                                                                  May 5, 1978



78-22     MEMORANDUM OPINION FOR THE
          ASSISTANT TO THE PRESIDENT FOR
          DOMESTIC AFFAIRS AND POLICY

          Constitutional Law— First Amendment—
          Flexibility in Federal Employee Work
          Schedules— Religious Observance


   This responds to your inquiry concerning the constitutionality of H. R.
12040. The question is whether the bill would violate the Establishment Clause
of the First Amendment. W ith the several important caveats discussed below,
ind with the few revisions which we have recom mended, we think that the bill
would probably not be held unconstitutional.
   H.     R. 12040, one o f several similar bills, instructs the Civil Service
Commission to promulgate regulations allowing Federal employees to take
time off to participate in religious observances. The employee must make up
the time used by working an equal number o f hours o f overtime. The bill also
contemplates that agencies may grant exceptions from the tim e-off requirement
where “ necessary to efficiently carry out the mission of the agency.” Because
the bill has been recently introduced, there is no meaningful legislative history
as yet, nor is it likely that any substantial history will be forthcoming.
Therefore, in evaluating whether the bill is constitutionally sound, we have
found it necessary to rely on representations made by the sponsor as to its
purpose and scope.
   Legislation touching upon matters o f religion raises difficult questions under
the First Amendment: “ Congress shall make no law respecting an establish­
ment of religion, or prohibiting the free exercise thereof.” The Supreme Court,
especially within the past decade, has been confronted with a variety o f cases in
which it has been called upon to give content to these clauses. As a result, their
general contours are now rather firmly settled. Laws challenged as violative of
the Establishment Clause must satisfy a three-part test: (1) there must be a
“ clearly secular legislative purpose” ; (2) there must be “ a primary effect that
neither advances nor inhibits religion” ; and (3) the enactment must “ avoid
excessive governm ent entanglem ent with religion.” See, e .g ., Committee fo r
Public Education & Religious Liberty v. N yquist, 413 U .S. 756, 773 (1973).

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 Although, as the Court often noted, the line between the constitutional
 considerations underlying the Establishment Clause and the purposes o f the
 Free Exercise Clause is not always easy to identify, their central theme is that
 Government must maintain a relationship of “ neutrality” both toward particu­
 lar religious sects and toward religion generally. See, e.g ., Gillette v. United
States, 401 U .S. 437, 449 (1971). In other words, the Government may neither
 promote religion nor discriminate against it.
    Although the general outlines are now settled, the legal questions have not
 become easier to resolve, and what the Court may hold concerning a particular
 legislative proposal is not fully predictable. The principles are understood, but
their application— given the variety of situations in which these questions
 arise— remains uncertain.
    Before turning to a consideration of the application of those general
principles to H. R. 12040, it is useful to review briefly a line o f recent cases
interpreting the provisions o f Title VII of the 1964 Civil Rights Act, which
mandates nondiscrimination by public and private employers on religious
grounds. 42 U .S.C . §§ 2000e— 2(a)(1), 2000e(j). These provisions instruct
employers to make reasonable efforts to accommodate the religious needs of
their employees. On three separate occasions in recent years private employers
challenging such provisions under Establishment Clause grounds have had their
cases before the Supreme Court. On the first two occasions the lower court
decisions were affirmed without opinion by an equally divided Court. See,
Dewey v. Reynolds M etals C o., 429 F. (2d) 324 (6th Cir. 1970), a ffd , 402
U.S. 689 (1971); Parker Seal Co. v. Cummins, 516 F. (2d) 544 (6th Cir.
 1975), a ff d, 429 U .S. 65 (1976). This was followed last term by a third case in
which the constitutional issue was once again presented: the Court, over the
dissents of Justices M arshall and Brennan, decided the case on nonconstitutional
grounds thereby avoiding again First Amendment complexities. Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
   In each o f the above cases the Solicitor General submitted an amicus brief
defending the constitutionality o f the relevant title VII provisions. His
argument supports the constitutionality o f H. R. 12040, assuming it can be read
in the same manner as we read the similar language in title VII.
   As stated above, in addressing the three-part Establishment Clause analysis,
we have found it necessary to rely on representations made by the bill’s
sponsor. The first representation is that the language of the bill as it will be
introduced on the House floor will carry important modifications. We under­
stand that the critical provision o f the bill will read as follows:
    Not later than thirty days after the date o f the enactment of this
    section, the Civil Service Commission shall prescribe regulations
    providing for work schedules under which an employee whose
    personal religious beliefs require the abstention from work during
    certain periods o f time, may elect to engage in overtime work fo r time
    lost in meeting such obligations. . . . [Emphasis added.]
The underlined language stresses that the bill is not intended to favor any
particular religious sects or denominations but is aimed at accommodating
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strongly held personal convictions even though they may not rest on the dogma
of any organized religion or faith. Its focus is placed properly on the
individual’s personal evaluation rather than upon the dictates o f any theistic
body.
    It was precisely this focus that became the basis on which the Supreme Court
upheld the constitutionality— or found it unnecessary to question the
constitutionality— of the conscientious-objector laws. See, United States v.
Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970);
Gillette v. United States, 401 U.S. 437 (19 7 1). We also think that it was in
large measure the breadth and neutrality o f the similar provisions o f title Vll
which allowed the Sixth Circuit to conclude that they were constitutionally
sound, Cummins v. Parker Seal C o ., 516 F. (2d), at 553, 557, and which
assisted the Supreme Court in avoiding the constitutional issue last term in
Hardison, supra, at 81.
   Our comments about the precise language of the bill must be read in
conjunction with two other representations which we understand have been
made. First, we understand that the sponsor o f the bill does not regard as one
of its purposes granting any form of “ preference” to religion or to religious
institutions. Second, we understand that the bill is premised upon considera­
tions which the Court has heretofore regarded as neutral and secular, including
a desire to promote the good will and esprit de corps that flow from
governmental policies which accommodate and are sensitive to the personal
concerns o f Governm ent employees. A governmental policy recognizing the
 “ principle of supremacy of conscience,” as this one does, would probably be
held to have an adequate nonsectarian foundation. Gillette v. United States,
401 U .S ., at 453. It will be helpful in eventual judicial review o f the bill to have
an expression on the record of these underlying sentiments.
    A further word is necessary with respect to the first representation eschewing
the notion that the bill is designed to fulfill some affirmative duty, thought by
some to arise from the Free Exercise Clause, requiring the Government to
 “ prefer” or promote religion. We believe that there is no basis for disagreeing
with the statement in the dissenting opinion o f Judge Celebreeze in one o f the
title VII cases that i f the purpose o f a law is to provide “ impartial
governmental assistance to all religions,” it must surely be an unconstitutional
intrusion on the separation o f church and state. Cummins v. Parker Seal C o.,
516 F. (2d), at 557. See also, M cCollum v. Bd. o f Education, 333 U.S. 203,
211-12 (1948); Zorach v. C lauson, 343 U .S. 306, 315 (1952); Gillette v.
United States, 401 U .S ., at 450. No such contention will be proffered in
support o f this bill. Instead it will be viewed as a means of accommodating
important interests in a neutral and nondiscriminatory manner.
    Finally, we understand that supporters o f H. R. 12040 have considered the
question o f appropriate implementation o f the Civil Service Commission. To
avoid an excessive entanglem ent, it is anticipated that the Commission will not
place itself in the posture o f reviewing and scrutinizing such questions as
whether the em ployee’s religious beliefs do, in fact, require absence from
work. It will not be asked to exam ine the theology o f any religious sect or

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 institution. Rather, its focus, as in the conscientious-objector cases, will be on
 the reliability of the em ployee’s assertions. See, e.g., United States v.
 Seeger, 380 U .S ., at 185. There should, then, be no need for the sort of
 “ discriminating and complicated . . . basis of classification” that would raise
 serious questions about the extent of governmental entanglement with religion.1
 See, Walz v. Tax Commission o f the City o f New York, 397 U .S. 664, 698-99
 (1970) (Harlan, J.); Gillette v. United States, 401 U .S ., at 457.
    With these several representations in mind, and with the language changes
 we have discussed, we believe that a case can be made for the constitutionality
 of the bill under the Establishment Clause. It is supported by valid, secular
 purposes; its primary effects are not to aid religion, and any such benefits can
 fairly be characterized as “ incidental” (see, Cummins v. Parker Sea! C o., 516
 F. (2d), at 553; Committee fo r Public Education v. Nyquist, 413 U .S ., at
 771-72); and in its operation it will not require the son of continuing and
 detailed scrutiny that would impermissibly entangle church and state.
    We may add that we have discussed our views with the General Counsel of
 the Civil Service Commission and he has asked that we advise you that he
 concurs.

                                                                             Larry A . H am m ond
                                                                  D eputy Assistant Attorney General
                                                                                 Office o f Legal Counsel




   'W h e th e r a statu te so b ro a d ly c o n c e iv e d , a n d so s u sc e p tib le to c la im s o f a b u se , is d e sirab le as a
m atter o f p o licy is a q u e stio n w e d o not a d d re ss. W e h ave not c o n sid e re d the q u e stio n o f
desirab ility o f th is bill in re g a rd s to e ith e r title V II as p re sen tly c o n stitu te d o r as it m ight be
am en d ed to a cc o m m o d a te fu rth e r th e re lig io u s n e ed s o f g o v e rn m e n ta l e m p lo y e es.


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