ESTATE OF DONALD E. THORNTON, PETITIONER V. CALDOR, INC. No. 83-1158 In the Supreme Court of the United States October Term, 1983 On Writ of Certiorari to the Supreme Court of Connecticut Brief for the United States as Amicus Curiae Supporting Petitioner TABLE OF CONTENTS Interest of the United States Statement Introduction and summary of argument Argument: A. Although this Court has not directly resolved the constitutionality of laws requiring employers to accommodate the religious observances of their employees, this Court's decisions respecting Sunday closing laws and the obligations of states to accommodate Sabbath observances under unemployment compensation programs strongly imply that such laws are valid. B. The Connecticut statute, like the religious accommodation provision of Title VII, is a permissible form of governmental accommodation of individual religious practice. C. The Connecticut Supreme Court's use of the three-part test of Lemon v. Kurtzman would invalidate all forms of religious accommodation and subvert the values of the Free Exercise Clause. Conclusion QUESTION PRESENTED Whether a state statute that prohibits an employer from requiring employees to work on their designated day of Sabbath violates the Establishment Clause of the First Amendment. INTEREST OF THE UNITED STATES This case involves the validity of a Connecticut statute protecting the rights of private employees to refrain from working on the day they designate as their Sabbath. The Connecticut Supreme Court held the statute invalid on its face under the Establishment Clause of the United States Constitution, as applied to the states through the Fourteenth Amendment. In 1972, Congress enacted legislation requiring employers to make "reasonable accommodations" to the religious needs of their employees, including attempting to accommodate employees' Sabbath observances. Sections 701(j) and 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(j) and 2000e-2(a)(1). /1/ Consequently, the United States has a substantial interest in this case. A decision upholding the Connecticut law, which goes beyond the religious accommodation requirements of Title VII, would a fortiori resolve the constitutionality of the federal law. Conversely, adoption of the reasoning of the Connecticut Supreme Court by other courts would, of necessity, prompt challenges to the validity of the religious accommodation requirements of Title VII. The United States has participated as amicus curiae in three prior cases before this Court concerning the religious accommodation requirements of Title VII. See Trans World Airlines, Inc. v. Haridson, 432 U.S. 63 (1977); Parker Seal Co. v. Cummins, 429 U.S. 65 (1976); Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971). The constitutionality of those requirements has not been resolved by this Court. /2/ The United States has an additional independent interest in upholding state laws that prohibit conduct that may also be unlawful under Title VII. The statutory enforcement mechanisms of Title VII evince a strong congressional policy in favor of vigorous enforcement of nondiscrimination requirements at the state level. Where a state or local law prohibits an employment practice that is made unlawful by Title VII, and establishes or authorizes a state or local authority to grant relief from such practice, no federal charges may be brought for a 60-day period. 42 U.S.C. 2000e-5(c) and (d). This enables the matter to be settled "in 'a voluntary and localized manner.'" Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755 (1979) (quoting 110 Cong. Rec. 12725 (1964) (remarks of Sen. Humphrey)). It also enables the federal government to concentrate its enforcement resources where they are most needed. The United States therefore has a substantial interest in the enforceability of state laws that parallel or supplement the requirements of Title VII. /3/ The United States has participated as a party or as amicus curiae in numerous cases decided by this Court under the Religion Clauses of the First Amendment. See, e.g., briefs filed by the United States as amicus curiae in School District of Grand Rapids v. Ball, cert. granted, No. 83-990 (Feb. 27, 1984); Lynch v. Donnelly, No. 82-1256 (Mar. 5, 1984); Marsh v. Chambers, No. 82-23 (July 5, 1983); Mueller v. Allen, No. 82-195 (June 29, 1983); Roemer v. Board of Public Works, 426 U.S. 736 (1976); Sloan v. Lemon, 413 U.S. 825 (1973); and Lemon v. Kurtzman, 403 U.S. 602 (1971), and briefs filed as a party in United States v. Lee, 455 U.S. 252 (1982), and Tilton v. Richardson, 403 U.S. 672 (1971). STATEMENT Petitioner Donald E. Thornton, a Presbyterian who observed Sunday as his day of Sabbath, was employed from 1975 until March 8, 1980, as a department manager for respondent Caldor, Inc., a large chain of department stores (Pet. App. 2a-3a). /4/ Until 1977, the State of Connecticut prohibited most employers, including respondent, from doing business on Sundays. In 1976, the General Assembly enacted legislation permitting certain classes of businesses to remain open on Sundays, but (a) guaranteed all employees at least one day off per week (Conn. Gen. Stat. Section 53-303e(a) (1982)), and (b) guaranteed the right of any employee who "states that a particular day of the week is observed as his Sabbath" not to work on that day (id. Section 53-303e(b)). The employer is prohibited from dismissing any employee because of his "refusal to work on his Sabbath" (ibid.). /5/ An aggrieved employee may appeal a discharge to the State Board of Mediation and Arbitration, which is empowered to "order whatever remedy will make the employee whole, including but not limited to reinstatement to his former or a comparable position" (id. Section 53-303e(c)). Shortly after passage of this legislation, respondent opened its doors for business on Sundays. Under a rotation system among managerial personnel, petitioner was required to work approximately one in four Sundays. In late 1979, petitioner asserted his right under Section 53-303e(b) to refrain from working on Sundays. After several meetings with petitioner, respondent refused to give him Sundays off. Instead, respondent offered him two alternatives: a transfer to a Massachusetts store, which was not open for business on Sundays, or a demotion to a nonsupervisory capacity, with a pay cut of almost $3.00 per hour. /6/ These alternatives were not acceptable to petitioner. He therefore ceased coming to work and filed a grievance with the Board. Pet. App. 3a. The Board and, subsequently, the trial court held that petitioner was discharged in violation of Section 53-303e(b), and ordered reinstatement with back pay and compensation for lost fringe benefits. The Board held that it did not have authority to consider respondent's constitutional challenge to the statute (J.A. 9a-10a). The trial court expressly upheld Section 53-303e(b), commenting that "the statute enables the state to protect its citizens from the dangers of uninterrupted labor without infringing upon any individual's right to practice the religion of his or her choice" (Pet. App. 22a). The Supreme Court of Connecticut reversed. Applying the three-part test first announced by this Court in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), the Connecticut Supreme Court held Section 53-303e(b) unconstitutional on its face under the Establishment Clause of the United States Constitution. See Pet. App. 5a, 9a. /7/ The court concluded, first, that the statute does not reflect a clearly secular legislative purpose. Because the employee's right under Section 53-303e(b) is expressly predicated upon a religious concept -- the Sabbath -- the court found that the statute had "religious overtones" (Pet. App. 12a) and that the right "comes with religious strings attached" (id. at 13a). The court concluded (id. at 14a (footnote omitted)): The unmistakable purpose of such a provision is to allow those persons who wish to worship on a particular day the freedom to do so. We conclude that Section 53-303e(b) does not pass the "clear secular purpose" test of establishment clause scrutiny. The court found, second, that the primary effect of Section 53-303e(b) is to advance religion. The court reasoned (Pet. App. 15a): While Section 53-303e(b) does not favor one religion over another, and does not provide direct aid to religious institutions in the form of money or property, it confers its "benefit" on an explicitly religious basis. Only those employees who designate a Sabbath are entitled not to work on that particular day, and may not be penalized for so doing. Workers who do not "observe a Sabbath" may not avail themselves of the benefit provided by the subsection, and are not entitled to take a specific day off with impunity. The inescapable conclusion is that Section 53-303e(b) possesses the primary effect of advancing religion. Third, the court found "most troublesome" the implications of the statute for government entanglements with religion (Pet. App. 15a). The court noted that the Board would be required to decide the scope of religious activities which "may fairly be labelled 'observance of Sabbath,'" in order to resolve the question of the sincerity of employees' Sabbath observances (Pet. App. 15a-16a). /8/ The court concluded that this analysis would be "exactly the type of 'comprehensive, discriminating and continuing state surveillance' which creates excessive government entanglements between church and state." Id. at 16a (quoting Lemon v. Kurtzman, 403 U.S. at 619). /9/ INTRODUCTION AND SUMMARY OF ARGUMENT Sabbath observances are a familiar part of the religious heritage of the United States. To remember the Sabbath day and keep it holy is, to many individuals in this country, a command that takes precedence over all of the exigencies of workaday life. Since before the founding of this Republic, our laws have taken cognizance of the Sabbath, and have regulated the workplace to ensure a common day of rest and worship to the people. See McGowan v. Maryland, 366 U.S. 420, 431-434 (1961). /10/ In the modern era most states have come to permit economic activity to take place every day of the week, but have enacted laws to protect, to varying degrees, the rights of workers to have one day a week free from work and the rights of Sabbath observers not to be compelled by their employers to work on that day. The federal government, too, has enacted legislation that prohibits employers from taking adverse employment actions against applicants or employees on the basis of their religious observances and practices, including their observance of a Sabbath, /11/ "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." Sections 701(j) and 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(j) and 2000e-2(a)(1). These governmental acknowledgments of the Sabbath, unlike the prior Sunday closing laws, leave non-Sabbath observers free to work or transact business on Sunday, and extend the benefit of a work-free Sabbath to persons who recognize the Sabbath on a day other than Sunday. At the same time, they continue to fulfill the traditional function of ensuring that most employees will not have to face the choice of "abandoning one of the precepts of (their) religion in order to accept work." Sherbert v. Verner, 374 U.S. 398, 404 (1963). /12/ At issue here is one such state law, enacted by Connecticut when it repealed its Sunday closing law for many classes of business. The law prohibits employers from requiring employees to work more than six days per week and guarantees the right of any employee who "states that a particular day of the week is observed as his Sabbath" not to work on that day. Conn. Gen. Stat. Section 53-303e (1982). The Connecticut Supreme Court held the Sabbath protection component of this statute invalid under the Establishment Clause of the First Amendment. We believe this decision was in error. First, the decision is inconsistent with the precedents of this Court respecting Sunday closing laws and the obligations of states to accommodate Sabbath observances under unemployment compensation programs. Second, the decision erroneously reads the Constitution as prohibiting the states from accommodating the practice of religion, and fails to apply appropriate standards for evaluating the legitimacy of these accommodations. The Connecticut statute makes it possible for individuals freely to practice the religion of their choice. It does not induce or coerce that choice. It is neutral among religions, since it provides its benefits to all persons who wish to observe a Sabbath. It occasions no interference by the government in the affairs or decisions of religious institutions, or vice versa. In these respects, therefore, the statute -- like Title VII and the many parallel state statutes -- is a legitimate governmental regulation designed to accommodate those who wish to be free to practice their religion without incurring major unnecessary economic penalities. The only significant respect in which the Connecticut statute differs from Title VII and its parallel state statutes is that the Connecticut statute (on its face) appears to confer on workers an absolute right to refrain from Sabbath work. Whether or to what extent this verbal distinction may imply a significant practical difference from Title VII is as yet unresolved by the Connecticut courts. Whatever the resolution, we do not believe that this difference would amount to an Establishment Clause violation. In any event, this problem -- if it is a problem -- is not shared by Title VII. Finally, the decision below misapprehends the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). In the context of religious accommodations, the Establishment Clause should not be interpreted in such a way as to condemn as "nonsecular" the objective of enlarging the scope for individual religious choice, or as "advancing religion" the effect of removing obstacles to religious practice. The fundamental concerns of the Religion Clauses -- liberty and pluralism -- are furthered, not hindered, by these accommodations. ARGUMENT A. Although This Court Has Not Directly Resolved The Constitutionality of Laws Requiring Employers To Accommodate the Religious Observances of Their Employees, This Court's Decisions Respecting Sunday Closing Laws and the Obligations of States To Accommodate Sabbath Observances Under Unemployment Compensation Programs Strongly Imply That Such Laws are Valid The religious accommodation requirements of Title VII and parallel state laws are similar in many ways to Connecticut's Section 53-303e(b). Congress' primary purpose in enacting the Title VII provision was to make it unmistakably clear that Title VII's basic prohibition against discrimination on the basis of "religion" encompasses all aspects of religious observance and practice, as well as belief, where reasonable accommodation (short of "undue hardship") is possible. Congress' attention was particularly drawn to the problem of protecting the opportunity of employees to observe their respective days of rest and worship. See Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1245 (9th Cir.), cert. denied, 454 U.S. 1098 (1981); 118 Cong. Rec. 705-706 (1972). Thus, although this Court has not resolved the question of the constitutionality of Title VII's religious accommodation requirements, /13/ it is significant that these requirements have been upheld by the three courts of appeals to decide the question. McDaniel v. Essex International, Inc., 696 F.2d 34, 37 (6th Cir. 1982); Tooley v. Martin-Marietta Corp., supra; Nottelson v. Smith Steel Workers, 643 F.2d 445, 453-455 (7th Cir.), cert. denied, 454 U.S. 1046 (1981). /14/ The parallel state laws have also generally been upheld. See, e.g., Kentucky Commission on Human Rights v. Kerns Bakery, Inc., 644 S.W. 2d 350 (Ky. Ct. App. 1982), cert. denied, No. 82-1765 (June 20, 1983); Rankins v. Comm'n on Professional Competence, 24 Cal. 3d 167, 593 P.2d 852, 154 Cal. Rptr. 907, appeal dismissed for want of a substantial federal question, 444 U.S. 986 (1979). Moreover, two lines of cases decided by this Court strongly imply that the Connecticut statute, like Title VII and other state laws requiring religious accommodation in the workplace, is valid. 1. Sunday closing laws. In a series of decisions handed down the same day in 1961, this Court upheld the constitutionality of a variety of state laws forbidding commerce or labor from being conducted on Sunday. McGowan v. Maryland, 366 U.S. 420 (1961); Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961); Braunfeld v. Brown, 366 U.S. 599 (1961); Gallagher v. Crown Kosher Super Market of Massachusetts, Inc., 366 U.S. 617 (1961). A plurality of the Court reasoned, in opinions by Chief Justice Warren, that the statutes did not constitute an establishment of religion, despite their religious origins, because they served the legitimate secular purpose of enforcing a common day of rest for the community. See McGowan, 366 U.S. at 449-452. The plurality also found it significant that Sunday closing laws were enacted and enforced by many of the states, including Virginia, at the time the First Amendment (and its state counterparts, such as Virginia's Act for Establishing Religious Freedom) were adopted. Id. at 437-440. In two of the decisions, Braunfeld and Gallagher, Orthodox Jewish litigants contended that the states should be required to "cut an exception from the Sunday labor proscription for those people who, because of religious conviction, observe a day of rest other than Sunday" (Braunfeld, 366 U.S. at 608). Over dissents by Justices Brennan and Stewart, /15/ this Court did not find such exceptions constitutionally required, through the plurality opinion expressly noted that many states provide such an exception and that "this may well be the wiser solution to the problem." Ibid. No Justice dissented from the view that state laws permitting persons the privilege of selecting their day off on religious grounds are permissible under the Establishment Clause, even though persons with equally strong -- but nonreligious -- preferences are accorded no such privilege. /16/ The Connecticut statute at issue here is constitutionally indistinguishable from the form of statute throught by the plurality in Braunfeld and Gallagher to be the "wiser solution" and by Justices Brennan and Stewart to be required by the Constitution. The only difference is that the Connecticut statute leaves non-Sabbath observers free to work or do business as they see fit on any day of the week. Thus, Sunday Sabbath observers are guaranteed their Sabbath day off, as they were under the prior regime of Sunday closing laws; observers of a Sabbath on other days have the same right to refrain from work on their Sabbath, as they would under Braunfeld's "wiser solution"; and non-Sabbath observers are guaranteed one day of rest but are otherwise unconstrained by the law (except insofar as they are indirectly affected by the free choices of their fellow workers). If the Braunfeld "wiser solution" is constitutional, it would follow a fortiori that the Connecticut statute is constitutional as well. The legislative history of Section 53-303e(b) reflects precisely the concerns for religious liberty and pluralism that animated this Court's opinions, including the dissents and concurrences, in the Sunday closing cases. On April 26, 1976, the Connecticut House of Representatives voted to repeal the State's Sunday closing law. Some representatives had expressed concern that some Sunday Sabbath observers might be forced by their employers to work on Sundays under the new law. See, e.g., 19 Conn. H. R. Proc. (Pt. 6), at 2415 (Apr. 21, 1976) (remarks of Rep. Webber) ("(s)ome people have expressed concern about the employees who would staff the stores that choose to open on Sundays"). Consequently, as part of the repeal, the House bill provided that "(n)o person who conscientiously believes that a particular day of the week ought to be observed as his Sabbath may be required by his employer to work on such day," and that employers would be prohibited from dismissing employees for refusing to work on their Sabbath. Conn. H. R. Substitute Bill No. 5067, Section 1(b) (1976). Similar sentiments were expressed during Senate consideration of the measure. For example, Senator Hudson stated that the House bill "gives people the right not to work on the Sabbath if they choose to and I think that that is a responsible action on the part of government to guarantee those who wish to observe their Sabbath, whatever day it is, not to have to work." 19 Conn. S. Proc. (Pt. 5), at 2039-2040 (Apr. 28, 1976). See also id. at 2021 (remarks of Sen. Ciccarello). With slight modification, the House provision became law, although the ultimate bill, instead of repealing the Sunday closing law altogether, merely expanded the exemptions from it. /17/ This history confirms that Connecticut has adopted a "solution to the problem" that accords maximum possible respect to the diverse beliefs and practices of the people of the State -- including those who keep no Sabbath at all. Connecticut's present law was adopted against the background of the "unambiguous and unbroken" (Marsh v. Chambers, No. 82-23 (July 5, 1983), slip op. 9) practice of virtually every state in the Union to prohibit many or all forms of commerce and labor on the usual Christian day of Sabbath. The Connecticut successor statute at issue perpetuates this recognition of the Sabbath as "part of the fabric of our society" (Marsh, slip op. 9) -- but does so in a manner more broadly available to adherents of minority religions and less burdensome to non-Sabbath observers. The Connecticut statute, therefore, cannot be viewed as an "establishment" of religion: for purposes of the Religion Clauses, it is substantially less problematic than the State's prior, valid, Sunday closing law. 2. Unemployment compensation programs. The Connecticut statute at issue is also supported by this Court's decisions regarding the obligations of states to accommodate Sabbath observances under unemployment compensation programs. In Sherbert v. Verner, 374 U.S. 398, 409-410 (1963), recently reaffirmed in Thomas v. Review Board, 450 U.S. 707 (1981), this Court held that extending unemployment benefits to persons who leave their jobs because they would otherwise be required to work on their Sabbath day does not violate the Establishment Clause, even where employees who voluntarily leave their jobs for nonreligious reasons would receive no such compensation. Indeed, the Court held that state is constitutionally required under the Free Exercise Clause to extend unemployment benefits in such circumstances. These cases imply strongly that Section 53-303e(b) is constitutional. The fundamental issue there, as here, is whether the states are permitted (or required) to make special provision for the needs of workers who observe a Sabbath day. The Establishment Clause cannot be taken to prohibit Connecticut from extending to the private workplace the requirement of making the very sort of accommodation to Sabbath observance that the Free Exercise Clause was found to require of South Carolina in Sherbert. /18/ As Justice Marshall observed in his dissenting opinion in Trans World Airlines, Inc. v. Haridson, 432 U.S. 63, 90-91 (1977), "(i)f the State does not establish religion over nonreligion by excusing religious practitioners from obligations owed the State, * * * the State can (not) be said to establish religion by requiring employers to do the same with respect to obligations owed the employer." /19/ B. The Connecticut Statute, Like the Religious Accommodation Provision of Title VII, Is a Permissible Form of Governmental Accommodation of Individual Religious Practice This Court has repeatedly recognized the legitimacy of governmental efforts to accommodate the practice of religion -- that is, to help create conditions in which our people are free to decide whether to adopt a religious faith and to practice it if that is their choice. Indeed, in some instances, the Court has found particular forms of religious accommodation required under the Free Exercise Clause, despite the fact that the accommodation has the undeniable effect of facilitating religious practice. Thomas v. Review Board, supra; Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, supra; see Lynch v. Donnelly, No. 82-1256 (Mar. 5, 1984), slip op. 4. Far more common than these mandatory forms of accommodation are the many ways in which the states and the federal government, in their discretion, may ease restrictions or burdens caused by facially neutral public or private practices that make it difficult for individuals to observe their faith, or may expand opportunities for voluntary religious exercise. McDaniel v. Paty, 435 U.S. 618, 639 (1978) (Brennan, J., concurring). /20/ This Court recently described as "pervasive" the practice of "accommodation of all faiths and all forms of religious expression." Lynch v. Donnelly, slip op. 8. "Through this accommodation," the Court observed, quoting Justice Douglas in Zorach v. Clauson, 343 U.S. 306, 314 (1952), "governmental action has 'follow(ed) the best of our traditions' and 'respect(ed) the religious nature of our people.'" Lynch v. Donnelly, slip op. 8. The legitimacy of religious accommodations has met with widespread agreement on this Court, even as other Religion Clause questions have led to sharp divisions. Justice Brennan, for example, has stated that "even when the government is not compelled to do so by the Free Exercise Clause, it may to some extend act to facilitate the opportunities of individuals to practice their religion." Marsh v. Chambers, slip op. 17 (footnote omitted) (dissenting opinion); see also McDaniel v. Paty, 435 U.S. at 638-639 (Brennan, J., concurring). Justice Rehnquist has suggested that "governmental assistance which does not have the effect of 'inducing' religious belief, but instead merely 'accommodates' or implements an independent religious choice does not impermissibly involve the government in religious choices and therefore does not violate the Establishment Clause of the First Amendment." Thomas v. Review Board, 450 U.S. at 727 (dissenting opinion). See also, e.g., Widmar v. Vincent, 454 U.S. 263, 282 (1981) (White, J., dissenting); Trans World Airlines, Inc. v. Hardison, 432 U.S. at 90-91 & n.4 (Marshall, J., dissenting); Wisconsin v. Yoder, 406 U.S. at 234-235 n.22 (Burger, C.J.). The Connecticut Supreme Court did not cite any of these precedents, and its reasoning was fundamentally inconsistent with them. That court's analysis leaves no room at all for governmental efforts to accommodate private religious practice. See pages 27, infra. A more discriminating analysis of the issues of voluntariness, neutrality, and noninterference relevant to the purposes of the Establishment Clause, /21/ leads to the conclusion that the Connecticut statute should be upheld. 1. Effect on voluntary religious choice. The "constitutional underpinnings" of this nation -- reflected in the First Amendment's Religion Clauses -- "rest on and encourage diversity and pluralism in all areas." Lynch v. Donnelly, slip op. 8; see also slip op. 4 (Brennan, J., dissenting). The fundamental purpose of the Clauses is to guarantee that each person is free to adopt and practice the religion of his choice -- or no religion at all -- without inducement or interference by the government. See Marsh v. Chambers, slip op. 8-9 (Brennan, J., dissenting). The first question that must be asked of legislation that touches on religion, /22/ therefore, is whether it merely expands the freedom available to individuals to practice a religion if they choose, or whether it induces or coerces that choice. The Connecticut statute at issue, like other state and federal laws protecting the rights of individuals in the workplace to practice their religion without being forced to sacrifice their jobs, plainly expands the practical opportunities of Connecticut workers to observe the precepts of their faith. This Court has recognized the predicament of employees who, like petitioner, are required by their employers to work on the day observed in their faith as the Sabbath. Sherbert v. Verner, 374 U.S. at 404. The Connecticut statute does no more than prevent Connecticut workers from being faced with the "choice between fidelity to religious belief or cessation of work." Thomas v. Review Board, 450 U.S. at 717. The statute does not influence the individual's religious choice, other than to remove an extraneous obstacle to practicing the faith he has adopted. /23/ 2. Neutrality. "The clearest command of the Establishment Clause," this Court has stated, "is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982); see Gillette v. United States, 401 U.S. 437, 449 (1971). One important aspect of neutrality is that the government not "confer any imprimatur of state approval on any religious sects or practices." Widmar v. Vincent, 454 U.S. at 274; see also Lynch v. Donnelly, slip op. 4 (O'Connor, J., concurring). As the opinion in Zorach v. Clauson, supra, makes clear, this obligation of "neutral(ity) when it comes to competition between sects" (343 U.S. at 314) applies no less to governmental accommodations to religion than to other laws and programs bearing on religion. Thus, a governmental accommodation to religion might well be invalid if it discriminated among religions or if it amounted to an endorsement of a particular religion. The benefits of the Connecticut statute are equally available to adherents of any of a multitude of religious denominations and sects, including the Protestant, Roman Catholic, Jewish, and Islamic faiths that predominate in the United States today. As the court below acknowledged (Pet. App. 15a), Section 53-303e(b) "does not favor one religion over another." It certainly cannot be said that the statute "conveys a message of endorsement or disapproval" (Lynch v. Donnelly, slip op. 4 (O'Connor, J., concurring)) of any particular religious faith or practice. It no more "endorses" the observance of a Sabbath than exemptions from compulsory military service "endorse" pacifism, or off-premises release time programs "endorse" religious education. Rather, the statute is "simply a tolerable acknowledgment of beliefs widely held among the people of this country" (Marsh v. Chambers, slip op. 9). It "endorses" only the view that individuals should be able to practice their religion in accordance with their own convictions, without undue economic pressure or penalty. /24/ The statute does not, of course, benefit all persons equally. In the nature of things, when the state seeks to accommodate those with religious beliefs, the accommodation will tend to be irrelevant to those who have no religious beliefs. Accordingly, the concern of the Connecticut Supreme Court (Pet. App. 15a), that "(w)orkers who do not 'observe a Sabbath' may not avail themselves of the benefit provided by (Section 53-303e(b)), and are not entitled to take a specific day off with impunity," is misplaced. In keeping with the special status of religion under the Free Exercise Clause, the government may seek to accommodate or protect religiously motivated claims of conscience even where it does not accord the same treatment to other strongly-held beliefs (Marsh v. Chambers, slip op. 17-18 (Brennan, J., dissenting)); and the government may legitimately take cognizance of the fact that religious faith places some persons under obligations and difficulties not faced by their fellow citizens. See Gillette v. United States, 401 U.S. at 453; Zorach v. Clauson, 343 U.S. at 313-314; McDaniel v. Paty, 435 U.S. at 638-639 (Brennan, J., concurring); Sherbert v. Verner, 374 U.S. at 422 (Harlan, J., dissenting). Thus, here, all workers are guaranteed a day of rest; but only those whose religious convictions require it are given the right to designate their day of rest. 3. Noninterference between church and state. Although "total separation" between church and state "is not possible in an absolute sense" (Lemon v. Kurtzman, 403 U.S. at 614), one of the purposes of the Religion Clauses is "to prevent, as far as possible, the intrusion of either into the precincts of the other" (ibid.). In Justice Brennan's words, this purpose is "to keep the state from interfering in the essential autonomy of religious life." Marsh v. Chambers, slip op. 9 (dissenting opinion). Such interference can take one of two forms: a religious institution may assume decisions or functions properly belonging to the state, or the government may "tak(e) upon itself the decision of religious issues, or * * * unduly involv(e) itself in the supervision of religious institutions or officials." Ibid. (footnotes omitted). See Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982); Watson v. Jones, 80 U.S. (13 Wall,) 679, 729 (1871). Here there is no danger whatever of intrusion by the State into church affairs or vice versa. Section 53-303e(b) entails no contact between religious and governmental authorities. Compliance is initially negotiated between workers and their employers, with mandatory arbitration in the event the employee is dissatisfied with the outcome. Religious authorities are not involved in the process; nor is the government called upon to make religious decisions or to assume jurisdiction over religious institutions or officials. 4. Extent of burden to the employer under Title VII and the Connecticut statute. In each of these respects -- voluntariness, neutrality, and noninterference -- the Connecticut statute is virtually identical to the religious accommodation provisions of Title VII and parallel state laws in many other states. /25/ In one important respect, however, the Connecticut statute may be distinguishable from Title VII and parallel state provisions: Title VII does not create an absolute right to observance of the Sabbath; it merely requires the employer reasonably to accommodate the employee's Sabbath observance if it can do so without "undue hardship." See Trans World Airlines, Inc. v. Hardison, supra. /26/ Section 53-303e(b) may go further. On its face it allows employees as a matter of legal right to refrain from working on their Sabbath day, and to be free from the threat of discharge for so doing. Whether or to what extent this verbal distinction implies a substantial practical difference in the burdens placed on the employer by Section 53-303e(b) has not been addressed by the Connecticut courts, and the rationale of the decision below is not predicated on any such difference. /27/ Nonetheless, assuming that the burden placed on the employer by the Connecticut statute is greater than the burden entailed by Title VII's religious accommodation requirements, the question may be posed whether the more absolute character of Connecticut's Section 53-303e(b) is cause for constitutional concern under the Establishment Clause. We think that it is not. To be sure, some may contend that Connecticut's approach does not reflect wise social policy; that it places too high a premium on the rights of religious observance to the detriment of other, economic, values. Congress and the states that have chosen to adopt a more flexible form of religious accommodation appear to have come to this conclusion. However, any lesser degree of flexibility in the Connecticut statute does not violate the Establishment Clause. Certainly, no one's religious rights or interests are infringed by the statute. Respondent does not contend that it is required to take any measures that it considers religiously offensive. Respondent's sole concern is that its costs of doing business are increased by the obligation to accommodate the Sabbath observances of its employees. We do not know, and the record does not reveal, how costly compliance with the Connecticut statute would be for respondent. It may be significant, however, that respondent has bargained with its nonsupervisory employees to grant them a contractual right not to work on Sunday if it would violate their "personal religious convictions." J.A. 91a. The Connecticut statute, therefore, merely extends to all employees a privilege respondent has been willing to provide to its nonsupervisory employees. This suggests that it is unlikely that respondent could prove that the costs of compliance are excessive as a constitutional matter (cf. Trans World Airlines, Inc. v. Hardison, 432 U.S. at 90 & n.3 (Marshall, J., dissenting)). In any event, such considerations should not be heard in the context of a challenge to the facial validity of the statute. /28/ More fundamentally, we believe that -- once it is established that a given form of religious accommodation is permissible in principle and that no religious interest of opposing parties is infringed -- issues of degree of cost are properly resolved by the legislative branch. Employers like respondent have no difficulty in making their voices heard in the legislatures, and the legislatures can be expected to be responsive to legitimate claims that state laws impose excessive costs and burdens on employment. In the area of religious accommodation, between the constitutional demands of the Free Exercise Clause and the constitutional prohibitions of the Establishment Clause, there is a wide scope for legislative discretion -- "room for play in the joints" (Walz, 397 U.S. at 669) -- within which economic cost and efficiency may be balanced against competing claims of religious accommodation. See United States v. Lee, 455 U.S. 252, 259-261 (1982). There is no fixed constitutional rule that would enable courts to determine what level of costs is too high. If the less onerous requirements of Title VII and parallel state statutes are constitutionally permissible, as we believe and most courts have held, we do not see why the somewhat greater costs of compliance with the more absolute requirements of Section 53-303e(b) would be beyond the pale. Nonetheless, we submit that even if this Court were to conclude that the Connecticut statute goes too far -- that a State may not adopt a per se rule requiring its employers to subordinate other business interests to the religious observances of their employees -- Title VII and the parallel state statutes would remain constitutional. If there is a constitutional defect in Section 53-303e(b), it is its absolute character -- a character that Title VII and the parallel state statutes do not share. C. The Connecticut Supreme Court's Use of the Three-Part Test of Lemon v. Kurtzman Would Invalidate All Forms of Religious Accommodation and Subvert the Values of the Free Exercise Clause The decision of the Connecticut Supreme Court applies the Lemon test where it should not apply, and does so in a manner that conflicts with this Court's religious accommodation decisions and the values of the Free Exercise Clause. 1. Purpose and Effect. In Lemon v. Kurtzman, supra, the "purpose" and "effect" factors were put forward as a means for evaluating the constitutionality of government programs of financial assistance, direct or indirect, to religious institutions. See also Mueller v. Allen, supra; Board of Education v. Allen, 392 U.S. 236, 243 (1968). In that context, they bear an obvious and direct relationship to the purposes of the Establishment Clause. One of the original purposes of the Clause was to prohibit the government from imposing taxes for the support of religious institutions. J. Madison, Memorial and Remonstrance, 2 Writings of James Madison 183 (G. Hunt, ed. 1910); Virginia Bill for Religious Liberty, 12 Hening, Statutes of Virginia (1823); see Everson v. Board of Education, 330 U.S. 1, 11-16 (1947). Taxation is inherently coercive; and the State may not use coercion to exact support for religious institutions or practices. Yet, as numerous cases in this Court illustrate, the government often uses tax monies for general public welfare purposes, wholly without reference to religious considerations, and some of the funds may benefit religious institutions, directly or indirectly. See, e.g., Roemer v. Board of Public Works, 426 U.S. 736 (1976); Bradfield v. Roberts, 175 U.S. 291 (1899). In such instances, the government does not purport to defend its practice on the ground that it would accommodate or facilitate the exercise of religion, but on the ground that the purpose of the program is secular and that any effect of benefit to religion is indirect, remote, or incidental. /29/ The purpose and effect inquiries can also have coherence and relevance in other circumstances where the government program under challenge is sought to be justified, not on the basis that it is a legitimate acknowledgment of religion, but on the basis that the interaction of the program uith religion or religious institutions is secondary or adventitious. See, e.g., Widmar v. Vincent, 454 U.S. at 273-275 (benefit of religious group access to university facilities incidental to university's interest in maintaining open forums); McGowan v. Maryland, supra (benefit of Sunday closing laws to persons who observe the Sabbath on Sundays incidental to governmental interest in promoting a common day of rest). Where the very prupose of the challenged program is to accommodate private religious beliefs and to make it possible for our people to exercise their religion, the purpose and effect inquiries seem less apt. These inquiries -- designed to determine whether religious considerations have infused areas or affected decisions where they do not belong -- are not logically related to determining whether, in circumstqnces where some religious acknowledgment or accommodation may be appropriate or even required, the particular governmental practice at issue is permissible. See Thomas v. Review Board, 450 U.S. at 726 (Rehnquist, J., dissenting); Sherbert, 374 U.S. at 416-417 (Stewart, J., concurring). The purpose and effect inquiries consequently may seem artificial -- even circular -- in the context of religious accommodations, where the government's action, by definition, explicitly turns on considerations of religion. In one sense, to take steps to facilitate the free exercise of religion -- as by requiring the accommodation of Sabbath observers or by providing military chaplains -- can always be characterized as having a "nonsecular" purpose. But in another (larger) sense, to create a society in which people are free to follow the tenets of their faiths without extraneous penalty or difficulty is a truly secular purpose, one to which many nonbelievers are devoted. /30/ Similarly, the effect of such steps is always -- by definition -- to aid the practice of religion; but, again, the larger effect is to create a certain sort of society, one in which free exercise can "flourish according the zeal of (each group's) adherents and the appeal of its dogma." Zorach v. Clauson, 343 U.S. at 313. The "purpose" and "effect" tests can, therefore, lay a semantic trap, which litigants can manipulate at will to make all forms of religious accommodation -- or none -- appear to violate the Establishment Clause. The court below fell exactly into such a trap. It concluded that the very purpose of accommodating religious practices, being "nonsecular," is impermissible. See Pet. App. 14a (footnote omitted): The unmistakable purpose of such a provision is to allow those persons who wish to worship on a particular day the freedom to do so. We conclude that Section 53-303e(b) does not pass the "clear secular purpose" test of establishment. The fallacy in this reasoning is apparent: one might use precisely the same words to describe the Free Exercise Clause itself. The unmistakable purpose of that Clause, too, is to allow those persons who wish to worship the freedom to do so. The touchstones of the Religion Clauses are liberty and pluralism, not secularism. Similarly, to ask whether a statute or program "advances" religion is to obscure the question whether it induces or coerces -- rather than accommodates or facilitates -- a religious practice. All religious accommodations "advance religion" in the sense that their effect is to relieve the burden on religious observance that facially neutral rules or practices would otherwise impose. Wisconsin v. Yoder, supra; Gillette v. United States, supra; Sherbert v. Verner, supra; Zorach v. Clauson, supra. The Connecticut Supreme Court's observation (Pet. App. 15a) that Section 53-303e(b) "confers its 'benefit' on an explicitly religious basis," is, therefore, no more than a truism. It does not establish that the statute's effect is inconsistent with the values of the Establishment Clause. /31/ 2. Entanglement. The concept of excessive governmental "entanglement" with religion is rooted in the need to prevent undue state interference with religious institutions, and vice versa. It does not give license to invalidate any scheme or program merely because both government and religion are involved. A challenging party must show that the program involves contacts between governmental and religious authorities that create a genuine danger to the "essential autonomy of religious life." Marsh v. Chambers, slip op. 9 (Brennan, J., dissenting); see Walz, 397 U.S. at 678. Where, as here, implementation of the statute occasions no contact between governmental and religious authorities, but only the possibility of interaction between the state and its citizens, there is no danger of excessive entanglement. /32/ The Connecticut Supreme Court found "most troublesome" (Pet. App. 15a) the potential of the challenged statute for governmental entanglement with religion. The basis for the court's conclusion, however -- that the State would be required to plumb the sincerity of employees' Sabbath observances -- is totally without foundation. Even putting aside the fact that the Connecticut statute on its face requires no such inquiry (see note 8, supra), this Court has consistently rejected the notion that the necessity for an inquiry into the sincerity (as opposed to the verity) of an individual's religious beliefs is fatal to a governmental accommodation of religion. E.g., Thomas v. Review Board, 450 U.S. at 713-716; United States v. Seeger, 380 U.S. 163 (1965); United States v. Ballard, 322 U.S. 78 (1944). Indeed, the problem is conceptually identical to that of identifying religious objectors to military service -- a classic case of legitimate accommodation. See Gillette v. United States, supra. /33/ The decision below is an ideal example of how the elements of the Lemon test, applied without regard to their context or relation to the purposes of the Religion Clauses, can distort, rather than inform, analysis. The Connecticut Supreme Court has made the Establishment Clause an instrument of hostility toward religious toleration. There is no one all-encompassing "test" to discern a law respecting an establishment of religion (Lynch v. Donnelly, slip op. 9). There is, however, a fair test for discerning when a court's interpretation has gone awry: when the effect of the decision is to deny the right of the people to extend the courtesy of toleration and accommodation to those whose ability to practice their faith may conflict unnecessarily with the demands of the world. Laws such as Title VII and Connecticut's Section 53-303e(b) reflect, we believe, an admirable tolerance for the diversity of religious practices in this country and a willingness to enable religious believers -- particularly those of minority views -- to overcome the burdens their religious observances would otherwise place on them in the workplace. Tooley v. Martin-Marietta Corp., 648 F.2d at 1244-1245. As Justice Marshall has stated, "our hospitality to religious diversity" -- as reflected in such statutes -- is "one of this Nation's pillars of strength." Hardison, 432 U.S. at 97. In enacting and enforcing this statute, the State of Connecticut plainly is not "fostering the 'establishment'" of petitioner's Presbyterian faith or of any other religion (Sherbert v. Verner, 374 U.S. at 409). On the contrary, statutes such as these increase the freedom of individuals to practice the faith of their own choosing, without in any way constituting a governmental endorsement of religion or constraining the freedom of those who wish not to practice any religion at all. As such, they exemplify, rather than violate, the ideals of the Free Exercise and Establishment Clauses. CONCLUSION The judgment of the Supreme Court of Connecticut should be reversed. Respectfully submitted. REX E. LEE Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General PAUL M. BATOR Deputy Solicitor General MICHAEL W. MCCONNELL Assistant to the Solicitor General BRIAN K. LANDSBERG DENNIS J. DIMSEY Attorneys DAVID L. SLATE General Counsel Equal Employment Opportunity Commission JUNE 1984 /1/ In addition, guidelines issued by the Office of Federal Contract Compliance Programs of the Department of Labor impose an obligation on contractors and subcontractors on federally-assisted construction contracts to make reasonable accommodations, short of undue hardship, to the religious needs of applicants and employees, including Sabbath observance (see 41 C.F.R. 60-50.3). See also 12 C.F.R. 268.102(9)(iii) (Federal Reserve Board policy of religious accommodation); 13 C.F.R. 113.3-2 (Small Business Administration requirement of religious accommodations by recipients of federal financial assistance); 29 C.F.R. 1613.204(g) (religious accommodation obligations of federal agencies). /2/ See note 13, infra. /3/ The Connecticut Board of Mediation and Arbitration is not itself designated as a qualified state agency under 42 U.S.C. 2000e-5(c) (see 29 C.F.R. 1601.80), but it could file an application for designation under the standards of 29 C.F.R. 1601.70. Many other state laws requiring religious accommodation in the workplace are administered by state agencies so designated by the Equal Employment Opportunity Commission. /4/ Petitioner died in February 1982. This action for back pay and fringe benefits is being maintained by his estate. /5/ The statute also protects applicants for employment by prohibiting employers from inquiring, as a prerequisite to employment, whether the applicant observes any Sabbath. Conn. Gen. Stat. 53-303e(d) (1982). /6/ The collective bargaining agreement in effect for nonsupervisory employees provided that they were not obliged to work on the Sabbath (Pet. App. 3a; J.A. 91a). /7/ The Connecticut Supreme Court expressly declined to consider whether Section 53-303e(b) is in violation of the Connecticut State Constitution. Pet. App. 11a n.7. /8/ The court did not explain its construction of state law on this point. On its face, Section 53-303e(b) does not require any analysis of the "sincerity" of the employee's observance of the Sabbath. The statute simply requires employers to grant the day off to any "person who states that a particular day of the week is observed as his Sabbath" (emphasis added). /9/ Associate Justice Shea agreed with the majority that Section 53-303e violates the Establishment Clause, but dissented on the ground that the constitutional issue should have been reached in the first instance by the Board (Pet. App. 16a-18a). /10/ In Connecticut, for example, laws requiring businesses to close on Sunday, the usual Christian day of Sabbath, date back to 1656. See McGowan v. Maryland, 366 U.S. at 543 (Appendix to Opinion of Frankfurther, J.). /11/ The term "Sabbath," as used in Connecticut's Section 53-303e, refers to any religiously-ordained weekly day of rest and religious observance (Pet. App. 12a-13a & n.8). The right to reasonable accommodation of the employee's religious needs under Title VII likewise applies to any "conflict between work schedules and religious practices" (29 C.F.R. 1605.2(d)(1)). The right is not restricted to those who would describe their religious observance as a "Sabbath." /12/ Many states have enacted statutes that, like Title VII, require employers to make accommodations to their employees' religious observances. See Ariz. Rev. Stat. Ann. Sections 41-1461(6), 41-1463 (1956); Ga. Code Ann. Sections 10-1-570, 45-19-22 (1982); Ky. Rev. Stat. Sections 344.030(5), 344.040(1), 436.165(4)(a) and (b) (1975); Md. Ann. Code art. 27, Section 492 (Cum. Supp. 1983); Id. at art. 49b, Sections 14-16 (1979); Mass. Ann. Laws ch. 151B, Section 4.1A (Law. Co-op. 1976); Mo. Ann. Stat. 578.115 (Vernon 1979); N.H. Rev. Stat. Ann Section 354-A:3(4) (1955); N.Y. Exec. Law Section 296.10 (McKinney 1982); Pa. Stat. Ann. tit. 43, Section 955 (Purdon 1964); S.C. Code Ann. Sections 1-13-30(k), 1-13-80 (Law. Co-op. 1976); Va. Code Sections 40.1-28.2, 40.1-28.3 (1981); W. Va. Code Section 61-10-27 (1977); Wis. Stat. Ann. Section 111.337 (West Cum. Supp. 1983). Other state laws have been interpreted to require religious accommodation. Alaska Stat. Section 18.80.200 (1983), as interpreted in Wondzell v. Alaska Wood Products, Inc., 583 P.2d 860, 864 (Alaska 1978); Cal. Const. Art. I, Section 8, as interpreted in Rankins v. Comm'n on Professional Competence, 24 Cal. 3d 167, 173-174, 593 P.2d 852, 856, 154 Cal. Rptr. 907, 911-912, appeal dismissed for want of a substantial federal question, 444 U.S. 986 (1979); Iowa Code Ann. Section 601A.6(1)(a) (West 1975), as interpreted in King v. Iowa Civil Rights Comm'n, 334 N.W.2d 598, 602 n.1 (Iowa 1983); Me. Rev. Stat. Ann. tit. 5, Section 4572(1)(A)(1979), as interpreted in Maine Human Rights Comm'n v. Local 1361, United Paperworkers International Union, 383 A.2d 369, 378 (Me. 1978). See also Michigan Department of Civil Rights ex rel. Parks v. General Motors Corp., 412 Mich. 610, 317 N.W.2d 16 (1982) (interpreting Mich. Comp. Laws Section 423.303 (1967) as requiring employers to act affirmatively to avoid the discriminatory effects of employment practices that on their face are religiously neutral). In other states, religious accommodations are required by guideline or regulation. See (State Laws) Fair Empl. Prac. (BNA) 453:1141 (Colo. Sept. 25, 1980); id. at 453:1708 (D.C. June 11, 1976); id. at 453:2756 (Ill. Dec. 12, 1973); id. at 453:3301 (Kan. May 1, 1978); id. at 455:1901 (Mont. July 14, 1983); id. at 455:2351 (Nev. Apr. 6, 1961); id. at 457-555-457:556 (Okla. Feb. 25, 1977); id. at 457:1754 (S.D. Dec. 16, 1979); id. at 457:1887 (Tenn. Jan. 19, 1979). /13/ See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) (case resolved on nonconstitutional grounds); Parker Seal Co. v. Cummins, 429 U.S. 65 (1976) (affirming by an equally divided court a Sixth Circuit decision upholding constitutionality of Title VII religious accommodation requirements); Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971) (affirming by an equally divided court a Sixth Circuit decision that Title VII, before the 1972 amendments, did not require religious accommodations). /14/ Several district court decisions have gone the other way. See EEOC v. Sambo's of Georgia, Inc., 530 F. Supp. 86, 91-92 (N.D. Ga. 1981) (dictum); Isaac v. Butler's Shoe Corp., 511 F. Supp. 108, 112 (N.D. Ga. 1980); Gavin v. Peoples Natural Gas Co., 464 F. Supp. 622, 626-633 (W.D. Pa. 1979), vacated on other grounds, 613 F.2d 482 (3d Cir. 1980). /15/ Justice Douglas also dissented, on broader grounds. 366 U.S. at 561-581. /16/ See also Arlan's Department Store, Inc. v. Kentucky, 371 U.S. 218 (1962) (dismissing for want of a substantial federal question an appeal challenging the constitutionality of exemptions from Sunday closing laws for the benefit of those who celebrate the Sabbath on other days. /17/ The Connecticut Supreme Court subsequently struck down the remaining Sunday closing requirements in Caldor's, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 417 A.2d 343 (1979). The court below declined to address respondent's argument that Section 53-303e(b), being part of the same statute involved in Bedding Barn, was itself invalidated under that decision. Pet. App. 11a n.7. /18/ Significnatly, even the dissenters in Sherbert and Thomas would find religious accommodations of this sort permissible under the Establishment Clause, although not required under the Free Exercise Clause. See Sherbert, 374 U.S. at 422-423 (Harlan, J., dissenting); Thomas, 450 U.S. at 723 (Rehnquist, J., dissenting). Indeed, the opinion of the court below mirrors nearly exactly the approach to the Establishment Clause critized by Justice Rehnquist in his Thomas dissent. 450 U.S. at 726. /19/ This Court's decision in Sherbert and the Connecticut Supreme Court's decision here combine to create an anomalous reading of the Constitution: the State is forced to treat an employer's failure to accommodate an employee's Sabbath observance as an unjustified dismissal for purposes of paying unemployment compensation, but is unable to protect against the ensuing financial drain by treating such failure as an unlawful employment practice. /20/ See, e.g., Mueller v. Allen, No. 82-195 (June 29, 1983) (tuition tax credits); St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772 (1981) (exemption of church-operated school employees from unemployment taxes); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) (implied exemption of church-operated school employees from Labor Board jurisdiction); Gillette v. United States, 401 U.S. 437 (1971) (exemption of religious objectors from compulsory military service); Walz v. Tax Commission, 397 U.S. 664 (1970) (property tax exemptions for religious organizations); Zorach v. Clauson, 343 U.S. 306 (1952) (off-premises public school release time programs); Quick Bear v. Leupp, 210 U.S. 50 (1908) (use of Indian trust monies for sectarian education); cf. Widmar v. Vincent, 454 U.S. 263 (1981) (religious group meetings on public university campuses). /21/ Our discussion of the purposes of the Religion Clauses is directed, of course, to those Clauses as they have been understood to apply to the states through the Fourteenth Amendment. /22/ Governmental programs that involve the expenditure of tax monies for the beneift of religious institutions raise somewhat different and additional concerns. See page 25, infra. /23/ It cannot realistically be thought that the provision confers an inducement to religious practice so valuable that employees would be likely to adopt a Sabbath-observing faith in order to share in the benefits. /24/ It is also significant that the Sabbath is not the only commonly observed practice protected under this Connecticut law. The statute also guarantees workers the right to a day off on such secular holidays as New Year's Day, Memorial Day, and Independence Day, as well as on Christmas and Thanksgiving. Conn. Gen. Stat. Section 53-303b (1982). /25/ See note 12, supra. /26/ We take no position, of course, on whether petitioner's constructive discharge would constitute an unlawful employment practice under Title VII. The answer to that question would hinge upon whether an accommodation to petitioner's Sabbath observance would be reasonable and could be made without "undue hardship" to respondent's business. See Nottelson v. Smith Steel Workers, 643 F.2d at 452. /27/ It is not possible to determine on the basis of this record how much implied flexibility may exist in the Connecticut statute. In its argument before the Board, respondent did not seek any limiting construction of the statute, or suggest that its proposed accommodations to petitioner (the transfer to a Massachusetts store or to a nonsupervisory position) might have satisfied the statutory requirement. Respondent instead argued that Section 53-303e(b) provides "absolutely no defense for the employer" (J.A. 30a) and attacked its facial constitutionality. For obvious reasons, this interpretation was not challenged by petitioner. It was on this basis that the Board held respondent in violation of the statute. The Connecticut Supreme Court, in turn, assumed jurisdiction only to decide the question of facial validity (Pet. App. 9a), and deferred without consideration on the merits to the Board's conclusion that respondent was in violation of the statute. As the circumstances of this case illustrate, it is not at all clear how "absolute" the Connecticut statute is. Petitioner was not expressly discharged for refusal to work on his Sabbath, but instead resigned when he decided that he could not accept respondent's counter-offer. The Board ruled that his resignation was legally tantamount to a discharge (J.A. 12a), a determination that, under state law, was unreviewable by the courts (Pet. App. 7a n.4). However, any determination that a resignation is constructively a discharge must necessarily rest on a conclusion that the employer's actions forced the resignation. Such a conclusion implies that respondent's proposed accommodations were found insufficient here, but does not imply that all proposed accommodations would be deemed irrelevant as a matter of law. It is difficult to believe, for example, that the Board would have considered petitioner constructively discharged if he had been offered, and refused, a transfer to an equidistant store in the same position. In the posture of this case, therefore, respondent should not be heard to complain that Section 53-303e(b) is unconstitutional because it is "absolute." That was not the ground for the Connecticut Supreme Court's judgment, and as a construction of state law, is purely an artifact of respondent's own litigation strategy. /28/ Had respondent not chosen to challenge the validity of Section 53-303e(b) on its face, it apparently might have been required, under state law, to submit its constitutional claims to the Board of Arbitration and Mediation. See Pet. App. 9a & n.6. Having selected the procedural alternative that it did, respondent may not now rely on arguments concerning the validity of the statute as applied. /29/ Some governmental practices can be defended on alternative theories: religious accommodation on the one hand, or secular purpose and effect, on the other. E.g., Mueller v. Allen, supra; Gillette, 401 U.S. at 452-253. /30/ The difficulty with the word "secular" is that one of its connotations suggests an affirmative hostility to religion that the Establishment Clause does not contemplate. See, e.g., Webster's Third New International Dictionary 2053 (1976) (defining "secularism" as "a view of life or of any particular matter based on the premise that religion and religious considerations should be ignored or purposely excluded"). /31/ To the extent that the purpose and effect concepts are understood as no more than the subjective and objective aspects of determining whether the practice under review "conveys a message of endorsement or disapproval" of a religious belief or practice (see Lynch v. Donnelly, slip op. 4 (O'Connor, J., concurring)), they are a necessary part of the "neutrality" inquiry. See pages 18-19, supra. /32/ The entanglement inquiry focuses on religious institutions rather than individuals. This is clear not only from its purpose and relation to Establishment Clause values, but also from the considerations ordinarily examined to determine whether a given program entails excessive entanglement. These factors are: "the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority." Lemon, 403 U.S. at 615 (emphasis added); See Roemer v. Board of Public Works, 426 U.S. 736, 762-765 (1976). /33/ In his dissenting opinion in Braunfeld v. Brown, 366 U.S. at 615, Justice Brennan described an argument identical to that relied on by the court below as "legally baseless" and contrary to precedent.