Court asked to overrule Smith

 See Scotusblog

Roman Catholic Diocese of Albany v. [Emami] Harris

 The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Appellate Division, Supreme Court of New York, Third Judicial Department for further consideration in light of Fulton v. Philadelphia, on Nov. 1, 2021.

 Issues: (1) Whether New York’s regulation mandating that employer health insurance plans cover abortions, which burdens a subset of religious organizations by forcing them to cover abortions, is “neutral” and “generally applicable” under Employment Division v. Smith and Church of the Lukumi Babalu Aye Inc. v. City of Hialeah; (2) whether New York’s mandate interferes with the autonomy of religious entities, in violation of the religion clauses of the First Amendment; and (3) whether — if, under the rule announced in Smith, the free exercise clause of the First Amendment allows states to demand that religious entities opposing abortions subsidize them — Smith should be overruled.

 

I just signed on to an amicus brief in this case asking the Court to grant cert again and overrule Smith. 

Becket's snapshot of the case:

 In 2017, New York state mandated that employers cover abortions in their employee health insurance plans. New York initially planned to respect conscience rights by exempting employers with religious objections. But facing pressure from abortion activists, New York narrowed the exemption to protect only religious entities that primarily employ and serve people of their own faith. This discriminatory rule punishes the many religious groups and ministries that provide critical community services and employ or serve people regardless of their faith. Following the order, a diverse coalition of religious groups that includes contemplative goat-herding Anglican nuns asked the New York state courts to protect them from this regulation that would force them to violate their deepest religious convictions about the sanctity of life. But the New York state courts refused. After asking the U.S. Supreme Court to protect the churches and ministries, the Justices asked the state courts to reconsider in light of Becket’s other landmark victory in Fulton v. City of Philadelphia. The New York courts refused to follow the Supreme Court’s guidance and again upheld the abortion mandate. Represented by Becket and Jones Day, the religious groups are again asking the U.S. Supreme Court to step in and protect the right of their churches and ministries to teach and serve without being forced to fund abortions.

Good News case and Forbes

 Was the forum created by the public school in Good News a designated public forum or a nonpublic forum? Does it matter in how the case was decided?

Notice that Justice Thomas, in  his majority opinion, provides the test before the Court: When the state establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech. The State may be justified 'in reserving [its forum] for certain groups or for the discussion of certain topics.' The State however must not discriminate against speech on the basis of viewpoint and the restriction must be reasonable in light of the purpose of the forum."

So, was the exclusion of religious groups that promote the moral and character development of children a viewpoint based exclusion?

The Court says yes (p. 1822) because the school district excluded the Good News Club because it approached moral and character development "from a religious viewpoint."

First Amendment Fall 2024: Week Eight Assignments

 -- 1.Finish up last week's assignment: Casebook p. 1459-1482;  Snyder v. Phelps (link)

-- 2. Casebook p. 1482-1499; Casebook p. 1520-1541; Mahanoy School District

-- 3. Casebook p. 1541-1546; Re-read Rosenberger (link); Casebook p. 1585- 1592;

 

We will definitely get through 1 and 2 above. We may get through at least part of 3 above.

Blog Posts For Monday October 14

Madsen Case: Free Speech and the "Abortion Distortion"

 McCullen v. Coakley

 Adderley v. Florida (p. 1482)

 Krishna v. Lee (p. 1485)

 Justice Kennedy's Test For New Traditional Public Fora (link)

Forbes Case (p. 1493)

Justice Kennedy in Forbes: Is Less Speech More?

Tinker and the Schoolhouse Gate (p. 1521)

 Fraser (p. 1523)

Fighting Words Doctrine

 From Cornell Law School Legal Information Institute:

fighting words

Fighting words are words meant to incite violence such that they may not be protected free speech under the First Amendment. The U.S. Supreme Court first defined them in Chaplinsky v New Hampshire (1942) as words which "by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

In the decades following Chaplinsky, the U.S. Supreme Court has decided a number of cases which further clarify what speech or actions constitute fighting words. 

In Terminiello v. Chicago (1949), the Supreme Court narrowed the scope of what constitutes fighting words. The Court found that words which produce a clear and present danger are unprotected (and are consider[ed] fighting words), but words which invite dispute and even cause unrest are protected (and are not considered fighting words). 

In Feiner v. People of State of New York (1951), the Supreme Court held that akin to the fighting words doctrine, an incitement of a riot which creates a clear and present danger is also not protected by the First Amendment.

In Texas v. Johnson (1989), the Supreme Court redefined the scope of the fighting words doctrine to mean words that are "a direct personal insult or an invitation to exchange fisticuffs." There, the Court held that the burning of a United States flag, which was considered symbolic speech, did not constitute fighting words.

McCullen v. Coakley

"A Massachusetts statute makes it a crime to knowingly stand on a 'public way or sidewalk' within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed."

Is this regulation content-based?

Is this like an ordinance banning residential picketing but which exempts "peaceful picketing of a place of employment involved in a labor dispute?"

See Carey v. Brown: Striking down a state statute that generally bars picketing of residences or dwellings, but exempts from its prohibition "the peaceful picketing of a place of employment involved in a labor dispute." Carey held that this ordinance "discriminates between lawful and unlawful conduct based upon the content of the demonstrator's communication." 447 U.S. at 460.

Or how about an ordinance, in the racially-segregated South in the 1950s, that creates a buffer zone in front of "any diner or restaurant that practices racial segregation?"

Or, during the Vietnam war era, a law that creates a buffer zone in front of "the corporate headquarters of a chemical company that manufactures napalm?"

Court says content-neutral, but what do you think?

Justice Alito says the ordinance constitutes viewpoint-discrimination:

 . . . [D]uring business hours, individuals who wish to counsel against abortion or to criticize the particular clinic may not do so within the buffer zone. If they engage in such conduct, they commit a crime. See § 120E½(d). By contrast, employees and agents of the clinic may enter the zone and engage in any conduct that falls within the scope of their employment. A clinic may direct or authorize an employee or agent, while within the zone, to express favorable views about abortion or the clinic, and if the employee exercises that authority, the employee’s conduct is perfectly lawful. In short, petitioners and other critics of a clinic are silenced, while the clinic may authorize its employees to express speech in support of the clinic and its work.
. . .
It is clear on the face of the Massachusetts law that it discriminates based on viewpoint. Speech in favor of the clinic and its work by employees and agents is permitted; speech criticizing the clinic and its work is a crime. This is blatant viewpoint discrimination.

 Do you agree with Alito?

The Court holds that the law is content-neutral. Nevertheless, it holds that the scope of the buffer zone is not narrowly tailored because it is so broad as to "burden substantially more speech than necessary to achieve" the state's significant interest in access to abortion services. (p. 1477).  See also p 1478: ("To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government's interests, not simply that the chosen route is easier."); ("For a problem shown to arise only once a week in one city at one clinic, creating a 35-foot buffer zone at every clinic across the Commonwealth is hardly a narrowly tailored solution.")

So, the Court seems to reach the correct result for the wrong reason.

Madsen Case: Free Speech and the "Abortion Distortion"

 Notice that the injunction in Madsen is directed at certain named pro-life defendants as well as “all persons acting in concert or participation with” the named defendants.       

It then goes on to enjoin these individuals “at all times on all days” from “congregating, picketing, patrolling, demonstrating, or entering” within a 36-foot buffer zone in front of the abortion clinic.

In his dissent in Madsen, Justice Scalia says (P.1469): "Today's decision...makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion...."

What do you think Justice Scalia means by this statement?

Is the injunction in Madsen a viewpoint-based restriction on free speech? Notice that the injunction applies not only to the named defendants, but also to "all persons acting in concert or participation
with [the named defendants], or on their behalf." 512 U.S. 759. The casebook edits out some very important facts about how the trial judge interpreted this language from his injunction.

Consider this excerpt from Justice Scalia's dissent in Madsen:

 Following issuance of the amended injunction, a number of persons were arrested for
walking within the 36-foot speech-free zone. At an April 12, 1993, hearing before the trial judge who issued the injunction, the following exchanges occurred:

Mr. Lacy: "I was wondering how we can-why we were
arrested and confined as being in concert with these people
that we don't know, when other people weren't, that
were in that same buffer zone, and it was kind of selective
as to who was picked and who was arrested and
who was obtained for the same buffer zone in the same
public injunction."

The Court: "Mr. Lacy, I understand that those on the
other side of the issue [abortion-rights supporters] were
also in the area. If you are referring to them, the Injunction
did not pertain to those on the other side of the
issue, because the word in concert with means in concert
with those who had taken a certain position in respect
to the clinic, adverse to the clinic. If you are saying
that is the selective basis that the pro-choice were
not arrested when pro-life was arrested, that's the basis
of that selection ... ." Tr. 104-105 (Appearance Hearings
Held Before Judge McGregor, Eighteenth Judicial
Circuit, Seminole County, Florida (emphasis added)).

(512 U.S.  795-796)

 Here is something to be thinking about:

Suppose I went down to Florida and approached this abortion clinic. I have come by myself to protest against abortion. I know nothing about the defendants subject to the injunction; I have never met or spoken to any of them.

As I arrive, I see a number of pro-choice demonstrators standing in front of the clinic and some pro-life pickets standing across the street. I decide to stand directly in front of the clinic with my sign announcing "abortion kills babies." I stand there peacefully and silently. Have I violated the injunction?

Now think about this one:

Suppose this case were set circa 1962 in Selma, Alabama. A trial judge has issued a 36-foot buffer zone in front of a segregated lunch counter that had been the scene of sit-ins and blockades. It contains similar language restricting named defendants plus persons acting "in concert or in participation" with the named defendants.

During Spring Break 1962, you and two of your classmates go down and silently hold up a picket sign calling for passage of civil rights laws. You are arrested (although a group of segregationist speakers was allowed to remain without a hassle).

Is Madsen underprotective of Free Speech? Or is it about right?

First Amendment Fall 2024: Week Seven Assignments

 -- Finish Carson v Makin; City of Boerne case (casebook p. 1214-1223); Casebook p. 1900-1907; Groff v. DeJoy (link)(follow link to opinion)

-- Reed v. Town of Gilbert (Casebook p. 1514-1518); Casebook p. 1459-1482;  Snyder v. Phelps (link)

Blog Posts For Tuesday and Wednesday October 15 & 16

Hazelwood

 Tinker vs. Hazelwood Explained

Kneeling During National Anthem at Homecoming Game

Public School Student Speech Cases

Mahanoy: Summary From Oyez

Board of Education v. Pico (p. 1526)

Interesting (I Hope) Pico Hypo

Rust v. Sullivan (p. 1541)

Rust vs. Rosenberger

 

 

Blog Posts for Town of Gilbert, Frisby, and Phelps

 We will not get through the entire free speech materials today. Primary focus will be on Reed, Frisby, and Phelps.

 

Wise Words from Madison

Content- and Viewpoint-based Speech Restrictions 

Town of Gilbert

Traditional Public Forum Theory

Public Forum Doctrine

Unborn Lives Matter (ULM) and the First Amendment

Frisby: Some Questions

Snyder v. Phelps

Snyder v. Phelps: Speech on Matters of Public Concern?

Content- and Viewpoint-based Speech Restrictions

The following is an excerpt from an article of mine on Viewpoint Compulsions:

Under the Supreme Court’s First Amendment jurisprudence, laws that abridge freedom of speech on the basis of content “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”[1] Laws abridging speech are content-based if they apply to speech based upon “the topic discussed or the idea or message expressed.”[2]

              Typically, a law is content-based if it restricts or compels speech based upon its subject matter. For example, a law prohibiting all speech on the subject of abortion would be content-based and thus presumptively unconstitutional. [3] In the case of compelled speech, a content-based mandate might be one in which the law requires a speaker to express an opinion—any opinion—on a particular subject. For example, the law might compel a speaker to say something—anything she wishes—about abortion, income inequality, or same-sex marriage. That law is a content-based speech compulsion and is therefore presumptively unconstitutional, unless the government can demonstrate it is narrowly-tailored and serves a compelling state interest.[4] In other words, content discrimination “is a spacious concept that embraces whole subjects of discourse regardless of the ‘viewpoint’ expressed.”[5]

Although a content-based restriction of speech is a grievous First Amendment problem, viewpoint-based discrimination by government is a “more blatant” and “egregious form of content discrimination.”[6] Viewpoint-based abridgements of speech are laws that restrict or compel speech based upon a particular ideological position on a particular subject. If the subject is abortion and the law forbids speech critical of a constitutional right to abortion, the restriction is viewpoint-based. In the case of compelled speech, if the subject is same-sex marriage and the speech mandate is to depict same-sex marriage in a positive light, the requirement is viewpoint-based.[7]

The Court has never upheld a law imposing a viewpoint-based restriction on free speech.[8] Indeed, in the words of Justice Alito, “Viewpoint discrimination is poison to a free society.”[9] Thus, although the Court has never clearly said so, “as a practical matter, there is a per se rule against viewpoint discrimination.”[10]  The idea justifying this view is that in a free society it is never appropriate for government to restrict speech on the basis of viewpoint or enact viewpoint-based speech compulsions. In other words, viewpoint-discrimination “is so inconsistent with First Amendment values that it would not even qualify as a legitimate interest capable of satisfying the lowest level of judicial scrutiny.”[11]

---

[1] Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). Thus, under the Free Speech Clause, government “’has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” Id. (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)).

[2] Id. at 2227.

[3] See id. Such a general ban on the entire subject of abortion would apply to pro-life, pro-choice, and all other perspectives on abortion. It would be content-based, but viewpoint-neutral.

[4] See id. See also Richard F. Duncan, Seeing the No-Compelled-Speech Doctrine Clearly Through the Lens of Telescope Media, 99 Neb. L. Rev. 58, at 72-73(2020). Obviously, in the case of compelled speech, the typical case involves speech mandates that tend to compel more particularized expression about certain subjects. See id. (law mandating wedding videography celebrating same-sex weddings).

[5] Marjorie Heins, Viewpoint Discrimination, 24 Hastings Const. L. Q. 99, 101 (1995).

[6] Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).

[7] See Duncan, supra note 4, at 78. Justice Kennedy has defined the test for viewpoint discrimination as ''whether — within the relevant subject category — the government has singled out a subset of messages for disfavor based on the views expressed." Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (racially disparaging trademarks are protected by the Free Speech Clause) (Kennedy, J., concurring in part and concurring in the judgment).

[8] See Lackland H. Bloom Jr., The Rise of the Viewpoint-Discrimination Principle, 72 SMU L. Rev. F. 20,35 (2019).

[9] Iancu v. Brunetti, 139 S. Ct. 2294, 2302 (2019) (Alito, J., concurring). See Bloom, supra note 8, at 36 (“In Iancu, Justice Kagan assumed that proof of viewpoint discrimination resulted in automatic invalidation of the law.”).

[10] Id. at 35.

[11] Id. at 36. Or, as Justice Brennan once put it, “Viewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of ‘free speech.’” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 62 (1983)(Brennan, J., dissenting).

Town of Gilbert

 The Town of Gilbert has three categories of “outdoor signs” that are allowed to be displayed without a permit. See p 1514

Ideological signs (“Abortion is a Woman’s Right” or “Abortion Takes an Innocent Life”) are most favorably treated.

Political Signs (“Vote for Grutz”) are treated somewhat less favorably.

“Temporary Directional Signs Relating to a Qualifying Event” (“Good News Church Services 10 PM Sunday June 4 at Lincoln Southwest High School”) are treated much less favorably than the other two categories.

Issue: Is this regulation of speech content-based or content-neutral?

Town of Gilbert is an important case because it makes clear that any law that "is content-based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of  'animus toward the ideas contained' in the regulated speech." p. 1514-1515

It also makes clear, once again, that viewpoint discrimination is a more blatant and egregious form of content discrimination. (edited from casebook)

In this case, what seems to be a reasonable attempt to regulate outdoor signs for purposes of community aesthetics and traffic safety is unconstitutional because it is content based--it treats, ideological signs better than political signs and political signs better than "temporary directional signs." Thus, on its face it is content-based and triggers strict scrutiny.

So, is there a compelling interest? Community aesthetics? Traffic safety?

See p. 1515: "Assuming for the sake of argument that those are compelling governmental interests, the Code's distinction fail as hopelessly underinclusive."

Would someone explain what that means? [Remember Lukumi's discussion of underinclusiveness]

Justice Kagan concurs in the judgment, but worries that a categorical rule about content-based goes too far.

But think of all the ways you can achieve your goals through content-neutral laws. See Alito's concurring opinion at p. 1516

Preview of This Term's Free Speech case: Free Speech Coalition v. Paxton

 From Oyez (link):

Facts of the case

Texas enacted H.B. 1181, a law regulating commercial entities that publish or distribute material on internet websites, including social media platforms, where more than one-third of the content is sexual material harmful to minors. The law requires these entities to implement age verification methods to limit access to adults and display specific health warnings on their landing pages and advertisements. It defines sexual material harmful to minors using a modified version of the Miller test for obscenity.

Shortly after the law was enacted but before it took effect, plaintiffs sued, claiming H.B. 1181 violates their First Amendment rights and, for some plaintiffs, conflicts with Section 230 of the Communications Decency Act. The district court issued a pre-enforcement preliminary injunction, finding that the plaintiffs were likely to succeed on the merits of their claim and suffer irreparable harm. The court ruled that the age-verification requirement and health warnings fail strict scrutiny—that is, that it is not narrowly tailored to achieve a compelling government interest using the least restrictive means to achieve that interest—and that Section 230 preempts H.B. 1181 for certain plaintiffs. On appeal, the U.S. Court of Appeals for the Fifth Circuit concluded that rational basis review—i.e., rationally related to a legitimate government interest—was the proper standard of review and thus vacated the injunction against the age-verification requirement but affirmed as to the health warnings.

Question

Is a Texas law that requires any website that publishes content one-third or more of which is “harmful to minors” to verify the age of each of its users before providing access subject to “rational basis” review or “strict scrutiny”?

Watch this one. Internet pornography is an open sewer, and it will be interesting to see how the Court handles this issue.

Is the Public School System Constitutional

 Legal Scholar Prof. Phillip Hamburger writes "Is the Public School System Constitutional?" in the Wall Street Journal. Here is the link:

https://www.wsj.com/articles/public-school-system-constitutional-private-mcauliffe-free-speech-11634928722?mod=opinion_lead_pos5 

And here is a money quote:

 The public school system weighs on parents. It burdens them not simply with poor teaching and discipline, but with political bias, hostility toward religion, and now even sexual and racial indoctrination. Schools often seek openly to shape the very identity of children. What can parents do about it?.... 

Education consists mostly in speech to and with children. Parents enjoy freedom of speech in educating their children, whether at home or through private schooling. That is the principle underlying Pierce, and it illuminates our current conundrum.

The public school system, by design, pressures parents to substitute government educational speech for their own. Public education is a benefit tied to an unconstitutional condition. Parents get subsidized education on the condition that they accept government educational speech in lieu of home or private schooling.

 What are your thoughts? Should government be allowed to effectively coerce children to be taught only what the government thinks they ought to be taught? Is this consistent with freedom of thought, belief, and religion? 

Here is Prof. Hamburger's conclusion:

The public school system therefore is unconstitutional, at least as applied to parents who are pressured to abandon their own educational speech choices and instead adopt the government’s.

Parents should begin by asking judges to recognize—at least in declaratory judgments—that the current system is profoundly unconstitutional. Once that is clear, states will be obliged to figure out solutions. Some may choose to offer tax exemptions for dissenting parents; others may provide vouchers. Either way, states cannot deprive parents of their right to educational speech by pushing children into government schools.

Breyer and Duncan on Carson v Makin

 Consider this excerpt from my article on school choice:

Although dicta in Carson makes clear that a state “may provide a strictly secular education in its  public schools” and no state is required to fund private education, the facts of this case  and the Court’s expansive free exercise reasoning hint at the argument that the Free Exercise  Clause can be read as requiring states to fund school choice for all K-12 students. Indeed, in his  dissent, Justice Breyer predicted that the arc of Carson may indeed require states to fund school  choice for all families:

"We have never previously held what the Court holds today, namely, that a State must (not may) use  state funds to pay for religious education as part of a tuition program designed to ensure the  provision of free statewide public school education. What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent  funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?"

 Although I don’t share Justice Breyer’s fear of religious equality for all K-12 students, I agree  with his reading of the spirit of free exercise emanating from Trinity Lutheran, Espinoza, and  Carson. That magnificent spirit of equality makes clear that religious families are entitled to  their fair share of the benefits of the Welfare State and should not be forced to choose between  their faith and the single largest benefit most families receive from state and local government.  Most certainly, such discrimination is odious to the First Amendment and should not be allowed to stand.

 

In other words, if a state pays for a secular public education for students who attend public schools, the spirit of free exercise and equality of social benefits arguably requires the states to fund school choice.

Thoughts?

Groff v. DeJoy: Statutory Religious Liberty

  

 

Gerald Groff worked for the United States Postal Service as a mailman.

When he was hired, the Post Office did not deliver mail on Sundays, so there was no conflict with his religious exercise regarding the Sabbath.

However, in 2013, the Post Office entered into a contract with Amazon to provide Sunday delivery service for Amazon’s demanding customers who want everything they purchase right away.

 The Post Office made some attempts to accommodate Groff, but eventually ordered him to work Sundays.

He refused to work on the Sabbath, was disciplined, and finally resigned to avoid being fired.

Groff sued the Postal Service under Title VII, claiming that it could have accommodated his Sunday Sabbath practice “without undue hardship” on the conduct of its business.

 The district court concluded the requested accommodation would pose an undue hardship on the Postal Service and granted it summary judgment. The U.S. Court of Appeals for the Third Circuit affirmed.

The issue before SCOTUS was whether Title VII’s requirement that employers accommodate the religious practice of their employees unless doing so would impose an “undue hardship on the conduct of the employer’s business” required the Post Office to grant Groff’s request for Sabbath accommodation.

So, what does "undue hardship" mean? 

The problem for Groff was that in 1977 the Supreme Court decided a case—Trans World Airlines v. Hardison—that was interpreted by the lower courts as defining undue hardship to mean any effort or cost that is “more than de minimis.”

So, does undue hardship mean undue hardship?

Or merely a slight, itsy bitsy, de minimis hardship?

I can almost hear Scalia’s voice from the grave saying "undue hardship means undue hardship, not de minimis hardship."

Unanimous Opinion by Justice Alito

The Court must have heard Nino too, because in a unanimous opinion it ruled for Groff
--and held that an “undue hardship” is shown when the burden of accommodating the employee is “substantial in the overall context of an employers’ business.” (p.15-16) So, undue hardship does not mean a little bitty de minimis hardship…it means “substantial additional costs…or expenditures.”
An undue hardship must be “more severe” than a mere burden and “have to rise to the level of hardship” that is “excessive” or “unjustifiable.” (p.16)

Moreover, the burden is on the employer to demonstrate “that he is unable to reasonably accommodate…an employee’s religious observance or practice without undue hardship on the conduct of his business.” (p.6)

Still more, quoting Justice Alito’s unanimous opinion, the fact that a particular hardship “is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue.’” (p. 20)

As one commentator has concluded: “[A]ntipathy to religion or to accommodation cannot form the basis for an undue hardship defense, [and] the burden is on the employer to demonstrate its substantial costs….undue hardship means what it says, and employers can or longer use it to shirk their responsibilities to religious employees under Title VII.”