03/21/2013: S&G Orthodox Jewish clients win summary judgment
The Religious Observance Clauses at issue here do not single out a particular religious sect or denomination for special treatment; rather, they are reasonable accommodations of the employees’ religious beliefs. The Supreme Court “has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.” Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334 (1987) (internal quotation marks and citation omitted); see also Cutter v. Wilkinson, 544 U.S. 709, 713 (2005) (same). The Court has held that “there is room for play in the joints between’ the Free Exercise and Establishment Clauses, allowing the government to accommodate religion beyond free exercise requirements, without offense to the Establishment Clause.” Cutter, 544 U.S. at 713 (quoting Locke v. Davey, 540 U.S. 712, 718 (2004)). “There is ample room under the Establishment Clause for ‘benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.”
Here, the District’s enforcement of the Religious Observance Clauses does not amount to an illicit advancement of religion through its own activities and influence; rather, the clauses are self-selecting and allow the teachers and nurses to decide whether to use their leave days for the purpose of observing a particular religious holiday. Moreover, the Religious Observance Clauses do not designate specific religious holidays for inclusion, thereby improperly granting an added benefit to members of one faith and creating the impermissible inference that the District favors or prefers particular religions over others.
Berkowitz v. East Ramapo Central School Dist., Civ. No. 11-07002 (S.D.N.Y. Mar. 21, 2013).