AuthorLund, Christopher C.
PositionTaking Stock of the Religion Clauses

[P]eople perceive a religious accommodation case like [Thornton v. Caldor] in many different ways: as a case about government intrusion on employer liberty; as a case about religious observance; as a case about government empowerment of religion; as a case about equalizing employment opportunities; as a case about unequal treatment of religious and non-religious workers. These multiple perspectives explain why people disagree about religious accommodation issues, and may also explain why people often feel some division within themselves.

Respondent's Brief in Thornton v. Caldor (1)

Thirty-five years ago, the United States Supreme Court decided Estate of Thornton v. Caldor. (2) Caldor struck down, on Establishment Clause grounds, a Connecticut statute giving employees the right not to work on their chosen Sabbath. Caldor was the first Supreme Court case to impose constitutional limits on religious exemptions, (3) and is constantly invoked and debated in modern disputes over free exercise. (4) Yet Caldor also contains curiosities and mysteries. The Court's opinion is short, its holding unclear, and its reasoning somewhat incomplete.

This short symposium piece takes a look back at Thornton v. Caldor, seeking to offer a clearer discussion of this famously muddy case. Placing the case in historical context, it takes a deeper dive into the Court's decision--scrutinizing what the Court said and reflecting on what it left out.

Thornton v. Caldor arises out of changes in Connecticut's Sunday-closing laws. (5) Caldor itself mentions this backstory in a footnote, but it helps with understanding various facets of the case. The Supreme Court had upheld Sunday-closing laws from Establishment Clause challenges in a set of older cases, the most famous of which is probably McGowan v. Maryland. (6) Yet the arc of history was bent against Sunday-closing laws, and their story in both Connecticut and other places is one of slow but steady decline.

Connecticut's Sunday-closing laws dated all the way back to 1650, (7) and Connecticut would retain some form of Sunday-closing law until the state dropped its ban on Sunday alcohol sales in 2012. (8) As originally conceived, these laws were simply legal instantiations of religious requirements. The Commandments given to Moses had instructed the faithful to remember the Sabbath day and keep it holy: "Six days you shall labor, and do all your work, but the seventh day is a Sabbath to the Lord your God." (9) Even so, changes in American society had brought changes to Sunday-closing laws. Their rationales were being reconceived along more secular lines, and their scopes were becoming increasingly narrow, as consumers and businesses saw Sunday in terms more commercial and less religious. (10) Here one thinks naturally of another Burger opinion from the previous year, Lynch v. Donnelly, where another traditional aspect of religious observance (a nativity scene in celebration of Christmas) was reconceived along more secular and commercial lines (and upheld on that basis). (11)

Thornton v. Caldor arose out of this background. By the late 1970s, Connecticut's Sunday-closing laws were in a state of flux. The Connecticut courts had repeatedly held the laws unconstitutionally vague, which had prompted repeated interventions by the Connecticut legislature to fix the problems. (12) This had softened the Sunday-closing laws in a variety of ways--most pertinent here, certain kinds of retail businesses were now free to open on Sundays when they had been required to close before. In turn, these changes prompted Connecticut's legislature to adopt the statute at issue in Thornton v. Caldor.

No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day. An employee's refusal to work on his Sabbath shall not constitute grounds for his dismissal. (13) The connection between the decline of the Sunday-closing laws and this statute may be obvious, but it is worth saying explicitly. In the past, religious employees in retail businesses who would have wanted to take Sunday off for religious reasons were effectively shielded by Connecticut's Sunday-closing law. Those businesses could not operate on Sundays, so their employees automatically got Sunday off. But now that Connecticut was changing the rules to allow retail businesses to open on Sunday, Connecticut had to face the fact that some employees would be conscripted to work on Sundays, and that some of the conscripted would have religious objections to that.

The legislative history of the statute captures these points well enough. "Some people," Representative Webber said, "have expressed concern about the employees who would staff the stores that choose to open on Sundays." (14) To address that concern, Senator Hudson claimed that the Connecticut statute "gives people the right not to work on the Sabbath if they choose to and I think that that is a responsible action on the part of government to guarantee those who wish to observe their Sabbath, whatever day it is, not to have to work." (15)

Note how Representative Webber spoke strictly in terms of Sundays, while Senator Hudson spoke more generally. One striking aspect of the statute has to do with denominational neutrality. The Connecticut statute protecting workers was denominationally neutral. Each person could take their chosen Sabbath off, whether it is Saturday, Sunday, or something else. (Although, you will note, each person could claim only one Sabbath day each week.) Yet, at the same time, obviously the Connecticut statute was passed with Christians in mind. After all, for hundreds of years, Connecticut had operated without any statute giving other workers the right to take their Sabbaths off. Connecticut only did so now because the repeal of the Sunday-closing laws threatened Sunday-observing Christians. The statute itself was denominationally neutral, but the concerns it was responding to were specific concerns about the situation of Christians given the decline of the Sunday-closing laws.

This leads to an interesting point about the interplay between free exercise and disestablishment values. Generally free exercise and disestablishment work hand-in-hand toward an attractive conception of religious freedom. (16) But sometimes, as here, weird things can happen. Forget McGowan v. Maryland for a second, and take Sunday-closing laws as part and parcel of a genuine religious establishment. (Certainly that is how they started.) (17) In this way, one can see how religious establishments can partially and backhandedly serve free exercise values. For all those years, Christians in Connecticut were vicariously protected from having to work on Sunday by Connecticut's closing laws. This is not to defend closing laws. Forcing everyone to observe the Christian Sabbath is a massively overbroad way of protecting the Christians who would, on their own, choose to observe it. It is like making everyone go to church as a way of ostensibly protecting the right of those who would choose to go on their own.

In this way, though, we can see how the demise of religious establishments naturally leads to questions about the propriety of targeted free exercise in their place. No longer is this merely about Thornton v. Caldor--we can see it, for example, in the most pressing issues of religious accommodation in our time. For a long time, Western society had an exclusively heterosexual conception of marriage, a conception of marriage that many Christians still hold. Maybe this is not a religious establishment exactly, but that view still dominated from time immemorial. Yet as this conception of marriage has lost its preeminence in American society, hard questions about free exercise necessarily follow. What rights should those who held the formerly hegemonic view--say Kim Davis or Jack Phillips---have now that the hegemony has collapsed? (18) What rights should they have as dissenters, the argument goes, when they tolerated so little dissent when they held the power? One persistent claim in Thornton v. Caldor is that the Connecticut statute at issue was merely a rear-guard action to maintain the Christian Sabbath despite the collapse of Connecticut's Sunday-closing laws--just as one persistent claim in Masterpiece Cakeshop is that the suit was merely a rear-guard action to maintain the old heterosexual view of marriage despite Obergefell. (19)

This brings us to Donald Thornton, the plaintiff in Thornton v. Caldor. (20) Thornton was a department manager at the defendant Caldor, Incorporated, a chain of New England retail stores. Thornton managed the mens' and boys' clothing departments at a store in Waterbury. He had been hired in 1975, back when Connecticut's Sunday-closing laws forced Caldor's Connecticut stores to close on Sunday. But in 1976, because of changes in the closing laws, Caldor's stores began opening on Sundays and requiring managers to work every third or fourth Sunday. Union employees did not have to work on Sundays if they had religious objections, and were given premium wages (time and a half) if they chose to work. But that was because of the collective bargaining agreement negotiated by the union. Being a manager, Thornton did not belong to the union--he had to work Sundays.

A devout Presbyterian, Thornton initially worked Sundays for Caldor in 1977 and 1978. But in 1979, after consulting an attorney and learning of the statute, Thornton asked Caldor to be excused from Sunday work. Caldor was willing to transfer Thornton to a Massachusetts store, which...

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