Diary

SCOTUS offers a tantalizing look at their cards. Maybe.

Yesterday, the Supreme Court struck a blow for religious freedom. In EEOC v. Abercrombie & Fitch Stores, Inc. the court ruled that Abercrombie had indeed used religion as a motivating factor when it denied Samantha Elauf a job because her headscarf would have violated their dress policy. Abercrombie tried to argue that it did not have “actual knowledge” her headscarf was worn for religious purposes thus it did not discriminate against her. They also tried to argue that their dress policy was applied equally to all employees so there was no discriminatory intent.

Justice Scalia, writing for a 7-2 majority (Alito concurred with the result and Thomas dissented), said:

An employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed. Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

While reasonable minds can disagree, I for one believe this to be a successful outcome for religious liberty in the workplace. But that is not the end. In the very next paragraph Justice Scalia made a statement that watchers of King v. Burwell may find provocative.

Abercrombie urges this Court to adopt the Tenth Circuit’s rule “allocat[ing] the burden of raising a religious conflict.” Brief for Respondent 46. This would require the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule. The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress’s province. (Emphasis mine).
The arguments on both sides of King v. Burwell have been well documented by other, eminently more qualified persons on this site but the common argument for the right is that King v. Burwell is a simple case of statutory interpretation; just as Abercrombie was. This wording makes clear what conservatives tend to fall back on: courts have no business “inserting” words in a statute that Congress couldn’t bother to insert itself even if doing so would achieve what most would expect to be the intended result.
It is well worth noting that the Supreme Court is extremely tight-lipped about how it will rule and predicting is a game of chance even for those who are paid to watch and commentate upon SCOTUS cases. There simply is no way to say that the court will rule in King the same way it has ruled in Abercrombie and that is the big “but” to the title of this article. However, for now, we can take solace in the present victory.