On the Madness of CrowdsBettina Krause May/June 2023
“Men, it has been well said, think in herds; it will be seen that they go mad in herds, while they only recover their senses slowly, and one by one.”—Charles Mackay, Extraordinary Popular Delusions and the Madness of Crowds (1841).
Once upon a time the suggestion that employers should seek commonsense ways to accommodate people of faith in the workplace wouldn’t have seemed outrageous. It’s a low bar for religious pluralism. Most workplaces can and should find ways to accommodate a Sikh whose faith means he must leave his hair and beard untrimmed; a Jew or Seventh-day Adventist who observes Sabbath from sundown Friday to sundown Saturday; a Hindu who celebrates specific holy days and fasts; or a Muslim woman who wears a hijab.
A case currently before the Supreme Court, however, reminds us that discussions about religious freedom—whether on the left or the right—have been largely overtaken by the madness of crowds.
The facts in Groff v. DeJoy are straightforward enough. A postal worker in Pennsylvania, whose faith requires him to keep Sunday holy by refraining from work, was forced from his job after his postal district began Sunday deliveries for Amazon. His legal recourse, however, was limited by an almost 50-year-old Supreme Court precedent, laid down in TWA v. Hardison, which focused on two words in Title VII of the Civil Rights Act of 1964—“undue hardship.”
Under Title VII employers must accommodate the religious practices of employees unless to do so would impose an “undue hardship.” What does “undue hardship” mean? The majority in Hardison said that anything more than a de minimis (or trifling) burden on employers released them from their duty to accommodate the religious practices of employees.
The long-term consequences of this ruling were entirely foreseeable. Since 1977, employers have had little legal incentive to take requests for religious accommodation seriously. In the decades since Hardison, many, many thousands of Americans—Jews, Christians, Hindus, Muslims, Sikhs, and others—have been forced to choose between a job and their faith in situations in which a little effort or creativity could have easily found ways for them to keep both.
Now, Groff is asking the Court to reconsider that de minimis standard and to embrace an approach to Title VII requiring employers to make a more substantial effort. He’s not claiming that religious employees should be able to dictate terms or impose unreasonable burdens on their employer or on their coworkers. He’s simply arguing that both the intent and the statutory language of Title VII impose a duty on employers to make more than a trifling effort to accommodate the sincere religious beliefs of their workers.
It’s not an outrageous proposition—in fact, not too long ago both left and right in America embraced the idea. For more than a decade, from the late 1990s onward, a proposed Workplace Religious Freedom bill had strong bipartisan support in Congress. Democratic senator John Kerry introduced it repeatedly, and senators from both sides of the aisle, from Hillary Clinton to Rick Santorum, supported it. They all understood that the problems created by weak Title VII protection fell disproportionately on members of religious minorities and on those working blue-collar jobs.
However, the Workplace Religious Freedom Act failed to pass. It was eventually scuttled as the madness of crowds began to recast religious freedom as a culture-war issue. Consequently, the question of workplace accommodation for religious practices was punted to the courts. The result? The Groff case may be poised to provide a more robust level of Title VII protection for people of faith.
The political left—which was by and large responsible for abandoning efforts to find an acceptable legislative fix for workplace accommodation—is now crying foul. In an extraordinary statement, the executive director of the First Amendment advocacy organization Americans United claims that a favorable ruling for Groff would weaponize religious freedom as a “license to harm others” and would serve to “shift the burden” of an individual’s religious practices onto other people. She calls the case a “wolf in sheep’s clothing,” warning that a ruling favorable to Groff will be used by Christian nationalists to secure privilege for conservative Christianity “at the cost of everyone else’s religious freedom.”
This is a DEFCON Level 3 response to what seems like a reasonable proposition for preventing unnecessary job-loss for religious minorities. (And keep in mind that Gerald Groff falls squarely within a religious minority. He may be a Sundaykeeping Christian, but his long-standing practice of observing his sabbath strictly by refraining from work means he belongs to a minority of Christian Sundaykeepers—a mere 18 percent, according to a recent Pew survey.)
The comments from Americans United, along with many other statements and news articles dissecting the Groff case, are symptomatic of a far bigger problem in America today. That is, our understanding of religious freedom has been captured and distorted by ideological group think, and there seems no way to claw it back.
All of us, to some degree, have become infected by this mass insanity. Whether on the left or the right, we’ve lost our ability to engage thoughtfully with challenging questions without resorting to the clichés of our political tribe. We’ve lost the ability to have meaningful conversations about what pluralism in America should look like. We’ve embraced equal opportunity intolerance, in which the idea of making space in the public square for anyone whose beliefs don’t precisely align with ours has become anathema.
The result? Foundational constitutional values, such as religious freedom, have become enmeshed in left-versus-right narratives, and we can’t seem to free them from the tangle.
So back to the Groff case. Is the Supreme Court’s review of undue hardship under Title VII likely to bring harm by shifting the burden for religious practice onto others? No—at least not in those cases that have been traditionally brought under Title VII, which involve members of minority faiths. The heightened standard proposed in Groff would merely require employers to take these accommodation requests more seriously.
Yet the fears of the left are not wholly unjustified. It seems likely that a ruling favorable for religious freedom in Groff will trigger a wave of litigation, raising challenging and novel questions about the types of religious observance that must be accommodated under Title VII. And yes, culture-war issues may well be front and center in many of those cases.
Could we have avoided some of this angst by agreeing on a more narrowly tailored, commonsense legislative fix to workplace accommodation years ago? Of course.
Could we yet do so? Perhaps. But first we’d need to shake off the collective insanity of our tribes, and “recover our senses, one by one.” We’d need to learn to talk to one another; to acknowledge each other’s humanity and equal right to live, work, and participate in society, regardless of our religious beliefs or lack thereof. Perhaps then we could begin to restore the reputation of religious freedom—to see it once again as a bipartisan ideal, an essential constitutional pillar that has defined us historically as a nation and that is indispensable to our future.
Article Author: Bettina Krause
Bettina Krause is the editor of Liberty magazine.