                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-1247
BENJAMIN P. ENDRES, JR.,
                                             Plaintiff-Appellee,
                              and


UNITED STATES    OF   AMERICA,
                               Intervening Plaintiff-Appellee,
                               v.

INDIANA STATE POLICE,
                                         Defendant-Appellant.
                        ____________
       Appeal from the United States District Court for the
        Northern District of Indiana, South Bend Division.
      No. 3:01-CV-0518—Robert L. Miller, Jr., Chief Judge.
                        ____________
    ARGUED NOVEMBER 1, 2002—DECIDED JUNE 27, 2003
 ON PETITION FOR REHEARING—DECIDED NOVEMBER 19, 2003
                        ____________

  This appeal originally was consolidated with No. 02-1377,
Holmes v. Marion County Office of Family and Children,
and the two appeals were decided in a single opinion, which
is reported at 334 F.3d 618 (7th Cir. 2003). In response to
the petition for rehearing and rehearing en banc, the court
has decided to de-consolidate the appeals and to issue a
separate opinion in each. The panel’s opinion resolving this
appeal follows.
2                                                No. 02-1247

  All members of the panel have voted to deny the petition
for rehearing. A judge in active service called for a vote on
the petition for rehearing en banc. A majority did not favor
rehearing, so the petition is denied. Judges Ripple, Rovner,
and Williams voted to grant rehearing en banc. Judge
Ripple has written a dissenting opinion (joined by Judges
Rovner and Williams) that immediately follows the panel’s
new opinion.


 Before BAUER, POSNER, and EASTERBROOK, Circuit
Judges.
  EASTERBROOK, Circuit Judge. Benjamin Endres lost his
job with the Indiana State Police after he refused to work
at a casino, an enterprise that contravenes his religious
beliefs. He sued under Title VII of the Civil Rights Act of
1964, contending that Indiana discriminated against him on
account of religion. Endres relies on a definition in §701(j)
of that Act, 42 U.S.C. §2000e(j), which provides that religion
“includes all aspects of religious observance and practice, as
well as belief, 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.”
  Indiana concedes that the State Police must not discrimi-
nate against any religious faith but relies on Employment
Division v. Smith, 494 U.S. 872 (1990), for the proposition
that it need not accommodate religiously inspired practices
adversely affected by rules that are neutral with respect to
religion. To the extent an accommodation requirement ex-
tends beyond the first amendment, Indiana insists, it rests
on the Constitution’s commerce clause and not on §5 of the
fourteenth amendment. That does not undermine §701(j)’s
validity as applied to state employees, see Garcia v. San
No. 02-1247                                               3

Antonio Metropolitan Transit Authority, 469 U.S. 528
(1985), but does affect where litigation must occur—for,
when Congress acts only under the commerce power, the
eleventh amendment permits states to insist that suit be in
state court. Compare Fitzpatrick v. Bitzer, 427 U.S. 445
(1976), with Seminole Tribe v. Florida, 517 U.S. 44 (1996).
In Boerne v. Flores, 521 U.S. 507 (1997), the Court con-
cluded that the Religious Freedom Restoration Act, 42
U.S.C. §2000bb to §2000bb-4, exceeds the power granted by
§5 and therefore may not support a private action in federal
court against a state. Indiana submits that §701(j), which
like the RFRA requires accommodation rather than neutral-
ity, also is not §5 legislation. After the United States
intervened to defend the constitutionality of Title VII, the
district judge rejected Indiana’s argument and held that
litigation may proceed in federal court. Endres v. Indiana
State Police, No. 3:01-CV-0518 (N.D. Ind. Dec. 28, 2001)
(unpublished order). The state took an interlocutory appeal.
See Lapides v. University of Georgia, 535 U.S. 613 (2002);
Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy,
Inc., 506 U.S. 139 (1993).
  Endres joined the State Police in 1991. After Indiana be-
gan to license casinos, the State Police designated some of
its officers as Gaming Commission agents. In March 2000
Endres was assigned to a full-time position as an agent at
the Blue Chip Casino in Michigan City, Indiana. Gaming
Commission agents certify gambling revenue, investigate
complaints from the public about the gaming system, and
conduct licensing investigations for the casinos and their
employees. Endres worships at the Community Baptist
Church in South Bend; he and other congregants believe
they must neither gamble nor help others to do so, because
games of chance are sinful. Endres told the State Police
that, although he was willing to enforce general vice laws
at casinos, providing the specialized services required of
4                                                 No. 02-1247

Gaming Commission agents would violate his religious
beliefs because it would facilitate gambling. He asked for a
different assignment; the State Police declined. Endres then
refused to report for duty and was fired for insubordination.
An assignment to this position because of (rather than in
spite of, or with indifference to) his religious beliefs would
violate the Constitution, see Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256 (1979), but Endres
does not contend that his religion played any role in the
selection. According to the complaint, he was selected by lot.
Nor did the State Police hold his views against him after he
refused the assignment; it responded to his deeds, not his
faith, and Endres does not contend that he was treated
more severely than he would have been had he refused the
same position for secular reasons. As a result, neither the
posting nor the decision not to accommodate Endres’s desire
for different duties violated the free exercise clause of the
first amendment, as Smith understands that clause.
  Before taking up the question whether §701(j) is an ex-
ercise of §5 powers, we first inquire whether §701(j) obliges
states to afford the sort of accommodation that Endres
requested. A negative answer will enable the court to avoid
a constitutional issue, which makes it prudent to follow the
model that the Supreme Court established in Saucier v.
Katz, 533 U.S. 194, 201 (2001), for qualified-immunity
appeals by state actors: determine whether the complaint
states a claim before inquiring whether the defendants have
immunity. Because the eleventh amendment does not
curtail subject-matter jurisdiction (if it did, states could not
consent to litigate in federal court, as Lapides holds that
they may), a court is free to tackle the issues in this order,
when it makes sense to do so, without violating the rule
that jurisdictional issues must be resolved ahead of the
merits. See Vermont Agency of Natural Resources v. United
States ex rel. Stevens, 529 U.S. 765, 778-80 (2000).
No. 02-1247                                                   5

   Endres contends that §701(j) gives law-enforcement per-
sonnel a right to choose which laws they will enforce, and
whom they will protect from crime. Many officers have re-
ligious scruples about particular activities: to give just a few
examples, Baptists oppose liquor as well as gambling,
Roman Catholics oppose abortion, Jews and Muslims op-
pose the consumption of pork, and a few faiths (such as the
one at issue in Smith) include hallucinogenic drugs in their
worship and thus oppose legal prohibitions of those drugs.
If Endres is right, all of these faiths, and more, must be
accommodated by assigning believers to duties compatible
with their principles. Does §701(j) require the State Police
to assign Unitarians to guard the abortion clinic, Catholics
to prevent thefts from liquor stores, and Baptists to in-
vestigate claims that supermarkets mis-weigh bacon and
shellfish? Must prostitutes be left exposed to slavery or
murder at the hands of pimps because protecting them from
crime would encourage them to ply their trade and thus
offend almost every religious faith?
  The Supreme Court held in Trans World Airlines, Inc. v.
Hardison, 432 U.S. 63, 84 (1977), that §701(j) does not re-
quire an accommodation that would cause more than mini-
mal hardship to the employer or other employees. See also
Ansonia Board of Education v. Philbrook, 479 U.S. 60, 67-
69 (1986). Juggling assignments to make each compatible
with the varying religious beliefs of a heterogeneous police
force would be daunting to managers and difficult for other
officers who would be called on to fill in for the objectors.
Whether or not a paramilitary organization could accommo-
date task-specific conscientious objection without undue
hardship, however, the demand would not be reasonable—
and §701(j) calls only for reasonable accommodations.
Reasonableness and the avoidance of undue hardship are
distinct. Cf. Vande Zande v. Wisconsin Department of
Administration, 44 F.3d 538 (7th Cir. 1995) (discussing the
6                                                No. 02-1247

difference between “reasonable” accommodation and “undue
hardship” under the Americans with Disabilities Act).
Selective objection to some of the employer’s goals raises
problems on the “reasonableness” branch as well as the
“undue hardship” branch. See Reed v. Great Lakes Cos., 330
F.3d 931 (7th Cir. 2003). This is especially pertinent when
the assignment is unpopular: the State Police had to draft
Endres because there were not enough volunteers. Excusing
officers from the risk of unpopular assignments would
create substantial costs for fellow officers who must step in,
as well as the police force as an entity.
  This is the third time we have had to consider how §701(j)
applies to requests by law-enforcement personnel to choose
which crimes they will investigate and which potential
victims they will protect. In Ryan v. Department of Justice,
950 F.2d 458 (7th Cir. 1991), an FBI agent claimed a right
to be free of any assignment concerning nonviolent opposi-
tion to military activities—such as, for example, protesters
who vandalize military installations, see United States v.
Urfer, 287 F.3d 663 (7th Cir. 2002), or pour blood on
military records, see United States v. Berrigan, 437 F.2d
750 (4th Cir. 1971). Agent Ryan’s views stemmed from the
U.S. Bishops’ Pastoral Letter on War and Peace; his
sincerity was not in doubt. Nonetheless, we held, §701(j) did
not protect him from discharge for insubordination:
    It is difficult for any organization to accommodate
    employees who are choosy about assignments; for a
    paramilitary organization the tension is even
    greater. Conscientious objectors in the military seek
    discharge, which accommodates their beliefs and
    the military’s need for obedience. Ryan received
    discharge but does not want it. He wants to be an
    agent and to choose his assignments too. With good
    will all around, and flexibility on the part of Ryan’s
    fellow agents, it just might be possible to make a go
No. 02-1247                                                  7

    of it. Title VII does not, however, compel the FBI to
    attempt this. Legal institutions lack the sense of
    nuance that will tell an experienced agent how far
    the rules may be bent without injury to the FBI’s
    mission. Compelled, as it is by Title VII, to have
    one rule for all of the diverse religious beliefs and
    practices in the United States, the FBI may choose
    to be stingy with exceptions lest the demand for
    them overwhelm it.
950 F.2d at 462. Our second case was Rodriguez v. Chicago,
156 F.3d 771 (7th Cir. 1998). Rodriguez, like Ryan a Roman
Catholic, refused to protect abortion clinics and their
clients. Again the sincerity of his views was unquestioned;
again the officer lost, this time because an accommodation
had been offered in the form of an opportunity to transfer
to a precinct without abortion clinics (which avoided the
need to determine whether the offer had been required).
Chief Judge Posner filed a concurring opinion addressing
the question that the majority had ducked and concluding,
in part on the authority of Ryan, that agencies such as
police and fire departments designed to protect the public
from danger may insist that all of their personnel protect
all members of the public—that they leave their religious
(and other) views behind so that they may serve all without
favor on religious grounds. That is, after all, an obligation
both state law and the Constitution fasten on the police. If
police and fire departments must enforce the law and
protect potential victims free of religious favoritism, then
they may insist that all members of their forces (volunteers
rather than conscripts) do their parts in fulfilling this duty.
“[P]ublic protectors such as police and firefighters must be
neutral in providing their services.” Shelton v. University of
Medicine & Dentistry, 223 F.3d 220, 228 (3d Cir. 2000).
  Perhaps one could say that Ryan does not compel this
conclusion; agent Ryan had been offered one form of ac-
8                                                No. 02-1247

commodation (a swap of assignments with a fellow agent),
and officer Endres lacked any similar way out. Yet what
principally led to Ryan’s discharge (as opposed to lesser
discipline) was his failure to follow a direct order, coupled
with a claim of entitlement in the future to choose which
crimes would be investigated and which potential victims
protected. Endres has made a claim of entitlement similar
to Ryan’s—broader to the extent that Endres claims a right
to reject an entire job classification, while Ryan claimed
only the right to reject particular investigations— and
Endres’s employer has not offered a similar accommodation.
Certainly nothing in Ryan or Rodriguez implies that there
must be such an offer: those cases deemed proffered accom-
modations adequate and did not reach the question whether
any had been necessary. Here, where no accommodation
was attempted, we must decide whether the statute
requires one, and we hold that it does not. Endres has made
a demand that it would be unreasonable to require any
police or fire department to tolerate.
  Law-enforcement agencies need the cooperation of all
members. Even if it proves possible to swap assignments on
one occasion, another may arise when personnel are not
available to cover for selective objectors, or when (as in
Hardison) seniority systems or limits on overtime curtail
the options for shuffling personnel. Beyond all of this is the
need to hold police officers to their promise to enforce the
law without favoritism—as judges take an oath to enforce
all laws, without regard to their (or the litigants’) social,
political, or religious beliefs. Firefighters must extinguish
all fires, even those in places of worship that the firefighter
regards as heretical. Just so with police.
    The public knows that its protectors have a private
    agenda; everyone does. But it would like to think
    that they leave that agenda at home when they are
    on duty—that Jewish policemen protect neo-Nazi
No. 02-1247                                                 9

    demonstrators, that Roman Catholic policemen
    protect abortion clinics, that Black Muslim police-
    men protect Christians and Jews, that fundamen-
    talist Christian policemen protect noisy atheists
    and white-hating Rastafarians, that Mormon
    policemen protect Scientologists, and that
    Greek-Orthodox policemen of Serbian ethnicity
    protect Roman Catholic Croats. We judges certainly
    want to think that U.S. Marshals protect us from
    assaults and threats without regard to whether, for
    example, we vote for or against the pro-life position
    in abortion cases.
Rodriguez, 156 F.3d at 779 (Posner, C.J., concurring). And,
we add, that Baptist policemen protect gamblers from theft
and fraud (and casino operators from sticky-fingered
gamblers and employees with falsified credentials). Cf.
Gillette v. United States, 401 U.S. 437 (1971) (selective
conscientious objection does not excuse military service).
  Endres advanced a claim under 42 U.S.C. §1983 as well
as one under Title VII. The Indiana State Police, as a unit
of state government, is not a “person” as §1983 uses that
term and therefore is not amenable to a suit for damages
under that statute. See Will v. Michigan Department of
State Police, 491 U.S. 58 (1989). There is no point in re-
manding to allow Endres to fix this problem by adding
other defendants. His claim under the free exercise clause
is incompatible with Smith, and only §701(j) offered any
prospect of success. The district court’s disposition of
Endres’s suit therefore is reversed outright; his complaint
fails to state a claim on which relief may be granted.
  The decision of the district court is reversed, and the case
is remanded with instructions to enter judgment for the
State Police on the merits.
10                                               No. 02-1247

  RIPPLE, Circuit Judge, with whom ROVNER and WILLIAMS,
Circuit Judges, join, dissenting from the denial of rehearing
en banc. Today, the court declines to rehear en banc a case
that departs significantly from this court’s fundamental
approach to statutory interpretation. In doing so, it sets our
court apart from the other circuits with respect to a funda-
mental aspect of Title VII law and deprives those who serve
us in important public safety positions from a protection
that they enjoy in every other circuit in the United States.
For the reasons set forth in the following paragraphs, I
respectfully dissent from the denial of rehearing en banc.
   Benjamin Endres was an officer for the Indiana State
Police. After Indiana began to license casinos, the State
Police designated some of its officers as Gaming Commis-
sion Agents. In March 2000, Mr. Endres was designated
as a Gaming Commission Agent and was assigned full time
to the Blue Chip Casino in Michigan City, Indiana. Mr.
Endres is a Baptist; he believes that gambling is a sin and
that he must neither gamble nor help others to do so. As
admitted by the court, although Mr. Endres did not object
to enforcing general vice laws on casino property, Mr.
Endres informed his supervisors that providing full-time
services at the casino would violate his religious beliefs; he,
therefore, requested a different assignment. The State
Police refused. When Mr. Endres failed to report for duty,
he was fired for insubordination. Mr. Endres subsequently
filed suit under Title VII and claimed that the State of
Indiana failed to accommodate reasonably his religious
beliefs.
  In addressing his claim, the panel first noted, correctly,
that “§701(j) does not require an accommodation that would
cause more than minimal hardship to the employer or other
employees.” Endres v. Indiana State Police, No. 02-1247,
slip op. at 5 (7th Cir. Nov. 19, 2003) (citing Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977)).
No. 02-1247                                                  11

However, it then continued:
    Juggling assignments to make each compatible with
    the varying religious beliefs of a heterogeneous
    police force would be daunting to managers and
    difficult for other officers who would be called on to
    fill in for the objectors. Whether or not a paramili-
    tary organization could accommodate task-specific
    conscientious objection without undue hardship,
    however, the demand would not be reasonable—and
    §701(j) calls only for reasonable accommodations.
Id. Comparing Mr. Endres’ request to that of the plaintiff in
Ryan v. Department of Justice, 950 F.2d 458 (7th Cir. 1991),
the panel held that such a request is per se unreasonable in
the context of a police or fire department. See id. at 5-6.
  The panel’s disposition of Mr. Endres’ accommodation
claim contains several crucial errors. First, the panel
recharacterizes the scope of the accommodation that Mr.
Endres sought. Mr. Endres simply asked that he not be
assigned on a permanent, full-time basis to a gambling es-
tablishment; he did not seek to avoid all law enforcement
activity with respect to a casino. Consequently, his request
did not either require the ongoing “[j]uggling [of] assign-
ments” or involve an officer choosing which law he would
enforce—elements of Mr. Endres’ claim that the panel found
so troubling.
   The panel’s resolution also fails to adhere to the estab-
lished law of this and every other circuit. Employing a less
polemical characterization, this court has twice addressed
accommodations that must be offered to law enforcement
personnel who seek to avoid specific assignments on re-
ligious grounds. Most recently in Rodriguez v. City of
Chicago, 156 F.3d 771 (7th Cir. 1998), we addressed the
request of a Catholic police officer to be exempted from
assignments at abortion clinics. In evaluating the City’s
12                                                 No. 02-1247

alleged failure to accommodate, we reiterated the standard
to be applied:
     Under Title VII, therefore, an employer must rea-
     sonably accommodate an employee’s religious ob-
     servance or practice unless it can demonstrate that
     such accommodation would result in an undue
     hardship to the employer’s business. Accordingly,
     we turn first to the issue of whether the City has
     satisfied its duty of reasonable accommodation; only
     if we answer that question in the negative need we
     proceed to the “undue hardship” prong of the Title
     VII analysis.
Id. at 775. Applying this standard, we determined that the
City had satisfied its duty of reasonable accommodation
because, under the existing collective bargaining agree-
ment, the officer in question could have secured a transfer
to a district without an abortion clinic without any reduc-
tion in his level of pay or benefits. See id. In an earlier case,
Ryan v. United States Department of Justice, 950 F.2d 458
(7th Cir. 1991), we reached a similar conclusion. Ryan was
a Federal Bureau of Investigation agent who, on religious
grounds, “repeatedly refused to carry out a lawful order to
investigate an unsolved federal offense; he declined to swap
assignments; he would not promise to carry out similar
orders in the future . . . .” 950 F.2d at 461. Although seeking
to be removed from the investigation of any peaceful, anti-
war protestors, “Ryan proposed no course other than
discontinuing investigations of the sort to which he is
opposed, which would be capitulation rather than accommo-
dation.” Id. Under these circumstances, we determined the
FBI had not failed to accommodate Ryan’s religious beliefs.
  Notably absent from our resolution of either Rodriguez’s
or Ryan’s claim, however, was a holding that the agencies
were exempt from the statutory requirement of reasonable
No. 02-1247                                                 13

accommodation because of their law enforcement mission.
Indeed, the panel in Endres acknowledges that “Ryan does
not compel” its conclusion. Endres, slip op. at 8. Quite the
opposite, Ryan acknowledged the unreasonableness of the
request to cease investigations when the perfectly reason-
able solution of an assignment swap had been proposed and
rejected.
  Not only does the panel’s decision here abandon the
analytical framework of Rodriguez and Ryan, it also ignores
the clear language of the statute. It simply blue pencils the
reasonable accommodation requirement from the statute as
it applies to police and fire personnel. It relies on no
language of the statute, no interpretive regulation, no
legislative history. It simply constructs a categorical
statutory amendment where none exists. Congress took a
different view. Title VII makes it unlawful for an employer
“to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with re-
spect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s . . . religion.” 42
U.S.C. § 2000e-2(a)(1). Furthermore, Title VII’s definition
of religion includes “all aspects of religious observance and
practice, as well as belief, unless an employer demonstrates
that he is unable to reasonably accommodate . . . an em-
ployee’s . . . religious observance or practice without undue
hardship on the conduct of the employer’s business.” Id. §
2000e(j). Neither the definition of religion, nor the defini-
tion of employer in § 2000e(b), suggests that law enforce-
ment agencies, fire departments, or any other “paramili-
tary” employers are exempt from the reasonable accommo-
dation provisions. Consequently, a law enforcement excep-
tion to the reasonable accommodation requirement finds no
support in the plain language of Title VII.
  I have no doubt that public safety agencies have a great
deal of latitude in accommodating the religiously based
14                                                    No. 02-1247

requests of their employees for exemptions from particular
duties. Both our previous case law and the case law of the
other circuits make that proposition clear.1 But Congress
simply did not determine that these agencies ought to be
given a blanket exemption from the mandate of the statute,
and, I respectfully suggest, Congress’ ability to determine
the wisdom of such an exemption is far superior to ours. On
a nationwide scale, public safety organizations come in
many shapes and sizes. Some are highly professional; some
are not. Some are relatively immune from prejudices, be
they racial or religious or otherwise; some are not. Congress
apparently saw no reason to exempt categorically such
organizations from the plain mandate of the statute and
preferred that the boundaries of the reasonable accommoda-
tion requirement be established in case-by-case adjudica-
tion.
  The court’s decision to let this panel decision stand will
raise, regretfully, many questions in the minds of many
people. Public safety and emergency personnel, whose con-
tributions to our daily lives are so much more appreciated
these days, have every right to ask why this court has sin-
gled them out as not deserving of a statutory protection


1
   See, e.g., Shelton v. Univ. of Med. & Dentistry of New Jersey, 223
F.3d 220, 228 (3d Cir. 2000) (finding public hospital had reason-
ably accommodated Pentecostal nurse opposed to assisting with
emergency abortions by offering her different assignment); Beadle
v. City of Tampa, 42 F.3d 633, 637 (11th Cir. 1995) (applying
reasonable accommodation analysis and holding that excusing
Seventh Day Adventist officer from all Friday evening and
Saturday shifts would work an undue hardship); Miller v.
Drennon, 1992 WL 137578 (4th Cir. June 19, 1992) (applying
reasonable accommodation analysis and finding that county had
offered reasonable accommodations to emergency medical worker
who was opposed to sharing one-room apartment with a member
of the opposite sex when on twenty-four hour shifts).
No. 02-1247                                                15

guaranteed to every other person in the United States.
Members of minority religions, whose doctrines are not
well-understood or appreciated in our culture, may well
wonder whether municipalities within this circuit are the
best place in which to make a public contribution. Hope-
fully, these doubts will be lessened by enlightened munici-
pal management who certainly could ensure that those who
serve us are protected despite this court’s decision to depart
from the anti-discrimination standards enforced in the rest
of the United States.
  Members of the practicing judiciary and the practicing
bar in this circuit also will be puzzled by this court’s de-
parture from its usual methodology in interpreting statutes.
Time and time again, we profess that, in interpreting a
statute, we begin with the plain wording of the statute.
Unless there is an ambiguity, we apply the explicit com-
mand of Congress. No one suggests that Congress has left
any doubt as to what it expects in this situation. Unfortu-
nately, however, our current decisional behavior does not
follow the course of our rhetoric. In future cases, judges,
attorneys, and litigants will have to accept the reality that
they must observe not what we say, but what we do.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—11-19-03
