that an employer has met its obligation under [§2000e(j)] when it demonstrates that it has offered a reasonable accommodation to the employee.
The remaining issue in the case is whether the school board’s leave policy constitutes a reasonable accommodation of Philbrook’s religious beliefs. Because both the District Court and the Court of Appeals applied what we hold to be an erroneous view of the law, neither explicitly considered this question. We think that there are insufficient factual findings as to the manner in which the collective-bargaining agreements have been interpreted in order for us to make that judgment initially. We think that the school board policy in this case, requiring respondent to take unpaid leave for holy day observance that exceeded the amount allowed by the collective-bargaining agreement, would generally be a reasonable one. In enacting [§2000e(j)], Congress was understandably motivated by a desire to assure the individual additional opportunity to observe religious practices, but it did not impose a duty on the employer to accommodate at all costs. Hardison. The provision of unpaid leave eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully religious holy days and requires him only to give up compensation for a day that he did not in fact work. Generally speaking, “[t]he direct effect of [unpaid leave] is merely a loss of income for the period the employee is not at work; such an exclusion has no direct effect upon either employment opportunities or job status.” Nashville Gas Co. v. Satty, 434 U.S. 136, 145 (1977).
But unpaid leave is not a reasonable accommodation when paid leave is provided for all purposes except religious ones. A provision for paid leave “that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free ... not to provide the benefit at all.” Hishon v. King & Spalding, 467 U.S. 69, 75 (1984). Such an arrangement would display a discrimination against religious practices that is the antithesis of reasonableness. Whether the policy here violates this teaching turns on factual inquiry into past and present administration of the personal business leave provisions of the collective-bargaining agreement. The school board contends that the necessary personal business category in the agreement, like other leave provisions, defines a limited purpose leave. Philbrook, on the other hand, asserts that the necessary personal leave category is not so limited, operating as an open-ended leave provision that may be used for a wide range of secular purposes in addition to those specifically provided for in the contract, but not for similar religious purposes. We do not think that the record is sufficiently clear on this point for us to make the necessary factual findings, and we therefore affirm the judgment of the Court of Appeals remanding the case to the District Court. The latter court on remand should make the necessary findings as to past and existing practice in the administration of the collective-bargaining agreements.
JUSTICE MARSHALL, concurring in part and dissenting in part. … The Court suggests that requiring an employer to consider an employee’s proposals would enable the employee to hold his employer hostage in exchange for a particular accommodation. If the employer has offered a reasonable accommodation that fully resolves the conflict between the employee’s work and religious requirements, I agree that no further consideration of the employee’s proposals would normally be warranted. But if the accommodation offered by the employer does not completely resolve the employee’s conflict, I would hold that the employer remains under an obligation to consider whatever reasonable proposals the employee may submit.
I do not accept the Court’s conclusion that the statute, “[b]y its very terms,” relieves the Board from this continuing duty to accommodate the special religious practices of its employees where doing so is reasonable and causes no undue hardship. The statute simply creates an affirmative duty to accommodate; it does not specify who must respond to whom. …
In this case, contrary to the Court’s conclusion, the school board’s accommodation of Philbrook’s religious needs by merely allowing unpaid leave does not eliminate the conflict. Rather, the offer forces Philbrook to choose between following his religious precepts with a partial forfeiture of salary and violating these precepts for work with full pay. It is precisely this loss of compensation that entitles Philbrook to further accommodation, if reasonably possible without undue hardship to the school board’s educational program. It may be that unpaid leave will generally amount to a reasonable accommodation, but this does not mean that unpaid leave will always be the reasonable accommodation which best resolves the conflict between the needs of the employer and employee. In my view, then, an offer of unpaid leave does not end the inquiry: If an employee, in turn, offers another reasonable proposal that results in a more effective resolution without causing undue hardship, the employer should be required to implement it. …
Accordingly, I would remand this case for factual findings on both the intended scope of the school board’s leave provision and the reasonableness and expected hardship of Philbrook’s proposals.
JUSTICE STEVENS, concurring in part and dissenting in part. While I agree with the Court’s rejection of the rationale of the Court of Appeals’ opinion, I would simply reverse its judgment. Remanding for further proceedings in the District Court is both unnecessary and confusing. Whether respondent Philbrook’s complaint is analyzed as an outright claim that he is entitled to six paid days of leave for religious observance or as an argument that petitioner’s employment policies, while facially neutral, fail to accommodate his religious beliefs, the record before us plainly discloses that he cannot prevail.
I. … The statute does not allow a plaintiff raising a claim under [§2000e(j)] to charge immediately onto the field of undue hardship. Folded within [§2000e(j)] are certain preliminary inquiries. First, the court must ask whether the employee’s job obligations are in conflict with his religious obligations. … Absent a conflict, it makes no sense to speak of a duty to accommodate; there is no competing claim on the employee for which the employer must make adjustments. If the duty does arise, the statute requires the employer to resolve the conflict if it can do so without undue hardship. As the Court correctly holds, the employer has no statutory duty to resolve the conflict in the way the employee requests as long as the solution that is adopted is reasonable. I find it equally clear that the employer has no statutory duty to do anything more than strictly necessary to resolve the conflict.
Because the existence and scope of the duty to accommodate depend solely on the nature of the conflict between the terms of the job and the requirements of the religion, it is essential to identify the alleged conflict as precisely as possible. In this case Philbrook’s faith prevents him from working on certain schooldays. The school board does not require him to work on any of those days; on three of those days each year it pays him even though he does not work, and on the other days it declines to pay him for the time that he spends discharging his religious obligations. The existence of a conflict is thus not immediately apparent. …
II. Philbrook has contended that the school board has discriminated on the basis of religion in the allocation of its paid annual leave, or more specifically, in the limitation it has placed on the use of three days of paid annual leave for necessary personal business. Properly viewed, the conflict Philbrook alleges is one which is not cognizable under 703 and therefore entitles him to no relief. He points to the conflict, by no means specific to the practice of religion, between the Board’s leave policy and the needs of an employee who wishes to use the three days of necessary personal business leave for any purpose not allowed by the contract. The Board allows all of its teachers three days of paid annual leave for “necessary personal business” but prohibits them from using any of those days for “[a]ny religious activity.” On its face, this prohibition might appear to discriminate against employees who need to take a day off to attend church in favor of those who need a day off for secular reasons. The argument fails, however, because it does not fully describe either the scope of the separate provision for paid leave for religious purposes or the restricted scope of the provision for leave for necessary personal business.
The collective-bargaining agreement between the school board and the teachers’ union contains generous provisions for paid leave for various specific purposes. After stating that 18 days of annual leave shall be granted “for personal illness and/or illness in the immediate family,” the contract specifies 11 additional categories of personal leave, including 5 days for a death in the immediate family, 1 day each for attendance at funerals, weddings, graduations, and immediate family religious services, and 3 days each for “[m]andated religious observances” and “[n]ecessary personal business.” The teacher is not required to identify the specific character of his personal business, but the contract limits the teacher’s discretion by stating:
“Necessary personal business shall not include (without limitations):
“1. Marriage attendance or participation;
“2. Day following marriage or wedding trip;
“3. Attendance or participation in a sporting or recreational event
“4. Any religious observance;
“5. Travel associated with any provision of annual leave;
“6. Purposes set forth under annual leave or another leave provision of this contract.”
Philbrook does not contend that the leave policy is discriminatory because he is eligible for, or has actually received, fewer days of paid leave than members of other religious faiths or than teachers who have no religious obligations on schooldays. The basis of his principal discrimination argument is that the total of six days for mandated religious observances and necessary personal business is not adequate to enable him to take care of “the personal business that is most important and pressing to him: religious activity and observance,” whereas this combination of six days of paid leave is adequate for some teachers who have different religious and ethical commitments. Quite clearly, however, this argument rests on the premise that Philbrook’s special, that is, religious, needs entitle him to extraordinary treatment. His “discrimination” argument states a grievance against equal treatment rather than a claim that he has been the recipient of unequal treatment. 2
This point comes into sharp focus when the contractual prohibition against using the three days of personal leave for “any religious observance” is seen for what it is, merely a part of the broader prohibition against using personal business leave for any of the purposes specifically authorized in the contract. The existing leave policy denies paid days to any teacher who proposes to take more paid days of personal business leave per year to fulfill his or her commitments than the contract allows. Philbrook’s wish to use his secular leave for religious purposes is thwarted by the same policy that denies an avid official delegate to a national veterans’ organization use of secular leave days for that activity in excess of the days specifically allotted for it under the contract. In fact, since three days are expressly authorized for mandated religious observances - events that recur each year - whereas most other categories of paid leave cover relatively infrequent contingencies such as a death in the family or attendance at a family wedding, it is highly probable that the leave policy as a whole tends to favor, rather than to disfavor, persons who must observe religious days during the school year. For example, an atheist who attends a wedding, a funeral, and a graduation on schooldays receives a total of three days of paid personal leave, but a religious person who attends the same three events on paid days also receives pay for three religious days.
III. Philbrook’s second claim is that the board has a duty of reasonable accommodation “to mitigate the burden of the Board’s requirement that [he] work without pay in connection with his absence for religious observance.” This claim founders because it discloses no conflict between Philbrook’s religion and his employment. If he had been disciplined, or discharged, for taking too many days off for religious services, the result would be different, but the only inconvenience to which he is subjected is the necessity of doing work on paid days that he was unable to do during his days of religious observance. This inconvenience arises not because of any discrimination against religion, but because the employee’s missed day of work is unpaid. Every employee who takes a day off from work for an unauthorized purpose suffers the same inconvenience as Philbrook; each loses a day of pay and must make up the work associated with that day. The obligation to perform the work carries over, not because the employee has exercised his religion in the one case or satisfied a secular business need in another, but for the generic and shared reason that the employee was not paid for a day on which he was hired to do work. Since no statutory conflict between Philbrook’s religion and his work duties occurred, the duty to accommodate his religious practices never arose. …
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B) Key Issue #3: Accommodations Issues
When, if ever, should private employers/providers alter their normal methods of operation to accommodate the religious beliefs or practices of employees/tenants/patrons?
1) Hardison and Philbrook hold that “undue hardship” in §2000e(j) means any burden on the employer that is more than “de minimis.” What arguments do you see for and against using this as the test for when a requested accommodation is reasonable?
2) The majority in Hardison and Justice Stevens in Philbrook are concerned about “discriminating” against non-religious employees. What do you see as the relationship between the concepts of “discrimination”, “equality”, and “reasonable accommodations”?
3) Employers often have rules about personal appearance that may include bans on facial hair, headgear or jewelry; uniform dress codes; and rules about length and style of hair. Under what circumstances, if any, should religious individuals be exempted from personal appearance codes? Does it matter whether the employer is, e.g., a
a. fast food restaurant
b. police department
c. private school
d. industrial machine shop
e. state government office serving the public
4) A high-rise building with just one elevator houses a significant number of Orthodox Jews; they request that the management program the elevator to run continuously on the Sabbath, stopping at every floor on the way up and the way down so they can enter and leave the building without pressing a button that uses electricity. Should the management grant the request?
5) A courier for a large delivery service has religious objections to homosexuality and abortion. She requests that she not be assigned to pick up and deliver letters and packages from a short list of organizations that advocate support for abortion and gay rights. Under what circumstances, if any, should the management honor her requests.
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C) Accommodations & Exceptions as Establishment Clause Violations
ESTATE OF THORNTON V. CALDOR, INC
472 U.S. 703 (1985)
Chief Justice BURGER delivered the opinion of the Court. We granted certiorari to decide whether a state statute that provides employees with the absolute right not to work on their chosen Sabbath violates the Establishment Clause of the First Amendment.
I. In early 1975, petitioner’s decedent Donald E. Thornton1 began working for respondent Caldor, Inc., a chain of New England retail stores; he managed the men’s and boys’ clothing department in respondent’s Waterbury, Connecticut, store. At that time, respondent’s Connecticut stores were closed on Sundays pursuant to state law.
In 1977, following the state legislature’s revision of the Sunday-closing laws, respondent opened its Connecticut stores for Sunday business. In order to handle the expanded store hours, respondent required its managerial employees to work every third or fourth Sunday. Thornton, a Presbyterian who observed Sunday as his Sabbath, initially complied with respondent’s demand and worked a total of 31 Sundays in 1977 and 1978. In October 1978, Thornton was transferred to a management position in respondent’s Torrington store; he continued to work on Sundays during the first part of 1979. In November 1979, however, Thornton informed respondent that he would no longer work on Sundays because he observed that day as his Sabbath; he invoked the protection of Conn.Gen.Stat. §53-303e(b), which provides:
No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day. An employee’s refusal to work on his Sabbath shall not constitute grounds for his dismissal.
Thornton rejected respondent’s offer either to transfer him to a management job in a Massachusetts store that was closed on Sundays, or to transfer him to a nonsupervisory position in the Torrington store at a lower salary.4 In March 1980, respondent transferred Thornton to a clerical position in the Torrington store; Thornton resigned two days later and filed a grievance with the State Board of Mediation and Arbitration alleging that he was discharged from his manager’s position in violation of Conn.Gen.Stat. §53-303e(b).
… After holding an evidentiary hearing the Board evaluated the sincerity of Thornton’s claim and concluded it was based on a sincere religious conviction; it issued a formal decision sustaining Thornton’s grievance. The Board framed the statutory issue as follows: “If a discharge for refusal to work Sunday hours occurred and Sunday was the Grievant’s Sabbath...,” §53-303e(b) would be violated; the Board held that respondent had violated the statute by “discharg[ing] Mr. Thornton as a management employee for refusing to work... [on] Thornton’s ... Sabbath.” The Board ordered respondent to reinstate Thornton…. The Superior Court, in affirming that ruling, concluded that the statute did not offend the Establishment Clause.
The Supreme Court of Connecticut reversed, holding the statute did not have a “clear secular purpose.” By authorizing each employee to designate his own Sabbath as a day off, the statute evinced the “unmistakable purpose ... [of] allow[ing] those persons who wish to worship on a particular day the freedom to do so.” The court then held that the “primary effect” of the statute was to advance religion because the statute “confers its ‘benefit’ on an explicitly religious basis. Only those employees who designate a Sabbath are entitled not to work on that particular day, and may not be penalized for so doing.” The court noted that the statute required the State Mediation Board to decide which religious activities may be characterized as an “observance of Sabbath” in order to assess employees’ sincerity, and concluded that this type of inquiry is “exactly the type of ‘comprehensive, discriminating and continuing state surveillance’ ... which creates excessive governmental entanglements between church and state.” Lemon v. Kurtzman, 403 U.S. 602, 619 (1971).
We granted certiorari. We affirm.
II. Under the Religion Clauses, government must guard against activity that impinges on religious freedom, and must take pains not to compel people to act in the name of any religion. In setting the appropriate boundaries in Establishment Clause cases, the Court has frequently relied on our holding in Lemon, supra, for guidance, and we do so here. To pass constitutional muster under Lemon a statute must not only have a secular purpose and not foster excessive entanglement of government with religion, its primary effect must not advance or inhibit religion.
The Connecticut statute challenged here guarantees every employee, who “states that a particular day of the week is observed as his Sabbath,” the right not to work on his chosen day. The State has thus decreed that those who observe a Sabbath any day of the week as a matter of religious conviction must be relieved of the duty to work on that day, no matter what burden or inconvenience this imposes on the employer or fellow workers. The statute arms Sabbath observers with an absolute and unqualified right not to work on whatever day they designate as their Sabbath.
In essence, the Connecticut statute imposes on employers and employees an absolute duty to conform their business practices to the particular religious practices of the employee by enforcing observance of the Sabbath the employee unilaterally designates. The State thus commands that Sabbath religious concerns automatically control over all secular interests at the workplace; the statute takes no account of the convenience or interests of the employer or those of other employees who do not observe a Sabbath. The employer and others must adjust their affairs to the command of the State whenever the statute is invoked by an employee.
There is no exception under the statute for special circumstances, such as the Friday Sabbath observer employed in an occupation with a Monday through Friday schedule—a school teacher, for example; the statute provides for no special consideration if a high percentage of an employer’s work force asserts rights to the same Sabbath. Moreover, there is no exception when honoring the dictates of Sabbath observers would cause the employer substantial economic burdens or when the employer’s compliance would require the imposition of significant burdens on other employees required to work in place of the Sabbath observers.9 Finally, the statute allows for no consideration as to whether the employer has made reasonable accommodation proposals.
This unyielding weighting in favor of Sabbath observers over all other interests contravenes a fundamental principle of the Religion Clauses, so well articulated by Judge Learned Hand: “The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.” Otten v. Baltimore & Ohio R. Co., 205 F.2d 58, 61 (2d Cir.1953). As such, the statute goes beyond having an incidental or remote effect of advancing religion. The statute has a primary effect that impermissibly advances a particular religious practice.
III. We hold that the Connecticut statute, which provides Sabbath observers with an absolute and unqualified right not to work on their Sabbath, violates the Establishment Clause of the First Amendment. Accordingly, the judgment of the Supreme Court of Connecticut is Affirmed.
Justice REHNQUIST dissents.
Justice O’CONNOR, with whom Justice MARSHALL joins, concurring. The Court applies the test enunciated in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), and concludes that Conn.Gen.Stat. §53-303e(b) has a primary effect that impermissibly advances religion. I agree, and I join the Court’s opinion and judgment. In my view, the Connecticut Sabbath law has an impermissible effect because it conveys a message of endorsement of the Sabbath observance.
All employees, regardless of their religious orientation, would value the benefit which the statute bestows on Sabbath observers—the right to select the day of the week in which to refrain from labor. Yet Connecticut requires private employers to confer this valued and desirable benefit only on those employees who adhere to a particular religious belief. The statute singles out Sabbath observers for special and, as the Court concludes, absolute protection without according similar accommodation to ethical and religious beliefs and practices of other private employees. There can be little doubt that an objective observer or the public at large would perceive this statutory scheme precisely as the Court does today. The message conveyed is one of endorsement of a particular religious belief, to the detriment of those who do not share it. As such, the Connecticut statute has the effect of advancing religion, and cannot withstand Establishment Clause scrutiny.
I do not read the Court’s opinion as suggesting that the religious accommodation provisions of Title VII of the Civil Rights Act of 1964 are similarly invalid. These provisions preclude employment discrimination based on a person’s religion and require private employers to reasonably accommodate the religious practices of employees unless to do so would cause undue hardship to the employer’s business. 42 U.S.C. §§ 2000e(j) and 2000e-2(a)(1). Like the Connecticut Sabbath law, Title VII attempts to lift a burden on religious practice that is imposed by private employers, and hence it is not the sort of accommodation statute specifically contemplated by the Free Exercise Clause. The provisions of Title VII must therefore manifest a valid secular purpose and effect to be valid under the Establishment Clause. In my view, a statute outlawing employment discrimination based on race, color, religion, sex, or national origin has the valid secular purpose of assuring employment opportunity to all groups in our pluralistic society. Since Title VII calls for reasonable rather than absolute accommodation and extends that requirement to all religious beliefs and practices rather than protecting only the Sabbath observance, I believe an objective observer would perceive it as an anti-discrimination law rather than an endorsement of religion or a particular religious practice.
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CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. AMOS
483 U.S. 327 (1987)
Justice WHITE delivered the opinion of the Court. Section 702 of the Civil Rights Act of 1964 exempts religious organizations from Title VII’s prohibition against discrimination in employment on the basis of religion.1 The question presented is whether applying the §702 exemption to the secular nonprofit activities of religious organizations violates the Establishment Clause of the First Amendment. The District Court held that it does…. We reverse.
I. The Deseret Gymnasium (Gymnasium) in Salt Lake City, Utah, is a nonprofit facility, open to the public, run by the Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints (CPB), and the Corporation of the President of The Church of Jesus Christ of Latter-day Saints (COP). The CPB and the COP are religious entities associated with The Church of Jesus Christ of Latter-day Saints (Church), an unincorporated religious association sometimes called the Mormon or LDS Church.
Appellee Mayson worked at the Gymnasium for some 16 years as an assistant building engineer and then as building engineer. He was discharged in 1981 because he failed to qualify for a temple recommend, that is, a certificate that he is a member of the Church and eligible to attend its temples.4
Mayson and others … brought an action against the CPB and the COP alleging, among other things, discrimination on the basis of religion in violation of 42 U.S.C. §2000e-2. The defendants moved to dismiss this claim on the ground that §702 shields them from liability. The plaintiffs contended that if construed to allow religious employers to discriminate on religious grounds in hiring for nonreligious jobs, §702 violates the Establishment Clause.
The District Court first considered whether the facts of these cases require a decision on the plaintiffs’ constitutional argument. Starting from the premise that the religious activities of religious employers can permissibly be exempted under §702, the court developed a three-part test to determine whether an activity is religious.6 Applying this test to Mayson’s situation, the court found: first, that the Gymnasium is intimately connected to the Church financially and in matters of management; second, that there is no clear connection between the primary function which the Gymnasium performs and the religious beliefs and tenets of the Mormon Church or church administration;7 and third, that none of Mayson’s duties at the Gymnasium are “even tangentially related to any conceivable religious belief or ritual of the Mormon Church or church administration.” The court concluded that Mayson’s case involves nonreligious activity.
The court next considered the plaintiffs’ constitutional challenge to §702. Applying the three-part test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971), the court first held that §702 has the permissible secular purpose of “assuring that the government remains neutral and does not meddle in religious affairs by interfering with the decision-making process in religions....”9 The court concluded, however, that §702 fails the second part of the Lemon test because the provision has the primary effect of advancing religion.10 Among the considerations mentioned by the court were: that §702 singles out religious entities for a benefit, rather than benefiting a broad grouping of which religious organizations are only a part;11 that §702 is not supported by long historical tradition;12 and that §702 burdens the free exercise rights of employees of religious institutions who work in nonreligious jobs. Finding that §702 impermissibly sponsors religious organizations by granting them “an exclusive authorization to engage in conduct which can directly and immediately advance religious tenets and practices,” the court declared the statute unconstitutional as applied to secular activity. …
II. “This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.” Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144-145 (1987). It is well established, too, that “[t]he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.” Walz v. Tax Comm’n, 397 U.S. 664, 673 (1970). There is ample room under the Establishment Clause for “benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Id., at 669. At some point, accommodation may devolve into “an unlawful fostering of religion,” Hobbie, 480 U.S., at 145, but these are not such cases, in our view.
The private appellants contend that we should not apply the three-part Lemon approach, which is assertedly unsuited to judging the constitutionality of exemption statutes such as §702. The argument is that an exemption statute will always have the effect of advancing religion and hence be invalid under the second (effects) part of the Lemon test, a result claimed to be inconsistent with cases such as Walz v. Tax Comm’n, supra, which upheld property tax exemptions for religious organizations. The first two of the three Lemon factors, however, were directly taken from pre-Walz decisions, 403 U.S., at 612-613, and Walz did not purport to depart from prior Establishment Clause cases, except by adding a consideration that became the third element of the Lemon test. 403 U.S., at 613. In any event, we need not reexamine Lemon as applied in this context, for the exemption involved here is in no way questionable under the Lemon analysis.
Lemon requires first that the law at issue serve a “secular legislative purpose.” Id., at 612. This does not mean that the law’s purpose must be unrelated to religion—that would amount to a requirement “that the government show a callous indifference to religious groups,” Zorach v. Clauson, 343 U.S. 306, 314 (1952), and the Establishment Clause has never been so interpreted. Rather, Lemon’s “purpose” requirement aims at preventing the relevant governmental decisionmaker—in this case, Congress—from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.
Under the Lemon analysis, it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions. Appellees argue that there is no such purpose here because §702 provided adequate protection for religious employers prior to the 1972 amendment, when it exempted only the religious activities of such employers from the statutory ban on religious discrimination. We may assume for the sake of argument that the pre-1972 exemption was adequate in the sense that the Free Exercise Clause required no more. Nonetheless, it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission.14 Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.
After a detailed examination of the legislative history of the 1972 amendment, the District Court concluded that Congress’ purpose was to minimize governmental “interfer[ence] with the decision-making process in religions.” We agree with the District Court that this purpose does not violate the Establishment Clause.
The second requirement under Lemon is that the law in question have “a principal or primary effect ... that neither advances nor inhibits religion.” 403 U.S. at 612. Undoubtedly, religious organizations are better able now to advance their purposes than they were prior to the 1972 amendment to §702. But religious groups have been better able to advance their purposes on account of many laws that have passed constitutional muster: for example, the property tax exemption at issue in Walz v. Tax Comm’n, supra, or the loans of schoolbooks to school-children, including parochial school students, upheld in Board of Education v. Allen, 392 U.S. 236 (1968). A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to have forbidden “effects” under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence. As the Court observed in Walz, “for the men who wrote the Religion Clauses of the First Amendment the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.” 397 U.S. at 668. Accord, Lemon, 403 U.S. at 612.
The District Court appeared to fear that sustaining the exemption would permit churches with financial resources impermissibly to extend their influence and propagate their faith by entering the commercial, profit-making world. The cases before us, however, involve a nonprofit activity instituted over 75 years ago in the hope that “all who assemble here, and who come for the benefit of their health, and for physical blessings, [may] feel that they are in a house dedicated to the Lord.” Dedicatory Prayer for the Gymnasium. These cases therefore do not implicate the apparent concerns of the District Court. Moreover, we find no persuasive evidence in the record before us that the Church’s ability to propagate its religious doctrine through the Gymnasium is any greater now than it was prior to the passage of the Civil Rights Act in 1964. In such circumstances, we do not see how any advancement of religion achieved by the Gymnasium can be fairly attributed to the Government, as opposed to the Church.15
We find unpersuasive the District Court’s reliance on the fact that §702 singles out religious entities for a benefit. Although the Court has given weight to this consideration in its past decisions, it has never indicated that statutes that give special consideration to religious groups are per se invalid. That would run contrary to the teaching of our cases that there is ample room for accommodation of religion under the Establishment Clause. Where, as here, government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption comes packaged with benefits to secular entities.
We are also unpersuaded by the District Court’s reliance on the argument that §702 is unsupported by long historical tradition. There was simply no need to consider the scope of the §702 exemption until the 1964 Civil Rights Act was passed, and the fact that Congress concluded after eight years that the original exemption was unnecessarily narrow is a decision entitled to deference, not suspicion.
Appellees argue that §702 offends equal protection principles by giving less protection to the employees of religious employers than to the employees of secular employers. Appellees rely on Larson v. Valente, 456 U.S. 228, 246 (1982), for the proposition that a law drawing distinctions on religious grounds must be strictly scrutinized. But Larson indicates that laws discriminating among religions are subject to strict scrutiny, ibid., and that laws “affording a uniform benefit to all religions” should be analyzed under Lemon, 456 U.S. at 252. In cases such as these, where a statute is neutral on its face and motivated by a permissible purpose of limiting governmental interference with the exercise of religion, we see no justification for applying strict scrutiny to a statute that passes the Lemon test. The proper inquiry is whether Congress has chosen a rational classification to further a legitimate end. We have already indicated that Congress acted with a legitimate purpose in expanding the §702 exemption to cover all activities of religious employers. To dispose of appellees’ equal protection argument, it suffices to hold—as we now do—that as applied to the nonprofit activities of religious employers, §702 is rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions.
It cannot be seriously contended that §702 impermissibly entangles church and state; the statute effectuates a more complete separation of the two and avoids the kind of intrusive inquiry into religious belief that the District Court engaged in in this case. The statute easily passes muster under the third part of the Lemon test.
The judgment of the District Court is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered.
Justice BRENNAN, with whom Justice MARSHALL joins, concurring in the judgment. I write separately to emphasize that my concurrence in the judgment rests on the fact that these cases involve a challenge to the application of §702’s categorical exemption to the activities of a nonprofit organization. I believe that the particular character of nonprofit activity makes inappropriate a case-by-case determination whether its nature is religious or secular.
These cases present a confrontation between the rights of religious organizations and those of individuals. Any exemption from Title VII’s proscription on religious discrimination necessarily has the effect of burdening the religious liberty of prospective and current employees. An exemption says that a person may be put to the choice of either conforming to certain religious tenets or losing a job opportunity, a promotion, or, as in these cases, employment itself. The potential for coercion created by such a provision is in serious tension with our commitment to individual freedom of conscience in matters of religious belief.
At the same time, religious organizations have an interest in autonomy in ordering their internal affairs, so that they may be free to:
“select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions. Religion includes important communal elements for most believers. They exercise their religion through religious organizations, and these organizations must be protected by the [Free Exercise] [C]lause.”
Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum.L.Rev. 1373, 1389 (1981). See also Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976) (church has interest in effecting binding resolution of internal governance disputes); Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94 (1952) (state statute purporting to transfer administrative control from one church authority to another violates Free Exercise Clause). For many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals. Determining that certain activities are in furtherance of an organization’s religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself. Solicitude for a church’s ability to do so reflects the idea that furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.
The authority to engage in this process of self-definition inevitably involves what we normally regard as infringement on free exercise rights, since a religious organization is able to condition employment in certain activities on subscription to particular religious tenets. We are willing to countenance the imposition of such a condition because we deem it vital that, if certain activities constitute part of a religious community’s practice, then a religious organization should be able to require that only members of its community perform those activities.
This rationale suggests that, ideally, religious organizations should be able to discriminate on the basis of religion only with respect to religious activities, so that a determination should be made in each case whether an activity is religious or secular. This is because the infringement on religious liberty that results from conditioning performance of secular activity upon religious belief cannot be defended as necessary for the community’s self-definition. Furthermore, the authorization of discrimination in such circumstances is not an accommodation that simply enables a church to gain members by the normal means of prescribing the terms of membership for those who seek to participate in furthering the mission of the community. Rather, it puts at the disposal of religion the added advantages of economic leverage in the secular realm. As a result, the authorization of religious discrimination with respect to nonreligious activities goes beyond reasonable accommodation, and has the effect of furthering religion in violation of the Establishment Clause. See Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
What makes the application of a religious-secular distinction difficult is that the character of an activity is not self-evident. As a result, determining whether an activity is religious or secular requires a searching case-by-case analysis. This results in considerable ongoing government entanglement in religious affairs. See id., at 613. Furthermore, this prospect of government intrusion raises concern that a religious organization may be chilled in its free exercise activity. While a church may regard the conduct of certain functions as integral to its mission, a court may disagree. A religious organization therefore would have an incentive to characterize as religious only those activities about which there likely would be no dispute, even if it genuinely believed that religious commitment was important in performing other tasks as well. As a result, the community’s process of self-definition would be shaped in part by the prospects of litigation. A case-by-case analysis for all activities therefore would both produce excessive government entanglement with religion and create the danger of chilling religious activity.
The risk of chilling religious organizations is most likely to arise with respect to nonprofit activities. The fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation. In contrast to a for-profit corporation, a non-profit organization must utilize its earnings to finance the continued provision of the goods or services it furnishes, and may not distribute any surplus to the owners. …This makes plausible a church’s contention that an entity is not operated simply in order to generate revenues for the church, but that the activities themselves are infused with a religious purpose. Furthermore, unlike for-profit corporations, nonprofits historically have been organized specifically to provide certain community services, not simply to engage in commerce. Churches often regard the provision of such services as a means of fulfilling religious duty and of providing an example of the way of life a church seeks to foster.
Nonprofit activities therefore are most likely to present cases in which characterization of the activity as religious or secular will be a close question. If there is a danger that a religious organization will be deterred from classifying as religious those activities it actually regards as religious, it is likely to be in this domain.5 This substantial potential for chilling religious activity makes inappropriate a case-by-case determination of the character of a nonprofit organization, and justifies a categorical exemption for nonprofit activities. Such an exemption demarcates a sphere of deference with respect to those activities most likely to be religious. It permits infringement on employee free exercise rights in those instances in which discrimination is most likely to reflect a religious community’s self-definition. While not every nonprofit activity may be operated for religious purposes, the likelihood that many are makes a categorical rule a suitable means to avoid chilling the exercise of religion.6
Sensitivity to individual religious freedom dictates that religious discrimination be permitted only with respect to employment in religious activities. Concern for the autonomy of religious organizations demands that we avoid the entanglement and the chill on religious expression that a case-by-case determination would produce. We cannot escape the fact that these aims are in tension. Because of the nature of nonprofit activities, I believe that a categorical exemption for such enterprises appropriately balances these competing concerns. As a result, I concur in the Court’s judgment that the nonprofit Deseret Gymnasium may avail itself of an automatic exemption from Title VII’s proscription on religious discrimination.
Justice BLACKMUN, concurring in the judgment. Essentially for the reasons set forth in Justice O’CONNOR’S opinion, particularly the third and final paragraphs thereof, I too, concur in the judgment of the Court. I fully agree that the distinction drawn by the Court seems “to obscure far more than to enlighten,” as Justice O’CONNOR states, and that, surely, the “question of the constitutionality of the §702 exemption as applied to for-profit activities of religious organizations remains open.”
Justice O’CONNOR, concurring in the judgment. Although I agree with the judgment of the Court, I write separately to note that this action once again illustrates certain difficulties inherent in the Court’s use of the test articulated in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). See Wallace v. Jaffree, 472 U.S. 38, 67 (1985) (O’CONNOR, J., concurring in judgment); Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’CONNOR, J., concurring). As a result of this problematic analysis, while the holding of the opinion for the Court extends only to nonprofit organizations, its reasoning fails to acknowledge that the amended §702, 42 U.S.C. §2000e-1, raises different questions as it is applied to profit and nonprofit organizations.
In Wallace v. Jaffree, 472 U.S., at 82, I noted a tension in the Court’s use of the Lemon test to evaluate an Establishment Clause challenge to government efforts to accommodate the free exercise of religion:
On the one hand, a rigid application of the Lemon test would invalidate legislation exempting religious observers from generally applicable government obligations.
By definition, such legislation has a religious purpose and effect in promoting the free exercise of religion. On the other hand, judicial deference to all legislation that purports to facilitate the free exercise of religion would completely vitiate the Establishment Clause. Any statute pertaining to religion can be viewed as an ‘accommodation’ of free exercise rights.
In my view, the opinion for the Court leans toward the second of the two unacceptable options described above. While acknowledging that “[u]ndoubtedly, religious organizations are better able now to advance their purposes than they were prior to the 1972 amendment to § 702,” the Court seems to suggest that the “effects” prong of the Lemon test is not at all implicated as long as the government action can be characterized as “allowing” religious organizations to advance religion, in contrast to government action directly advancing religion. This distinction seems to me to obscure far more than to enlighten. Almost any government benefit to religion could be recharacterized as simply “allowing” a religion to better advance itself, unless perhaps it involved actual proselytization by government agents. In nearly every case of a government benefit to religion, the religious mission would not be advanced if the religion did not take advantage of the benefit; even a direct financial subsidy to a religious organization would not advance religion if for some reason the organization failed to make any use of the funds. It is for this same reason that there is little significance to the Court’s observation that it was the Church rather than the Government that penalized Mayson’s refusal to adhere to Church doctrine. The Church had the power to put Mayson to a choice of qualifying for a temple recommend or losing his job because the Government had lifted from religious organizations the general regulatory burden imposed by §702.
The necessary first step in evaluating an Establishment Clause challenge to a government action lifting from religious organizations a generally applicable regulatory burden is to recognize that such government action does have the effect of advancing religion. The necessary second step is to separate those benefits to religion that constitutionally accommodate the free exercise of religion from those that provide unjustifiable awards of assistance to religious organizations. As I have suggested in earlier opinions, the inquiry framed by the Lemon test should be “whether government’s purpose is to endorse religion and whether the statute actually conveys a message of endorsement.” Wallace, 472 U.S. at 69. To ascertain whether the statute conveys a message of endorsement, the relevant issue is how it would be perceived by an objective observer, acquainted with the text, legislative history, and implementation of the statute. Id. at 76. Of course, in order to perceive the government action as a permissible accommodation of religion, there must in fact be an identifiable burden on the exercise of religion that can be said to be lifted by the government action. The determination whether the objective observer will perceive an endorsement of religion “is not a question of simple historical fact. Although evidentiary submissions may help answer it, the question is, like the question whether racial or sex-based classifications communicate an invidious message, in large part a legal question to be answered on the basis of judicial interpretation of social facts.” Lynch v. Donnelly, 465 U.S. at 693-694.
The above framework, I believe, helps clarify why the amended §702 raises different questions as it is applied to nonprofit and for-profit organizations. As Justice BRENNAN observes in his concurrence: “The fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation.” These cases involve a Government decision to lift from a nonprofit activity of a religious organization the burden of demonstrating that the particular nonprofit activity is religious as well as the burden of refraining from discriminating on the basis of religion. Because there is a probability that a nonprofit activity of a religious organization will itself be involved in the organization’s religious mission, in my view the objective observer should perceive the Government action as an accommodation of the exercise of religion rather than as a Government endorsement of religion.
It is not clear, however, that activities conducted by religious organizations solely as profit-making enterprises will be as likely to be directly involved in the religious mission of the organization. While I express no opinion on the issue, I emphasize that under the holding of the Court, and under my view of the appropriate Establishment Clause analysis, the question of the constitutionality of the §702 exemption as applied to for-profit activities of religious organizations remains open.
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CUTTER v. WILKINSON
544 U.S. 709 (2005)
JUSTICE GINSBURG delivered the opinion of the Court. Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA or Act), 42 U. S. C. §2000cc-1(a)(1)-(2), provides in part: “No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the burden furthers “a compelling governmental interest,” and does so by “the least restrictive means.” Plaintiffs below, petitioners here, are current and former inmates of institutions operated by the Ohio Department of Rehabilitation and Correction and assert that they are adherents of “nonmainstream” religions: the Satanist, Wicca, and Asatru religions, and the Church of Jesus Christ Christian. They complain that Ohio prison officials (respondents here), in violation of RLUIPA, have failed to accommodate their religious exercise
“in a variety of different ways, including retaliating and discriminating against them for exercising their nontraditional faiths, denying them access to religious literature, denying them the same opportunities for group worship that are granted to adherents of mainstream religions, forbidding them to adhere to the dress and appearance mandates of their religions, withholding religious ceremonial items that are substantially identical to those that the adherents of mainstream religions are permitted, and failing to provide a chaplain trained in their faith.”
For purposes of this litigation at its current stage, respondents have stipulated that petitioners are members of bona fide religions and that they are sincere in their beliefs.
In response to petitioners’ complaints, respondent prison officials have mounted a facial challenge to the institutionalized-persons provision of RLUIPA; respondents contend, inter alia, that the Act improperly advances religion in violation of the First Amendment’s Establishment Clause. The District Court denied respondents’ motion to dismiss petitioners’ complaints, but the Court of Appeals reversed that determination. The appeals court held, as the prison officials urged, that the portion of RLUIPA applicable to institutionalized persons … violates the Establishment Clause. We reverse the Court of Appeals’ judgment.
I. … A. RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens, consistent with this Court’s precedents. Ten years before RLUIPA’s enactment, the Court held, in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 878-882 (1990), that the First Amendment’s Free Exercise Clause does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct. In particular, we ruled that the Free Exercise Clause did not bar Oregon from enforcing its blanket ban on peyote possession with no allowance for sacramental use of the drug. Accordingly, the State could deny unemployment benefits to persons dismissed from their jobs because of their religiously inspired peyote use. Id., at 874, 890. The Court recognized, however, that the political branches could shield religious exercise through legislative accommodation, for example, by making an exception to proscriptive drug laws for sacramental peyote use. Id., at 890.
Responding to Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA). RFRA “prohibits ‘[g]overnment’ from ‘substantially burden[ing]’ a person’s exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’” City of Boerne v. Flores, 521 U.S. 507, 515-516 (1997). “[U]niversal” in its coverage, RFRA “applie[d] to all Federal and State law,” id., at 516, but notably lacked a Commerce Clause underpinning or a Spending Clause limitation to recipients of federal funds. In City of Boerne, this Court invalidated RFRA as applied to States and their subdivisions, holding that the Act exceeded Congress’ remedial powers under the Fourteenth Amendment. Id., at 532-536.2
Congress again responded, this time by enacting RLUIPA. Less sweeping than RFRA, and invoking federal authority under the Spending and Commerce Clauses, RLUIPA targets two areas: Section 2 of the Act concerns land-use regulation, 42 U. S. C. §2000cc;3 §3 relates to religious exercise by institutionalized persons, §2000cc-1. Section 3, at issue here, provides that “[n]o [state or local] government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the government shows that the burden furthers “a compelling governmental interest” and does so by “the least restrictive means.” §2000cc-1(a)(1)-(2). The Act defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc-5(7)(A). Section 3 applies when “the substantial burden [on religious exercise] is imposed in a program or activity that receives Federal financial assistance,”4 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.” §2000cc-1(b)(1)-(2). …
Before enacting §3, Congress documented, in hearings spanning three years, that “frivolous or arbitrary” barriers impeded institutionalized persons’ religious exercise. See 146 Cong. Rec. S7774, S7775 (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA) (hereinafter Joint Statement) (“Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways.”).5 To secure redress for inmates who encountered undue barriers to their religious observances, Congress carried over from RFRA the “compelling governmental interest”/”least restrictive means” standard. Lawmakers anticipated, however, that courts entertaining complaints under §3 would accord “due deference to the experience and expertise of prison and jail administrators.”
B. Petitioners initially filed suit against respondents asserting claims under the First and Fourteenth Amendments. After RLUIPA’s enactment, petitioners amended their complaints to include claims under §3. Respondents moved to dismiss the statutory claims, arguing, inter alia, that §3 violates the Establishment Clause. [T]he United States intervened in the District Court to defend RLUIPA’s constitutionality.
Adopting the report and recommendation of the Magistrate Judge, the District Court rejected the argument that §3 conflicts with the Establishment Clause. As to the Act’s impact on a prison’s staff and general inmate population, the court stated that RLUIPA “permits safety and security—which are undisputedly compelling state interests—to outweigh an inmate’s claim to a religious accommodation.” On the thin record before it, the court declined to find, as respondents had urged, that enforcement of RLUIPA, inevitably, would compromise prison security.
… [T]he Court of Appeals for the Sixth Circuit reversed. Citing Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court of Appeals held that §3 of RLUIPA “impermissibly advanc[es] religion by giving greater protection to religious rights than to other constitutionally protected rights.” Affording “religious prisoners rights superior to those of nonreligious prisoners,” the court suggested, might “encourag[e] prisoners to become religious in order to enjoy greater rights.”
We granted certiorari to resolve the conflict among Courts of Appeals on the question whether RLUIPA’s institutionalized-persons provision, §3 of the Act, is consistent with the Establishment Clause of the First Amendment. … We now reverse the judgment of the Court of Appeals for the Sixth Circuit.
II. … In accord with the majority of Courts of Appeals that have ruled on the question, we hold that §3 of RLUIPA fits within the corridor between the Religion Clauses: On its face, the Act qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause.
A. Foremost, we find RLUIPA’s institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise. See Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 705 (1994) (government need not “be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice”); Amos, 483 U.S. at 349 (O’CONNOR, J., concurring in judgment) (removal of government-imposed burdens on religious exercise is more likely to be perceived “as an accommodation of the exercise of religion rather than as a Government endorsement of religion”). Furthermore, the Act on its face does not founder on shoals our prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, see Estate of Thornton v. Caldor, Inc., 472 U. S. 703 (1985); and they must be satisfied that the Act’s prescriptions are and will be administered neutrally among different faiths, see Kiryas Joel, 512 U. S. 687.8
“[T]he ‘exercise of religion’ often involves not only belief and profession but the performance of ... physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine....” Smith, 494 U.S. at 877. Section 3 covers state-run institutions—mental hospitals, prisons, and the like—in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise. 42 U.S.C. §2000cc-1(a); §1997; see Joint Statement S7775 (“Institutional residents’ right to practice their faith is at the mercy of those running the institution.”).9 RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.10
We note in this regard the Federal Government’s accommodation of religious practice by members of the military. See, e. g., 10 U.S.C. §3073 (referring to Army chaplains); Katcoff v. Marsh, 755 F. 2d 223, 225-229 (2d Cir. 1985) (describing the Army chaplaincy program). In Goldman v. Weinberger, 475 U. S. 503 (1986), we held that the Free Exercise Clause did not require the Air Force to exempt an Orthodox Jewish officer from uniform dress regulations so that he could wear a yarmulke indoors. In a military community, the Court observed, “there is simply not the same [individual] autonomy as there is in the larger civilian community.” Id. at 507 (brackets in original; internal quotation marks omitted). Congress responded to Goldman by prescribing that “a member of the armed forces may wear an item of religious apparel while wearing the uniform,” unless “the wearing of the item would interfere with the performance [of] military duties [or] the item of apparel is not neat and conservative.” 10 U.S.C. §§774(a)-(b).
We do not read RLUIPA to elevate accommodation of religious observances over an institution’s need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests. In Caldor, the Court struck down a Connecticut law that “arm[ed] Sabbath observers with an absolute and unqualified right not to work on whatever day they designate[d] as their Sabbath.” 472 U. S. at 709. We held the law invalid under the Establishment Clause because it “unyielding[ly] weigh[ted]” the interests of Sabbatarians “over all other interests.” Id. at 710.
We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a “compelling governmental interest” standard, “[c]ontext matters” in the application of that standard. See Grutter v. Bollinger, 539 U. S. 306, 327 (2003).11 Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993) (remarks of Sen. Hatch). They anticipated that courts would apply the Act’s standard with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Joint Statement S7775.12
Finally, RLUIPA does not differentiate among bona fide faiths. In Kiryas Joel, we invalidated a state law that carved out a separate school district to serve exclusively a community of highly religious Jews, the Satmar Hasidim. We held that the law violated the Establishment Clause, 512 U. S. at 690, in part because it “single[d] out a particular religious sect for special treatment,” id. at 706. RLUIPA presents no such defect. It confers no privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment.
B. The Sixth Circuit misread our precedents to require invalidation of RLUIPA as “impermissibly advancing religion by giving greater protection to religious rights than to other constitutionally protected rights.” Our decision in Amos counsels otherwise. There, we upheld against an Establishment Clause challenge a provision exempting “religious organizations from Title VII’s prohibition against discrimination in employment on the basis of religion.” 483 U.S. at 329. The District Court in Amos, reasoning in part that the exemption improperly “single[d] out religious entities for a benefit,” id., at 338, had “declared the statute unconstitutional as applied to secular activity,” id., at 333. Religious accommodations, we held, need not “come packaged with benefits to secular entities.” Id., at 338; see Madison, 355 F. 3d, at 318 (“There is no requirement that legislative protections for fundamental rights march in lockstep.”).
Were the Court of Appeals’ view the correct reading of our decisions, all manner of religious accommodations would fall. Congressional permission for members of the military to wear religious apparel while in uniform would fail, see 10 U.S.C. §774, as would accommodations Ohio itself makes. Ohio could not, as it now does, accommodate “traditionally recognized” religions: The State provides inmates with chaplains “but not with publicists or political consultants,” and allows “prisoners to assemble for worship, but not for political rallies.”
In upholding RLUIPA’s institutionalized-persons provision, we emphasize that respondents “have raised a facial challenge to [the Act’s] constitutionality, and have not contended that under the facts of any of [petitioners’] specific cases ... [that] applying RLUIPA would produce unconstitutional results.” The District Court, noting the underdeveloped state of the record, concluded: A finding “that it is factually impossible to provide the kind of accommodations that RLUIPA will require without significantly compromising prison security or the levels of service provided to other inmates” cannot be made at this juncture. (emphasis added).13 We agree.
“For more than a decade, the federal Bureau of Prisons has managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights of other prisoners.” The Congress that enacted RLUIPA was aware of the Bureau’s experience. See Joint Statement S7776 (letter from Dept. of Justice to Sen. Hatch) (“[W]e do not believe [RLUIPA] would have an unreasonable impact on prison operations. RFRA has been in effect in the Federal prison system for six years and compliance with that statute has not been an unreasonable burden to the Federal prison system.”). We see no reason to anticipate that abusive prisoner litigation will overburden the operations of state and local institutions. The procedures mandated by the Prison Litigation Reform Act of 1995, we note, are designed to inhibit frivolous filings.
Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition. In that event, adjudication in as-applied challenges would be in order.
For the reasons stated, the judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
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8 Judgment entered by an equally divided Court is not “entitled to precedential weight,” Neil v. Biggers, 409 U.S. 188, 192 (1972). Our ruling in Dewey thus does not resolve the questions there presented. Other factors, as well, make the impact of Dewey inconclusive. The conduct alleged to be an unlawful employment practice occurred prior to the promulgation of the 1967 guidelines, and the Court of Appeals expressed the view that those guidelines should not be given retroactive effect. … Finally, the employer in Dewey was not excused from a duty to accommodate; the Court of Appeals simply held that the employer had satisfied any obligation that it might have had under the statute.
9 Section 701(j) was added to the 1972 amendments on the floor of the Senate. The legislative history of the measure consists chiefly of a brief floor debate in the Senate, contained in less than two pages of the Congressional Record and consisting principally of the views of the proponent of the measure, Senator Jennings Randolph.
The Congressional Record also contains reprints of Dewey and Riley v. Bendix Corp., 330 F. Supp. 583 (MD Fla. 1971), rev’d, 464 F.2d 1113 (CA5 1972), as well as a brief synopsis of the new provision, which makes reference to Dewey. The significance of the legislative references to prior case law is unclear. In Riley the District Court ruled that an employer who discharged an employee for refusing to work on his Sabbath had not committed an unfair labor practice even though the employer had not made any effort whatsoever to accommodate the employee’s religious needs. It is clear from the language of 701(j) that Congress intended to change this result by requiring some form of accommodation; but this tells us nothing about how much an employer must do to satisfy its statutory obligation.
The reference to Dewey is even more opaque:
The purpose of this subsection is to provide the statutory basis for EEOC to formulate guidelines on discrimination because of religion such as those challenged in Dewey v. Reynolds Metals Company, 429 F.2d 325 (6th Cir. 1970), affirmed by an equally divided court, 402 U.S. 689 (1971).
Clearly, any suggestion in Dewey that an employer may not be required to make reasonable accommodation for the religious needs of its employees was disapproved by 701 (j); but Congress did not indicate that “reasonable accommodation” requires an employer to do more than was done in Dewey, apparently preferring to leave that question open for future resolution by the EEOC.
11 Ordinarily, an EEOC guideline is not entitled to great weight where, as here, it varies from prior EEOC policy and no new legislative history has been introduced in support of the change. But where “Congress has not just kept its silence by refusing to overturn the administrative construction, but has ratified it with positive legislation,” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381-382 (1969), the guideline is entitled to some deference, at least sufficient in this case to warrant our accepting the guideline as a defensible construction of the pre-1972 statute, i.e., as imposing on TWA the duty of “reasonable accommodation” in the absence of “undue hardship.” We thus need not consider whether 701(j) must be applied retroactively to the facts of this litigation.
12 “This Court has long held that employee expectations arising from a seniority system agreement may be modified by statutes furthering a strong public policy interest.” Franks v. Bowman Transportation Co., 424 U.S., at 778. In Franks we held that it was permissible to award retroactive seniority to victims of past discrimination in order to implement the strong congressional policy of making victims of discrimination whole. Franks is not dispositive of the present case since here there is no evidence of past discrimination that must be remedied. Not only is the “make-whole” policy not present in this case, but, as we shall see, the strong congressional policy against discrimination in employment argues against interpreting the statute to require the abrogation of the seniority rights of some employees in order to accommodate the religious needs of others.
14 Despite its hyperbole and rhetoric, the dissent appears to agree with - at least it stops short of challenging - the fundamental proposition that Title VII does not require an employer and a union who have agreed on a seniority system to deprive senior employees of their seniority rights in order to accommodate a junior employee’s religious practices. This is the principal issue on which TWA and the union came to this Court. The dissent is thus reduced to (1) asserting that the statute requires TWA to accommodate Hardison even though substantial expenditures are required to do so; and (2) advancing its own view of the record to show that TWA could have done more than it did to accommodate Hardison without violating the seniority system or incurring substantial additional costs. We reject the former assertion as an erroneous construction of the statute. As for the latter, we prefer the findings of the District Judge who heard the evidence. … We accept the District Court’s findings that TWA had done all that it could do to accommodate Hardison’s religious beliefs without either incurring substantial costs or violating the seniority rights of other employees.
15 The dissent argues that “the costs to TWA of either paying overtime or not replacing respondent would [not] have been more than de minimis.” This ignores, however, the express finding of the District Court that “[b]oth of these solutions would have created an undue burden on the conduct of TWA’s business,” and it fails to take account of the likelihood that a company as large as TWA may have many employees whose religious observances, like Hardison’s prohibit them from working on Saturdays or Sundays.
5 It is true that these are the only options the Court of Appeals discussed. But that court found that TWA could have adopted these options without undue hardship; once that conclusion is rejected it is incumbent on this Court to decide whether any other alternatives were available that would not have involved such hardship.
6 I entertain grave doubts on both factual and legal grounds about the validity of the Court’s rejection of the options it considers. As a matter of fact, I do not believe the record supports the Court’s suggestion that the costs to TWA of either paying overtime or not replacing respondent would have been more than de minimis. While the District Court did state, as the Court notes, that both alternatives “would have created an undue burden on the conduct of TWA’s business,” the court did not explain its understanding of the phrase “undue burden,” and may have believed that such a burden exists whenever any cost is incurred by the employer, no matter how slight. Thus the District Court’s assertion falls far short of a factual “finding” that the costs of these accommodations would be more than de minimis. Moreover, the record is devoid of any evidence documenting the extent of the “efficiency loss” TWA would have incurred had it used a supervisor or an already scheduled employee to do respondent’s work, and while the stipulations make clear what overtime would have cost, the price is far from staggering: $150 for three months, at which time respondent would have been eligible to transfer back to his previous department. The Court’s suggestion that the cost of accommodation must be evaluated in light of the “likelihood that ... TWA may have many employees whose religious observances ... prohibit them from working on Saturdays or Sundays,” is not only contrary to the record, which indicates that only one other case involving a conflict between work schedules and Sabbath observance had arisen at TWA since 1945, but also irrelevant, since the real question is not whether such employees exist but whether they could be accommodated without significant expense. Indeed, to the extent that TWA employed Sunday as well as Saturday Sabbatarians, the likelihood of accommodation being costly would diminish, since trades would be more feasible.
As a matter of law, I seriously question whether simple English usage permits “undue hardship” to be interpreted to mean “more than de minimis cost,” especially when the examples the guidelines give of possible undue hardship is the absence of a qualified substitute. I therefore believe that in the appropriate case we would be compelled to confront the constitutionality of requiring employers to bear more than de minimis costs. The issue need not be faced here, however, since an almost cost-free accommodation was possible.
11 The Court states at n.14, that because of TWA’s departmental seniority system, such a transfer “would not have solved Hardison’s problems.” But respondent testified without contradiction that had he returned to his previous department he would have regained his seniority in that department, and thereby could have avoided work on his Sabbath. According to respondent, the only objection that was raised to this solution was that it violated the rule prohibiting transfers twice within six months.
12 The accommodations would have disadvantaged respondent to some extent, but since he suggested both options I do not consider whether an employer would satisfy his duty to accommodate by offering these choices to an unwilling employee. Cf. Draper v. United States Pipe & Foundry Co., 527 F.2d 515 (6th Cir. 1975) (employer does not discharge his duty to accommodate by offering to transfer an electrician to an unskilled position).
14 Ironically, the fiscal costs to society of today’s decision may exceed the costs that would accrue if employers were required to make all accommodations without regard to hardship, since it is clear that persons on welfare cannot be denied benefits because they refuse to take jobs that would prevent them from observing religious holy days, see Sherbert v. Verner, 374 U.S. 398 (1963).
3 The suggested accommodation would reduce the financial costs to Philbrook of unauthorized absences. In 1984, for example, a substitute cost $30 per day, and respondent’s loss in pay from an unauthorized absence was over $130.
2 Denying the use of personal business days for religious purposes is no more discriminatory against religion than if the personal business leave category were entirely absent from the contract. Neither a decision to refuse personal business leave days altogether nor a decision to provide these days for specific purposes not otherwise provided for in the contract represents a discrimination against religion.
1 Thornton died on February 4, 1982, while his appeal was pending before the Supreme Court of Connecticut. The administrator of Thornton’s estate has continued the suit on behalf of the decedent’s estate.
9 Section 53-303e(b) gives Sabbath observers the valuable right to designate a particular weekly day off—typically a weekend day, widely prized as a day off. Other employees who have strong and legitimate, but non-religious, reasons for wanting a weekend day off have no rights under the statute. For example, those employees who have earned the privilege through seniority to have weekend days off may be forced to surrender this privilege to the Sabbath observer; years of service and payment of “dues” at the workplace simply cannot compete with the Sabbath observer’s absolute right under the statute. Similarly, those employees who would like a weekend day off, because that is the only day their spouses are also not working, must take a back seat to the Sabbath observer.
1 Section 702 provides in relevant part:
This subchapter [i.e., Title VII ….] shall not apply ... to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
4 Temple recommends are issued only to individuals who observe the Church’s standards in such matters as regular church attendance, tithing, and abstinence from coffee, tea, alcohol, and tobacco.
6 The District Court described the test as follows:
First, the court must look at the tie between the religious organization and the activity at issue with regard to such areas as financial affairs, day-to-day operations and management. Second, whether or not there is a close and substantial tie between the two, the court next must examine the nexus between the primary function of the activity in question and the religious rituals or tenets of the religious organization or matters of church administration. If there is substantial connection between the activity in question and the religious organization’s religious tenets or matters of church administration and the tie under the first part of the test is close, the court does not need to proceed any further and may declare the activity religious.... However, where the tie between the religious entity and activity in question is either close or remote under the first prong of the test and the nexus between the primary function of the activity in question and the religious tenets or rituals of the religious organization or matters of church administration is tenuous or non-existent, the court must engage in a third inquiry. It must consider the relationship between the nature of the job the employee is performing and the religious rituals or tenets of the religious organization or matters of church administration. If there is a substantial relationship between the employee’s job and church administration or the religious organization’s rituals or tenets, the court must find that the activity in question is religious. If the relationship is not substantial, the activity is not religious.
7 The court found that “nothing in the running or purpose of [the Gymnasium] ... suggests that it was intended to spread or teach the religious beliefs and doctrine and practices of sacred ritual of the Mormon Church or that it was intended to be an integral part of church administration.” The court emphasized that no contention was made that the religious doctrines of the Mormon Church either require religious discrimination in employment or treat physical exercise as a religious ritual.
9 The court examined in considerable detail the legislative history of the 1972 amendment of §702. Prior to that time, §702 exempted only the religious activities of religious employers from the statutory proscription against religious discrimination in employment. The 1972 amendment extending the exemption to all activities of religious organizations was sponsored by Senators Allen and Ervin. Senator Ervin explained that the purpose of the amendment was to “take the political hands of Caesar off of the institutions of God, where they have no place to be.” 118 Cong.Rec. 4503 (1972).
10 The court rejected the defendants’ arguments that §702 is required both by the need to avoid excessive governmental entanglement with religion and by the Free Exercise Clause.
11 Cf., e.g., Mueller v. Allen, 463 U.S. 388, 397 (1983) (provision of benefits to a broad spectrum of groups is an important index of secular effect); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 794 (1973) (narrowness of benefited class is an important factor in evaluating whether effect of a law violates the Establishment Clause).
12 Cf. Walz v. Tax Comm’n, 397 U.S. 664, 676-679 (1970) (relying in part, in upholding property tax exemption for religious groups, on long historical tradition for such exemptions).
14 The present cases are illustrative of the difficulties: the distinction between Deseret Industries and the Gymnasium is rather fine. Both activities are run on a nonprofit basis, and the CPB and the COP argue that the District Court failed to appreciate that the Gymnasium as well as Deseret Industries is expressive of the Church’s religious values.
15 Undoubtedly, Mayson’s freedom of choice in religious matters was impinged upon, but it was the Church (through the COP and the CPB), and not the Government, who put him to the choice of changing his religious practices or losing his job. This is a very different case than Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985). In Caldor, the Court struck down a Connecticut statute prohibiting an employer from requiring an employee to work on a day designated by the employee as his Sabbath. In effect, Connecticut had given the force of law to the employee’s designation of a Sabbath day and required accommodation by the employer regardless of the burden which that constituted for the employer or other employees. In the present cases, appellee Mayson was not legally obligated to take the steps necessary to qualify for a temple recommend, and his discharge was not required by statute. We find no merit in appellees’ contention that §702 “impermissibly delegates governmental power to religious employees and conveys a message of governmental endorsement of religious discrimination.”
5 Furthermore, as Justice O’CONNOR notes in her excellent concurrence, when an exemption is provided for nonprofit activity, “the objective observer should perceive the government action as an accommodation of the exercise of religion, rather than as a government endorsement of religion.”
6 It is also conceivable that some for-profit activities could have a religious character, so that religious discrimination with respect to these activities would be justified in some cases. The cases before us, however, involve a nonprofit organization; I believe that a categorical exemption authorizing discrimination is particularly appropriate for such entities, because claims that they possess a religious dimension will be especially colorable.
2 RFRA, Courts of Appeals have held, remains operative as to the Federal Government and federal territories and possessions. See O’Bryan v. Bureau of Prisons, 349 F. 3d 399, 400-401 (7th Cir. 2003); Guam v. Guerrero, 290 F. 3d 1210, 1220-1222 (9th Cir. 2002); Kikumura v. Hurley, 242 F. 3d 950, 958-960 (10th Cir. 2001); In re Young, 141 F. 3d 854, 858-863 (8th Cir. 1998). This Court, however, has not had occasion to rule on the matter.
3 Section 2 of RLUIPA is not at issue here. We therefore express no view on the validity of that part of the Act.
4 Every State, including Ohio, accepts federal funding for its prisons.
5 The hearings held by Congress revealed, for a typical example, that “[a] state prison in Ohio refused to provide Moslems with Hallal food, even though it provided Kosher food.” Hearing on Protecting Religious Freedom After Boerne v. Flores before the Subcommittee on the Constitution of the House Committee on the Judiciary, 105th Cong., 2d Sess., pt. 3, p.11, n.1 (1998) (hereinafter Protecting Religious Freedom) (prepared statement of Marc D. Stern, Legal Director, American Jewish Congress). Across the country, Jewish inmates complained that prison officials refused to provide sack lunches, which would enable inmates to break their fasts after nightfall. Id., at 39 (statement of Isaac M. Jaroslawicz, Director of Legal Affairs for the Aleph Institute). The “Michigan Department of Corrections . . . prohibit[ed] the lighting of Chanukah candles at all state prisons” even though “smoking” and “votive candles” were permitted. Id., at 41 (same). A priest responsible for communications between Roman Catholic dioceses and corrections facilities in Oklahoma stated that there “was [a] nearly yearly battle over the Catholic use of Sacramental Wine ... for the celebration of the Mass,” and that prisoners’ religious possessions, “such as the Bible, the Koran, the Talmud or items needed by Native Americans[,] ... were frequently treated with contempt and were confiscated, damaged or discarded” by prison officials. Id., pt. 2, at 58-59 (prepared statement of Donald W. Brooks, Reverend, Diocese of Tulsa, Oklahoma).
8 Directed at obstructions institutional arrangements place on religious observances, RLUIPA does not require a State to pay for an inmate’s devotional accessories. See, e g., Charles v. Verhagen, 348 F. 3d 601, 605 (7th Cir. 2003) (overturning prohibition on possession of Islamic prayer oil but leaving inmate-plaintiff with responsibility for purchasing the oil).
9 See, e.g., ibid. (prison’s regulation prohibited Muslim prisoner from possessing ritual cleansing oil); Young v. Lane, 922 F.2d 370, 375-376 (7th Cir. 1991) (prison’s regulation restricted wearing of yarmulkes); Hunafa v. Murphy, 907 F.2d 46, 47-48 (7th Cir. 1990) (noting instances in which Jewish and Muslim prisoners were served pork, with no substitute available).
10 Respondents argue, in line with the Sixth Circuit, that RLUIPA goes beyond permissible reduction of impediments to free exercise. The Act, they project, advances religion by encouraging prisoners to “get religion,” and thereby gain accommodations afforded under RLUIPA. See 349 F. 3d, at 266 (“One effect of RLUIPA is to induce prisoners to adopt or feign religious belief in order to receive the statute’s benefits.”). While some accommodations of religious observance, notably the opportunity to assemble in worship services, might attract joiners seeking a break in their closely guarded day, we doubt that all accommodations would be perceived as “benefits.” For example, congressional hearings on RLUIPA revealed that one state corrections system served as its kosher diet “a fruit, a vegetable, a granola bar, and a liquid nutritional supplement—each and every meal.” Protecting Religious Freedom, pt. 3, at 38 (statement of Jaroslawicz)
The argument, in any event, founders on the fact that Ohio already facilitates religious services for mainstream faiths. The State provides chaplains, allows inmates to possess religious items, and permits assembly for worship. See App. 199 (affidavit of David Schwarz, Religious Services Administrator for the South Region of the Ohio Dept. of Rehabilitation and Correction (Oct. 19, 2000)) (job duties include “facilitating the delivery of religious services in 14 correctional institutions of various security levels throughout ... Ohio”); … Brief for United States 20, and n. 8 (citing, inter alia, Gawloski v. Dallman, 803 F. Supp. 103, 113 (S.D. Ohio 1992) (inmate in protective custody allowed to attend a congregational religious service, possess a Bible and other religious materials, and receive chaplain visits); Taylor v. Perini, 413 F. Supp. 189, 238 (N.D. Ohio 1976) (institutional chaplains had free access to correctional area)).
11 The Sixth Circuit posited that an irreligious prisoner and member of the Aryan Nation who challenges prison officials’ confiscation of his white supremacist literature as a violation of his free association and expression rights would have his claims evaluated under the deferential rational-relationship standard described in Turner v. Safley, 482 U.S. 78 (1987). A member of the Church of Jesus Christ Christian challenging a similar withholding, the Sixth Circuit assumed, would have a stronger prospect of success because a court would review his claim under RLUIPA’s compelling-interest standard. 349 F. 3d at 266 (citing Madison v. Riter, 240 F. Supp. 2d 566, 576 (WD Va. 2003)). Courts, however, may be expected to recognize the government’s countervailing compelling interest in not facilitating inflammatory racist activity that could imperil prison security and order. Cf. Reimann v. Murphy, 897 F. Supp. 398, 402-403 (ED Wis. 1995) (concluding, under RFRA, that excluding racist literature advocating violence was the least restrictive means of furthering the compelling state interest in preventing prison violence); George v. Sullivan, 896 F. Supp. 895, 898 (WD Wis. 1995) (same).
12 State prison officials make the first judgment about whether to provide a particular accommodation, for a prisoner may not sue under RLUIPA without first exhausting all available administrative remedies. See 42 U.S.C. §2000cc-2(e) (nothing in RLUIPA “shall be construed to amend or repeal the Prison Litigation Reform Act of 1995”); §1997e(a) (requiring exhaustion of administrative remedies).
13 Respondents argue that prison gangs use religious activity to cloak their illicit and often violent conduct. The instant case was considered below on a motion to dismiss. Thus, the parties’ conflicting assertions on this matter are not before us. It bears repetition, however, that prison security is a compelling state interest, and that deference is due to institutional officials’ expertise in this area. Further, prison officials may appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic. Although RLUIPA bars inquiry into whether a particular belief or practice is “central” to a prisoner’s religion, the Act does not preclude inquiry into the sincerity of a prisoner’s professed religiosity. Cf. Gillette v. United States, 401 U.S. 437, 457 (1971) (“‘[T]he “truth” of a belief is not open to question’; rather, the question is whether the objector’s beliefs are ‘truly held.’” (quoting United States v. Seeger, 380 U. S. 163, 185 (1965))).
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