Appeal Sought on Court Ban on Religious Observance in Employment
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Appeal Sought on Court Ban on Religious Observance in Employment

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The ruling by a California federal district court declaring unconstitutional a 1972 amendment to the 1964 Civil Rights Law requiring unions and employers to accommodate to “reasonable religious needs” of workers was described here today as an “anomaly” which will probably be reversed on appeal. Federal District Judge Edward Schwartz of San Diego ruled Tuesday that such laws violate the First Amendment and “result in an impermissible government entanglement with religion.” He ruled in favor of the General Dynamics Convoir Aerospace Division, which dismissed a Seventh Day Adventist who refused to join a union because of his religion.

The comment on that ruling was made here today by Howard Zuckerman, president of the National Jewish Commission on Law and Public Affairs (COLPA), which assisted in the drafting of the 1972 amendment. Zuckerman said that federal appeals courts and other district courts which have addressed directly the issue of the amendment’s constitutionality, have ruled repeatedly that protection for religious observance in employment is constitutional. The protection is of particular importance to Sabbath-observing Jews.

Zuckerman added that the Schwortz ruling was, in any event, limited to the southern district of California, an area comprised primarily of the city of San Diego, adding that the ruling does not have to be followed by other judges in that district. The COLPA president said there were “serious questions” as to whether Schwartz was procedurally correct in considering the constitutional question in the case.


The Seventh Day Adventist, David Anderson, joined the company in 1965. In 1972, the company signed a contract with the International Association of Machinists and Aerospace Workers, which, required that all General Dynamics-Convair workers join the union.

Anderson cited the ban of the Seventh Day Adventists against adherents joining a union or paying dues to a union. He offered to donate an amount equal to union dues to charity. The union rejected that offer and said Anderson had to join. He refused and General Dynamics fired him in 1976.

Anderson appealed the firing and the first hearing of his case was by Federal Judge Robert Denney, in San Diego. Denney ruled in 1977 that non-payment of dues by a worker constituted an “undue hardship” on the union, as a matter of law, because of the problem of “free riders” the union said would occur if Anderson was permitted to work at the company without joining the union.

The Federal Court of Appeals for the Ninth Circuit reversed Denney’s ruling on Sept. 8, 1978, declaring that the “hardship” claimed by the union must be proved as a factual matter, and that “hypothetical speculation regarding free riders is insufficient.” The appeals court remanded the case back to the district court for implementation “consistent with the views” in the circuit court reversal.

Zuckerman said the meaning of that remand was an instruction to the district court to write an order which would have resulted in reinstatement with full pay and benefits for Anderson, without requiring him to join the union.


When the case was returned to the San Diego district court, it was assigned to Schwartz, who raised for the first time in the hearings the issue of constitutionality. He held that the 1972 amendment “discriminates among religions by favoring only those beliefs which require modification of an employer’s work rules” and, “in essence mandates religious discrimination.”

Zuckerman pointed out that Schwartz based his ruling on a constitutional issue, despite the fact that the appeals court made no reference to the 1972 amendment. Zuckerman said that fact will be one of the bases on which an appeal of the Schwartz ruling is planned by Anderson’s attorney, David Watkins.

Zuckerman said COLPA will file a friend of the court brief in the appeal to the Federal Court of Appeals for the Ninth Circuit, which he said will be filed shortly, and that COLPA will be working with Watkins in the appeals process.

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