The Nation Appears Confused About the Meaning of Freedom

In the news today are two interesting bits of jurist imprudence accomplished by the Supreme Court of the United States of America.

First up is a decision potentially exonerating a man for composing poetry (rap) threatening his ex-wife and posting it online. Dispensing with the background of the case, the relevant portion of the decision may be quoted thus.

 …”wrongdoing must be conscious to be criminal,” and that a defendant must be “blameworthy in mind” before he can be found guilty. [case law reference omitted]. The “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.”

-from Elonis v United States, syllabus

This was a surprisingly united court decision, effectively 8-1, actually 7-2 upon closer inspection. Ultimately, the majority justices seemed to agree that a crime without intent to commit a crime, a threat without intent to threaten, is not in fact a crime. GamerGaters rejoice; just don’t troll anybody with plain threats, which brings us to Thomas’ dissent. [Forgive the long quote; it is difficult to abridge Thomas’.]

Save two, every Circuit to have considered the issue—11 in total—has held that this provision demands proof only of general intent, which here requires no more than that a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context. The outliers are the Ninth and Tenth Circuits, which have concluded that proof of an intent to threaten was necessary for conviction. …

Rather than resolve the conflict, the Court casts aside the approach used in nine Circuits and leaves nothing in its place. Lower courts are thus left to guess at the appropriate mental state for §875(c). All they know after today’s decision is that a requirement of general intent will not do. But they can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough.

This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty. This uncertainty could have been avoided had we simply adhered to the background rule of the common law favoring general intent. Although I am sympathetic to my colleagues’ policy concerns about the risks associated with threat prosecutions, the answer to such fears is not to discard our traditional approach to state-of-mind requirements in criminal law. Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were “true threats” unprotected by the First Amendment, I would affirm the judgment…

In other words, “If this that Elonis wrote isn’t a threat, what the fuck is?” I encourage you to read the entire court opinion, especially the summary of events leading to Elonis eventual arrest and conviction.

Second on the docket was a little ditty about a muslima in a head-scarf.

Held: To prevail in a disparate-treatment claim, an applicant need show only that [her] need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of [her] need.

Let’s just go ahead and call this the crypto-Jew decision. Here’s the background.

Samantha Elauf is a practicing Muslim who, consistent with her understanding of her religion’s requirements, wears a headscarf. She applied for a position in an Abercrombie store, and was interviewed by Heather Cooke, the store’s assistant manager. Using Abercrombie’s ordinary system for evaluating applicants, Cooke gave Elauf a rating that qualified her to be hired; Cooke was concerned, however, that Elauf ’s headscarf would conflict with the store’s Look Policy.

Cooke sought the store manager’s guidance to clarify whether the headscarf was a forbidden “cap.” When this yielded no answer, Cooke turned to Randall Johnson, the district manager. Cooke informed Johnson that she believed Elauf wore her headscarf because of her faith. Johnson told Cooke that Elauf ’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf.

The [Equal Employment Opportunity Commission] sued Abercrombie on Elauf ’s behalf, …

Again, let’s hearken to Thomas’ dissent.

Unlike the majority, I adhere to what I had thought before today was an undisputed proposition: Mere application of a neutral policy cannot constitute “intentional discrimination.”

…the majority expands the meaning of “intentional discrimination” to include a refusal to give a religious applicant “favored treatment.”

At first glance, the phrase “because of such individual’s religious practice” could mean one of two things. Under one reading, it could prohibit taking an action because of the religious nature of an employee’s particular practice. Under the alternative reading, it could prohibit taking an action because of an employee’s practice that happens to be religious.

The distinction is perhaps best understood by example. Suppose an employer with a neutral grooming policy forbidding facial hair refuses to hire a Muslim who [maintains unshaven] a beard for religious reasons. Assuming the employer applied the neutral grooming policy to all applicants, the motivation behind the refusal to hire the Muslim applicant would not be the religious nature of his beard, but its existence. Under the first reading, then, the Muslim applicant would lack an intentional-discrimination claim, as he was not refused employment “because of ” the religious nature of his practice. But under the second reading, he would have such a claim, as he was refused employment “because of ” a practice that happens to be religious in nature.

One problem with the second, more expansive reading is that it would punish employers who have no discriminatory motive. If the phrase “because of such individual’s religious practice” sweeps in any case in which an employer takes an adverse action because of a practice that hap- pens to be religious in nature, an employer who had no idea that a particular practice was religious would be penalized. That strict-liability view is plainly at odds with the concept of intentional discrimination….

Thomas, a nigger, continues his excellent argument, effectively convincing me that if he’s all we have left to defend the nation at the Supreme Court, conservative diversity hires may be our best hope for the future of these United States.

For purposes of today’s decision, however, the majority opts for a compromise, albeit one that lacks a foothold in the text and fares no better under our precedents. The majority construes [statute] to punish employers who refuse to accommodate applicants under neutral policies when they act “with the motive of avoiding accommodation.” … But an employer who is aware that strictly applying a neutral policy will have an adverse effect on a religious group, and applies the policy anyway, is not engaged in intentional discrimination, at least as that term has traditionally been understood. As the Court explained many decades ago, “‘Discriminatory purpose’”— i.e., the purpose necessary for a claim of intentional discrimination—demands “more than . . . awareness of consequences. It implies that the decision maker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” …

I do not dispute that a refusal to accommodate can, in some circumstances, constitute intentional discrimination. If an employer declines to accommodate a particular religious practice, yet accommodates a similar secular (or other denominational) practice, then that may be proof that he has “treated a particular person less favorably than others because of [a religious practice].” …But merely refusing to create an exception to a neutral policy for a religious practice cannot be described as treating a particular applicant “less favorably than others.” …

The majority’s novel theory of intentional discrimination is also inconsistent with the history of this area of employment discrimination law. As that history shows, cases arising out of the application of a neutral policy absent religious accommodations have traditionally been understood to involve only disparate-impact liability.

When Title VII was enacted in 1964, it prohibited discrimination “because of . . . religion” and did not include the current definition of “religion” encompassing “religious observance and practice” that was added to the statute in 1972. …Shortly thereafter, the EEOC issued guidelines purporting to create “an obligation on the part of the employer to accommodate to the religious needs of employees.” …From an early date, the EEOC defended this obligation under a disparate-impact theory. …Courts and commentators at the time took the same view. …

This Court’s first decision to discuss a refusal to accommodate a religious practice, Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), similarly did not treat such conduct as intentional discrimination. Hardison involved a conflict between an employer’s neutral seniority system for assigning shifts and an employee’s observance of a Saturday Sabbath. The employer denied the employee an accommodation, so he refused to show up for work on Saturdays and was fired. …This Court held that the employer was not liable under Title VII because the proposed accommodations would have imposed an undue hardship on the employer. …To bolster its conclusion that there was no statutory violation, the Court relied on a provision of Title VII shielding the application of a “‘bona fide seniority or merit system’” from challenge unless that application is “‘the result of an intention to discriminate because of . . . religion.’” …But if the majority’s view were correct—if a mere refusal to accommodate a religious practice under a neutral policy could constitute intentional discrimination—then the Court in Hardison should never have engaged in such reasoning. After all, the employer in Hardison knew of the employee’s religious practice and refused to make an exception to its neutral seniority system, just as Abercrombie arguably knew of Elauf ’s religious practice and refused to make an exception to its neutral Look Policy.

Alright, I know that’s a lot to read all at once, so I’ll break it down for you as an example.

Kramer observes an obscure religion that requires he fast once a week for two particular days of each week. His employer, a mason, requires employees to work during good weather, regardless of which day of the week good weather occurs. The work is rigorous and cannot be safely accomplished concurrent with a two-day fast. Kramer tells the potential employer that he fasts two particular days each week and cannot work those two days. The employer suspects that this is a religious habit, but Kramer has not requested an accommodation, and even if Kramer asked, the employer does not think it would be possible to provide the accommodation without endangering other masons who would be obliged to work short one man in a crew. Kramer is denied employment, and the EEOC sues, and wins, against the mason, contrary to previous case law which permitted employers to make hiring decisions based upon business exigencies. The only thing that matters for the opinion of the majority is that “an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision…”

I hope Thomas’ closing does not elude your comprehension.

The Court today rightly puts to rest the notion that Title VII creates a freestanding religious-accommodation claim, but creates in its stead an entirely new form of liability: the disparate-treatment-based-on-equal-treatment claim. Because I do not think that Congress’ 1972 redefinition of “religion” also redefined “intentional discrimination,” …I respectfully dissent from the portions of the majority’s decision that take the contrary view.

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