The Supreme Court begins its day Tuesday with a hearing on one of the current conservative majority’s favorite subjects – religious freedom. A second hearing will explore the proof needed to show that someone knew they had broken a law.
The Court will broadcast “live” the audio (no video) of the hearings on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of each case, on C-Span TV at this link: cspan.org/supremecourt
First hearing Tuesday: Groff v. Louis DeJoy, U.S. Postmaster General The hearing, starting at 10 a.m., is scheduled for one hour.
Background: One of the most distinctive features of the Supreme Court with its current majority of six conservative Justices is its keen interest in questions about religious freedom, as guaranteed in the Constitution or in federal laws. And that interest usually translates into added protection for those relying on the right to practice their faith.
The “free exercise of religion” is promised by a clause in the First Amendment. The Constitution, though, is not under review in this case. Rather, this is a test of the scope of a federal civil rights law that bars discrimination in the workplace based on an employee’s religion. As originally passed by Congress in 1964, Title VII of that law barred on-the-job discrimination against a worker “because of such individual’s religion.”
It has been a long and somewhat frustrating process since then to know what that law requires.
In 1966, the U.S. Equal Employment Opportunity Commission issued a guideline saying that the law required employers to “accommodate to the reasonable religious needs of employees” if that could be done “without serious inconvenience to the conduct of the business.”
A year later, it changed the guideline to say that employers must make “reasonable accommodations” to workers’ religious needs where that could be done “without undue hardship on the conduct of the employer’s business.”
Because the agency had not made clear what “reasonable” meant for the needed accommodation or what “undue” meant in terms of hardship, Congress took a turn in 1972. With little debate, it amended the law but did not add any clarity. Its amendment basically wrote into law EEOC’s 1967 guideline that accommodation of a worker’s religion had to be reasonable unless the business would face an undue hardship.
The last step in this process came in 1977, when the Supreme Court issued its ruling in Trans World Airlines v. Hardison, which remains to this day the last word on the issue. That case involved a clerk working for the airline in Kansas City, Larry Hardison, who observed Saturday as his Sabbath and wanted to have that day off regularly. The company refused.
Ruling for the company, the Court said: “To require TWA to bear more than a de minimis cost to give Hardison Saturdays off is an undue hardship.” (In the law, de minimis usually means trivial or minor, unnecessary to consider.)
Advocates for religious freedom have pressed repeatedly since then to get the Supreme Court to abandon that phrase, and instead to require employers to prove a more substantial hardship in order to avoid the Title VII duty of arranging for religious workers to observe their faith.
In recent years, while the Court has several times refused to reopen the issue, three Justices have said it is time to do so: Samuel A. Alito, Jr., Neil M. Gorsuch and Clarence Thomas.
They obviously have now picked up allies: in January, the Court voted to rule on the case to be heard first on Tuesday. In order to grant such review, it takes at least the votes of four Justices. The vote to hear the case was not disclosed but it may well have been more than four.
The facts of this case: Gerald E. Groff joined the staff of the U.S. Postal Service in 2012, as a substitute carrier on rural mail routes. He was a non-career employee, filling in for absent career carriers. He worked in the small Pennsylvania towns of Quarryville and Holtwood.
He is a Christian, who observes Sunday as his Sabbath, a day for worship and rest.
His work situation began to change in 2013, when USPS signed a contract with the online giant, Amazon, to deliver its packages on Sundays. After USPS worked out a schedule with a carriers’ labor union, Groff – then working in Quarryville — was told he would have to deliver Amazon packages on Sundays, or find another job. He transferred to Holtwood, which had not yet begun Sunday deliveries, but the same situation arose again. For a time, the postmaster there tried to work out a trade of shifts to accommodate Groff, but that did not work well.
Facing the loss of his job, he resigned in January 2019, then sued USPS under Title VII. Lower federal courts ruled against him, concluding that to do more than the Postal Service had offered him would have meant an undue hardship. Exempting him altogether from Sunday work, the appeals court said, would exceed the de minimis standard set by the Supreme Court. It would put a burden on other workers and harm morale in the workplace, that court found.
Groff appealed to the Supreme Court. The Justice Department tried to head off Supreme Court review, noting that the Justices had passed up similar appeals. The Court agreed to review the case anyway, explicitly taking on the question of reconsidering the de minimis standard.
The questions before the Court: Is the Supreme Court’s 1977 standard on when accommodating a worker’s religion imposes a burden on the employer an improper interpretation of Title VII and should be cast aside? Is it a burden under Title VII if the hardship falls on co-workers more than on the employer’s business?
Significance: Title VII is the strongest federal civil rights law on discrimination in the workplace, and has played a central role throughout its history of more than a half-century. In the private sector and in state and local government, it applies to all employers with 15 or more workers; it also applies to all federal agencies.
An important part of that history has been the Supreme Court’s attempt to balance equality in the workplace by showing sensitivity to the religious needs of workers without going so far as to have government policy endorse religious practice.
In recent years, an energetic and well-financed movement to promote religious freedom has complained repeatedly that the Court’s 1977 test is really no test at all, that it works to diminish the rights of the devout.
That movement now has a sympathetic majority on the Supreme Court, and that has produced victory after victory lately. The mere fact that the Court has now mustered enough votes to reconsider the 1977 standard of “undue hardship” is at least a hint that it is leaning toward giving religious employees more protection.
The difficulty of doing that, without pushing the government more deeply into monitoring religious controversy, is no less than it has been over the past decades.
Second hearing Tuesday: U.S. ex rel. Schuette v. SuperValu Inc. combined with U.S. ex rel. Proctor v. Safeway, Inc. The hearing, scheduled for one hour, will begin after the workers’ rights hearing has finished.
Background: It is a valued tradition of liberal society that the law should not take people by surprise. “Fair notice” is the legal norm, letting people understand where the boundaries of legal behavior are. Constitutional guarantees of such notice are contained in the Sixth Amendment for criminal cases and in various “due process” clauses for civil matters.
Throughout the wide range of the law, the word “knowingly” is frequently inserted to embody this idea of fair notice – in other words, you must actually know you are breaking the law in order to break the law. That is what is at issue in these combined cases.
The cases depend on the meaning of the word “knowingly” in the federal False Claims Act. It is sometimes referred to as “Lincoln’s Law” because President Lincoln persuaded Congress to pass it in 1863, to deal with fraud by suppliers of goods to the Union Army during the Civil War.
The law is not enforced only by the government, but also by private “whistleblowers,” suing as stand-ins for the government. That is a legal approach that goes back to medieval England. If a citizen lawsuit under the Act is successful, the individual gets a part of the recovered proceeds.
The Act has been a bonanza for the federal government. Since Congress toughened the law in 1986, the government has recovered some $70 billion funds from flawed claims.
Under the Act, it is illegal for anyone who “knowingly” makes a false claim for money from a federal agency or makes a false statement in such a claim. It does not require specific proof of an intent to commit fraud. A violation can be, for example, billing falsely for goods or services or failing to comply with a government regulation.
The Act defines “knowingly” as “actual knowledge, deliberate ignorance, or reckless disregard of the falsity of information.” As these cases illustrate, those definitions have not been clear enough: federal appeals courts are split, four to four, on how to interpret those words.
Facts of these cases: In both cases, private individuals sued major grocery chains in federal court in Illinois, claiming that the chains over-billed the government in sales of prescription drugs paid for by Medicare or Medicaid insurance (benefits for the elderly and the disabled). Together, the cases involve more than 800 retail pharmacies.
The chains were accused of giving retail customers significant discounts on drugs, to match what competitors like Walmart were charging, while billing the federal government for reimbursement at regular, higher retail prices.
The same federal appeals court ruled in separate cases that the private individuals’ claims did not prove that the chains acted “knowingly.” That word, it decided, must be interpreted in an objective way, so a particular entity accused under the Act did not need to have a subjective intent to cheat the government.
It ruled that the chains believed – wrongly — that their pricing claims to the government were “objectively reasonable” because no law or government rule barred that approach, and that no government guidance had warned the chains not to use that approach. That kind of guidance, the court declared, could only come from binding court precedent or government agency rule.
The private individuals appealed to the Supreme Court. The Justice Department, asked by the Court for its views, argued that the lower court interpretation was wrong. The Court agreed to rule on the cases together.
The questions before the Court: Does a company or entity filing a claim for money from a federal agency violate the False Claims Act “knowingly” if they had a reasonable but wrong understanding of a legal requirement? Must they be warned by some formal guidance of their flawed view?
Significance: These cases, taken in their specific context, are profoundly important if only because of the size of the group of drugstores involved and the potential over-payment that the government has been denied by the lower court’s rulings.
But it is of even greater significance because the word “knowingly” appears in so many federal laws, civil and criminal. The Supreme Court has previously ruled that it will borrow meanings of a word in a law from one context and apply it to others. Any decision that emerges has the prospect of migrating widely across the federal legal code.
On Wednesday, the Court will hold a single hearing. It will be another case testing the meaning of a word: “threat.”
