5th Circuit Weighs In On Religious Discrmination

Yesterday's post about the difficulty that courts have in dealing with religious discrimination, see Not Off to a Good Start and Onionhead: the newest religion? could not have been a better segue way to today's decision from the 5th Circuit, Davis v. Fort Bend County, (5th Cir. 8.26.14).

In a 2-1 decision, written by Judge Prado, the Court overturned summary judgment where the district court had found that Davis' absence on a Sunday to attend a ground breaking ceremony for her church was not a religious practice. As the district court found, and Fort Bend County argued before the 5th Circuit:

“being an avid and active member of church does not elevate every activity associated with that church into a legally protectable religious practice.”

Instead, the majority opinion focused on what it called a historical reluctance of court's to delve too deeply into an individual's professed religious belief:

This court has cautioned that judicial inquiry into the sincerity of a person’s religious belief “must be handled with a light touch, or judicial shyness.” Tagore, 735 F.3d at 328  .... “[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread.” Id. .... Indeed, “the sincerity of a plaintiff’s engagement in a particular religious practice is rarely challenged,” and “claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff’s credible assertions.” Id. 

Judge Jerry Smith, politely, but vigorously disagreed with the Court's limited view:

In its well-written opinion, the majority errs in holding that our inquiry is limited to the sincerity of an employee’s alleged religious belief; we must also consider whether that belief is “religious” in nature or merely a personal preference or a secular social or economic philosophy. 

I can see en banc, or perhaps even Supreme Court review written all over this one.  So perhaps, at least in this Circuit, the question I raised yesterday will soon be, if it is not already, answered by Davis.

At a minimum, if you currently have a religious discrimination case pending in the 5th Circuit, you need to be aware of this decision.