Sue Irion, The [Un]Constitutionality of the NLRA’s Religious Accommodation Provision, 44 Gonz. L. Rev. 325 (2009).
A Roman Catholic public school teacher refused to join her school teachers’ union because she objected to its support of abortion rights. After the school entered into a collective bargaining agreement that included a union security clause, forcing her either to join or pay a shop agency fee, she filed an application for a religious exception with the State Employment Relations Board. She feared that if “she were a member in the Union, she would violate her obligations to the Church, commit sin against God, and potentially lose her eternal life.” The Board denied her application because she was not a member of a church that historically held conscientious objections to joining or financially supporting a union. After the denial, she spoke with her union’s counsel who suggested that she change her religion to Seventh–day Adventist or become a Mennonite because that was the only way she could obtain a religious accommodation.
The absurdity of counsel’s suggestion, that the teacher convert to a new religion to accommodate her fundamental religious beliefs, epitomizes one of the many problems of section 19 of the National Labor Relations Act (“NLRA”) and equivalent state statutes. Provided these agreements are not executed in a “right to work” state, the NLRA permits employers and unions to negotiate union security clauses in their collective bargaining agreements that require employees to be members of the properly elected union. Section 19 allows an accommodation for employees who object to unions or union shop fees, but only if the employees can prove they are members of denominations that have historically held objections to unionism. One such denomination that has historically objected to unionism is the Seventh-day Adventists; in fact, this group is specifically mentioned in the legislative history of section 19. %CODE2%
In addition, section 19 also provides that if the objector is approved, the objector’s union fees should be redirected and the money should go to a non-religious, non-labor, non-profit charity. For years, unions litigated this charity substitution, claiming it was an undue burden, but it is now well established by case law that the minimal fees given to a charity do not create an undue hardship but instead are a reasonable accommodation. Including the charity substitution in Section 19 of the NLRA officially codified the accommodation that was previously approved by the courts under Title VII of the Civil Rights Act of 1964. Nonetheless, section 19’s language limiting this accommodation to only bona fide religious believers that belong to denominations that have historically held objections does not mirror the language of Title VII’s section 701(j), the section of the Civil Rights Act that broadly defines religion to include “all aspects of religious observance and practice, as well as belief . . . .”
Both Title VII and section 19 are designed to provide a compromise when a worker’s religious beliefs conflict with an employer’s policy or when an employee’s religious beliefs oppose unionism or the union’s political causes. In the years after Title VII’s religious accommodation provision was enacted, unions contended that the provision did not apply to them. Consequently, Congress amended the NLRA to complement Title VII’s religious accommodation provision. The amendment resolved disputes that Title VII’s religious accommodation provision did not apply to collective bargaining agreements. Thus, a union security clause, like other aspects of employment, must conform to Title VII’s duty to accommodate religious beliefs. This duty, pursuant to Title VII, applies to both employers and unions alike. However, despite section 19’s many connections with Title VII, the two statutes are not consistent when it comes to protecting employees’ religious beliefs.
The thesis of this article is that the NLRA’s section 19, which provides accommodation only to members of narrowly defined denominations, is inconsistent with Title VII and violates the First Amendment’s Establishment Clause. Much of the analysis of this article was first articulated in 1985 by W. Sherman Rogers. Later, courts independently affirmed many of his predictions, particularly as to section 19’s constitutionality. One of the primary goals of this article is to synthesize Professor Rogers’ research with the rationale of the later court decisions. This author contends that, that with few exceptions, Professor Rogers’ analysis was perfectly accurate in 1985, confirmed by later courts’ decisions, and continues to be relevant today.
Part II of this article will investigate the background and constitutionality of both Title VII’s section 701(j) and NLRA’s section 19. Part III will discuss arguments and cases discussing the constitutionality of section 19 and equivalent state statutes. Part IV will discuss the arguments for and against the constitutionality of section 701(j). Finally, Part V analyzes and proposes repealing section 19 but retaining section 701(j).
II. Background of the Establishment Clause, Title VII and NLRA’s Amended Section 19
After section 701(j)’s enactment in 1972 imposing a statutory duty to accommodate employees’ religious beliefs, and the NLRA’s section 19 enactment in 1980, both unions and employers litigated Title VII’s and the NLRA’s constitutionality under the First Amendment’s Establishment Clause. Because the First Amendment prohibits establishment of religion as well any governmental promotion of one religion over another, both statutes are subject to scrutiny for fear of impermissible governmental promotion of religion or denominational preference. Furthermore, the government cannot establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, nor can the government show any preference to those who have religious beliefs over those who do not. This section introduces how the Supreme Court evaluates a statute to determine if it is an impermissible establishment of religion. This section also introduces reasons why Congress established both section 701(j) and the section 19 amendment of the NLRA.
A. The First Amendment and the Establishment Clause
The First Amendment to the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” These two limitations on congressional authority are called the “religion clauses.” The first is known as the Establishment Clause, the second as the Free Exercise Clause. These Clauses are applicable to the States under the Incorporation Clause of the Fourteenth Amendment.
At a minimum, the Establishment Clause dictates that neither a State nor the federal government can: set up a church, pass laws that aid one religion, aid all religions, prefer one religion over another, force or influence a person to go to or remain away from a church against his or her will, force a person to profess a belief or disbelief in any religion, or punish any person for entertaining or professing religious beliefs or disbeliefs, or for church attendance or nonattendance. The Establishment Clause also forbids the State from denominational preferences, but this constitutional restriction is inextricably linked with the Free Exercise Clause, which secures the freedom to express religious rights.
Because the Constitution forbids restricting a citizen’s religious right to practice his or her religion and prohibits establishing religion, even by inadvertent measures, both section 19 and Title VII, when applied, arguably implicate the First Amendment. For example, Professor Rogers argued that section 19’s specific limitation of denominational preference denies a worker the right to accommodate his or her religious practice and further denies the worker’s free exercise of his or her religion. However, shortly after the enactment of Title VII’s religious accommodation provision, which broadens the definition of religion for accommodation, scholars and employers argued that the affirmative duty of Title VII may also be “establishing religion by assisting it,” which is also forbidden.
The Supreme Court established two tests concerning the Establishment Clause. One test is the Lemon test, for determining the facial neutrality of a statute, whereas the Larson strict scrutiny test is for evaluating when the State prefers one religion over the other.
1. The Lemon Test
In Lemon v. Kurtzman, the Supreme Court developed a three-part test for determining the religious neutrality of a law. The test provides that the statute at issue must:  “have a secular legislative purpose,  its principal or primary effect must be one that neither advances nor inhibits religion, and  the statute must not foster an excessive government entanglement with religion.” However, the Supreme Court, in Mitchell v. Helms, found that the excessive entanglement prong, while still relevant, no longer stands as a required separate and independent prong.
Lemon was not a Title VII or a section 19 case; it concerned a challenge to the constitutionality of state aid to nonpublic schools. However, the case became the paradigm test for courts in determining whether a statute impermissibly implicates the First Amendment’s Establishment Clause. The Lemon test is the appropriate test for Title VII section 701(j). In the decade after section 701(j)’s enactment, courts consistently applied this test because unions asserted that section 701(j) violated the Establishment Clause. Although the Supreme Court denied certiorari to all the Title VII section 701(j) Establishment Clause cases, when the Court has applied the Lemon test in recent years it has emphasized that the test is meant to have some flexibility in application and the test’s prongs should be viewed as signposts rather than absolutes.
2. The Larson Test
The Larson test, on the other hand, is more appropriate for evaluating section 19 because section 19 appears to aid or prefer one religion over another. Under the Larsen strict scrutiny test, a law or rule will fail unless it is perpetuates a compelling governmental interest. Furthermore, the challenged law must closely fit the asserted interest.
The Supreme Court held that the denominational preferences forbidden under the Establishment Clause must also be reconciled with the Free Exercise Clause. The Court noted Madison’s vision that each religious denomination has the freedom to both exercise and propagate its beliefs; however, this freedom would never exist under State endorsed denominational preference. The Court also noted that under history and logic of the Establishment Clause, the State cannot prefer one religion over another, it must be neutral. Therefore, the government may not endorse a practice or a program that either opposes or aids a particular religion. The Supreme Court has consistently held that “This prohibition is absolute.”
The Larson test is most appropriate for analyzing section 19 because section 19 provides a dues exception for those objectors belonging to certain religious bodies, and to meet this exception an employee must prove denominational adherence. But section 19’s effect may advance some religions over others by favoring only those beliefs that require this historic accommodation. Section 19 also creates difficulties with neutrality because it forces unions, employers, and judges to determine whether a belief is “religious” for the purpose of the statute’s exemption.
B. Title VII’s Section 701(j): The Religious Accommodation Provision
Title VII prohibits employers from discriminating in hiring or discharging an individual because of religion or from otherwise discriminating against an employee in terms of his or her compensation based on religion. After enactment, employers were confused as to whether Title VII protected an employee who refused to conform to a normal work week due to religious beliefs. Consequently, the Equal Employment Opportunity Commission (“EEOC”) established guidelines concerning religion. These EEOC guidelines provided clarity to employers as to what exactly constitutes religious belief. In 1972, Congress amended Title VII to provide an obligation for employers to accommodate religious beliefs provided that the accommodation did not create an undue hardship on the employer. Adopting language from the EEOC guidelines, the amended Title VII’s section 701(j) provides that “‘religion’ includes all aspects of religious observance and practice, as well as belief.” In addition to section 701(j)’s accommodation duty, section 2000e-2(c)(1) provides that it is an unlawful employment practice for a labor organization to expel or otherwise discriminate against any individual because of religion.
C. NLRA Section 19 Union Dues Substitution
During the debate of the Taft-Hartley Act, one discussion centered on whether union security agreements should be authorized, and if so, what was the appropriate scope of the employee’s individual rights under forced unionization. Congress discussed a number of concerns, one of which was the problem of free riders, and debated whether union dues were a type of tax that union employees pay as a part of collective bargaining. Ultimately, Congress expressly authorized the creation of union shops through union security provisions. Union security agreements provide that all employees must become members and pay dues to that union or be subject to termination. Congress thought allowing shop agreements would encourage union stability because unions would be the employee’s exclusive bargaining agents. The rationale is that, with a union security agreement in place, the union will not discriminate between union and non-union employees because all employees equally pay for union representation. Also, because the union must finance both the negotiation of the collective bargaining agreement as well as the bargaining unit’s administration, the union would be unstable without money from the non-members, which could compromise collective bargaining.
Before the enactment of Title VII’s section 701(j), courts thought union security provisions under the NLRA constituted a compelling governmental interest outweighing infringement upon religious beliefs because requiring union membership would promote peaceful labor relations. Courts also believed these security provisions were a fair distribution of collective bargaining costs. In the years after section 701(j) and before the section 19 amendment in 1980, both employers and unions argued that because the NLRA’s sections 8(a)(3) and (b)(2) protected union security agreements, Title VII’s section 701(j) did not apply to unions. The argument followed that it was lawful to discharge an employee with religious objections to joining a union under these security agreements regardless of the accommodation provision. Title VII’s legislative history made no mention of union dues. Despite these arguments about the scope of Title VII, courts began applying the Title VII charity dues substitution to shop fees.
In 1980, after twenty-one unsuccessful bills both before and after the enactment of section 701(j), Congress finally amended the NLRA to provide a charity dues substitution in lieu of shop fees for religious objectors. The fear that some employees would become “free riders” is specifically mentioned in the House Report amending the statute:
To minimize the problem of the “free rider”, that is the employee who would enjoy union representation without paying his fair share of the costs, section 8(a)(3) permits but does not require the employer and the union to agree that all employees must pay fair and reasonable union dues as a condition of employment.
This statutory framework, generally fair, has created a conflict between the dues-paying member on the one hand, and employees who object to the payment of dues because of religious beliefs.
H.R. 4774 seeks to accommodate these various interests and concerns.
The report reasons that “The amendment would apply to any person who can produce adequate verification of membership in a bona fide religion which historically has held conscientious objection to joining or financially supporting a labor organization.” The report states that these historical objectors include members of the Seventh-day Adventist Church or other churches that share the “same traditional belief of prohibiting cooperation with the union selected by majority vote to represent their interests.” However the report also states that the amendment would “reconcile the National Labor Relations Act with section 701(j)” of Title VII.
D. Tension Between the Two Provisions
While Congress intended to reconcile the two provisions, the denominational limitation created a problem for employees denied accommodation because they did not belong to this narrow category of religious groups that historically objected to unionism. This difference may create liability for both employers and unions under Title VII’s duty to accommodate religious beliefs. Unions have demanded that employers terminate their employees for failure to pay union dues under the collective bargaining agreement. However, both a union and an employer may be sued under the same provisions of Title VII’s prohibition against religious discrimination.
The typical accommodation, which is also included in the EEOC regulations, provides that a labor organization should accommodate an objecting employee by “not requiring the employee to join the organization and by permitting him or her to donate a sum equivalent to dues to a charitable organization.” Some unions accommodate a variety of religious beliefs, but other unions require documented proof that the employee adheres to a historically conscientious objector denomination.
E. How Religion is Defined by Title VII, the EEOC, and the NLRA
Title VII defines religion to include “all aspects of religious observance and practice, as well as belief . . . .” Courts interpreting Title VII rarely reject an employee’s assertion that a need for accommodation is because of a religious belief. Employers challenging an employee’s religious assertion will not normally convince a court to look too deeply the employee’s religious beliefs, perhaps in part because of deference to the liberal definition of religion under the EEOC.
The EEOC’s guidelines on religion define religious practices beyond the conventional notions of “traditional” religious practice. Under the EEOC these practices include
Moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views . . . . The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.
The EEOC adopted its definition of religion from the decisions of the Supreme Court in Welsh and Seeger, two cases that “defined religion for the purposes of enforcing the conscientious-objector provisions of the then-existing military draft.” The Supreme Court broadly defined religious belief to determine entitlement to statutory or constitutional protection from purely secular or ideological beliefs, which are not protected.
The NLRA, on the other hand, defines religion, for the sake of its religious objector provision, quite differently:
Any employee who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect, which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment. . . .
In contrast to the EEOC and Title VII, the language of section 19 differs significantly requiring that a religion be “bona fide” with “established and traditional” tenets opposing support of a union in order to qualify under the exception. This definition deviates from the much broader definition of religion provided by the EEOC which was codified in Title VII. Title VII and section 19 also differ in that the NLRA requires the charity substitution be a term under the employment agreement and is also more restrictive to which charities contributions can be made.
III. Constitutionality of Section 19
Under the Establishment Clause, courts have questioned the constitutionality of both Title VII section 701(j) and the NLRA’s section 19. This Part introduces the arguments made by unions when employees challenge the constitutionality of section 19 or equivalent state statutes. This Part also summarizes arguments demonstrating how section 19 and equivalent state statutes do not withstand constitutional scrutiny under either the three-part establishment test of Lemon or the denominational preference test derived from Larson.
A. Arguments that Section 19 is Constitutional
In the years after section 19, several courts tried to reconcile section 19 with Title VII. But section 19’s constitutionality was never directly addressed and thoroughly analyzed until the Sixth Circuit’s 1990 decision in Wilson v. National Labor Relations Board. Before Wilson, the Washington Supreme Court found a similar state statute was constitutional. Also included in this section are other arguments unions and State Boards use in defending section 19’s constitutionality. One argument, for example, is that the requirement for a bona fide religious belief is similar to determining if a church qualifies for a tax exemption.
1. The Supreme Court of Washington Found the State Dues Exception Statute was Constitutional
In a series of cases, the Washington Supreme Court upheld the constitutionality of a state statute very similar to section 19. The court found the state provision was slightly different because membership could be read disjunctively which included, “union membership and/or association,” which made the state statute constitutional. Defenders of section 19 and equivalent state statutes look to this case to illustrate that the historical objector provision can withstand constitutional scrutiny.
Leon Grant was a sergeant in the King County Department of Public Health and was required by his union to pay union shop dues. Because he asserted that he was a deeply religious person but no longer followed an organized religion, he asked the union to find that he qualified under the union security clause exception because membership in the union would be contrary to his religious beliefs. The union denied his claim based on the state statute.
In 1981, the Washington Supreme Court first heard Grant’s petition for a religious dues exception pursuant to RCW 41.56.122(1). Grant argued that a disjunctive reading of the statute was permissible:
[E]mployees with a bona fide religious objection to union membership and/or association based on the bona fide tenets or teachings of a church or religious body of which such employee is a member shall not be required to tender those dues or initiation fees to the Union. . . .
Grant argued that his personal religious beliefs were “religious tenets” bringing him within the exception. But both the union and the employer argued that Grant’s interpretation of the law was contradictory to the meaning of the state statute and that the union security agreement was “an important element of stable labor relations.”
The court agreed with the union and found that Grant’s interpretation of the statute “would create an ‘uncontrollable exemption’ to union security clauses, thereby impairing the orderly labor relations that RCW 41.56.122(1) was intended to foster.” The court also found that it was immaterial whether Grant was a member of a “bona fide” religion applying the policy rationale of the United States Supreme Court’s decision in Abood. In Abood, the Court found that union shop clauses in “public sector employment do not violate the right of freedom of association under the First Amendment so long as membership in the union is not required and the fee being paid . . . is nothing more than payment for services rendered.” The Washington Supreme Court found that objecting to dues on ideological grounds might interfere with the employees’ advancement of ideas, but this was outweighed by the governmental interest of the legislative assessment of important contributions of the union shop system of labor by Congress. For this reason, the Washington Supreme Court held that the statute was constitutional and that Grant was not entitled to the exception.
The dissent in this decision disagreed that the Abood analysis applied to Grant’s case. Justice Williams, with whom three other justices concurred, argued that the issue was not whether the union security clause may be validly enacted pursuant to legislative authority, but whether there was a religious beliefs exception. The dissent then asserted a section 701(j) analysis, noting that religious accommodation was required provided it did not create an undue hardship. But the dissent’s main point was that under the then recently decided Thomas v. Review Board of Indiana Employment Security, the court should hold the proviso applicable to all religious beliefs regardless of whether persons professing them are members of organized religious groups or are merely individuals whose personal beliefs serve the same function as deeply held religious values. The dissent found that Abood was “simply not controlling in a case such as this, where the legislature has provided a statutory exemption on religious grounds to public employees covered by a union security clause.”
Grant then petitioned the United States Supreme Court, which in a one-paragraph decision remanded the case back to the Washington Supreme Court to apply the strict scrutiny of Larson v. Valente’s denominational preference test. On remand, the Washington State Supreme Court noted that “it does seem to suggest [that] adherence to our earlier interpretation of RCW 41.56.122(1) would violate the establishment clause . . . .” The court, for fear that it would “perhaps go astray in the uncertainties of the First Amendment and engender further confusion,” decided the case on other grounds.
The court, therefore, took the disjunctive reading route, holding that under this reading a person could claim an “exception based on either (1) bona fide religious tenets, or (2) teachings of a church or religious body of which the person is a member.” Under this reading, Grant could pay the charity dues substitution. In a concurring opinion, Chief Justice Williams argued that “the county failed to demonstrate a compelling need to deny . . . an exemption under [the state statute] and thus violated the establishment clause.” He reasoned that, under Larson, Grant cannot be denied a religious exemption.
2. Other Arguments for Section 19’s Constitutionality
Defenders of section 19 use the language, some of which is dicta, in religion cases to argue that section 19 does not necessarily run afoul of the Establishment Clause. For example, in the early section 701(j) case of Cummins v. Parker Seal Co., the Sixth Circuit held that the reasonable accommodation provision of Title VII withstands First Amendment scrutiny under the Lemon test. In Cummins, the Sixth Circuit looked at the Supreme Court ruling in Gillette v. United States and found that Title VII’s accommodation provision, like Gillette’s Regulation 1605 concerning conscientious objectors to the draft, did not implicate the First Amendment, particularly the prohibition of entanglement with government and religion. The Sixth Circuit held that “the reasonable accommodation requirement [does] not subject religious institutions to the sort of ‘comprehensive, discriminating, and continuing [governmental] surveillance’ that the Supreme Court found impermissible in Lemon v. Kurtzman.”
Later, in Wilson v. NLRB, the National Labor Relations Board (“NLRB”) or (“Board”) pointed to Cummins to argue that the inquiry required by section 19 is similarly nonexcessive entanglement.  However, the Sixth Circuit held that the Cummins analysis of Title VII does not apply to section 19. In Cummins, the court responded to the suggestion that under Title VII, EEOC investigators would be forced to study and evaluate the dogma of the many religious sects to determine if that employee’s practices and observances are genuinely religious and therefore protected. The court stated in dicta that even if this question would come up, it was no more entanglement than when the state engages in investigating whether a church qualifies for a tax exemption.
Defenders of section 19 have tried to analogize the religious accommodation provision to state statutes imposing sales taxes on religious materials. Such statutes were held to have a secular purpose because the taxes were neutral and nondiscriminatory. In Jimmy Swaggert Ministries v. Board of Equalization of California, a unanimous Supreme Court held that the imposition of a California sales tax had a secular purpose that neither advanced nor inhibited religion and was neutral; therefore, it was not an excessive entanglement with religion. But sales tax statutes are fundamentally different than religious accommodation provisions.
B. Arguments that Section 19 is Unconstitutional
In Wilson v. NLRB, the Sixth Circuit found that section 19 violated the Establishment Clause. The court distinguished Grant v. Spellman because the Washington statute could be construed with a disjunctive reading while section 19 could not. More recently, the District Court for the Southern District of Ohio also found that Ohio’s equivalent state statute suffered the same constitutional defect as section 19.
1. The Sixth Circuit in Wilson Found Section 19 Unconstitutional
The Sixth Circuit held in Wilson v. National Labor Relations Board that not only did section 19 fail the Larson test by facially discriminating among religious denominations, but also failed the Lemon test by excessively entangling the government with religion. In Wilson, plaintiff Maurice Wilson was hired as a mechanic’s helper and, because of the union security provision in his employer’s collective bargaining agreement, was required to become a union member. Wilson refused to authorize a deduction of both union dues and initiation fees, claiming his refusal was based on his personal biblical religious convictions against union membership. Wilson offered to pay an equal amount to a charitable organization. A week later, the union requested the employer terminate Wilson for his failure to pay union dues as required by the collective bargaining agreement, but his employer refused.
The union filed a grievance for failure to comply with the collective bargaining agreement to terminate Wilson. The employer answered by accusing the union of unfair labor practice. General Counsel for the NLRB issued a complaint for 29 U.S.C. § 158 (b)(2) violations, but the administrative law judge recommended dismissal, finding that the discharge request was proper because Wilson failed to meet the definition of a ‘religious objector’ under section 19. The administrative law judge determined that Wilson was not a member of a “‘bona fide religion, body, or sect’ which holds conscientious objections to union membership” and therefore did not qualify for section 19 exemption. A three-member panel of the Board adopted the ALJ’s recommendation, finding that, although Wilson’s religious beliefs included a conscientious objection, Wilson lacked membership in a historical group opposed to unionism. One panel member observed “that ‘any possible constitutional problems relative to the religion clauses’” did not merit any discussion. Though Wilson’s employer never fired him, he nevertheless decided to file a petition to review the Board’s order.
Wilson conceded that his beliefs were based on his personal religious convictions and not on the teachings of an organized religion. Because of this, he knew that under a literal reading of section 19 he did not qualify for a dues exception. But, because he contended that the statute violated the religion clauses of the First Amendment, he asked the court to interpret section 19 in a way so as to avoid its constitutional defect by striking the restrictive membership requirement. The court found that this was impossible.
The Board, in defending section 19, first argued that Congress’ purpose in drafting a narrow religious objector provision was a compelling interest. The Board explained its reasoning was to forward this difficult inquiry and analysis to the federal courts who are better equipped to analyze such issues. The Board argued that section 19 was similar to the “nonexcessive entanglement that occurs when a state must determine whether a purported church qualifies for a property tax exemption.”
The Court of Appeals for the Sixth Circuit was unconvinced by either of the Board’s arguments and found section 19 unconstitutional for five reasons. First, the court noted that, in contrast to section 19, Title VII’s religious protections, which protect all aspects of religious observance and practice, are much broader than section 19 and Title VII is constitutional.
Second, the court held that, because section 19 facially discriminated, strict scrutiny under the Supreme Court’s Larson standard should be applied because the statute discriminated among religions. The court found that, like the denominational preference created by the statute in Larson, section 19 discriminated by “conferring a benefit on members of [particular] religious organizations.”
Third, the court found that, because section 19 failed strict scrutiny, the section could only be justified by a compelling government interest and closely fitted to advance such an interest. But the court found that, even if the statute did serve a compelling government interest in religious freedom, it still would fail strict scrutiny as section 19 should more closely parallel the protections of Title VII.
Fourth, the court found that, even if the court did apply the three-part Lemon test, section 19 would still fail the second prong because it requires both a particular sectarian affiliation and a particular theological position by requiring adherence to the tenets of that sect. Furthermore, section 19 increases membership advantages to those groups described in the statute while other employees must file Title VII claims. The court also found that section 19 failed the third prong by requiring an inquiry, first by employers and ultimately by the courts, into whether the religious beliefs are sincere, resulting in an excessive entanglement of government with religion.
Fifth, Mr. Wilson, relying on Grant v. Spellman, asked the court to find that he qualified for the exemption without being a church member. However, the court found that section 19 was unconstitutional because, in contrast to the Washington statute, it was not disjunctive and could not be fairly construed to eliminate the defect by eliminating the membership requirement. After Wilson, litigation on this issue slowed, but Congress never changed section 19 and many state statutes remain modeled after the NLRA provision. Katter is an example of why the religious accommodation problem is still relevant.
2. In Katter, Ohio’s Equivalent Statute was also Found Unconstitutional
In Katter v. Ohio Employment Relations Board, the District Court for the Southern District of Ohio found that Ohio’s statute was nearly identical to section 19 and therefore it also violated the Establishment Clause. The plaintiff, Carol Katter, was an Ohio public school teacher required to pay an agency fee or join the union. But as a lifelong Catholic, Katter objected to joining because of the union’s support of abortion rights. Pursuant to Ohio’s Revised Code, she applied for a religious exception with the State Employment Relations Board (“SERB”). Like section 19, the Ohio provision allows exemption of a “bargaining unit member from payment of dues of fair share fees” to a union if the public employee “adheres to established and traditional tenets of a religious body” holding historical objections to unionism. Katter requested that her fair share fees be redirected to a charity. SERB followed the guidelines of the statute, and while Katter was able to provide proof of her membership with the Catholic Church, she was unable to prove that her church historically objected to unionism. Pursuant to the statute, SERB denied her request. Katter then filed a section 1983 action, alleging that SERB discriminated against her because of her religion violating both her First Amendment rights and the equal protection clause. Katter requested a judgment declaring Ohio Revised Code section 4117.09(C) unconstitutional for violating the Establishment Clause and the Free Exercise Clause. She also requested a permanent injunction and a retroactive grant of a religious exemption.
Katter argued that the limitation portion of section 4117.09(C) violated the Establishment Clause because the statute conferred a denominational preference to certain religions. She also argued that her First Amendment rights were violated because she was denied an accommodation due to the fact that her church did not adhere to “doctrines approved by the state of Ohio.”
In the State’s motion for summary judgment, it argued that Katter differed from Wilson because, unlike Mr. Wilson, Ms. Katter was not facing a discharge and therefore she came to the court with a different posture. SERB argued that section 4117.09(C) was constitutional as applied and that section 19 was merely a supplemental remedy to the reasonable accommodation provision of Title VII. SERB then argued there was nothing in section 4117.09(C) that restricted her access to her real remedy, filing a charge with the EEOC and pursuing a Title VII statutory claim.
The court was not persuaded by any of SERB’s arguments. It found that, not only did Ohio not repeal the offending statute, it never intended to. Thus, the court reasoned that, because the alleged unconstitutional statute still affected Katter, the statute’s very existence constituted religious discrimination.
The court found Wilson persuasive because the Ohio provision is virtually identical to section 19. It found that section 4117.09(C) facially discriminated among religions and was therefore unconstitutional. The court offered three reasons why the provision violated the Establishment Clause. First, like section 19, the Ohio statute differentiates between two employees maintaining the same religious beliefs when one employee is a member of a formal church and the other employee does not maintain formal membership. Second, the statute differentiates “between two employees who have the same religious beliefs [and] are members of churches with formal doctrines against supporting labor unions” but where one of the churches has historically embraced unionism and the other church only recently embraced a doctrine of union opposition. Third, a denominational preference is created because only those members described in the statute get special treatment. Because employees of other religions must file a section 701(j) action, section 4117.09(C) impermissibly “increase[s] the advantage of membership in religions such as Seventh-day Adventists and Amish Mennonites that have previously received exemptions.”
The court found that SERB failed to demonstrate how the statute furthered an identifiable government interest under the threshold question of strict scrutiny. Even if the statute served the compelling government interest in protecting religious freedom in the workplace, it would still fail because it should be more closely tailored to that goal. Like the court in Wilson, the court found that it was not “fairly possible” to read the statute disjunctively and eliminate the membership requirement to make it constitutional.
The Southern District of Ohio also stated that an employee has a separate and independent right to pursue exemption under Title VII. Even though Katter had this distinct remedy, she was still subject to an unconstitutional statute that discriminated based on her First Amendment rights. Also, by declaring the section unconstitutional, the court reasoned that SERB could no longer discriminate against her based on her religion.
IV. Constitutionality of Section 701(j)
An employee seeking an exemption to union dues may assert his or her right to a religious accommodation under Title VII rather than NLRA’s section 19. Because the nondiscrimination provisions of Title VII equally apply to unions as well as employers, both may be subject to suit when the union fails to accommodate. After the enactment of Title VII, unions have consistently argued that either Title VII’s section 701(j) does not apply to union security clauses or, in the alternative, should not apply because Title VII is unconstitutional. A brief look at how most courts, with very few exceptions, have found Title VII constitutional illustrates the major differences between section 19 and Title VII.
A. Arguments that Title VII is Constitutional
In a concurring opinion of Estate of Thornton v. Caldor, Inc., Justice O’Connor noted that Title VII’s religious accommodation provision outlawing employment discrimination based on protected characteristics was a valid secular purpose, particularly in our pluralistic society. She further observed that:
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.
Courts have consistently held that Title VII obligates a union to make a reasonable accommodation and that the charity dues substitution for union dues option is not an undue burden. The terms of section 701(j) are flexible and only require those accommodations that do not impose an undue hardship.  Section 701(j)’s substituted charitable contribution recognizes unions’ legitimate interests and is a reasonable, but not absolute, accommodation; therefore, it does not violate the Establishment Clause.
Because specific determinations of the constitutionality of section 701(j) have come primarily from appellate courts, it is worth noting the Supreme Court’s holding in TWA v. Hardison. In Hardison, the Court held that the duty to accommodate the religious beliefs of an employee did not compel an employer to violate a seniority system of a collective bargaining agreement as the price of the accommodation. After Hardison, some courts struggled with this duty to accommodate and found that accommodating religious objectors constitutes a religious preference inconsistent with the anti-discriminatory purpose of Title VII. But the overwhelming majority of courts have rejected this broad reading of Hardison, only applying it narrowly to the seniority system of the collective bargaining agreement because an expansive reading “would provide a per se proscription against  all forms of differential treatment based on religion [which would] defeat the very purpose of section 2000e(j).”
Unlike the seniority system, when an individual objects to paying dues, the other union members are not particularly burdened by the payment of equivalent dues to a charity, nor are they required to give up their contractual rights. Also, courts have found the cost to a union of one employee’s dues has only a de minimis impact on the other members and on the union; therefore the accommodation is not an undue burden.
B. Arguments that Title VII is Unconstitutional
In 1980, a federal district court in California, in Anderson v. General Dynamics Convair Aerospace Div., found that section 701(j) violated the Establishment Clause, but this decision was reversed on appeal. Professor Rogers argued that section 701(j) might violate the government’s obligation of neutrality in religious affairs because Title VII favors employees with specific religious beliefs that require particular accommodation from employers.  Unlike other provisions of Title VII, section 701(j) is unique because of the potential conflict with an enumerated right of the Constitution.
1. Arguments that Title VII’s Section 701(j) has a Religious Purpose
Like Justice O’Connor’s concurrence in Thornton, many courts assume that section 701(j) has the valid secular purpose of outlawing discrimination in the workplace. But according to the Congressional record, the provision’s sponsor, Senator Randolph, wanted to secure increased church membership for Sabbatarians. Senator Randolph was himself a Sabbatarian and, as chair of the Labor and Public Welfare Committee, introduced the legislation. He argued that, because his own pastor noticed dwindling church membership, this reflected an “inability of employers on some occasions to adjust work schedules to fit the requirements of  faith.” The court in Anderson found that, for this reason, Title VII’s purpose, which was to increase church attendance by Sabbatarians, was religious, and section 701(j) lacked a secular purpose.
2. Arguments that Title VII’s Effect Advances Religious Beliefs
Professor Rogers argued that a law which, “on the basis of religion, ‘singles out a class . . . for a special economic benefit’ has the legislative effect that the establishment clause was designed to forbid.” Rogers further argued the Establishment Clause primarily protects sponsorship, financial support, and active involvement of the sovereign in religious activity. He also maintained that the dues clause exception arguably confers a benefit on members of religious sects to the exclusion of non-religionists. Even with the charity dues exception, employees without religious objections may donate to charitable organizations; however, these employees still must pay union dues. Rogers contended that “the non-religious employee will spend more in the aggregate.” Only those employees with “religious practices” who manifest a belief that requires modification of an employer’s work rules benefit from the statute.
3. Investigation of Religious Beliefs Constitutes an Entanglement with Religion
One concern some courts had when Title VII was first enacted was whether the court itself would have to investigate the employee’s religious beliefs. The Southern District of California found that, when investigating accommodation claims, the judge is forced to look into the sincerity of an employee’s beliefs to see if they come within the exception. The court found that looking into the matters of religious doctrine concerning internal church disputes was an excessive entanglement with religion. However, despite these early fears of investigating the sincerity of religious beliefs to prove a need for an accommodation, courts rarely complete such an investigation.
V. Analysis and Proposal
Comparing both statutes, it becomes obvious that section 19 not only fails to add anything to section 701(j), but the limiting language that is present in section 19 but absent in Title VII renders section 19 unconstitutional. Therefore, section 19 should be repealed and section 701(j) retained. Employees’ rights and freedoms are protected under Title VII; however, the NLRA’s restrictions violate both the First Amendment and Title VII’s duty to accommodate. Title VII strikes a balance between an employee’s right to accommodation and the employer’s and union’s rights by relieving the accommodation obligation in the event of an undue hardship. This section will analyze why arguments favoring section 19’s constitutionality fail.
This section will also address why section 701(j) should remain and why courts have constantly maintained its constitutionality. Finally addressed in this section is the argument that section 19 still harms workers, even though its defenders have not questioned the constitutionality of section 19 after Wilson. Some of these harms are not directly supported by specific case law as these issues are beyond judicial concern.
A. Section 19 Fails Constitutionally
The two decisions from the Sixth Circuit in Wilson and Katter contain detailed analysis of exactly why section 19 and the equivalent Ohio statute fail under the First Amendment’s Establishment Clause. The Wilson court articulated that one reason section 19 fails under the Establishment Clause analysis is because some religious employees must file a Title VII action to obtain an accommodation while others need not; therefore, the statute grants a benefit on the basis of membership in a particular religious denomination.
1. Section 19’s Definition of Religion is Vague and Discriminatory
First, under a facial reading of the statute, section 19 is discriminatory. What section 19 appears to provide is not really an accommodation at all but a kind of “grandfather clause” to members of religions that have “traditionally” rejected unionism. The limitation section of the statute is troubling because the exception applies to any member that traditionally adheres to established and traditional tenets or teachings of a bona fide religion. But what does it mean for a religion to be “bona fide?”
The EEOC guidelines refer to religious beliefs that include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional views.” Nothing in the EEOC guidelines mention “bona fide” beliefs. For some, “bona fide” could simply mean a belief in God, but even that seemingly simple definition is in direct contrast to the Supreme Court’s rulings as to what constitutes religious belief under the standard developed by Seeger and Welsh.
Second, the part of the limiting language that includes “established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor unions” is equally troubling. A logical explanation of that language in Section 19 would assume one could not “make up” a new religion that suddenly objected to unionism to “get around” the statute. However, this definition considerably deviates from Title VII, the EEOC regulations, and the Supreme Court decisions. This is most significant in the statute’s application. As discussed in section C, the statute’s effects of this limitation require the objector to “prove” his or her faith, which is not only contrary to the broad definition of religion espoused by the Supreme Court but requires extensive inquiry by unions, employers, and the courts into the sincerity of an objector’s beliefs, an inquiry that is unnecessary under Title VII’s accommodation provision.
2. Arguments Defending Section 19’s Constitutionality are not Persuasive
The arguments articulated in part III of this paper were in defense of section 19 by the labor relations boards of Wilson and Katter. These courts found that either the cases asserted by analogy were so distinguishable as to be irrelevant or the cases actually aided the courts in finding the statute unconstitutional. In the Supreme Court’s tax cases, the Sixth Circuit noted that the Supreme Court “observed that a generally applicable sales tax ‘is neutral and nondiscriminatory on questions of religious belief.’” But section 19 is neither neutral nor nondiscriminatory because it distinguishes based on belief.
For example, the NLRB in Wilson asserted that, like Cummins v. Parker Seal, section 19 is similar to the non-excessive entanglement of the property tax exception inquiry. The court pointed out the Supreme Court’s decision in Hernandez, asserting that “routine regulatory application of neutral tax laws did not cause excessive entanglement because it involved ‘no inquires into religious doctrine.’” The Sixth Circuit Court of Appeals explained that application of section 19 does involve inquiry into religious doctrine and the result is excessive entanglement of government with religion.
The oddest argument was the NLRB’s rationale that it was a compelling interest to draft section 19 so narrowly because Congress wanted the federal courts to deal with this issue. The court responded that the NLRB was not only confused about the nature of the strict scrutiny inquiry, but also failed to identify any compelling state interest.
Any arguments that Cummins v. Parker Seal applies to section 19 are unpersuasive for two reasons. First, Cummins was a section 701(j) inquiry. Second, it relied on Gillette by analogy which was not only tenuous at best but actually bolsters an argument that section 19 is unconstitutional.
In Gillette the plaintiff was a conscientious objector to the draft who had a religious belief that he was being forced to fight in an “unjust war.” But the Supreme Court ruled that the statute did not violate the Establishment Clause because the statute focused on individual conscientious belief and did not discriminate on the basis of belief. The Court found that the selective service statute was both “neutral and secular [and] that valid neutral reasons exist for limiting the . . . objectors to all war[s],” not just those opposing unjust wars, and the exception does not reflect a religious preference. While the Court did find that the “objection must have grounding in ‘religious training and belief,’ . . . no particular sectarian affiliation or theological position [was] required.” Furthermore, the Court noted that “The Draft Act of 1917, § 4, 40 Stat. 78, extended relief only to those conscientious objectors affiliated with some well-recognized religious sect or organization whose principles forbade members’ participation in war.” The Court also noted that enforcing the Act was too difficult when trying to focus on particular sects; so, the 1940 version of the Selective Service Act removed all sectarian restriction and, after 1940, Congress broadly defined objectors. Thus, Congress maintained its well-established policy of not “picking and choosing among religious beliefs.” In essence, forty years before the section 19 amendment, the Supreme Court already rejected “historical” conscientious objectors by denomination.
B. Retaining Section 701(j)
Title VII is an objecting employee’s superior remedy. In contrast to section 19, Title VII’s section 701(j) withstands constitutional scrutiny because of Title VII’s broad definition of religion. Also, the accommodation must be reasonable and cannot produce an undue hardship on the employer’s business. Section 701(j) does not violate the Establishment Clause because Title VII strikes a balance between the employee’s religious beliefs and the employer’s interests. In a series of cases, courts have upheld the constitutionality of section 701(j) in accommodating religious objectors by the charity substitution of union dues, which does not create an undue hardship.
Professor Rogers noted that Title VII does not compel belief or disbelief, neither does it punish an employee for maintaining specific religious beliefs or disbeliefs. He also argued that Title VII is not intended to preserve and support religion by direct financial aid to sectarian institutions.. While the accommodation provision permits religious objectors to fulfill their obligations differently than those who object to paying dues for non-religious reasons, Rogers illustrates that Supreme Court cases like Yoder and Sherbert established that no First Amendment problems exist in a state action that accommodates religious observers.
Despite the legislative history of Title VII, the statute does have a valid secular purpose to eliminate discrimination; whether that was the original intent of one of the sponsors of the bill no longer seems relevant. Particularly after Beck, non-religious ideological objectors now need only pay those dues necessary to performing the union’s functions. For this reason, the argument that the statute’s effect favors religious objectors loses steam. The charity dues substitution provides that the objector is paying his “fair share” just as any union member. Also, under the terms of the statute, an employee who objects on religious grounds and requests to use the grievance-arbitration procedure on the employee’s behalf pays for the reasonable cost of the arbitration out of pocket.
Because of section 701(j)’s hands-off approach to investigating whether a religious belief is sincere, Title VII maintains judicial neutrality and does not implicate an entanglement with religion. In an increasingly pluralistic society, the need for an expansive definition of religion cannot be overstated. Both unions and employers are consistently fearful that they cannot possibly accommodate all employees as it will set up a “snowball effect” among other employees. But as the EEOC’s Guidelines on Discrimination Because of Religion specifically state: “[a] mere assumption that many more people, with the same religious practices as the person being accommodated, may also need accommodation is not evidence of undue hardship.”
Title VII protects employees from religious discrimination in a constitutional manner because it is not an absolute obligation to accommodate but only a reasonable one and does not create an undue burden on the employer or the union. For the above reasons, Title VII’s section 701(j) is a worker’s appropriate remedy. In contrast, the NLRA’s section 19, as the next section explores, has the effect of infringing on a worker’s rights and for this reason should be repealed.
C. Section 19 Should be Repealed Because it Still Harms Workers
Courts have independently interpreted Title VII’s accommodation provision to permit employees to opt out of dues on religious grounds and substitute the money paid to a nonreligious charity as a “reasonable accommodation.” Some believe that section 19’s constitutional infirmity, its limitation of the definition of religion, is therefore moot because “courts have imposed comparable requirements under Title VII.” But there are four practical reasons why section 19 should be repealed. First, in enforcing the denominational limitation, a union is actually violating Title VII’s accommodation provision of religious discrimination. Second, because section 19 is still in effect, the provision can be used as an economic weapon. A union still may take advantage of workers who do not realize that Title VII protects their rights. Third, investigating the employee’s religious beliefs is intrusive. Finally, section 19 has served its purpose but is now obsolete.
1. Strictly Enforcing Section 19 Violates Title VII
Because the NLRA allows unions and employers to negotiate union security clauses in their collective bargaining agreements, most agreements require the employer to terminate any employee who fails to pay union dues or fees. If the employer does so without offering an accommodation, both the employer and union may become defendants in a Title VII suit. Wilson reflected this tension when the employer refused to fire an employee for not paying his dues and the union filed a grievance. Courts find that, when security clauses conflict with Title VII, “the union security provisions . . . do not relieve an employer or a union of the duty . . . to make a reasonable accommodation.” Courts confronted with this issue reason that the congressional policy against discrimination takes precedence over the union security provisions of the NLRA.
For these reasons, unions commonly “voluntarily” accommodate religious objectors even though they are not members of an historically anti-union denomination because of the union’s statutory duty under Title VII. But because section 19 still exists unchanged, this accommodation is inconsistent. Unions still have the opportunity to assert the defense that section 19 controls rather than Title VII.
An employee makes a prima facie case of failure to accommodate under Title VII by proving that he or she (1) holds conscientious objections to joining or financially supporting unions, (2) “informed his [or her] employer and the Union about his [or her] religious views that were in conflict with the Union security agreement; and (3) was discharged for his [or her] refusal to join the Union and pay union dues.” Once an employee makes a prima facie case, the employer is allowed to assert an undue hardship defense or claim that the accommodation causes another employee to suffer a loss or diminution in their job rights. While most unions do not want to take this risk, denial of a fee objection should make the union liable under Title VII. However, the Sixth Circuit’s decision in Wilson and the Southern District of Ohio’s recent decision in Katter illustrate that unions are still willing to take this chance. Because unions and other defendants can then point to section 19 to attempt to avoid liability, this unfairly denies the worker his or her rightful remedy.
2. Section 19 may be used as an Economic Tactic
Denial of an employee’s rights may be used in deterring other employees who desire accommodation. This tactic has its advantages and is especially useful for the employee who does not know he or she has rights under Title VII. For example, the plaintiff in Katter applied to the State Employment Relations Board for an exemption. After denial by SERB, general counsel for the Ohio Education Association told her she needed to convert from her faith to Seventh-day Adventist or become a Mennonite. An employee is unlikely to follow this advice, and even if the employee takes this advice, the union could argue that the employee does not have a sincere good faith belief. The employee will likely “give up” and pay the dues anyway, and other employees will believe that only specific employees, such as Seventh-day Adventists or Mennonites, are allowed an exception. Only if the employee takes the next step in seeking legal advice will she know that the denial was a violation of her rights.
Courts are also too quick to dismiss the tension between the employer’s obligation to fire an employee that violates the collective bargaining agreement and the statutory duty to accommodate. The fact that the NLRA must yield to Title VII, while fairly accepted, is a judicial determination that eludes the awareness of the average worker. Also, as Wilson and Katter illustrate, both the State and National Labor Relations Boards have asserted that there is no duty to accommodate, and employees in both those cases were forced to sue the Boards to provide the requested relief. An employer that has a collective bargaining agreement knows of the statutory duty to comply with its terms, and failure to do so may subject the employer to an unfair labor practice. It is impossible to know how many times employers have fired an employee because either the employer was ignorant as to its Title VII duty or was confused as to which duty applied. In the case of an employee that the employer wanted to terminate anyway, both the union and the employer could conceivably agree to terminate the worker but assert this “obligation.” For this reason, section 19 is at best a confusing annoyance and at worst a menace for unsuspecting employees.
3. Investigating an Employee’s Religious Beliefs both Violates His or Her Rights and Unnecessarily Entangles the Government in Religion
There is a heightened degree of inquiry and skepticism applied to the religious beliefs of union objectors. In Title VII inquiries, “courts are extremely reluctant to question the sincerity or religious basis of an employee’s beliefs and practices.” While this may be true for a standard Title VII accommodation case, union objectors go through a litany of documentation and validation of their religious beliefs. For example, the Ohio statute requires “submission of proper proof of religious conviction to the board,” before the board will grant the exemption. As a practical matter, it seems that employers are not requiring the average employee who requests an accommodation under Title VII to prove sincere religious belief with the same intensity as unions request when employees object to paying union dues.
For example, SERB asked Katter to provide:
(a) Verification of her membership and adherence to the tenets or teaching of the Holy Rosary Church;
(b) A written statement from an official specifically verifying that the Holy Rosary Church “has historically held conscientious objections to joining or financially supporting [a labor union];” and
(c) Documentation of such objections from the church tenets, constitution, bylaws or other document that established rules of conduct for members of the Holy Rosary Church.
The typical section 701(j) request for accommodation, on the other hand, does not require the employee to prove the sincerity of his or her religious beliefs or provide documentation of which church he or she belongs. Therefore, the union dues objector is subjected to a higher level of inquiry than a worker requesting a section 701(j) accommodation because the union objectors are routinely forced to provide this documentation.
For example, in Bushouse v. United Automobile Aerospace & Agricultural Implement Workers of America, the union required the employee to fill out both an application indentifying his religion and a “Religious Body or Sect Certificate” signed and attested by a his pastor. The court did not find a problem with this request, maintaining it was reasonable based on the language of section 19. The employee, Bushouse, was outraged by this demand for a Certificate and claimed not only that section 19 was invalid, but also that he should be considered an objector under Title VII. After Bushouse filed a charge of discrimination under Title VII, the union responded that:
You misunderstand or intentionally misrepresent the [Union’s] position. The [Union] is not requiring a particular “certificate.” Nor does it insist on a particular form of theological pronouncement, capable of being issued from this or that ecclesiastical structure. . . . [T]he [Union] only wants some ‘independent corroboration’ that you hold sincere religious beliefs, which preclude you from financially supporting the [Union]. . . . The key here is that it comes from some reliable person other than you.
In Bushouse, both the union and the court were suspicious as to Bushouse’s sincerity and thought that he was motivated by political beliefs because he utilized information and forms prepared by the National Right to Work Legal Defense Foundation. Bushouse also made the mistake of “improperly designat[ing] the Foundation as the charity . . . to donate the equivalent of his dues.”
The court ultimately found that the union’s inquiry into Bushouse’s religious beliefs did not violate Title VII. The court held that Title VII does permit an inquiry into an employee’s sincere religious beliefs so that the union’s hands would not be tied to accommodate a mere assertion of a religious belief. However, the court found that a plaintiff has the burden of proving a sincere religious belief to assert a prima facie case of failure to accommodate.
Bushouse and Katter are both relatively recent cases decided after the 1990 Sixth Circuit decision in Wilson, but they represent the concept that section 19 still has some viability, at least in vestigial forms, and is still used for an unconstitutional purpose. However, these inquiries into belief are more demanding than the typical accommodation case and reflect that, when it comes to union dues exceptions, these demands are permissible. It is difficult to know whether section 19’s limitations influence this phenomenon or whether other influences account for the disparity.
Whatever the cause, these inquiries by effect may implicate First Amendment concerns. It is entirely conceivable that a Zen Buddhist practitioner who opposes a union’s causes would fail under Bushouse’s permissible inquiry because she was a solo practitioner and could not produce a “pastor” that would confirm her adherence to an identifiable sect. This is contrary to Establishment Clause principles that impermissibly advance religions with a traditional structure and system to the detriment of sincere beliefs that are outside the “church/pastor” system. Also, requiring these “proofs,” the union and the courts are in opposition with regard to the EEOC’s guidelines on religion, Title VII’s jurisprudence, and the Supreme Court’s Seeger guidelines. Having the unions inquire into employee’s beliefs and courts determining that these are permissible implicates the court’s entanglement with religion and could lead to arbitrary and discriminatory enforcement.
4. Section 19 Served its Limited Purpose but is now Obsolete
Section 19’s purpose was to ensure that unions had a statutory duty to accommodate the religious beliefs of their members similar to the requirements found in Title VII’s section 701(j). Before Congress enacted the amendment, unions were consistently asserting that sections 8(a)(3) and 8(b)(2) of the NLRA protected these agreements regardless of Title VII’s section 701(j). Unfortunately, the NLRA amendment should have simply stated that section 701(j) applies equally to employees under a collective bargaining agreement. But it did not. Congress purposefully added the narrow denominational restriction and section 19 limited its protection to a very small group of employees.
It turns out the fear of the so-called free rider was misplaced. The current system of substituting the agency fee and redirecting it to charity does not result in preferential treatment between employees, “since [the employee] suffers the same economic loss as the union member employees.” The religious objector who substitutes his fees to charity suffers the same financial burden as his co-workers; the employee is not a free rider seeking something for nothing.
Title VII case law establishes that it is a reasonable accommodation when religious objectors are allowed to make payments to a nonreligious charity. Once a reasonable accommodation is reached, the statutory inquiry is at an end. The safeguard of Title VII’s reasonable but not absolute accommodation and the union’s right of showing an undue burden have quelled legislative fears of a broad accommodation. Because Title VII is now accepted as applicable to union dues objectors, it is the most appropriate remedy and does not impermissibly burden unions or other union members. Maintaining section 19 does more harm than good and should therefore be repealed.
Title VII’s section 701(j) defines religion broadly and adequately protects employees who object to union dues by offering a reasonable accommodation by substituting those dues to a neutral charity. On the other hand, section 19 of the NLRA defines religion by referring specifically to certain denominations and therefore fails strict scrutiny under the First Amendment’s Establishment Clause. Moreover, section 19 applies only to employees whose religious beliefs are “bona fide,” which gives unions and courts an invasive mandate to investigate the sincerity of employees’ religious beliefs. Professor Rogers predicted that section 19 would not meet constitutional standards and his prediction was correct. In 1991, the Sixth Circuit held that section 19 violated the Establishment Clause because it discriminates among religious denominations. Yet Congress has yet to amend or change the statute. In our increasingly pluralistic society, which encompasses a wide variety of religious beliefs, both traditional and non-traditional, section 19’s proffered purpose is no longer applicable and its limiting restriction now does more harm than good. Because Title VII provides the appropriate accommodation effectively and without infringing on the worker’s constitutional rights, section 19 of the NLRA should be repealed.
* 2009 JD candidate Salmon P. Chase School of Law at Northern Kentucky University, M.A. Religious Studies Miami University of Ohio. I would like to thank Bryce Rhodes for his help with the footnotes.
. Katter v. Ohio Employment Relations Bd., 492 F. Supp. 2d 851, 853 (S.D. Ohio 2007).
. Id. at 853-54.
. Id. at 853.
. Id. at 854.
. Defendants’ Motion for Summary Judgment, Katter v. Ohio Employment Relations Bd., 492 F. Supp. 2d 851 (S.D. Ohio 2007) (No. 2:07cv00043), 2007 WL 1643793.
. National Labor Relations Act, 29 U.S.C §§ 151-69 (2000). The two equivalent state statutes discussed in this paper are Ohio Rev. Code Ann. § 4117.09(C) (West 2008) and Wash. Rev. Code Ann. § 41.56.122(1) (West 2008).
. See 29 U.S.C. §§ 158(a)(3), 186(a),(b) (2000) (permitting negotiation of union security clauses). But see 29 U.S.C. §164(b) (2000) (prohibiting negotiation of union security clauses in “right to work states”).
. 29 U.S.C. § 169 (2000).
. H.R. Rep. No. 96-496, at 2 (1979), reprinted in 1980 U.S.C.C.A.N. 7158, 7159.
. § 169.
. See, e.g., McDaniel v. Essex Int’l Inc., 571 F.2d 338, 343-44 (6th Cir. 1978).
. § 169; see, e.g,. Id.; Burns v. So. Pac. Transp., 589 F.2d 403, 405-07 (9th Cir. 1978).
. § 169; see also 42 U.S.C. § 2000e(j) (2000).
. H.R. Rep. No. 96-496, at 2-4 (1979), reprinted in 1980 U.S.C.C.A.N. 7158, 7159-60; see also 42 U.S.C. § 2000e(j). This statutory duty to accommodate religious practices and observances did not appear in Title VII as originally enacted. See H.R. Rep. No. 96-496, at 1-2 (1979), reprinted in 1980 U.S.C.C.A.N. 7158-7160. In 1972, Congress amended 42 U.S.C. § 2000e(j), commonly referred to as § 701(j), of the statute to comport with the EEOC guidelines. Compare § 701(j) with 29 C.F.R. §§ 1605.1-1605.3 (2008) (providing expansive explanation of statutory duty).
. 29 U.S.C. §§ 158 (a)(3), (b)(2) (2000).
. 42 U.S.C. § 2000e(j).
. 42 U.S.C. §§ 2000e(a),(b),(j) (2000).
. 42 U.S.C. § 2000e(j). Title VII does not limit accommodation to the “historically conscientious objectors” but all aspects of religious observance, practice and belief. See 29 U.S.C. § 169; See also Wilson v. NLRB, 920 F.2d 1282, 1290 (6th Cir. 1990); see generally Michael Wolf et al., Religion in the Workplace (1998); see generally W. Sherman Rogers, Constitutional Aspects of Extending Section 701(j) of Title VII and Section 19 of the NLRA to Religious Objections to Union Dues, 11 T. Marshall L. Rev. 1 (1985) (This is a prescient article arguing that Section 19 was unconstitutional before the Wilson decision. It also articulates why Title VII’s §701(j), with its expansive definition of religion, is constitutional.); Robert L. Corrada, Religious Accommodation and the National Labor Relations Act, 17 Berkeley J. Empl. & Lab. L. 185 (1996) (this article agrees that Section 19 is unconstitutional but calls for a new amendment to the NLRA, one that is more expansive than Title VII and closer the accommodation under the ADA).
. Rogers, supra note 18.
. See generally Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990).
. See Anderson v. Gen. Dynamics Convair Aerospace Div., 489 F. Supp 782, 789-90 (S.D. Cal. 1980) (questioning § 701(j), and finding that Title VII was unconstitutional); see also Wilson, 920 F.2d at 1290 (finding § 19 unconstitutional).
. See generally Michael A. Rosenhouse, Annotation, Construction and Application of Establishment Clause of First Amendment—U.S. Supreme Court Cases, 15 A.L.R. Fed. 2d 573 (2006).
. U.S. Const. amend. I.
. See Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947) (incorporating Establishment Clause); see also Hamilton v. Regents of Univ. of Cal., 293 U.S. 245, 261 (1934) (incorporating Free Exercise Clause); see generally Rosenhouse, supra note 22.
. See generally Rosenhouse, supra note 22.
. Larson v. Valente, 456 U.S. 228, 245 (1982).
. Rogers, supra note 18, at 46.
. Id. at 4.
. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
. Mitchell v. Helms, 530 U.S. 793, 807-08 (2000).
. Lemon, 403 U.S. at 608.
. See Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1244 (9th Cir. 1981).
. See id.
. McCreary County v. ACLU, 545 U.S. 844, 902 (2005).
. Larson v. Valente, 456 U.S. 228, 246 (1982). Denominational preference is more explicitly and easily reconciled as forbidden under the Establishment Clause. Larson’s strict scrutiny has never received the kind of criticism as has the Lemon test.
. Id. at 246-47.
. Id. at 246.
. Wilson v. NLRB, 920 F.2d 1282, 1285-86 (6th Cir. 1990).
. Rogers, supra note 18, at 45.
. Corrada, supra note 18, at 249. Scholars differ as to whether this creates a potential problem. Prof. Corrada is comfortable with judicial or administrative inquiry into the sincerity of belief, however others disagree. See Wolf et al., supra note 18, at 29 (noting that courts rarely inquire into the sincerity of a Title VII objector’s religious belief under the EEOC guidelines because of its liberal view of what constitutes religious belief); see generally Lincoln Davis Wilson, Comment, Judgmental Neutrality: When the Supreme Court Inevitably Implies that Your Religion is Just Plain Wrong, 38 Seton Hall L. Rev. 715 (2008).
. 42 U.S.C. § 2000e-2(a) (2000).
. See 29 C.F.R. §§ 1605.1–.2 (2007).
. See 29 C.F.R. § 1605.1.
. 42 U.S.C. § 2000e(j) (2000).
. § 2000e(j).
. § 2000e-2(c)(1).
. Rogers, supra note 18, at 10-11.
. Id. at 11.
. Id. at 11-12.
. Id. at 13
. Id. at 16. See 29 U.S.C. §§ 158(a)(3),(b)(2) (2000).
. Rogers, supra note 18, at 16-17.
. Id. at 16.
. McDaniels v. Essex Int’l, Inc., 571 F.2d 338, 343-44 (6th Cir. 1978).
. Rogers, supra note 18, at 15.
. H.R. Rep. No. 96-496 (1979) reprinted in 1980 U.S.C.C.A.N. 7158, 7159.
. H.R. Rep. No. 96-496, at 7159.
. H.R. Rep. No. 96-496, at 7159.
. H.R. Rep. No. 96-496, at 7159.
. E.g., Wilson v. NLRB, 920 F.2d 1282, 1284 (6th Cir. 1990).
. See 42 U.S.C. §§ 2000e(j), 2000e-2(a) (2000).
. 29 C.F.R § 1605.2(d)(2) (2008).
. E.g., Bushouse v. Local Union 2209, 164 F. Supp. 2d 1066, 1071 (N.D. Ind. 2001).
. 42 U.S.C. § 2000e(j) (2000).
. Wolf et al., supra note 18, at 29.
. 29 C.F.R. § 1605.1 (2008).
. Id.; see also Welsh v. United States, 398 U.S. 333, 358-59 (1970); Seeger v. United States, 380 US 163, 174-76 (1965) (holding that religiosity does not necessitate a belief in a Supreme Being, taking note of Buddhist populations and other religions in the United States). The Court in Seeger was mostly concerned with differentiating those that have a purely ideological objection from those that have a religious based objection. Id. at 184-85.
. See Wolf et al, supra note 18, at 31. The authors’ note that “[d]rawing the line between personal beliefs and religious belief” is becoming increasingly difficult but that “[i]n practice, when an employee attaches the appellation ‘religion’ to a set of beliefs, the courts are reluctant to dig beneath the surface.” Id. It is this article’s contention that Section 19 might be the exception to this normative rule.
. 29 U.S.C. § 169 (2000).
. See Wolf et al., supra note 18, at 140.
. See EEOC v. Davey Tree Surgery Co., 671 F. Supp. 1260, 1262-63 (N.D. Cal. 1987); see also Int’l Ass’n. of Machinists v. Boeing Co., 833 F.2d 165, 170 (9th Cir. 1986).
. Wilson v. NLRB, 920 F.2d 1282, 1286-88 (6th Cir. 1990).
. See Grant v. Spellman, 664 P.2d 1227, 1230 (Wash. 1983).
. See Wilson, 920 F.2d at 1288.
. Grant, 664 P.2d at 1230.
. Wilson, 920 F.2d at 1289. It was the plaintiff, Mr. Wilson, who relied on this case because he did not seek to have Section 19 completely invalidated but wanted the provision construed to avoid the membership requirement.
. Grant v. Spellman, 635 P.2d 1071, 1072 (Wash. 1981), overruled by 664 P.2d 1227 (Wash. 1983).
. Id. at 1072-73. Grant had a signed affidavit which stated that he was baptized a Christian, but had since left the Methodist Church. Id. at 1073. He had several other people sign affidavits attesting to his deeply held religious beliefs. Id.
. Id. at 1072.
. Id. (emphasis added).
. Id. at 1073.
. Grant, 635 P.2d at 1073.
. Id. at 1074; see Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-36 (1977). Abood concerned objectors based on ideological grounds rather then religious grounds; however, the Washington Supreme Court noted that the Abood analysis and result apply equally to religion and speech. Grant, 635 P.2d at 1075. While the US Supreme Court did not mention this specifically, this extension of Abood is an error, as the religion clauses are subject to unique analysis. It appears that Mr. Grant previously sued Grant County objecting to union shop dues under First Amendment grounds, which explains why the Washington Supreme Court looked to Abood. Id. at 1073.
. Grant, 635 P.2d at 1074; see Abood, 431 U.S. at 235-36.
. Grant, 635 P.2d at 1074-75.
. Id. at 1075.
. Id. at 1075-76 (Williams, J., dissenting).
. Id. at 1076.
. Id. at 1076-77.
. Id. at 1077-78; see Thomas v. Review Bd., 450 U.S. 707, 714-16 (1981). The Supreme Court in Thomas held that when a state denies a benefit because of “conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.” Id. at 717-18. The Court further explained that though the “compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” Id. at 718.
. Grant, 635 P.2d at 1077 (Williams, J., dissenting).
. Grant v. Wash. Pub. Employment Relations Comm’n, 456 U.S. 955 (1982).
. Grant v. Spellman, 664 P.2d 1227, 1229 (Wash 1983).
. Id. at 1230.
. Id. at 1233 (Williams, CJ., concurring).
. Cummins v. Parker Seal Co., 516 F.2d 544, 553-54 (6th Cir. 1975). Note that Cummins was decided before the Larson decision; therefore, the Sixth Circuit used the Lemon test.
. Cummins, 516 F.2d at 552-53. Gillette concerned constitutional questions as to conscientious objectors to the draft who opposed an “unjust” war. Gillette v. United States, 401 U.S. 437, 439 (1971). Gillette contended that Vietnam was such an unjust war and therefore contrary to his Catholic faith. Id. at 440-41. The Court held that the statute only applied to those who conscientiously object to all wars and the relevant regulation did not violate the First Amendment. Id. at 453-54.
. Cummins, 516 F.2d at 553 (quoting Lemon v. Kurtzman, 403 U.S. 602, 619 (1971)).
. Wilson v. NLRB, 920 F.2d 1282, 1288 (6th Cir. 1990).
. Cummins, 516 F.2d at 554. This argument is weak in light of the fact that Title VII both defines religion differently and has withstood constitutional challenge but this case was asserted by the NLRB in Wilson.
. Cummins, 516 F.2d at 554.
. Jimmy Swaggert Ministries v. Bd. of Equalization, 493 U.S. 378, 394 (1990).
. See infra Section V.2 (discussing why courts have rejected the comparison of sales tax statutes to religious accommodation provisions).
. 920 F.2d 1282, 1290 (6th Cir. 1990).
. Id. at 1289.
. Katter v. Ohio Employment Relations Bd., 492 F. Supp. 2d 851, 864 (S.D. Ohio 2007).
. Wilson, 920 F.2d at 1287-88.
. Id. at 1284.
. Id. Wilson was a Christian and member of the Faith Assembly church which had no written creed other than the Bible. Id. at 1284 n.1.
. Id. at 1284.
. Id. at 1285.
. Id. at 1289.
. Id. at 1287.
. Id. The Board did not cite any legislative history or any other citation to support this contention.
. Id. at 1288 (quoting Cummins v. Parker Seal Co., 516 F.2d 544, 554 (6th Cir. 1975)).
. Id. at 1287-88.
. Id. at 1286.
. Id. at 1286-87 (noting that if no facial preference exists, then the three-pronged Lemon test is appropriate).
. Id. at 1287.
. Id. at 1287-88.
. Id. at 1287. One disadvantage of Title VII is filing an EEOC charge, which in litigation, often adds a whole year to the process.
. Id. at 1288. The Sixth Circuit quoted Hernandez v. Commission of Internal Revenue, 490 U.S. 680 (1989) noting “the Court held that routine regulatory application of neutral tax laws did not cause excessive entanglement because it involved ‘no inquiries into religious doctrine, no delegation of state powers to a religious body, and no ‘detailed monitoring and close administrative contact’ between secular and religious bodies . . . .’” Wilson, 920 F.2d at 1288 (emphasis included). The Sixth Circuit added emphasis and found that because Section 19 “involve[s] inquiry into religious doctrine” it therefore was an “excessive entanglement . . . with religion.” Id. However, “entanglement” under the third prong of the Lemon test is more often and more accurately considered “‘detailed monitoring and close administrative contact between secular and religious bodies.’” Hernandez, 490 U.S. at 696-97 (quoting Aguilar v. Felton, 473 U.S. 402, 414 (1985)). I believe that the judicial inquiry is an “entanglement” in a normative sense, and could lead to arbitrary and discriminatory enforcement. However, the judicial inquiry aspect alone would withstand Establishment Clause constitutionality as the Supreme Court was forced to inquire into religious sincerity in its draft objector cases.
. Wilson, 920 F.2d at 1289 (applying Grant v. Spellman, 664 P.2d 1227 (Wash. 1983)).
. Id. (noting Commc’n Workers v. Beck, 487 U.S. 735 (1988)). The Sixth Circuit found that interpreting Section 19 without its defect would make the construction plainly contrary to the intent of Congress. Id.
. E.g., Ohio Rev. Code Ann. § 4117.09(C) (West 2008); Wash. Rev. Code Ann. § 41.56.122(1) (West 2008).
. Katter v. Ohio Employment Relations Bd., 492 F. Supp. 2d 851, 864 (S.D. Ohio 2007).
. Id. at 853-54.
. Id. at 853.
. Id. at 854; see also Ohio Rev. Code Ann. § 4117.09(C) (providing that the objecting employee is required to submit “proper proof of religious conviction to the board”).
. Katter, 492 F. Supp. 2d at 854 (quoting Ohio Rev. Code Ann. § 4117.09(c)).
. Id. This was allowable under the statute, provided that the charity was a nonreligious 501(c)(3) charity that was “mutually agreed upon by the employee and a representative of the employee organization.” Id. Note that the nonprofit charity exemption is also standard to section 19 and not unique to the Ohio statute.
. Id. at 854.
. Id. After filing her complaint, the Union accommodated Katter’s request by agreeing on a mutual charity. Id. at 854-55. Defendants then asserted that plaintiff lacked standing as the controversy became moot, but the court found that, because of the possibility that SERB may intend to later enforce the statute, Katter’s rights were not fully vindicated and therefore she had standing. Id. at 856-59.
. Id. at 859.
. Id. at 854.
. Defendant’s Motion for Summary Judgment, Katter v. Ohio Employment Relations Bd., 492 F. Supp. 2d 851 (S.D. Ohio 2007) (No. 2:07cv00043), 2007 WL 1643793.
. Katter, 492 F. Supp. 2d at 859.
. Id. at 860.
. Id. at 860.
. Id. at 861 (noting that, because § 19 and § 4117.09(C) are so similar, the court could have held without further analysis that § 4117.09(C) is unconstitutional). The court, however, offered support anyway. Id. The court also noted that, because of this, it need not consider the violation of the free exercise clause or the First Amendment concerns. Id. at 861 n.1.
. Id. at 862.
. Id. at 863 (quoting Wilson v. NLRB, 920 F.2d 1282, 1289 (6th Cir. 1990)).
. Id.; see Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49 (1974). The legislative history of Title VII manifests a congressional intent for a plaintiff to independently pursue individual rights and that Title VII was designed to “supplement rather than supplant” existing laws relating to employment discrimination. See 110 Cong. Rec. 7207 (1964).
. Katter, 492 F. Supp. 2d at 863.
. Id. at 864.
. See, e.g., Nottleson v. Smith Steel Workers, 643 F.2d 445, 448 (7th Cir. 1981).
. A case-by-case analysis of why courts have found that Title VII does not violate the Establishment Clause is beyond the scope of this paper.
. Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 712 (1985) (O’Connor, J., concurring).
. Int’l Assn. of Machinists v. Boeing Co., 833 F.2d 165, 168 (9th Cir. 1987) (quoting Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1242 (9th Cir. 1981)). In the Boeing decision, the Ninth Circuit took a different approach than the Sixth Circuit in Wilson, reconciling the two statutes as having independent and separate rights. Id. at 169-70. The Ninth Circuit relied on the legislative history of section 19 and Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49 (1974). Id. at 170. The Ninth Circuit also found that Title VII was constitutional, citing Justice O’Connor’s concurrence in Estate of Thornton v. Caldor. Id. The plaintiff came to court in similar posture as Wilson, but the union asserted section 19 superseded Title VII. Id. at 169. The Ninth Circuit rejected this and found that an employee need not be a member of an organized religious group which opposes unions in order to the protection of religious accommodation. Id. at 169-70.
. Boeing, 833 F.2d at 171.
. Id. (citing Estate of Thornton, 472 U.S. at 712 (O’Connor, J., concurring)).
. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
. Id. at 79.
. See, e.g., Brown v. Gen. Motors Corp., 601 F.2d 956, 961-62 (8th Cir. 1979) (rejecting the District Court’s findings to this effect).
. Id. at 961-62.
. Nottelson v. Smith Steel Workers, 643 F.2d 445, 451-52 (7th Cir. 1981). The court specifically noted that in Hardison, the Supreme “Court held only that Congress did not intend such an accommodation [to abrogate contractual rights], not that compliance with a collective bargaining agreement was a defense to an allegation of employer discrimination.” Id. “Indeed, the Court expressly stated that ‘neither a collective bargaining agreement nor a seniority system may be employed to violate Title VII.’” Id. (quoting Hardison, 432 U.S. at 79).
. Nottelson, 643 F.2d at 452 (citing Burns v. S. Pac. Transp. Co., 589 F.2d 403, 407 (9th Cir. 1978)).
. Anderson v. Gen. Dynamics Convair Aerospace Div., 489 F. Supp 782, 789 (S.D. Cal. 1980), rev’d, 648 F.2d 1247 (9th Cir. 1981).
. Rogers, supra note 18, at 26.
. Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 712 (1985) (O’Connor, J., concurring).
. 118 Cong. Rec. 705 (1972); see also Rogers, supra note 18, at 25; Wilson v. NLRB, 920 F.2d 1282, 1287 (6th Cir. 1990).
. 118 Cong. Rec. 705.
. 18 Cong. Rec. 705.
. Anderson v. Gen. Dynamics Convair Aerospace Div., 489 F. Supp 782, 790 (S.D. Cal. 1980), rev’d, 648 F.2d 1247 (9th Cir. 1981); see also Rogers, supra note 18, at 27. Some courts refer to the Supreme Court’s three-part test as the test articulated in Comm. for Pub. Educ. v. Nyquist, 413 U.S. 756, 772-74 (1973). The Nyquist test is the same as the 3 part Lemon test. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971); see also supra text accompanying notes 29-35.
. Rogers, supra note 18, at 28 (quoting Sloan v. Lemon, 413 U.S. 832, 832 (1973)).
. Id. at 28-29.
. Id. at 29 n.152.
. Anderson v. Gen. Dynamics Convair Aerospace Div., 489 F. Supp. 782, 791 (S.D. Cal. 1980).
. See Wolf et al., supra note 18, at 69 (noting that investigating the sincerity of religious based practices is “so rare [under Title VII], they do not have a serious impact on Title VII’s jurisprudence.” This is because “courts are extremely reluctant to question the sincerity [ ] of an employee’s religious beliefs”).
. 42 U.S.C. § 2000e (j) (2000).
. Wilson v. NLRB, 920 F.2d 1282, 1290 (6th Cir. 1990); Katter v. Ohio Employment Relations Bd., 492 F. Supp. 2d 851, 859-60 (S.D. Ohio 2007).
. Wilson, 920 F.2d at 1290 (holding that section 19 does not violate the Free Exercise Clause because it does not mandate the form of accommodation offered by Section 19).
. 29 U.S.C. § 169 (2000).
. EEOC Guidelines on Discrimination Because of Religion, 29 C.F.R. § 1605.1 (2008).
. See 29 C.F.R. § 1605.1; see also Welsh v. United States, 398 U.S. 333, 339-40 (1970); Seeger v. United States, 380 U.S. 163, 185-87 (1965).
. 29 U.S.C. § 169.
. See Wolf et al., supra note 18, at 140. For example, David Koresh’s Branch Davidians were an “offshoot” of the Seventh-Day Adventist Church, and Seventh-Day Adventists qualify as “historical” objectors. Would Branch Davidians also qualify? The idea that employers, unions and courts would be looking into whether an offshoot sect maintains the traditional orthodoxy of the original church is just one example of the absurdity of this limitation, demonstrating section 19’s denominational preference is not only discriminatory but unworkable.
. See Bushouse v. United Auto., 164 F. Supp. 2d 1066, 1078 (N.D. Ind. 2001).
. See supra Section III.A and accompanying notes; see also Defendants Motion for Summary Judgment, Katter v. Ohio Employment Relations Bd., 492 F. Supp. 2d 851 9S.D. Ohio 2007) (No. 07-CV-043), 2007 Lexis 38425).
. Wilson v. NLRB, 920 F.2d 1282, 1288 (6th Cir. 1990).
. Id. (citing Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 391-93 (1990)).
. Wilson, 920 F.2d at1288.
. Id. (quoting Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 682 (1989)) (emphasis included).
. Id.; see supra note 152 and accompanying text (discussing this likely overstates the “entanglement” prong under the Lemon test).
. Wilson, 920 F.2d at 1287 (explaining that because the statute was subject to strict scrutiny, the Board was forced to articulate a compelling governmental interest).
. Gillette v. United States, 401 U.S. 437, 439 (1971).
. Id. at 451.
. Id. at 454.
. Id. at 450-51.
. Id. at 451 (internal quotations omitted).
. “‘[R]eligion’ includes all aspects of religious observance and practice, as well as belief.” 42 U.S.C. § 2000e(j) (2000).
. § 2000e(j).
. Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1242 (9th Cir. 1981).
. See McDaniel v. Essex Int’l Inc., 696 F.2d 34, 37 (6th Cir. 1982).
. Rogers, supra note 18, at 37.
. Id. at 37-38.
. Id. at 38; see Wisconsin v. Yoder, 406 U.S. 205, 235 n.22 (1972) (quoting Sherbert v. Verner, 374 U.S. 398, 409 (1961)).
. 118 Cong. Rec. 705 (1972).
. Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 737 (1988).
. 29 U.S.C. § 169 (2000).
. 29 C.F.R. § 1605.2 (2008).
. 42 U.S.C. § 2000e(j) (2000).
. See Wolf et al., supra note 18, at 5 n.27.
. 29 U.S.C. §§ 158(a)(3), (b)(2) (2000).
. The employer is liable under 42 U.S.C. §§ 2000e(j), 2000e-2(a) (2000). The union may be liable under § 2000e-2(c), (stating that expelling or discriminating against a member of the basis of race, color, religion or national origin is an unlawful employment practice). Subsection (3) also provides that causing or attempting “to cause an employer to discriminate against an individual” is a violation of this section. 42 U.S.C. § 2000e-2(c)(3) (2000).
. Wilson v. NLRB, 920 F.2d 1282, 1284 (6th Cir. 1990).
. McDaniel v. Essex Int’l Inc., 571 F.2d 338, 343 (6th Cir. 1978); see also McDaniel v. Essex Int’l Inc., 696 F.2d 34, 38 (6th Cir. 1982) (holding, on a second appeal, that failure to accommodate was in violation of Title VII).
. Nottleson v. Smith Steel Workers, 643 F.2d 445, 450 (7th Cir. 1981).
. See Bushouse v. Local Union 2209, 164 F. Supp. 2d 1066, 1072 (N.D. Ind. 2001).
. Wilson, 920 F.2d at 1285.
. Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 401 (9th Cir. 1978).
. Unions have formerly asserted that the loss of the fee was an undue hardship, but courts have found that the amount is so small in comparison that the accommodation is de minimus and therefore not an undue hardship. See EEOC v. Ilona of Hungary, Inc., 97 F.3d 204, 212 (7th Cir. 1996).
. Katter v. Ohio Employment Relations Bd., 492 F. Supp. 2d 851, 854 (S.D. Ohio 2007); Wilson v. NLRB, 920 F.2d 1282, 1284 (6th Cir. 1990).
. Defendant’s Motion for Summary Judgment, Katter v. Ohio Employment Relations Bd., 492 F. Supp. 2d 851 (S.D. Ohio 2007) (No. 2:07cv00043), 2007 WL 1643793.
. See Chalmers v. Tulon Co., 101 F.3d 1012, 1019 (4th Cir. 1996) (explaining the three- prong test used for failing to accommodate employee’s religious beliefs).
. McDaniel v. Essex Int’l Inc., 571 F.2d 338, 339 (6th Cir 1978).
. See Wilson v. NLRB, 920 F.2d 1282, 1285 (6th Cir. 1990); Katter, 492 F. Supp. 2d at 854.
. Obviously consultation with legal counsel would alleviate this dilemma but decision makers do not always consult counsel before termination.
. Wolf et al., supra note 18, at 69.
. Ohio Rev. Code Ann. § 4117.09(C) (West 2008).
. For example in the more “typical” accommodation case in which an employee asserts he or she cannot work on a Jewish holiday, for example, would not subject the employee to proof from his or her rabbi that she is actually Jewish, adheres to Jewish beliefs, normally attends religious holidays etc. In contrast, dues objectors are subjected to providing documentation as routine procedure. For the Title VII inquiry, see EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir. 1997) (holding that a Jewish person who is not “particularly” observant is still sincere in not wanting to work on Yom Kippur).
. Plaintiff’s Verified Complaint, Katter v. Ohio Employment Relations Bd., 492 F. Supp. 2d 851 (S.D. Ohio 2007) (No. 2:07cv00043), 2007 WL 698823.
. See Cooper v. General Dynamics, Convair Aerospace Div., 533 F.2d 163, 168 (5th Cir. 1976).
. Bushouse v. Local Union 2209, 164 F. Supp. 2d 1066, 1069 (N.D. Ind. 2001).
. Id. at 1069-70.
. Id. at 1070.
. Id. at 1070-71.
. Id. at 1071.
. Bushouse, 164 F. Supp. 2d at 1078.
. Id. at 1075. Note that the court primarily justifies inquiry by Seeger and not other accommodation cases. The court seemed to also be suspicious of his beliefs as well, which is unfortunate because this author believes that it influenced the decision that this was a reasonable inquiry.
. Bushouse, 164 F. Supp. 2d at 1073.
. Perhaps it is the tension between the collective bargaining agreements and the employer’s duty to terminate that requires this intensive scrutiny.
. 29 C.F.R. § 1605.1 (2008); see United States v. Seeger, 380 U.S. 163 (1965).
. See supra note 18.
. See Rogers, supra note 18, at 2.
. See supra note 18.
. See supra note 18.
. O’Brien v. City of Springfield, 319 F. Supp. 2d 90, 109 (D. Mass. 2003) (quoting Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981)).
. Id. at 109.