Endres v. Indiana State Police

• Decision Date: 27 June 2003
• Docket Number: No. 02-1377.,No. 02-1247.,02-1247.,02-1377.
• Citation: 334 F.3d 618
• Parties: Benjamin P. ENDRES, Jr., Plaintiff-Appellee, and UNITED STATES of America, Intervening Plaintiff-Appellee, v. INDIANA STATE POLICE, Defendant-Appellant. Patricia Holmes, Plaintiff-Appellee, and United States of America, Intervening Plaintiff-Appellee, v. Marion County Office of Family and Children, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

334 F.3d 618

Benjamin P. ENDRES, Jr., Plaintiff-Appellee, and UNITED STATES of America, Intervening Plaintiff-Appellee, v. INDIANA STATE POLICE, Defendant-Appellant.

Patricia Holmes, Plaintiff-Appellee, and United States of America, Intervening Plaintiff-Appellee, v. Marion County Office of Family and Children, Defendant-Appellant.

No. 02-1247.

No. 02-1377.

United States Court of Appeals, Seventh Circuit.

Argued November 1, 2002.

Decided June 27, 2003.

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Steven H. Aden (argued), Rutherford Institute, Charlottesville, VA, Deborah E. Albright (argued), Monday, Rodeheffer, Jones & Albright, Indianapolis, IN, for Plaintiffs-Appellees.

Wayne E. Uhl, Thomas M. Fisher (argued), Office of Attorney General, Indianapolis, IN, for Defendants-Appellants.

Sarah E. Harrington (argued), Department of Justice, Civil Rights Div., Washington, DC, for Intervenor-Appellee.

Robert L. Strayer Office of Attorney General, Columbus, OH, for Amicus Curiae.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Benjamin Endres lost his job with the Indiana State Police after he refused to work at a casino, an enterprise that contravenes his religious beliefs. Patricia Holmes, an employee of Indiana's child-welfare system, took two days of paid leave rather than comply with a directive to remove a headwrap required by her faith. Endres and Holmes have sued under Title VII of the Civil Rights Act of 1964, contending that Indiana discriminated against them on account of their religion. Plaintiffs rely on a definition in § 701(j) of that Act, 42 U.S.C. § 2000e(j), which provides that religion "includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."

Both defendants concede that they have a duty not to discriminate against any religious faith but rely on Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), for the proposition that they need not accommodate religiously inspired practices adversely affected by rules that are neutral with respect to religion. To the extent an accommodation requirement extends beyond the first amendment, defendants insist, it rests on the Constitution's commerce clause and not on § 5 of the fourteenth amendment. That does not undermine § 701(j)'s validity as applied to state employees, see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), but does affect where litigation must occur — for, when Congress acts only under the commerce power, the eleventh amendment permits states to insist that suit be in state court. Compare Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), with Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Court concluded that the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb to § 2000bb-4, exceeds the power granted by § 5 and therefore may not support a private action in federal court against a state. Defendants submit that § 701(j), which like the RFRA requires accommodation rather than neutrality, also is not § 5 legislation. After the United States intervened to defend the constitutionality of Title VII, each district judge rejected Indiana's argument and held that litigation may proceed in federal court. Endres v. Indiana State Police, No. 3:01-CV-0518 (N.D.Ind. Dec. 28, 2001) (unpublished order); Holmes v. Marion County Office of Family and Children, 184 F.Supp.2d 828 (S.D.Ind.2002). Defendants took interlocutory appeals. See Lapides v. University of Georgia, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). We consolidated the cases for briefing and argument.

I.

Endres joined the State Police in 1991. After Indiana began to license casinos, the State Police designated some of its officers as Gaming Commission agents. In March 2000 Endres was assigned to a full-time position as an agent at the Blue Chip Casino in Michigan City, Indiana. Endres worships at the Community Baptist Church in South Bend; he and other congregants believe they must neither gamble nor help others to do so, because games of chance are sinful. Endres told the State Police that providing law-enforcement services at a casino would violate his religious beliefs because it would facilitate gambling. He asked for a different assignment; the State Police declined. Endres then refused to report for duty and was fired for insubordination. The record does not reflect why Endres was deputed as a Gaming Commission agent, but he does not contend that this occurred because of, rather than in spite of, his religiously based opposition to gambling. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). Nor did the State Police hold his views against him; it responded to his deeds, not his faith, and Endres does not contend that he was treated more severely than he would have been had he refused the same assignment for secular reasons. As a result, neither the posting nor the decision not to accommodate Endres's desire for different duties violated the free exercise clause of the first amendment, as Smith understands that clause.

Before taking up the question whether § 701(j) is an exercise of § 5 powers, we first inquire whether § 701(j) obliges states to afford the sort of accommodation that Endres requested. A negative answer will enable the court to avoid a constitutional issue, which makes it prudent to follow the model that the Supreme Court established in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), for qualified-immunity appeals by state actors: determine whether the complaint states a claim before inquiring whether the defendants have immunity. Because the eleventh amendment does not curtail subject-matter jurisdiction (if it did, states could not consent to litigate in federal court, as Lapides holds that they may), a court is free to tackle the issues in this order, when it makes sense to do so, without violating the rule that jurisdictional issues must be resolved ahead of the merits. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 778-80, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000).

Endres contends that § 701(j) gives law-enforcement personnel a right to choose which laws they will enforce, and whom they will protect from crime. Many officers have religious scruples about particular activities: to give just a few examples, Baptists oppose liquor as well as gambling, Roman Catholics oppose abortion, Jews and Muslims oppose the consumption of pork, and a few faiths (such as the one at issue in Smith) include hallucinogenic drugs in their worship and thus oppose legal prohibitions of those drugs. If Endres is right, all of these faiths, and more, must be accommodated by assigning believers to duties compatible with their principles. Does § 701(j) require the State Police to assign Unitarians to guard the abortion clinic, Catholics to prevent thefts from liquor stores, and Baptists to investigate claims that supermarkets mis-weigh bacon and shellfish? Must prostitutes be left exposed to slavery or murder at the hands of pimps because protecting them from crime would encourage them to ply their trade and thus offend almost every religious faith?

The Supreme Court held in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), that § 701(j) does not require an accommodation that would cause more than minimal hardship to the employer or other employees. See also Ansonia Board of Education v. Philbrook, 479 U.S. 60, 67-69, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986). Juggling assignments to make each compatible with the varying religious beliefs of a heterogeneous police force would be daunting to managers and difficult for other officers who would be called on to fill in for the objectors. Whether or not a paramilitary organization could accommodate task-specific conscientious objection without undue hardship, however, the demand would not be reasonable — and § 701(j) calls only for reasonable accommodations. Reasonableness and the avoidance of undue hardship are distinct. Cf. Vande Zande v. Wisconsin Department of Administration, 44 F.3d 538 (7th Cir.1995) (discussing the difference between "reasonable" accommodation and "undue hardship" under the Americans with Disabilities Act). Selective objection to some of the employer's goals raises problems on the "reasonableness" branch as well as the "undue hardship" branch. See Reed v. Great Lakes Cos., 330 F.3d 931 (7th Cir.2003).

This is the third time we have had to consider how § 701(j) applies to requests by law-enforcement personnel to choose which crimes they will investigate and which potential victims they will protect. In Ryan v. Department of Justice, 950 F.2d 458 (7th Cir.1991), an FBI agent claimed a right to be free of any assignment concerning nonviolent opposition to military activities — such as, for example, protesters who vandalize military installations, see United States v. Urfer, 287 F.3d 663 (7th Cir.2002), or pour blood on military records, see United States v. Berrigan, 437 F.2d 750 (4th Cir.1971). Agent Ryan's views stemmed from the U.S. Bishops' Pastoral Letter on War and Peace; his sincerity was not in doubt. Nonetheless, we held, § 701(j) did not protect him from discharge for insubordination:

It is difficult for any organization to accommodate employees who are choosy about assignments; for a paramilitary organization the tension is even greater. Co...