I appreciate Marty's point about Rodriguez, but I also think that
the panel was repeating the Seventh Circuit's view in Ryan v. Department of
Justice, 950 F.2d 458, 462 (7th Cir. 1991) (Easterbrook, J.) (rejecting,
under Title VII, a religious exemption claim by an FBI employee who refused
to investigate destruction of government property by anti-war groups, and
who refused to accept a duty swap): "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 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." (Ryan had refused on religious grounds to participate
in an investigation because he "believe[d] that the U.S. Bishops' Pastoral
Letter on War and Peace, issued May 3, 1983, shows the impropriety of
conducting investigations into groups that destroy governmental property to
express their opposition to violence.)
While we're at it, see also Parrott v. District of Columbia,
CIV.A.91-004, 1991 WL 126020 (D.D.C. June 25, 1991) (rejecting a police
sergeant's request for exemption from duties which involved the arrest of
peaceful anti-abortion trespassers), aff'd by unpublished opinion, 959 F.2d
1102, 1992 WL 75053 (D.C. Cir. Mar. 20, 1992).
Also, apologies for the shameless plug, but if people are interested
in state RFRAs and government employees -- again, a matter that wasn't
raised in this case, I suspect because most lawyers aren't really aware of
state RFRAs -- they may find some tentative thoughts on the subject at
http://www1.law.ucla.edu/~volokh/intermed.htm#Governmentas .
Eugene
-----Original Message-----
From: Marty Lederman [mailto:[EMAIL PROTECTED]
Sent: Monday, June 30, 2003 5:01 PM
To: [EMAIL PROTECTED]
Subject: Re: Easterbrook repeats that police departments need not
accommodate officers who refuse to guard certain places
Well, it's a bit more than that, because Easterbrook is "repeating" for a
panel of the Seventh Circuit what previously had only been the view
articulated in a Posner concurrence (in Rodriguez). Thus, the Seventh
Circuit has now held -- apparently based on nothing more than its own view
that law enforcement officials ought to leave their "private agendas" at
home -- that it would always be unreasonable for a law enforcement agency to
permit an employee to avoid a religioiusly objectionable assignment, no
matter what the circumstances (e.g., the ease of an assignment swap) of a
particular case.
Also: Attorneys bringing title VII accommodation claims against state
agencies in Illinois, Indiana or Wisconsin are now advised to plead an Ex
Parte Young claim against named officials, where possible, because the
Seventh Circuit has held that the accommodation provision of title VII is
not valid section 5 legislation.
----- Original Message -----
From: "Volokh, Eugene" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Monday, June 30, 2003 8:59 PM
Subject: Easterbrook repeats that police departments need not accommodate
officers who refuse to guard certain places
> Easterbrook repeats that police departments need not accommodate
> officers who refuse to guard certain places (here, casinos) on religious
> grounds. Endres v. Indiana State Police, 2003 WL 21480361 (7th Cir. June
> 27). The decision focuses only on Title VII -- there was apparently no
> pendent Illinois RFRA claim raised.
>
> Eugene
>
