In The

Supreme Court of the United States




Decided June 26, 1985

Justice O’Connor, Concurring

Topic: First Amendment*Court vote: 8–1
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Joining O'Connor opinion: Justice MARSHALL Justice MARSHALL
Citation: 472 U.S. 703 Docket: 83–1158Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, with whom JUSTICE MARSHALL joins, concurring.

The Court applies the test enunciated in Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 612 -613 (1971), and concludes that Conn.Gen.Stat. § 53-303e(b) (1985) has a primary effect that impermissibly advances religion. I agree, and I join the Court's opinion and judgment. In my view, the Connecticut Sabbath law has an impermissible effect because it conveys a message of endorsement of the Sabbath observance.

All employees, regardless of their religious orientation, would value the benefit which the statute bestows on Sabbath observers -the right to select the day of the week in which to refrain from labor. Yet Connecticut requires private employers to confer this valued and desirable benefit only on those employees who adhere to a particular religious belief. The statute singles out Sabbath observers for special and, as the Court concludes, absolute protection without according similar accommodation to ethical and religious beliefs and practices of other private employees. There can be little doubt that an objective observer or the public at large would perceive this statutory scheme precisely as the Court does today. Ante at 472 U. S. 708 -710. The message conveyed is one of endorsement of a particular religious belief, to the detriment of those who do not share it. As such, the Connecticut statute has the effect of advancing religion, and cannot withstand Establishment Clause scrutiny.

I do not read the Court's opinion as suggesting that the religious accommodation provisions of Title VII of the Civil Rights Act of 1964 are similarly invalid. These provisions preclude employment discrimination based on a person's religion and require private employers to reasonably accommodate the religious practices of employees unless to do so would cause undue hardship to the employer's business. 42 U.S.C. §§ 2000e(J) and 2000e-2(a)(1). Like the Connecticut Sabbath law, Title VII attempts to lift a burden on religious practice that is imposed by private employers, and hence it is not the sort of accommodation statute specifically contemplated by the Free Exercise Clause. See Wallace v. Jaffree, ante at 472 U. S. 83 -84 (opinion concurring in judgment). The provisions of Title VII must therefore manifest a valid secular purpose and effect to be valid under the Establishment Clause. In my view, a statute outlawing employment discrimination based on race, color, religion, sex, or national origin has the valid secular purpose of assuring employment opportunity to all groups in our pluralistic society. See Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 432 U. S. 90, n. 4 (1977) (MARSHALL, J., dissenting). Since Title VII calls for reasonable rather than absolute accommodation and extends that requirement to all religious beliefs and practices rather than protecting only the Sabbath observance, I believe an objective observer would perceive it as an antidiscrimination law rather than an endorsement of religion or a particular religious practice.

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