Benjamin P. ENDRES, Jr., Plaintiff-Appellee, and United States of America, Intervening Plaintiff-Appellee, v. INDIANA STATE POLICE, Defendant-Appellant.
No. 02-1247.
United States Court of Appeals, Seventh Circuit.
June 27, 2003.
Nov. 19, 2003.
349 F.3d 922
The dеcision of the district court is vacated, and the case is remanded with instructions to dismiss that portion of the complaint that alleges failure to accommodate, while retaining that portion of the complaint that alleges disparate treatment.
Steven H. Aden (argued), The Rutherford Institute, Charlottesville, VA, for Plaintiff-Appellee.
Sarah E. Harrington (argued), Department of Justice, Washingtоn, DC, for Intervenor-Appellee.
Robert L. Strayer, Office of the Ohio 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. He sued under
Indiana concedes that the State Police must not discriminate against any religious faith but relies on Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), for the proposition that it 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
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. Gaming Commission agents certify gambling revenue, investigate complaints from the public about the gaming system, and conduct licensing investigations for the casinos and their employees. 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, although he was willing to enforce general vice laws at casinos, providing the specialized services required оf Gaming Commission agents 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. An assignment to this position because of (rather than in spite of, or with indifference to) his religious beliefs would violate the Constitution, see Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), but Endres does not contend that his religion played any role in the selection. According to the complaint, he was selected by lot. Nor did the Stаte Police hold his views against him after he refused the assignment; 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 position 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
Before taking up the question whether
Endres contends that
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
This is the third time we have had to consider how
It is difficult for any organization to accommodate employees who are choosy about assignments; for a paramilitary organization the tension is even greater. Conscientious objectors in the military seek discharge, which accommodates their beliefs and the military‘s need for obedience. Ryan received discharge but does not want it. He wants to be an agent and to choose his assignments too. With good will all around, and flexibility on the part of Ryan‘s fellow agents, it just might be possible to make a go of it.
Title VII does not, however, compel the FBI to attempt this. Legal institutions lack the sense of nuance that will tell an experienced agent how far the rules may be bent without injury to the FBI‘s mission. Compelled, as it is byTitle VII , to have one rule for all of the diverse religious beliefs and practices in the United States, the FBI may choose to be stingy with exceptions lest the demand for them overwhelm it.
950 F.2d at 462. Our second case was Rodriguez v. Chicago, 156 F.3d 771 (7th Cir.1998). Rodriguez, like Ryan a Roman Catholic, refused to protect abortion clinics and their clients. Again the sincerity of his views was unquestioned; again the officer lost, this time because an accommodation had been offered in the form of an opportunity to transfer to a precinct without abortion clinics (which avoided the need to determine whether the offer had been required). Chief Judge Posner filed a concurring opinion addressing the question that the majority had ducked and concluding, in part on the authority of Ryan, that agencies such as police and fire deрartments designed to protect the public from danger may insist that all of their personnel protect all members of the public—that they leave their religious (and other) views behind so that they may serve all without favor on religious grounds. That is, after all, an obligation both state law and the Constitution fasten on the police. If police and fire departments must enforce the law and protect potential victims free of religious favoritism, then they may insist that all members of their forces (voluntеers rather than conscripts) do their parts in fulfilling this duty. “[P]ublic protectors such as police and fire-fighters must be neutral in providing their services.” Shelton v. University of Medicine & Dentistry, 223 F.3d 220, 228 (3d Cir.2000).
Perhaps one could say that Ryan does not compel this conclusion; agent Ryan had been offered one form of accommodation (a swap of assignments with a fellow agent), and officer Endres lacked any similar way out. Yet what principally led to Ryan‘s discharge (as opposed to lesser discipline) was his failure to follow a direct order, coupled with a claim of entitlement in the future to choose which crimes would be investigated and which potential victims protected. Endres has made a claim of entitlement similar to Ryan‘s—broader to the extent that Endres claims a right to reject an entire job classification, while Ryan claimed only the right to reject particular investigations—and Endres‘s employer has not offered a similar accommodation. Certainly nothing in Ryan or Rodriguez implies that there must be such an offer: those cases deemed proffered accommodations adequate and did not reach the question whether any had been necessary. Here, where no accommodation was attempted, we must decide whether the statute requires one, and we hold that it does not.
Law-enforcement agencies need the cooperation of all members. Even if it proves possible to swap assignments on one occasion, another may arise when personnel are not available to cover for selective objectors, or when (as in Hardison) seniority systems or limits on overtime curtail the options for shuffling personnel. Beyond all of this is the need to hold police officers to their promise to enforce the law without favoritism—as judges take an oath to enforce all laws, without regard to their (or the litigants‘) social, political, or religious beliefs. Firefighters must extinguish all firеs, even those in places of worship that the firefighter regards as heretical. Just so with police.
The public knows that its protectors have a private agenda; everyone does. But it would like to think that they leave that agenda at home when they are on duty—that Jewish policemen protect neo-Nazi demonstrators, that Roman Catholic policemen protect abortion clinics, that Black Muslim policemen protect Christians and Jews, that fundamentalist Christian poliсemen protect noisy atheists and white-hating Rastafarians, that Mormon policemen protect Scientologists, and that Greek-Orthodox policemen of Serbian ethnicity protect Roman Catholic Croats. We judges certainly want to think that U.S. Marshals protect us from assaults and threats without regard to whether, for example, we vote for or against the pro-life position in abortion cases.
Rodriguez, 156 F.3d at 779 (Posner, C.J., concurring). And, we add, that Baptist policemen protect gamblers from theft and fraud (and casino operators from sticky-fingered gamblers and employees with falsified credentials). Cf. Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971) (selective conscientious objection does not excuse military service).
Endres advanced a claim under
The decision of the district court is reversed, and the case is remanded with instructions to enter judgment for the State Police on the merits.
RIPPLE, Circuit J., with whom ILANA DIAMOND ROVNER and WILLIAMS, Circuit J., join, dissenting from the denial of rehearing en banc.
Today, the court declines to rehear en banc a case that departs significantly frоm this court‘s fundamental approach to statutory interpretation. In doing so, it sets our court apart from the other circuits with respect to a fundamental aspect of
Benjamin Endres was an officer for the Indiana Stаte Police. After Indiana began to license casinos, the State Police designated some of its officers as Gaming
In addressing his claim, the panel first noted, correctly, that ”
However, it then continued:
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.
Id. Comparing Mr. Endres’ request to that of the plaintiff in Ryan v. Department of Justice, 950 F.2d 458 (7th Cir.1991), the panel held that such a request is per se unreasonable in the context of a police or fire department. See id. at 5-6.
The panel‘s disposition of Mr. Endres’ accommodation claim contains several crucial errors. First, the panel recharacterizes the scope of the accommodation that Mr. Endres sought. Mr. Endres simply asked that he not be assigned on a permanent, full-time basis to a gambling establishment; he did not seek to avoid all law enforcement activity with respect to a casino. Consеquently, his request did not either require the ongoing “[j]uggling [of] assignments” or involve an officer choosing which law he would enforce—elements of Mr. Endres’ claim that the panel found so troubling.
The panel‘s resolution also fails to adhere to the established law of this and every other circuit. Employing a less polemical characterization, this court has twice addressed accommodations that must be offered to law enforcement personnel who seek to avoid specific assignments on religious grounds. Most recently in Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir.1998), we addressed the request of a Catholic police officer to be exempted from assignments at abortion clinics. In evaluating the City‘s alleged failure to accommodate, we reiterated the standard to be applied:
Under
Title VII , therefore, an employer must reasonably accommodate an employee‘s religious observance or practice unless it can demonstrate that such accommodation would result in an unduе hardship to the employer‘s business. Accordingly, we turn first to the issue of whether the City has satisfied its duty of reasonable accommodation; only if we answer that question in the negative need we proceed to the “undue hardship” prong of theTitle VII analysis.
Id. at 775. Applying this standard, we determined that the City had satisfied its
Notably absent from our resolution of either Rodriguez‘s or Ryan‘s claim, however, was a holding that the agencies were exempt from the statutory requirement of reasonable accommodation because of their law enforсement mission. Indeed, the panel in Endres acknowledges that ” Ryan does not compel” its conclusion. Endres, slip op. at 8. Quite the opposite, Ryan acknowledged the unreasonableness of the request to cease investigations when the perfectly reasonable solution of an assignment swap had been proposed and rejected.
Not only does the panel‘s decision here abandon the analytical framework of Rodriguez and Ryan, it also ignores the clear language of the statute. It simply blue pencils the reasonable accommodation requirement from the statute as it aрplies to police and fire personnel. It relies on no language of the statute, no interpretive regulation, no legislative history. It simply constructs a categorical statutory amendment where none exists. Congress took a different view.
I have no doubt that public safety agencies have a great deal of latitude in accommodating the religiously based requests of their employees for exemptions from particular duties. Both our previous case law and the case law of the other circuits make that proposition clear.1 But Congress sim-
The court‘s decision to let this panel decision stand will raise, regretfully, many questions in the minds of many people. Public safety and еmergency personnel, whose contributions to our daily lives are so much more appreciated these days, have every right to ask why this court has singled them out as not deserving of a statutory protection guaranteed to every other person in the United States. Members of minority religions, whose doctrines are not well-understood or appreciated in our culture, may well wonder whether municipalities within this circuit are the best place in which to make a public contribution. Hоpefully, these doubts will be lessened by enlightened municipal management who certainly could ensure that those who serve us are protected despite this court‘s decision to depart from the anti-discrimination standards enforced in the rest of the United States.
Members of the practicing judiciary and the practicing bar in this circuit also will be puzzled by this court‘s departure from its usual methodology in interpreting statutes. Time and time again, we profess that, in interpreting a statute, we begin with the plain wording of the statute. Unless there is an ambiguity, we apply the explicit command of Congress. No one suggests that Congress has left any doubt as to what it expects in this situation. Unfortunately, however, our current decisional behavior does not follow the course of our rhetoric. In future cases, judges, attorneys, and litigants will have to accept the reality that they must observe not what we say, but what we do.