Religious Objections to the Postal Service Oath of Office

• Decision Date: 02 February 2005
• Docket Number: 05-4
• Citation: 29 Op. O.L.C. 37
• Parties: Religious Objections to the Postal Service Oath of Office
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

29 Op. O.L.C. 37

Religious Objections to the Postal Service Oath of Office

No. 05-4

United States Department of Justice

February 2, 2005

C KEVIN MARSHALL Acting Deputy Assistant Attorney General Office of Legal Counsel

Religious Objections to the Postal Service Oath of Office

Section 1011 of title 39 of the United States Code specifies an oath of office that all Postal Service officers and employees must take. Title VII of the Civil Rights Act of 1964 does not require the Postal Service to depart from the dictates of section 1011 in order to accommodate (beyond what is required by section 1011) prospective employees who raise bona fide religious objections to taking this oath.

The Religious Freedom Restoration Act does not require any further accommodation in response to three common objections to taking this oath.

MEMORANDUM OPINION FOR THE VICE PRESIDENT AND GENERAL COUNSEL UNITED STATES POSTAL SERVICE

Congress has long required that all officers and employees of the United States Postal Service, before entering into any duties or receiving any salary, take and subscribe a set oath. Its words are now specified in 39 U.S.C. § 1011 (2000). That statute allows a prospective employee to "affirm" rather than "swear" the oath but does not otherwise provide for alteration. You have asked whether, and if so under what circumstances, the Postal Service is required either by Title VII of the Civil Rights Act of 1964 or by the Religious Freedom Restoration Act ("RFRA") to depart from the dictates of section 1011 in order to further accommodate prospective employees who raise bona fide religious objections to taking this oath. We first conclude that Title VII does not require any further accommodation because it does not permit any departure from a federal statutory mandate. We also conclude that RFRA does not require any further accommodation in response to three common objections: without questioning the sincerity of the religious views behind those objections, we nevertheless conclude from an analysis of the terms of the statutory oath that, properly understood, the oath does not in those circumstances burden a person's exercise of religion.^[1]

I.

Since the Civil War, Congress has mandated a set oath of office as a condition precedent for employment with the federal government, including employment in the Post Office, and this oath has included the pledges that one will "support and defend the Constitution of the United States, against all enemies, foreign and domestic" and "bear true faith and allegiance to the same." See An Act to prescribe an Oath of Office, and for other Purposes, ch. 128, 12 Stat. 502, 502 (1862); [ 38] see also An Act to amend the Laws relating to the Post-Office Department, ch. 71, § 2, 12 Stat. 701, 701-02 (1863) (adding to this oath for all persons employed by Post Office). As Attorney General Speed wrote of the Civil War era statutes, "the ability to take the oath, and the fact that the oath is taken, are qualifications as well for employe[e]s and contractors as for officers in the Post Office Department." Le Baron's Case, 11 Op. Att'y Gen. 498, 500 (1866). The present general oath for federal officers appears at 5 U.S.C. §3331 (2000). Congress has separately specified the oath for the Postal Service, in 39 U.S.C. § 1011, although it is identical (but for omitting the concluding sentence, "So help me God"). Section 1011 requires as follows:

Before entering upon their duties and before receiving any salary all officers and employees of the Postal Service shall take and subscribe the following oath or affirmation:

"I, ______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter."

From time to time, the Postal Service faces religious objections to this requirement. We understand from you and the Civil Division of this Department that three objections in particular recur. First, some prospective employees object to affirming that they will "support... the Constitution " stating that they object to placing allegiance to a temporal power above allegiance to God. Second, others object to affirming that they will "defend the Constitution, " stating that they object to promising to take up arms or use force in defense of the country. Third, still others object to affirming that they will "bear true faith and allegiance" to the Constitution, stating that they object to placing allegiance to a temporal power above allegiance to God. See Letter for M. Edward Whelan III, Acting Assistant Attorney General, Office of Legal Counsel, from Mary Anne Gibbons, Vice President, General Counsel, United States Postal Service at 2 (May 29, 2003) ("May USPS Letter") (explaining that "great majority" of objections involve "support" and "defend"); Memorandum for Jack Goldsmith, Assistant Attorney General, Office of Legal Counsel, from Peter D. Keisler, Assistant Attorney General, Civil Division at 2 (Oct. 23, 2003) ("Civil Division Memo") (including "true faith and allegiance" as among the "most typical objections" and describing objection as same as objection to "support"); see also Anderson v. Frank, No. 91-C-292, slip op. at 2 (E.D. Wis. Nov. 20, 1992) (rejecting Title VII challenge to Postal Service oath, involving claims that "defend" suggested military service and "true faith and allegiance" suggested "devotion to an entity other than God"). [ 39]

Initially, you asked only whether Title VII, 42 U.S.C. §§ 2000e-2000e-17 (2000), requires the Postal Service to accommodate religious objections. See Letter for Jay Bybee, Assistant Attorney General, Office of Legal Counsel, from Mary Anne Gibbons, Vice President, General Counsel, United States Postal Service at 2 (Apr. 25, 2003) ("April USPS Letter"). Subsequently, you asked that we also consider RFRA, 42 U.S.C. §§ 2000bb-2000bb-4 (2000). See May USPS Letter at 2. Because of the involvement of the Civil Division and the Equal Employment Opportunity Commission ("EEOC") in the Anderson case cited above, we have solicited and received their views, although the EEOC has formally limited its views to "the application of Title VII." Letter for Howard C. Nielson, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, from Peggy R. Mastroianni, Associate Legal Counsel, EEOC at 1 n.l (Jan. 8, 2004). The Civil Rights Division of this Department and the Office of Personnel Management did not submit views in response to our requests. We first address Title VII and then turn to RFRA.

II.

The section of Title VII regulating employment by the federal government provides that "[a] 11 personnel actions affecting employees or applicants for employment... in the United States Postal Service . . . shall be made free from any discrimination based on. . . religion." 42 U.S.C. § 2000e-16(a).^[2] Although this language does not plainly require accommodation of religious practice—as opposed to simply prohibiting affirmative "discrimination based on" such practice—Congress, as the Supreme Court has explained, has "incorporated [such a requirement] into the statute, somewhat awkwardly, in the definition of religion." Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 n.1 (1986). That definition provides as follows: "The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j).^[3] Title VII thus, through [ 40] the interaction of these two sections, is understood to require federal employers in "[a]ll personnel actions" to "reasonably accommodate to" an employee's religious practices, unless so accommodating would impose "undue hardship." See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75 (1977) (explaining that "the employer's statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear"). Any accommodation that would cause an employer to bear "more than a de minimis cost" imposes "undue hardship." Id. at 84; see Ansonia, 479 U.S. at 67 (same). And the cost need not be economic. Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 134-35 (1st Cir. 2004).

Title VII does not require (or permit) the Postal Service, in response to religious objections, to depart from the oath of office mandated by 39 U.S.C. § 1011, because for the Postal Service to violate a federal statute would impose "undue hardship" as a matter of law. Nothing in the relevant provisions of Title VII either expressly or implicitly provides for the disregard of a congressional mandate in the name of reasonably accommodating to religious practices Section 2000e(j) contains no "notwithstanding any other law" language; nor does it otherwise suggest that it overrides other federal law, such as RFRA does by expressly "appl[ying] to all Federal law, " 42 U.S.C. § 2000bb-3(a). Cf. TWA, 432 U.S. at 79 (holding that, in absence of "a clear and express indication from Congress" to the contrary, it would cause undue hardship under section 2000e(j) for an employer to violate "an agreed-upon seniority system" in an "otherwise valid" collective bargaining contract). Furthermore, as you have noted, see April USPS Letter at 2, the Postal Service, as a component of the Executive Branch of the federal government, has a background constitutional...