New York (Jul. 15)
A California federal appeals court ruling, upholding the constitutionality of a law protecting the job rights of observant Jews, was viewed here today by the law’s supporters as a hopeful indication that the law’s continued viability is unlikely to be crippled by a Supreme Court ruling that it is unconstitutional.
The supporters pointed out that the California ruling was the third federal appeals court ruling in a row upholding the constitutionality of the law, a trend which decreases any possibility that the law might come up for review by the Supreme Court.
The law is a 1972 amendment to the 1964 Civil Rights Act, known to attorneys as Section 701J. The National Jewish Commission on Law and Public Affairs (COLPA) helped to draft the 1972 amendment, Howard Zuckerman, COLPA president, noted. The law requires that employers make reasonable accomodation to the religious needs of observant workers except in situations in which doing so would create “undue hardship” for the employer.
BACKGROUND OF THE RULING
The ruling by the Ninth Circuit Federal Court of Appeals involved the case of a Seventh Day Adventist, David Anderson, who joined the Convair Aerospace division of General Dynamics in 1965. In 1972, the firm signed a contract with the International Association of Machinists and Aerospace Workers, requiring that all Convair division workers join the union.
Anderson cited a Seventh Day Adventist ban against joining a union or paying dues to a union. He offered to donate to charity, on a regular basis, an amount equal to his dues. When the union rejected that offer and said Anderson had to join and he refused, General Dynamics fired him in 1976.
Anderson appealed the firing and the first hearing was before Federal District Court Judge Robert Denney in San Diego. Denney ruled in 1977 that non-payment of dues constituted an “undue hardship” for the union, as a matter of law, because of the problem of “free riders” which he said would occur if Anderson could continue to work at Convair without joining the union. Denney did not raise any issue of constitutionality in his ruling.
The Ninth Circuit Federal Appeals Court struck down Denney’s ruling on Sept. 8, 1978, declaring that the “undue hardship” claimed by the machinists union must be proved to be factual and that “hypothetical speculation regarding ‘free riders’ is insufficient.”
The appeals court remanded the Anderson case back to the federal district court with instructions that the lower court write an order resulting in reinstatement of Anderson with full pay and benefits, without requiring him to join the union.
CONCERN OF ORTHODOX JEWS
Zuckerman, in explaining the concern of Orthodox Jews about a Supreme Court test of 701J’s constitutionality, explained that while the law might be found constitutional, there was also the prospect that the Supreme Court might have found 701J unconstitutional. For COLPA, which has won hundreds of cases in which the job rights of observant Jews were threatened by employers, that prospect of an unconstitutionality ruling has always been a matter of profound concern, Zuckerman explained.
When the Anderson case was returned to the San Diego federal district court, it was assigned not to Judge Denney but to Judge Edward Schwartz. He ruled in May, 1980, that such laws as 701J violated the First Amendment and resulted “in an impermissable government entanglement with religion.” He ruled in favor of General Dynamics.
At that time, Zuckerman said, there were “serious questions” as to whether Schwartz, the first Federal Judge to raise the issue of the constitutionality of 701J, had not been in error on procedural grounds, particularly since the Ninth Circuit Court of Appeals had made no reference to 701J.
COLPA thereupon filed a friend of the court brief in the appeal from Schwartz’ ruling to the Ninth Circuit Court of Appeals. The brief was filed on behalf of COLPA, the Anti-Defamation League of B’nai B’rith, Agudath Israel of America, the National Council of Young Israel, the Rabbinical Council of America, and the Union of Orthodox Jewish Congregations of America.
ARGUMENT IN COLPA BRIEF
The COLPA brief argued that the “reasonable accomodation” standard was in no way a preference for religion, but simply provided equal job opportunity to all persons, regardless of their religious belief or practice, by ensuring that no person would be denied a job because of his or her religious beliefs.
The COLPA brief also argued that “all aspects of religious observance and practice are covered by the law and the fact that all religions have more or different kinds of religiously-dictated observances than other religions does not invalidate a law that applies to all faiths equally.”
A COLPA volunteer attorney, Daniel Chazin, who filed the brief, noted that while dues payment poses no problem for Jews, continued protection of Sabbath observance rights is of critical importance for thousands of observant Jews and for members of other faiths, such as Seventh Day Adventists, who observe Saturday as a holy day.
The ruling by the Ninth Circuit Court of Appeals rejecting Judge Schwartz’ decision was the third of the appeals court decisions upholding the 1972 amendment.
Zuckerman, in explaining the wider meaning of the three appeals court rulings, said the Supreme Court generally regards consistent rulings by the three-man appeals courts, on either side of a law involving the constitutionality issue, as relieving the Supreme Court of a need to consider a particular law.
Zuckerman said that, in the case of the 1972 amendment, for the Supreme Court to intervene would mean overruling the judgements of three three-man federal appeals courts, which, he said, legal authorities consider highly unlikely, though not impossible.