Supreme Court’s Turndown Offers Glimpse into Future

By Mark A. Kellner
Posted April 06, 2021

For close to 45 years, workers have been at the mercy of their employers in regard to time off for religious reasons. And while Title VII of the Civil Rights Act of 1964 was passed, in part, to prevent religious discrimination, a crucial U.S. Supreme Court decision in 1977, called Trans World Airlines, Inc. v. Hardison, effectively gave employers the upper hand by establishing the precedent of de minimis cost.

In basic terms, de minimis cost means that if your religious beliefs make life difficult for an employer in any capacity, the employer can claim the Hardison ruling’s provisions and be in the clear. It has been a ruling that religious liberty advocates have been contesting for decades. And then came not one but two long-awaited chances for that ruling to be finally overturned.

Jason Small, an electrician with Memphis Light, Gas & Water in Tennessee, and Mitche Dalberiste, a job applicant at GLE Associates in Florida, each sought the Supreme Court’s help in protecting his right to follow his conscience in relation to his occupation. 

While Small, a Jehovah’s Witness, was suspended for two days without pay when he chose religious observance over a scheduling conflict at his job, Dalberiste, a Seventh-day Adventist, had a job offer rescinded when he requested Sabbath accommodation.

But the last blow fell for these petitioners when on April 5, 2021, the high court turned down both of their appeals.


No Explanation for Hearing Refusal

As is its custom, the Supreme Court simply denied the separate requests of Small and Dalberiste to hear their cases without explanation. Interestingly enough, however, among the dozens of other appeals in the April 5 order, two associate justices of the Court, Neil Gorsuch and Samuel Alito, singled out Small's case, focusing on the question of religious liberty.

Issuing a dissent with Alito concurring, Gorsuch called for a reexamination of the Hardison ruling, on which the federal district and appeals courts had each relied to reject Small’s claim: “Justice [Thurgood] Marshall highlighted all these problems at the time, noting in dissent that the de minimis cost test cannot be reconciled with the ‘plain words’ of Title VII, defies ‘simple English usage,’ and ‘effectively nullif[ies]’ the … promise” of religious liberty contained in Title VII. Marshall had served as an associate justice from 1967 to 1991.

Gorsuch went on to state that the Americans with Disabilities Act, the Uniformed Services Employment and Reemployment Rights Act, and the Affordable Care Act each imposed accommodation requirements on employers that were “far more demanding” than those of Title VII.

Because of those laws, he wrote, “Title VII’s right to religious exercise has become the odd man out. Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim. As this case illustrates, even subpar employees may wind up receiving more favorable treatment than highly performing employees who seek only to attend church.”

Gorsuch concluded, “There is no barrier to our review and no one else to blame. The only mistake here is of the [Supreme] Court’s own making—and it is past time for the Court to correct it.”


Why It Matters

While Gorsuch penned strong opposition, the decision by the Supreme Court not to hear either appeal is yet another disappointment for religiously observant Americans. Just last year, in February 2020, the Court denied a similar case, Patterson v. Walgreen Co., again upholding the Hardison ruling.

But one thing seems to be clear: The problem with Hardison is not going away. And the highest court in the United States appears adamantly divided over it. Indeed, the subject of religion in our courts of law is becoming of increasing interest as Christ’s second coming draws near—and the Bible prophesies this.

It might seem nearly impossible for a nation that prides itself on being “the land of the free,” a nation whose Bill of Rights ratified amendments specifically to enumerate individual freedoms, first and foremost “the free exercise” of religious belief, to someday enact the very opposite, a law of religious coercion. But the Word of God says that this indeed will be so.

As church and state inch closer together, as America’s foundations are being questioned and even attacked, the day will come when this country “causes the earth and those who dwell in it to worship the first beast, whose deadly wound was healed” (Revelation 13:12); when it “causes all, both small and great, rich and poor, free and slave, to receive a mark on their right hand or on their foreheads, … that no one may buy or sell except one who has the mark or the name of the beast, or the number of his name” (vv. 16, 17); when it will “cause as many as would not worship the image of the beast to be killed” (v. 15). There is one thing that all these prophetic scriptures have in common: They are all about the ultimate use of coercion.

The USA in Bible Prophecy

Who is this “first beast”? What is his image, his mark, his number? And why is America partnering with him? Our online Bible study “The USA in Bible Prophecy” has all the answers.

And get a copy of our best-selling America in Bible Prophecy magazine. The devil would have you fear what is to come, but through God’s “sure word of prophecy” (2 Peter 1:19 KJV), you can be prepared to stand for God to the very end.

Mark Kellner
Mark A. Kellner is a staff writer for Amazing Facts International. He is a veteran journalist whose work has been published in Religion News Service, The Washington Times, and numerous computer magazines.
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