COMMENTS

Pielech v. Massasoit Greyhound, Inc.: Can a "Sincerely Held Religious Belief"

Have Meaning?

I.  Introduction

Like many other Roman Catholics in December of 1992, Kathleen Pielech and Patricia Reed requested the day off from work to observe and enjoy Christmas day, a day they believed to be a Roman Catholic holy day.⁽¹⁾ Their employer, the Raynham-Taunton Greyhound Racetrack, however, refused their request and subsequently fired the two women when they took the day off from work.⁽²⁾ The two women sued the racetrack pursuant to a Massachusetts anti-discrimination statute protecting employees' religious liberty in the workplace.⁽³⁾ However, the trial court held that this statute did not protect Kathleen and Patricia's religious liberty because the two women were not able to prove to the court that Roman Catholicism actually required them to abstain from working on Christmas day.⁽⁴⁾ Therefore, although Kathleen and Patricia sincerely believed that Roman Catholicism prohibited them from working on Christmas day, the court prohibited them from recovering against their employer.⁽⁵⁾

Kathleen and Patricia appealed their case to the Supreme Judicial Court of Massachusetts (SJC). The SJC, in Pielech v. Massasoit Grehyound, Inc.,⁽⁶⁾ struck down the anti-discrimination statute as unconstitutional because it violated the United States Constitution's First Amendment Establishment Clause by not protecting sincerely held religious beliefs.⁽⁷⁾ As a consequence of the SJC's decision in Pielech, the Massachusetts Legislature passed a revised anti-discrimination statute that protects employees' "sincerely held religious beliefs."⁽⁸⁾ Under this revised statute, plaintiffs, such as Kathleen and Patricia, no longer have to prove the requirements of a particular religion in order to recover against an employer's religiously discriminatory actions.⁽⁹⁾

This Comment addresses the question of whether this revised anti-discrimination statute, which accommodates all sincerely held religious beliefs, can survive the SJC's holding in Pielech. In answering that question this Comment explores the contradiction between the Establishment Clause and the Free Exercise Clause of the First Amendment.⁽¹⁰⁾ Section II discusses the history of both the Establishment Clause and the Free Exercise Clause, and it provides the foundation for the SJC's analysis in Pielech.⁽¹¹⁾ Section III explains the arguments and reasoning the SJC relied upon in its Pielech holding.⁽¹²⁾ Section IV analyzes the effect of the Pielech holding in two jurisdictions: (1) Massachusetts⁽¹³⁾ and (2) other states with the same, or similar, statutory language regarding religious discrimination in the workplace.⁽¹⁴⁾ This Comment concludes that the Pielech holding is correct according to SJC case law but suggests that, in order to comply with the Pielech holding, the revised anti-discrimination statute must now accommodate all beliefs- regardless of whether those beliefs are religious, sincere, or even reasonable.⁽¹⁵⁾

II.  The Religion Clauses of the First Amendment

The right to religious liberty is among the most treasured characteristics of the United States. Thomas Jefferson labeled this right, "`the most inalienable and sacred of all human rights.'"⁽¹⁶⁾ Religious liberty was so important to the founding fathers, who fled from countries persecuting religious dissenters, that they wrote the right to religious liberty into the First Amendment of the United States Constitution.⁽¹⁷⁾ In fact, among the variety of rights in the First Amendment, such as free speech and free press, the writers of the First Amendment listed the right to religious liberty first.⁽¹⁸⁾ While the notion of religious liberty as an "inalienable human right" is second nature to many of today's Americans, the concept was not so obvious to those in Colonial times.⁽¹⁹⁾

At the time of the Revolutionary War, twelve colonies had some form of established religion, as well as a scheme of taxation levied to pay ministers' salaries and to help build and maintain churches.⁽²⁰⁾ People of all faiths were forced to comply with laws regarding the majority religion, and the local governments consistently persecuted and imprisoned those people, such as the Quakers, who worshipped God according to their own consciences.⁽²¹⁾ In 1784 Patrick Henry introduced a bill into the Virginia Legislature that levied a tax in support of Christian teachers.⁽²²⁾ Thomas Jefferson and James Madison, both outraged at the government's involvement with the Christian church, fought vehemently against the bill and eventually won in 1794 when they wrote two provisions providing religious freedom into the United States Constitution.⁽²³⁾ These provisions are the religion clauses of the First Amendment, which state, "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof."⁽²⁴⁾ The first clause is known as the Establishment Clause, and the second clause is known as the Free Exercise Clause.⁽²⁵⁾ Together, these clauses provide and preserve religious freedom in the United States.⁽²⁶⁾

These two simple clauses, however, separated only by a comma and read with the same breath, have caused endless debate and confusion regarding the government's role in religion.⁽²⁷⁾ One of the major sources of this confusion is the fact that the framers' exact intent in writing the First Amendment is not clear.⁽²⁸⁾

For example, the framers could have intended for the Establishment Clause to prohibit only national religious establishments, which would have left states the power to decide for themselves whether to establish a religion.⁽²⁹⁾ Yet one could also argue that the Establishment Clause was meant to prohibit the federal government from giving political and governmental privileges to a particular denomination, such as the English government had given the Anglican Church in England.⁽³⁰⁾ At the core of all of the theories surrounding the framers' intent lies the basic notion that the framers created the Establishment Clause of the First Amendment to provide religious believers with maximum freedom from the United States government.⁽³¹⁾

The intent of the framers with regard to the Free Exercise Clause is also shrouded in confusion.⁽³²⁾ For example, the framers of the First Amendment could have merely intended to prohibit the federal government from persecuting religious dissenters.⁽³³⁾ Another theory is that the Free Exercise Clause was enacted to require the federal government to allow religious believers complete freedom from federal laws that conflicted with those believers' religious consciences.⁽³⁴⁾ Contrary to today's religion clause jurisprudence, however, it is most likely that the framers only intended to prohibit the national government from "imposing the most serious civil disabilities on religious dissenters, while still permitting recognition of the preeminent status of Protestant Christianity as the foundation of American cultural and social life."⁽³⁵⁾ Nevertheless, the framers' intent in the Free Exercise Clause, as in the Establishment Clause, is unclear; and this lack of clarity subsequently adds confusion to contemporary religion clause jurisprudence.

The framers' actual intent in enacting the religion clauses would be extremely helpful to courts adjudicating religion clause cases today. However, the expansion of America's toleration toward non-Christian religions has forced courts to determine for themselves the exact extent of the religion clauses.⁽³⁶⁾ Much to the chagrin of courts trying to decipher the religion clauses, one characteristic of America has not changed since Colonial times: as Justice Brennan noted, Americans are generally a "religious people."⁽³⁷⁾ There are statistics that support Justice Brennan's claim: more than ninety-four percent of Americans believe in God or some universal spirit; seventy-one percent believe in heaven; fifty-three percent believe in hell; more than forty percent attend church or synagogue weekly; seventy-eight percent pray at least once a week; and fifty-seven percent of Americans pray at least once a day.⁽³⁸⁾ The increasing toleration of various religions, combined with the number of Americans that believe in these various religions, has created a pressing need for a clear and coherent meaning of the religion clauses.⁽³⁹⁾ Such clarity would force courts to make clear and consistent decisions, which would promote and facilitate religious liberty in the United States.

A.  The Establishment Clause

Confusion with the Establishment Clause⁽⁴⁰⁾ began in 1947 when the United States Supreme Court, in Everson v. Board of Education,⁽⁴¹⁾ interpreted the limits and boundaries of the Establishment Clause.⁽⁴²⁾ In Everson, the Court held that "the First Amendment . . . erected a wall between church and state, . . . [which] . . . must be kept high and impregnable," so that not the "slightest breach" can occur.⁽⁴³⁾ This judicially built separational wall prohibits government from setting up a national church or passing laws that prefer one religion over another; or, more generally, religion over non-religion.⁽⁴⁴⁾ Moreover, government can neither force or influence a person to go, or refrain from going, to church, nor can it levy a tax supporting any religious activity or institution.⁽⁴⁵⁾ Finally, this separational wall prohibits government from participating in religious organizations and, likewise, religious organizations from participating in government.⁽⁴⁶⁾ In other words, the Establishment Clause builds "`a wall of separation between church and [s]tate.'"⁽⁴⁷⁾ These governmental restraints set by the Supreme Court apply to the individual states through the Fourteenth Amendment.⁽⁴⁸⁾ Furthermore, this separational wall has provided the framework for Establishment Clause adjudication thus far, including Pielech.⁽⁴⁹⁾

Through years of deciding Establishment Clause cases, the United States Supreme Court has developed a three part test based on the separational wall metaphor it created in 1947. Named for the 1970 case, Lemon v. Kurtzman⁽⁵⁰⁾, the Lemon test requires that the disputed governmental action pass all three of its parts.⁽⁵¹⁾ If the governmental action does so, then that governmental action does not constitute an "establishment" of religion.⁽⁵²⁾ First, the government's purpose must be secular.⁽⁵³⁾ Second, the primary effect of the government's action must neither advance nor inhibit religion.⁽⁵⁴⁾ Finally, the government's action "must not foster an `excessive governmental entanglement' with religion."⁽⁵⁵⁾ If the governmental action meets all three components of the Lemon test, then that action is constitutional.⁽⁵⁶⁾

Scholars, however, are anxiously awaiting the Lemon test's extinction because its inflexibility adds confusion, rather than consistency, to religion clause adjudication.⁽⁵⁷⁾ Some scholars believe that the Supreme Court will move to a standard it recently used: if a state action amounts to an "endorsement of religion," then that action violates the Establishment Clause.⁽⁵⁸⁾ Until the Supreme Court sets clear guidance to lower courts, however, today's Establishment Clause jurisprudence is likely to remain ambiguous and inconsistent.⁽⁵⁹⁾

B.  The Free Exercise Clause

In 1878 the United States Supreme Court decided its first Free Exercise Clause case, in which the Court drew a distinction that still exists today between religious beliefs and religious conduct.⁽⁶⁰⁾ The Supreme Court held that the Free Exercise Clause protects individuals' religious beliefs; but the conduct motivated by those beliefs is subject to reasonable laws prohibiting or regulating such conduct.⁽⁶¹⁾ For example, in the early Free Exercise Clause cases, the Court upheld defendants' convictions for practicing the crime of polygamy, even though the defendants' Mormon religion promoted polygamy.⁽⁶²⁾ Since the religious conduct (having more than one wife) was a crime, the Court held that the Free Exercise Clause did not protect the defendants' conduct.⁽⁶³⁾

Although the Court still adjudicates Free Exercise Clause cases based on the distinction between belief and conduct, it has clarified this distinction. The Court has held that if the purpose of a governmental action is to negatively affect a particular type of conduct because that conduct is required by a religion, then that particular type of conduct is protected by the Free Exercise Clause.⁽⁶⁴⁾ However, where the government enacts a general criminal law without the intent to interfere with religiously related conduct, but the law nevertheless has that effect, that law is automatically enforceable-- regardless of the burden it places on an individual's religious beliefs.⁽⁶⁵⁾ Where a law is not criminal in nature the Free Exercise Clause is more lenient with individuals' commitment to religious beliefs,⁽⁶⁶⁾ and sometimes even goes so far as to "accommodate" individuals whose religious conduct is inconsistent with legal obligations.⁽⁶⁷⁾

Accommodation has become an increasingly prominent notion in religion clause jurisprudence. Professor Ira Lupu defines "accommodation" as actions by the state that (1) "respond affirmatively to religion-based claims for exceptional treatment, which would not be afforded but for the religious quality of the claims or the religious character of the institution(s) advancing the claims, and (2) are not required by the Free Exercise Clause or any other provision of the Constitution."⁽⁶⁸⁾ Accommodationalists prefer to place more value on the Free Exercise Clause than on the Establishment Clause and, subsequently, treat the Establishment Clause as "a quaint relic, a secondary . . . reflection of the constitutional goal of religious liberty."⁽⁶⁹⁾ The notion of accommodation has become increasingly important in Establishment Clause cases because courts often use the accommodation principle to justify weakening Establishment Clause restrictions.⁽⁷⁰⁾

While the Free Exercise Clause protects religious liberty, the Establishment Clause places limits on how far the government can accommodate private citizens' religious interests.⁽⁷¹⁾ Therefore, the two religion clauses often clash. Courts usually decide religion clause cases based on the distinction of whether the issue in question is an Establishment Clause issue or a Free Exercise Clause issue. For example, if the plaintiff claims that the government inappropriately accommodated religion, then the court determines whether the government violated the Establishment Clause.⁽⁷²⁾ If, on the other hand, the plaintiff claims that a governmental activity imposes a burden on his or her religion, then the court determines whether the government violated the Free Exercise Clause.⁽⁷³⁾ Therefore, when the government attempts to accommodate a plaintiff so that the plaintiff may freely exercise his or her religious beliefs in accordance with the Free Exercise Clause, then another person can claim that the government's accommodation violates the Establishment Clause because the government favors religion.⁽⁷⁴⁾ Professor Lupu describes the conflict between the two religion clauses as, "the Free Exercise Clause suggests the privileging of religion over nonreligion, whereas the Establishment Clause suggests the normative equality of the two."⁽⁷⁵⁾ This Comment does not favor one religion clause over the other, but instead uses Pielech to illustrate this internal and inherent contradiction between the Establishment Clause and the Free Exercise Clause.⁽⁷⁶⁾

III.  Pielech

A.  The Facts and Procedural Background

On December 18, 1992 the Raynham-Taunton Greyhound racetrack in Massachusetts posted a notice informing all regularly scheduled employees that they were required to work on Christmas night, Friday, December 25, 1992.⁽⁷⁷⁾ Kathleen Pielech and Patricia Reed, Roman Catholics and part-time employees of the Raynham-Taunton Greyhound racetrack, were regularly scheduled to work on Fridays, but had requested Christmas day off to observe the holiday.⁽⁷⁸⁾ The racetrack denied their requests and subsequently fired/suspended the two women when they were absent on December 25.⁽⁷⁹⁾

Kathleen and Patricia sued the racetrack under Massachusetts General Laws chapter 151B, section 4(1A) (section 4(1A)), which provided in part: "[i]t shall be unlawful discriminatory practice for an employer to impose upon an individual as a condition of . . . employment any . . . conditions . . . which would require such individual to violate, or forego the practice of, his creed or religion as required by that creed or religion. . . ."⁽⁸⁰⁾

The SJC, in prior cases, held that under section 4(1A) the plaintiff has the burden of proving that his or her religion "requires" the particular activity that the plaintiff seeks to protect.⁽⁸¹⁾ Therefore, in complying with SJC case law, Kathleen and Patricia submitted affidavits stating that the Roman Catholic Church prohibited them from working on Christmas day.⁽⁸²⁾ The racetrack, however, submitted an affidavit stating that "Roman Catholics are [merely] obligated to attend one mass celebrated between four p.m. on December 24 and one p.m. on December 25," and that the church does not prohibit its members from working on Christmas night.⁽⁸³⁾ The Superior Court judge granted summary judgment for the racetrack as to its liability because Kathleen and Patricia did not adequately prove that their religion prohibited them from working on December 25.⁽⁸⁴⁾

Kathleen and Patricia then appealed to the SJC, arguing that the court should interpret the language of section 4(1A) as protecting members of all religions, rather than protecting only members of organized religions.⁽⁸⁵⁾ The two plaintiffs claimed that the SJC interpreted the statute too narrowly, which consequently protected only followers of organized and established religions.⁽⁸⁶⁾ The SJC agreed that its narrow interpretation of section 4(1A) violated the Establishment Clause; but rather than broadly reading the statute to include members of all religions, the SJC struck down the anti-discrimination statute as unconstitutional.⁽⁸⁷⁾

B.  The Majority's Reasoning

The majority in Pielech⁽⁸⁸⁾ struck down section 4(1A) under the Establishment Clause of the First Amendment because the statute "favored" recognized religions over non-recognized religions, and it required the government to "entangle" itself with religion.⁽⁸⁹⁾

1.  "Favoritism"

In striking down section 4(1A) on the grounds that the statute "favored" recognized religions over non-recognized religions, the majority relied upon United States Supreme Court precedent holding that "[a] statute that prefers one or more religions over another violates the Establishment Clause."⁽⁹⁰⁾ Section 4(1A)'s language, "as required by his religion," only protected those individuals who believe in a religion that adheres to a clear set of requirements.⁽⁹¹⁾ In other words, section 4(1A) protected only recognized religions.⁽⁹²⁾

In prior cases, the SJC held that a religious belief does not have to be "`shared by an organized sect or church'" in order to receive protection.⁽⁹³⁾ In fact, the SJC also held in prior cases that as long as one's religious beliefs are "sincerely held," those beliefs are protected from government infringement.⁽⁹⁴⁾ Under this precedent, section 4(1A) violated the Establishment Clause because it distinguished between a sincere belief shared by those in an organized religion and a similarly sincere belief not shared by others.⁽⁹⁵⁾ Therefore, section 4(1A) "favored" recognized religions over unrecognized religions.⁽⁹⁶⁾

2.  "Entanglement"

The majority in Pielech held that the statute violated the Establishment Clause, not only because the statute preferred established religions over non-established religions, but also because the statute promoted excessive governmental entanglement with religion.⁽⁹⁷⁾ The SJC relied upon a doctrine espoused in the Seventh Circuit, in which the Seventh Circuit court held that protecting only those practices that are required by a religion forces courts to distinguish between those acts that are required and those that are not required by a religion.⁽⁹⁸⁾ Such a determination violates the essential purpose of the Establishment Clause, which is to ensure "`that government maintains a benevolent neutrality which . . . permit[s] religious exercise to exist without sponsorship and without interference.'"<sup>(99)</sup> In order to comply with this purpose, civil courts, according to the First Amendment, cannot intervene in issues regarding "`religious doctrine, discipline, faith, or internal organization.'"⁽¹⁰⁰⁾ Based on this theory, the SJC ultimately held in Pielech that courts do not have the power to enter into ecclesiastical disputes.⁽¹⁰¹⁾ Since the act of determining the requirements of a religion is ecclesiastical, the SJC declared that it did not have the power to decide cases under section 4(1A).⁽¹⁰²⁾ The SJC therefore held that the anti-discrimination statute was unconstitutional because it required courts to act beyond their power.⁽¹⁰³⁾

The majority of the court in Pielech struck down the anti-discrimination statute under the Establishment Clause by using both favoritism and entanglement theories; but it did not expressly advocate one theory over the other.⁽¹⁰⁴⁾ Since the statute's language was clear and unambiguous, the majority held that it could not read a different, broader meaning into the statute.⁽¹⁰⁵⁾ A more liberal reading of the statute would have included sincerely held religious beliefs, such as Kathleen and Patricia's sincere belief that their religion, Roman Catholicism, required them to abstain from working on Christmas day.⁽¹⁰⁶⁾ Therefore, according to the statute's plain meaning, the SJC used the Establishment Clause to hold section 4(1A) unconstitutional.⁽¹⁰⁷⁾

C.  The Dissent

The dissent in Pielech⁽¹⁰⁸⁾ believed that section 4(1A) should have been interpreted to include "sincere" religious beliefs because the legislative objective and the plain meaning of the statute did not require the "rigid and overly analytic interpretation of its words" that the majority relied upon to strike the statute down.⁽¹⁰⁹⁾ According to the dissent, the more reasonable interpretation of section 4(1A) would have protected all sincerely held religious beliefs because the purpose of the statute was to provide religious freedom to the people of Massachusetts.⁽¹¹⁰⁾

The dissent also asserted that interpreting section 4(1A) to include sincere religious beliefs complies with the SJC's prior cases in which the court refused to involve itself in religious disputes.⁽¹¹¹⁾ Contrary to the majority's holding, the dissent concluded that the words, "as required by that creed or religion," were not meant to involve courts into religious disputes.⁽¹¹²⁾ Rather, those words allowed courts to remain neutral with regard to religious requirements because the language "limit[s] protection only to those practices a person sincerely believes are required by his or her religion."⁽¹¹³⁾ In other words, section 4(1A) did not require courts to look at the requirements of one's religion as required by official tenets of that religion. Instead, the dissent concluded that section 4(1A) required courts to look at the requirements of one's religion as required by the individual member's interpretation of his or her religious requirements.⁽¹¹⁴⁾ The express language of the statute neither required that the plaintiff's religion be "`recognized,'" nor did the language require an "affidavit or testimony of an official of a recognized church."⁽¹¹⁵⁾ Therefore, the dissent concluded, in order to comply with section 4(1A)'s legislative purpose of providing religious freedom, the court should have interpreted section 4(1A) as a statute that protected all sincerely held religious beliefs.⁽¹¹⁶⁾

The dissent also relied upon a prior SJC case, Dalli v. Board of Education,⁽¹¹⁷⁾ to demonstrate that the Massachusetts Legislature specifically worded section 4(1A) so that the anti-discrimination statute protected members of all sincerely held religions.⁽¹¹⁸⁾ In Dalli, the SJC struck down a statute⁽¹¹⁹⁾ that required students to be vaccinated, unless the vaccination "conflict[ed] with the tenets and practice[s] of a recognized church or religious denomination of which he [or she] is an adherent or member."⁽¹²⁰⁾ The SJC struck down that statute because it did not protect individuals' sincere religious beliefs, and, consequently, people who belonged to a non-recognized church or denomination could not freely exercise his or her religion.⁽¹²¹⁾

Soon after, and presumably guided by the Dalli decision, the Massachusetts Legislature enacted section 4(1A).⁽¹²²⁾ The SJC in Dalli gave notice to the Legislature that the SJC would "not involve itself in determining religious dogma."⁽¹²³⁾ Therefore, the dissent concluded that the Massachusetts Legislature enacted section 4(1A) to prevent an employer from forcing an employee to violate the requirements of his or her religion, whatever those requirements may be, as long as they were sincerely held.⁽¹²⁴⁾ Moreover, because the Legislature was aware of the SJC's refusal to enter into religious disputes,⁽¹²⁵⁾ it did not require courts to inquire into religious matters pursuant to section 4(1A).⁽¹²⁶⁾ Instead, the Legislature merely required courts to make factual determinations of the plaintiff's sincerity in holding his or her religious belief.⁽¹²⁷⁾

Therefore, because of the legislative purpose behind section 4(1A) and the Legislature's presumed knowledge of the SJC's decision in Dalli, the dissent would have remanded the case to the trial court to determine whether Kathleen and Patricia "sincerely believed" that Roman Catholicism required them to take December 25, 1992 off from work to observe Christmas.⁽¹²⁸⁾ Since Kathleen and Patricia would only have been required to show on remand that they sincerely believed that their religion required them to abstain from working on Christmas day, the issue on remand would have been limited to one of "credibility,"⁽¹²⁹⁾ because, according to Pielech, any inquiry into the doctrines of Roman Catholicism violates the Establishment Clause.⁽¹³⁰⁾

Both the majority and dissent in Pielech agreed that the Establishment Clause prohibits courts from determining the requirements of one's religion.⁽¹³¹⁾ Consequently, both sides agreed that section 4(1A) should have protected employees' sincerely held religious beliefs.⁽¹³²⁾ The dissent noted that, according to SJC case law,⁽¹³³⁾ statutory language,⁽¹³⁴⁾ and legislative purpose,⁽¹³⁵⁾ section 4(1A) could have been interpreted to include sincere religious beliefs; however, the majority struck the statute down because the plain meaning of the statute was clear and unambiguous.⁽¹³⁶⁾ The court could not read into the statute an interpretation that was not expressly provided by its words.⁽¹³⁷⁾ Both the majority and dissent agreed that, if the law protects religious freedom, then that protection should extend to people with sincerely held religious beliefs, rather than simply to people who believe in recognized religions.⁽¹³⁸⁾ Therefore, the debate between the majority and dissent regarding the statutory interpretation of section 4(1A) is an argument of words, rather than one of substance, because both sides ultimately agreed that the law should protect sincerely held religious beliefs.

IV.  ANALYSIS

A.  The Effect of Pielech in Massachusetts

The majority's decision in Pielech is consistent with Massachusetts case law in that the SJC has traditionally refrained from entering into religious disputes.⁽¹³⁹⁾ However, when the SJC combines its strict abstention from religious disputes with its desire to protect individuals' religious freedom, a tension forms so that, even though the Pielech decision is consistent with prior cases, the Pielech decision contradicts itself.⁽¹⁴⁰⁾ In an attempt to provide religious freedom in the workplace, the Massachusetts Legislature enacted a revised statute protecting employees' sincerely held religious beliefs.⁽¹⁴¹⁾ This revised statute, however, creates the following question: Will this statutory "accommodation" survive under the Establishment Clause; or, more specifically, will this statutory "accommodation" survive under the Establishment Clause as interpreted in Pielech?

1.  Pielech's Consistency with Case Law

The majority in Pielech relied on three previous SJC cases to show that the SJC should refrain from entering into religious disputes.⁽¹⁴²⁾ In Moustakis v. Hellenic Orthodox Society,⁽¹⁴³⁾ the SJC held that it could not determine who holds title to the head of the Greek Orthodox Church.⁽¹⁴⁴⁾ Similarly, in United Kosher Butchers Ass'n v. Associated Synagogues of Greater Boston, Inc.,⁽¹⁴⁵⁾ the SJC refused to venture into "Jewish law" when asked to determine who has the authority to enforce and regulate Kosher foods and Kashruth in Boston.⁽¹⁴⁶⁾ Finally, in Wheeler v. Roman Catholic Archdiocese of Boston,⁽¹⁴⁷⁾ the SJC left decisions regarding trusts on land to the Roman Catholic church because the church had its own tribunals for adjudicating such issues.⁽¹⁴⁸⁾ All three cases have a theme of "religious law" into which the SJC refused to enter.

The SJC used all three cases in Pielech as a basis for its decision not to entangle itself with the requirements of Roman Catholicism.⁽¹⁴⁹⁾ As a general rule, the SJC removes itself from disputes involving requirements and power structures of religious organizations because the SJC adheres to the notion that courts are only permitted to decide cases based on civil law.⁽¹⁵⁰⁾ Pielech is therefore consistent with the SJC's jurisprudence because in Pielech the SJC refused to determine the requirements of Roman Catholicism and, subsequently, found section 4(1A) unconstitutional because it required courts to venture into religious law.⁽¹⁵¹⁾

The SJC, however, has not always refrained from entering into religious disputes. Although the SJC relied upon Moustakis, Kosher and Wheeler to hold that it did not have jurisdiction under the First Amendment to decide ecclesiastical cases,⁽¹⁵²⁾ the SJC had previously involved itself in two cases involving religious disputes. In Lewis v. Area II Homecare for Senior Citizens, Inc.⁽¹⁵³⁾ and Kolodziej v. Smith,⁽¹⁵⁴⁾ the SJC determined religious requirements under section 4(1A). However, in Pielech, the SJC admitted that its interpretation of section 4(1A) in Lewis and Kolodziej was inappropriate because courts do not have the power to decide religious issues;⁽¹⁵⁵⁾ in doing so, the SJC implicitly overruled those two cases.⁽¹⁵⁶⁾

2.  The Revised Anti-Discrimination Statute

Following the Pielech decision, the Massachusetts Legislature enacted a revised statute that explicitly protects employees' sincerely held religious beliefs.⁽¹⁵⁷⁾ This revised section provides greater religious freedom in Massachusetts than the overturned section 4(1A) did because it protects sincerely held religious beliefs, rather than protecting merely the requirements of one's religion. The revised statute provides in part:

It shall be unlawful discriminatory practice for an employer to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate, or forego the practice of, his creed or religion as required by that creed or religion. . . . [T]he words "creed or religion" mean any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religious institution or organization.⁽¹⁵⁸⁾

According to its language, the revised statute does not require courts to venture into the plaintiff's religion; instead, the statute requires courts to venture into the plaintiff's sincerity in believing in his or her religion.⁽¹⁵⁹⁾ In Pielech, the SJC struck down section 4(1A) because the statute did not provide enough protection to members of non-recognized religions and it forced courts to enter into religious disputes.⁽¹⁶⁰⁾ Therefore, the revised statute is constitutional under the SJC's decision in Pielech because the revised section 4(1A) provides protection to members of all religions and its language does not require courts to determine religious matters.⁽¹⁶¹⁾ However, while the language of the revised statute is consistent with the outcome that both the majority and dissent in Pielech desired, the effect of the revised statute is inconsistent with the Pielech holding.

3.  The Effect of the Revised Statute

Unlike the previous section 4(1A), which required judicial determinations of religious requirements, the revised section 4(1A) now accommodates all religious beliefs, as long as those beliefs are sincerely held.⁽¹⁶²⁾ Under the new language of section 4(1A), plaintiffs must prove that the belief they seek to protect is (1) religious⁽¹⁶³⁾ and (2) sincerely held.⁽¹⁶⁴⁾ However, the practical effect of the revised statute is that every belief must be accommodated; regardless of whether the belief is religious, reasonable, or sincere because, according to the SJC's interpretation of the Establishment Clause in Pielech, courts are not able to ascertain any of these elements.⁽¹⁶⁵⁾

a.  "Religious" Belief

Under Pielech, if a court decides that a claimant's belief is "religious," there are two effects, both of which violate the Establishment Clause. The first effect is entanglement in religion.⁽¹⁶⁶⁾ The second effect is that the court provides unequal treatment to individuals whose beliefs are "religious" to those individuals, but perhaps not "religious" to the particular court adjudicating the matter.⁽¹⁶⁷⁾

According to the revised statute's language, in order to receive protection from discriminatory employers under section 4(1A), a claimant's beliefs must be "religious."⁽¹⁶⁸⁾ American philosopher William James defined religion as, "the feelings, acts, and experiences of individual[s] . . . in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine."⁽¹⁶⁹⁾ Thus, because of the subjective nature of the meaning of the word, "religious," courts have circularly defined "religious" with the word "religion."⁽¹⁷⁰⁾ Both the SJC and the Supreme Court grant almost absolute protection to any belief arguably "religious."

The United States Supreme Court identifies a "religious" belief by focusing on an individual's inner devotion to a particular belief system.⁽¹⁷¹⁾ The Court has a two part test for determining what constitutes a "religious" belief: (1) the "belief" for which the protection is sought is "religious" in the person's own scheme of things, and (2) the belief is "sincerely held."⁽¹⁷²⁾ The individual's belief system need not include theistic beliefs, yet the beliefs must be "sincere" and "meaningful" and must "occup[y] a place in the life of its possessor parallel to that filled by the orthodox belief in God."⁽¹⁷³⁾ The Court has also held that the belief need not necessarily recognize a Supreme Being in order to constitute a religious belief.⁽¹⁷⁴⁾ Thus, an adherent's claim "that his belief is an essential part of a religious faith must be given great weight," according to the Supreme Court.⁽¹⁷⁵⁾ Professor Laurence Tribe has suggested that anything "that is `arguably religious' should be considered religious in a free exercise analysis."⁽¹⁷⁶⁾ In adjudicating religion clause cases courts use a broad meaning of the word, "religious," because, due to the subjective nature of religious beliefs, only the individual holding such beliefs truly knows whether those beliefs are in fact "religious."⁽¹⁷⁷⁾

While the Supreme Court has set a wide standard as to what constitutes a "religious" belief,⁽¹⁷⁸⁾ the SJC has set an even broader standard for determining what beliefs are "religious," and thus qualified for protection.⁽¹⁷⁹⁾ The SJC draws its own conclusions as to the limits of religious protection, not simply under the First Amendment, but also under article 46, section 1 of the Amendments to the Massachusetts Constitution⁽¹⁸⁰⁾ and article 2 of the Massachusetts Declaration of Rights.⁽¹⁸¹⁾ Article 46 states that, "[n]o law shall be passed prohibiting the free exercise of religion."⁽¹⁸²⁾ Article 2 of the Massachusetts Declaration of Rights states:

It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.⁽¹⁸³⁾

The SJC applies the broader protection of Article 2 only when "it grants greater [religious] protection . . . than do either the First Amendment or the cognate free exercise of religion provision appearing in art[icle] 46, s[ection] 1, of the Amendments to the Constitution of the Commonwealth."⁽¹⁸⁴⁾ Because of the broad protection provided by the Massachusetts Constitution, the SJC does "not necessarily follow the reasoning adopted by the Supreme Court of the United States under the First Amendment."⁽¹⁸⁵⁾ Thus, the SJC grants religious freedom in Massachusetts by using the Massachusetts Constitution if the Massachusetts Constitution provides wider protection to religious believers than the First Amendment of the United States Constitution provides.

The SJC has held that, so long as a person does not disturb the public peace or obstruct others in their religious worship, article 2 "gives absolute protection to the manner in which one worships God."⁽¹⁸⁶⁾ In Dalli, the SJC made the distinction that a religious belief is a "`moral conviction and conscience by reason of religious training, belief and conviction,'" whereas a personal belief is a "`personal moral code or philosophy not based on or by reason of religious training, belief or conviction.'"⁽¹⁸⁷⁾ Perhaps even more broadly than the distinction between a religious belief and a personal belief, former SJC Chief Justice Liacos defined a religious belief as "[t]he decision by an individual as to what form of religious worship constitutes an appropriate vehicle by which to pay homage to a chosen object of that worship."⁽¹⁸⁸⁾ Thus, according to the SJC, if a person believes in something he or she deems religious, then it is "religious."⁽¹⁸⁹⁾

The SJC, like the United States Supreme Court, defines "religious" with the word "religion," and, consequently, does not actually determine what a "religious" belief is. Therefore, although the revised section 4(1A) requires that the claimant's belief be "religious," this requirement is obsolete because the SJC is likely to allow anything to be considered religious as long as the claimant sincerely believes that his or her belief is religious in nature.⁽¹⁹⁰⁾

According to Pielech, the revised section 4(1A) will remain constitutional only if the SJC retains its broad view of the Free Exercise Clause. If the SJC determines whether beliefs are religious, then that determination violates the Establishment Clause because in Pielech the SJC held that "``it is no business of courts to say . . . what is a religious practice or activity. . . .''"⁽¹⁹¹⁾ The SJC also held in Pielech that the "`First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine, discipline, faith, or internal organization.'"⁽¹⁹²⁾ Therefore, if Massachusetts courts determine whether a claimant's belief is "religious" under the new section 4(1A), then those determinations will violate the Establishment Clause because courts cannot determine what constitutes a religious practice or belief.⁽¹⁹³⁾

By determining what constitutes a religious belief, courts not only entangle themselves with religion, but they also promote unequal treatment to individuals whose beliefs the court may not consider "religious."⁽¹⁹⁴⁾ Thus, courts "favor" some religions over others that they deem are not religious.⁽¹⁹⁵⁾ Some commentators suggest that favoritism of customary, majoritarian religions is inherent in the very notion of accommodation because people subconsciously favor the more popular religions and look skeptically at the more unusual religions.⁽¹⁹⁶⁾ However, regardless of whether individuals actually favor the more popular religions, the very act of determining whether certain beliefs are, in fact, "religious" discriminates against those beliefs that the court deems to be not religious.⁽¹⁹⁷⁾ Even though an individual may consider his or her belief to be "religious," if the court determines that the belief is not "religious," that particular court is in violation of the Establishment Clause under Pielech by "preferring one or more religions over another. . . ."⁽¹⁹⁸⁾

The sincerely held religious belief standard in the new section 4(1A) has two elements: a religious element and a sincerity element.⁽¹⁹⁹⁾ However, this standard actually has only one element because courts may not determine whether an individual's belief is religious.⁽²⁰⁰⁾ Even though the statute is aimed at protecting religious freedom, courts cannot determine the "religious" aspect of a claim because in determining whether one's belief is religious, courts entangle themselves with religion and provide unequal treatment toward individuals whose beliefs the court does not consider "religious."⁽²⁰¹⁾ Both of these effects violate the Establishment Clause because in Pielech the SJC held that courts can neither determine what constitutes a religious practice, nor prefer one or more religions over another.⁽²⁰²⁾ Therefore, the revised section 4(1A) protects any "sincerely held" belief, regardless of whether the belief is "religious."

b.  "Sincerely Held" Belief

The second requirement in the revised section 4(1A) is that the claimant's beliefs must be sincerely held.⁽²⁰³⁾ Courts determine the sincerity of an individual's religious beliefs by looking at that individual's mental state.⁽²⁰⁴⁾ In other words, a court "must determine whether the claimant has professed genuine religious objections, or has fabricated a religious claim as an excuse. . . ."⁽²⁰⁵⁾ Courts often rely on an individual's prior conduct over a period of time pertaining to the alleged religious belief in order to determine whether that individual is sincere in his or her religious convictions.⁽²⁰⁶⁾ While determining an individual's "sincerity" in a certain belief may seem like a simple factual and objective determination,⁽²⁰⁷⁾ such determination, like the "religious belief" determination, violates the Establishment Clause under Pielech.

The United States Supreme Court has held that, although the Establishment Clause prohibits courts from determining religious matters, the Establishment Clause does not prohibit courts from determining an individual's sincerity in holding religious beliefs because such a determination does not implicate religious matters.⁽²⁰⁸⁾ For example, in United States v. Ballard⁽²⁰⁹⁾ the Ballards, defendants charged with defrauding the mails, believed that they had been "selected as divine messengers" because of their "high spiritual attainments and righteous conduct"; therefore they had the power to heal people with incurable diseases and other ailments.⁽²¹⁰⁾ The Supreme Court held that the jury could not decide the validity of the Ballards' beliefs⁽²¹¹⁾ but could determine the sincerity of their beliefs.⁽²¹²⁾ The Court held that in order to determine the sincerity of the Ballards' beliefs, one should question whether the "defendants honestly and in good faith believe[d] those things."⁽²¹³⁾ According to the Court, the Ballards were guilty if they "did not believe . . . the things that they preached, but used the mail for the purpose of getting money."⁽²¹⁴⁾ Thus, according to the Court, religion plays no part in determining the sincerity of an individual's beliefs.⁽²¹⁵⁾

However, in order to determine whether the Ballards sincerely believed that they had supernatural powers, the prosecution probably attempted to show that the alleged acts of faith healing did not take place.⁽²¹⁶⁾ Therefore, the Ballards could not have in fact believed their claims.⁽²¹⁷⁾ Consequently, this evidence would reflect on the validity, not just the sincerity, of the Ballards' claim. As United States Supreme Court Justice Jackson noted, "[W]e can[not] separate an issue as to what is believed from considerations as to what is believable."⁽²¹⁸⁾ Justice Jackson continued, "If religious liberty includes, as it must, the right to communicate [religious] . . . experiences to others, it seems to me an impossible task for juries to separate fancied ones from real ones, dreams from happenings, and hallucinations from true clairvoyance."⁽²¹⁹⁾ In order to determine the sincerity of an individual's belief as a means of measuring the "religious-ness" of the belief, the judge or jury must ultimately consider the truth or falsity of the individual's belief.⁽²²⁰⁾

For example, in determining whether Kathleen and Patricia are "sincere" in holding their religious beliefs, one in effect asks, "Is it true that Kathleen and Patricia believe that Roman Catholicism requires them to abstain from working on Christmas?"⁽²²¹⁾ However, there is no difference between asking, "Is it true that they believe . . . ?" and "Is the belief true?" because the phrase, "They truly believe," has the same meaning as the phrase, "Their belief is true."⁽²²²⁾ An individual's personal religion is so subjective that the individual is the only person who knows whether they truly believe what they believe.⁽²²³⁾ As Professor Lupu notes, "`[T]he inquiry into sincerity cannot escape the distinctly bad aroma of an inquisition.'"<sup>(224)</sup> Furthermore, "both the sincerity and religiosity inquiries risk `an intrusion on the freedom of conscience sought to be protected by the [F]irst [A]mendment.'"⁽²²⁵⁾ Thus, when a court determines whether an individual's "religious" beliefs are sincerely held, the court enters into the truth of an individual's religion; that determination therefore violates the Establishment Clause under Pielech.⁽²²⁶⁾

In Pielech, the dissent suggested that Kathleen and Patricia's case be remanded because there was "a genuine factual dispute as to the sincerity of the plaintiff's beliefs that they must abstain from work on holy days."⁽²²⁷⁾ Kathleen and Patricia alleged three claims in their affidavit indicating their adherence to their religion: (1) they believed Christmas to be a holy day of obligation; (2) Christmas is the most important day of the Church year; and (3) the requirements of Roman Catholicism prohibited its adherents from working on Christmas.⁽²²⁸⁾ The defendant race-track, however, alleged that Kathleen and Patricia had worked on other holy days of obligation, and therefore, according to the dissent, there was a question as to the two employees' sincerity in holding such beliefs.⁽²²⁹⁾

Again, however, if a court had adjudicated whether Kathleen and Patricia were sincere in holding their religious beliefs, that particular court would have ventured into religious matters. In Pielech, the race-track would have probably pursued its allegation that Kathleen and Patricia had worked on other holy days and were therefore not sincere in claiming that their religion requires them to abstain from working on Christmas day. In response, Kathleen and Patricia would have probably demonstrated their commitment to the requirements of Roman Catholicism. In the end, the court would have been forced to venture into Kathleen and Patricia's own version of their religion in order to determine whether the two women sincerely believed that Roman Catholicism required them to abstain from working on Christmas day.⁽²³⁰⁾

Thus, the only difference between the overturned section 4(1A) and the revised section 4(1A) is that the overturned section 4(1A) required courts to venture into a particular religion's requirements, whereas the revised section 4(1A) requires courts to venture into a claimant's version of his or her religion's requirements.⁽²³¹⁾ In both scenarios, however, the court ventures into the tenets and doctrines of religion: either a religion's requirements or the claimant's individual interpretation of a religion's requirements.⁽²³²⁾ Both the overturned and the revised section 4(1A) violate the Establishment Clause under Pielech because in Pielech the SJC held that courts cannot decide "what actions or beliefs are required of [a particular religion's] adherents."⁽²³³⁾

On more technical grounds, the word "sincere" is merely an adverb, or a means of measuring the word "religious."⁽²³⁴⁾ If courts define a "religious" belief based on whether the claimant is sincere in holding that belief,⁽²³⁵⁾ then in order for courts to determine whether that person is sincere they must determine whether that person's belief is religious. Yet, under Pielech, the Establishment Clause prohibits courts from determining what constitutes a religious activity⁽²³⁶⁾ or belief.⁽²³⁷⁾

Thus, because of the SJC's strict interpretation of the Establishment Clause's separational wall in Pielech, courts are now forced, under the revised section 4(1A), to accommodate all beliefs in the workplace if the claimant asserts that his or her beliefs are "religious" and are "sincerely held--" even if the court does not believe that those beliefs are "religious" or "sincerely held." In Pielech, the SJC narrowly interpreted the Establishment Clause in order to achieve its goal of expanding religious liberty in the workplace.⁽²³⁸⁾ However, when the SJC construed the Establishment Clause to prohibit courts from entering into any religious dispute, it prohibited itself from enforcing a newer and broader "sincerely held religious belief" standard, such as the revised section 4(1A). Until the United States Supreme Court adopts a new religion clause jurisprudence that includes a more flexible separational device than the separational wall metaphor,⁽²³⁹⁾ courts in Massachusetts must reconcile a narrow Establishment Clause with a broad Free Exercise Clause.

B.  The Effect of Pielech in Other States

Two other states have anti-discrimination statutes with similar language to the language in the overturned section 4(1A). Both New York and Pennsylvania prohibit employers from discriminating against employees because of the employee's "observance of any particular day . . . or any portion thereof as a. . . . holy day in accordance with the requirements of his religion."⁽²⁴⁰⁾ However, courts in New York and Pennsylvania interpret their respective statutes differently. As in Massachusetts, New York courts hold that the claimant must prove that his or her religion requires them to perform the practice they seek to protect.⁽²⁴¹⁾ Courts in Pennsylvania merely require that the claimant demonstrate that his or her religious belief is "sincerely held."⁽²⁴²⁾ Courts in both states still consider their statutes constitutional, but perhaps the Pielech holding weakens the continued viability of both New York and Pennsylvania's anti-discrimination statutes.⁽²⁴³⁾

1.  New York

New York interprets its anti-discrimination statute the same way the majority in Pielech did before it struck down section 4(1A) as unconstitutional.⁽²⁴⁴⁾ However, the constitutionality of the New York statute has not been challenged as it has been in Massachusetts. A plaintiff suing his or her employer under New York Executive Law section 296(10)(a) for religious discrimination must show that his or her religion prohibits the activity at issue.

For example, in Betz v. Memorial Sloan-Kettering Cancer Center,⁽²⁴⁵⁾ an employer won summary judgment because the employee failed to show that the requirements of her religion prohibited her from working on the days that her employer had scheduled her to work.⁽²⁴⁶⁾ Upon being hired, the employee in Betz signed a form stating that she might be required to work Saturdays and Sundays.⁽²⁴⁷⁾ However, the employee soon began to preach for her church; not because her religion required her to do so, but because she chose to preach.⁽²⁴⁸⁾ Since the plaintiff could not show that her religion required her to preach, she failed to make a prima facie case for religious discrimination under New York Executive Law section 296(10)(a).⁽²⁴⁹⁾

As previously noted, the constitutionality of New York Executive Law section 296(10)(a) has not been challenged.⁽²⁵⁰⁾ Since the SJC in Pielech struck down a statute very similar to New York's statute, the door is now open in New York for a constitutional challenge similar to Pielech. The New York statute is therefore in jeopardy should New York courts look to Massachusetts law when and if the constitutionality of its statute is challenged.

2.  Pennsylvania

Pennsylvania also has an anti-discrimination statute that uses the words, "in accordance with the requirements of his religion."⁽²⁵¹⁾ That statute, like the similar New York statute, remains constitutional.⁽²⁵²⁾ Unlike New York courts, however, Pennsylvania courts construe Pennsylvania's anti-discrimination statute so that claimants must prove that the religious activity they seek to protect is merely a "sincerely held religious belief," rather than one required by the employee's religion.⁽²⁵³⁾ In other words, by broadly interpreting the statute to include all sincerely held beliefs, Pennsylvania courts construe Pennsylvania's anti-discrimination statute the same way as the dissent in Pielech would have.⁽²⁵⁴⁾

In Pennsylvania State University v. Commonwealth of Pennsylvania,⁽²⁵⁵⁾ for example, an employee, a member of the Worldwide Church of God, was a security sergeant who refused to work on Saturdays because of his religious belief.⁽²⁵⁶⁾ Although the employer tried to accommodate the employee's refusal to work on Saturdays, the employer was unable to do so and consequently fired the employee.⁽²⁵⁷⁾ The employee then sued the employer for wrongful discriminatory termination under Title 43 of Pennsylvania Statutes section 955.1.⁽²⁵⁸⁾ The court held that although the plaintiff had a "sincerely held" religious belief that prevented him from working on Saturdays, the employer was not compelled to accommodate the employee's religious beliefs because it would force the employer to burden the other employees by requiring them to cover the defendant's shift on Saturdays.⁽²⁵⁹⁾ The court held that the act of forcing other employees to work on Saturdays constitutes excessive governmental entanglement with religion because such force interferes with the individual choices of third parties in order to accommodate the plaintiff's religious beliefs.⁽²⁶⁰⁾ Unlike Pielech, however, the court in Pennsylvania State University did not question the sincerity of the plaintiff's religious beliefs; instead the court determined whether the employer, in fact, discharged the plaintiff because of the plaintiff's religious beliefs.⁽²⁶¹⁾ The court found that the plaintiff was discharged because of the burden placed on the employer.⁽²⁶²⁾

The dissent in Pennsylvania State University held, however, that as long as the plaintiff's religious belief is "sincerely held," as required by the statute, the Free Exercise Clause of the First Amendment requires the employer to accommodate the plaintiff's religious beliefs.⁽²⁶³⁾ As long as that accommodation does not promote one religion over another, the accommodation does not violate the Establishment Clause.⁽²⁶⁴⁾ Therefore, the dissent would have found for the employee because he sincerely believed in his religious belief.⁽²⁶⁵⁾

The fact that Pennsylvania courts construe its anti-discrimination statute the same way as the dissent would have in Pielech demonstrates that the SJC could have construed section 4(1A) so that claimants only have to prove that they hold a "sincere religious belief." Although the constitutionality of the Pennsylvania statute has not been challenged, the dissenting justice in Pennsylvania State University made a point of expressing no opinion as to the constitutionality of the statute because it was not a direct issue in the case.⁽²⁶⁶⁾ This omission shows the presence of a constitutional issue that the Pennsylvania courts have yet to address.⁽²⁶⁷⁾ Should a claimant raise a constitutional issue, however, the Pennsylvania court might look to Massachusetts for guidance. If Pennsylvania courts look to Massachusetts case law for guidance, then those courts could construe the statute more narrowly than Pennsylvania courts have done in the past, and consequently find the statute unconstitutional under a Pielech-like analysis.⁽²⁶⁸⁾ Pennsylvania courts provide accommodation to employees who demonstrate that they have sincerely held religious beliefs as long as such accommodation does not cause undue hardship on the employer's business.⁽²⁶⁹⁾ Thus, according to Pennsylvania courts, the majority in Pielech could have construed section 4(1A) to include sincerely held religious beliefs.⁽²⁷⁰⁾

V.  Conclusion

This Comment does not argue that "accommodation" is wrong. However, accommodating plaintiffs' religious beliefs based on the sincerity of such beliefs is meaningless under the SJC's holding in Pielech.⁽²⁷¹⁾ The SJC provides broad protection of religious beliefs by leaving the term "religious" undefined.⁽²⁷²⁾ Therefore, courts are required to determine whether beliefs are eligible for protection under section 4(1A) by looking at the "sincerity" of claimants in holding such beliefs.⁽²⁷³⁾ Thus, an individual's belief is "religious" as long as that individual sincerely holds that belief.⁽²⁷⁴⁾ However, because the SJC held in Pielech that the United States Constitution's First Amendment's Establishment Clause prohibits courts from determining what beliefs are "religious," courts cannot use the "sincerity" requirement of the revised section 4(1A) to measure the religiousness of a claimant's belief.⁽²⁷⁵⁾ The SJC must therefore accept a claimant's sincerity at face value. Consequently, under the new section 4(1A), every belief must be accommodated under Pielech, regardless of whether that belief is truly sincere, religious, or reasonable.⁽²⁷⁶⁾

Thus, the contradiction between the Establishment Clause and the Free Exercise Clause is brought out in both Pielech and the re-enacted section 4(1A). In Pielech, the SJC chose to use the Establishment Clause, which states, "Congress shall make no law respecting an establishment of religion," to strike down section 4(1A);⁽²⁷⁷⁾ yet the Massachusetts Legislature re-enacted section 4(1A) so that the statute provides almost absolute religious liberty.⁽²⁷⁸⁾ However, should a plaintiff bring a seemingly unreasonable or ludicrous claim, a court cannot determine that the claim does not deserve Free Exercise Clause protection because the SJC's interpretation of the Establishment Clause in Pielech prohibits such a determination.⁽²⁷⁹⁾ As a result of Pielech, the revised section 4(1A) accommodates all beliefs in the workplace, regardless of whether those beliefs are religious or sincerely held. The framers of the First Amendment probably did not foresee this broad accommodation of religious beliefs when they enacted the religion clauses. However, such accommodation is presently the only solution to today's pluralistic society; and until courts determine the limits of the religion clauses it will remain the only solution.

Erin D. Coffman^(*)

1. See Pielech v. Massasoit Greyhound, Inc., 668 N.E.2d 1298, 1300 (Mass. 1996) (holding that two employees could not recover against their employer, who refused to accommodate the employees' religious beliefs).

2. See id. The trial court was not able to determine whether the two women were "suspended" or "fired." Id.

3. See Mass. Gen. Laws ch. 151B, § 4(1A) (1996) (prohibiting employers from discriminating against employees on the basis of employees' religious beliefs).

4. See Pielech, 668 N.E.2d at 1304.

5. See id. at 1300 (discussing the trial court's holding that Roman Catholicism did not require its followers to abstain from working on Christmas day).

6. 668 N.E.2d 1298 (Mass. 1996).

7. See id. at 1304.

8. Mass. Gen. Laws ch. 151B, § 4(1A) (1996), amended by Restoring Religious Freedom in the Workplace Act, ch. 2, § 2, Mass. Gen. Laws ch. 151B, § 4(1A) (Supp. 1997).

9. See id. Recently, religion clause adjudication has turned away from the courts and the federal government, and instead toward the state legislatures, indicating Supreme Court confusion regarding the religion clauses. See John Witte, Jr., The Essential Rights and Liberties of Religion in the American Constitutional Experiment, 71 Notre Dame L. Rev. 371, 374 (1996).

10. See generally Symposium, The Tension Between the Free Exercise Clause and the Establishment Clause of the First Amendment, 47 Ohio St. L.J. 291 (1986) (analyzing the inherent contradictions between the Establishment Clause and the Free Exercise Clause).

11. See infra notes 16-76 and accompanying text.

12. See infra notes 77-138 and accompanying text.

13. See infra notes 139-239 and accompanying text.

14. See infra notes 240-70 and accompanying text.

15. See infra notes 271-79 and accompanying text.

16. Stephen L. Carter, The Culture of Disbelief 106 (1993) (quoting Thomas Jefferson, "Freedom of Religion at the University of Virginia," in The Complete Jefferson 958 (Saul K. Padover, ed. 1943)).

17. See id.

18. See id.

19. See id.

20. James E. Leahy, The First Amendment, 1791-1991: Two Hundred Years of Freedom 45-46 (1991).

21. See Everson v. Board of Educ., 330 U.S. 1, 9-10 (1947) (discussing the history of the religion clauses of the First Amendment).

22. See Leahy, supra note 20 at 46.

23. See Everson, 330 U.S. at 11, 12.

24. U.S. Const. amend. I.

25. See Rodney J. Blackman, Showing the Fly the Way Out of the Fly-Bottle: Making Sense of the First Amendment Religion Clauses, 42 U. Kan. L. Rev. 285, 286 (1994).

26. See Ben Clements, Note, Defining "Religion" in the First Amendment: A Functional Approach, 74 Cornell L. Rev. 532, 533 (1989). "[T]he broad purpose of the religion clauses was not merely to assure the liberty of particular religious denominations, but rather to protect the religious impulses of man from government interference." Id. at 534; see also Thomas R. McCoy, A Coherent Methodology For First Amendment Speech and Religion Clause Cases, 48 Vand. L. Rev. 1335, 1337 (1995) (asserting that the principle behind the two religion clauses is that "the religious preferences of the political majority do not constitute a sufficient reason for the use of governmental power to restrict the religious preferences of a political minority").

27. See Steven G. Gey, Why is Religion Special?: Reconsidering the Accommodation of Religion Under the Religion Clauses of the First Amendment, 52 U. Pitt. L. Rev. 75 (1990) (arguing that the two aims of the First Amendment ultimately conflict); see also Michael M. Maddigan, Comment, The Establishment Clause, Civil Religion, and the Public Church, 81 Cal. L. Rev. 293 (1993) (arguing that the Supreme Court is unable to "develop even a set of unifying principles to guide its decisionmaking" with regard to the religion clauses).

28. See Frederick Mark Gedicks, The Rhetoric of Church and State 14 (1995). But see Witte, Jr., supra, note 9, at 376 (rejecting the intent of the framers as the sole basis for interpreting the religion clauses).

29. See Gedicks, supra note 28, at 14. Thomas Jefferson wrote in a letter to the Danbury Baptists that the establishment clause "was intended to erect a `wall of separation' between Church and State." Id. at 20 (quoting Everson v. Board of Educ., 330 U.S. 1, 16 (1947)).

30. See id.

31. See Carter, supra note 16, at 105 (asserting that the separational wall metaphor that stems from the Establishment Clause was created to protect religion from the state, not the state from religion).

32. See id.

33. See Gedicks, supra note 28, at 14.

34. See id.

35. Id. (footnote omitted). Even after the First Amendment was enacted, state governments restrained non-Protestants' and atheists' religious freedom and enacted federal laws that "were consistently applied to believers without regard to the burden this placed on their religious beliefs and activities." Id. (footnote omitted).

36. See Abington Sch. Dist. v. Schempp, 374 U.S. 203, 240-41 (1963) (Brennan, J., concurring) (applying the probable intent of the framers of the First Amendment to contemporary society). Justice Brennan stated:

[O]ur religious composition makes us a vastly more diverse people than were our forefathers. They knew differences chiefly among Protestant sects. Today the Nation is far more heterogeneous religiously, including as it does substantial minorities not only of Catholic and Jews but as well of those who worship according to no version of the Bible and those who worship no God at all. In the face of such profound changes, practices which may have been objectionable to no one in the time of Jefferson and Madison may today be highly offensive to many persons, the deeply devout and the nonbelievers alike.Id. (footnote and citation omitted).

37. Zorach v. Clauson, 343 U.S. 306, 313 (1952). However, it could be argued that the successful attempt to keep religion out of politics has, in fact, suppressed people from publicly believing in a religion. See Carter, supra note 16, at 4.

38. See Maddigan, supra note 27, at 293-94.

39. See Deborah K. Hepler, The Constitutional Challenge to American Civil Religion, 5 Kan. J.L. & Pub. Pol'y 93 (1996) ("Expanding the definition of religion to accommodate the American people's diversity presents a continual challenge to traditional religion-clause jurisprudence."). Even this nation's strong belief in democracy, which is passed down to American children through public schools, could be considered a "religion" under the religion clauses, and Hepler asserts that inevitably someone will "use the Establishment Clause to challenge American civil religion's favored position in the public sector and schools." Id.

40. See Gedicks, supra note 28, at 1. "`[P]eople who disagree about nearly everything else in the law agree that [E]stablishment [C]lause doctrine is seriously, perhaps distinctively, defective.'" Id. (quoting Steven D. Smith, Separation and the "Secular": Reconstructing the Disestablishment Decision, 67 Tex. L. Rev. 955, 956 (1989)).

41. 330 U.S. 1 (1947).

42. See Leahy, supra note 20, at 47. Jefferson's separational wall metaphor "did not provide much of a definitive test," and therefore, "Everson did not provide much help for lower courts." Id. In fact, "Everson was an open invitation to litigation" because of the strictness and rigidity of that separational wall. Witte, supra note 9, at 422. Perhaps a cause of this defective test lies in the fact that the Court looked only to enlightenment writers Jefferson and Madison and did not consider the "multiple opinions of Puritans, evangelicals, and civic republicans, nor the constitutional experiments . . . of other early states besides Virginia." Id. Nor did the Court look to any other enlightenment thinkers, who were themselves a bit wary of the strict separationalist approach that the separational wall advocated. See id.

43. Everson v. Board of Educ. of Ewing, 330 U.S. 1, 18 (1947); see also Carter, supra note 16, at 109 (arguing that nothing is wrong with the wall metaphor, yet the wall must have a few doors in it in order for the metaphor to comply with modern society).

44. See Everson, 330 U.S. at 15.

45. See id. at 16.

46. See id.

47. See id. (quoting Reynolds v. United States, 98 U.S. 145, 164 (1878)).

48. See id. at 15.

49. See Pielech v. Massasoit Greyhound, Inc., 668 N.E.2d 1298, 1303 (Mass. 1996).

50. 403 U.S. 602, 625 (1971) (holding that state aid to church related non-public schools violated the Establishment Clause).

51. See id. at 612-13 (using the Court's previous establishment clause cases to create the three part Lemon test).

52. See id.

53. See id.

54. See id. at 612 (citing Board of Educ. v. Allen, 392 U.S. 236, 243 (1968)).

55. Id. at 613 (citing Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)).

56. See Lemon, 403 U.S. at 612 (noting that a law does not have to necessarily establish a religion in order for the law to be unconstitutional; the law can be unconstitutional merely because it respects a religion).

57. See Blackman, supra note 25; Kristin M. Engstrom, Establishment Clause Jurisprudence: The Souring of Lemon and the Search for a New Test, 27 Pac. L.J. 121 (1995); Derrick R. Freijomil, Comment, Has the Court Soured on Lemon?: A Look Into the Future of Establishment Clause Jurisprudence, 5 Seton Hall Const. L.J. 141 (1994).

58. Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989) (holding that a Texas sales tax exemption for religious publications violates the Establishment Clause); see also Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687 (1994). The Grumet Court merely mentioned the Lemon test but did not employ it in holding that the districting of a school district based on religious criteria went beyond mere accommodation, and into forbidden favoritism of religion. See id. at 695. In fact, Justice O'Connor advocated a "less unitary approach," such as using a variety of different tests that would welcome "more opportunity to pay attention to the specific nuances" of different aspects of a particular case. Id. at 721 (O'Connor, J., concurring).

59. See Board of Educ. of Kiryas Joel, 512 U.S. at 695 (mentioning, but not using the Lemon test). The Court has not completely overturned Lemon, yet it has not expressly stated a new test, and it seems to be holding on to the Lemon test. See id.

60. See Reynolds v. United States, 98 U.S. 145, 168 (1878) (holding that a religious belief could not be used to justify the commission of a crime).

61. See id.

62. See id. at 167 (holding that to excuse one's practices because of his or her religious belief would "make the professed doctrines of religious belief superior to the law of the land"); see also Cleveland v. United States, 329 U.S. 14, 20 (1946) (upholding the conviction of polygamy, even though defendants lacked the requisite criminal intent).

63. See Reynolds, 98 U.S. at 167.

64. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 545 (1993) (holding that city ordinances enacted to outlaw religious animal sacrifice violated the Free Exercise Clause because the community enacted the ordinances to rid itself of the particular religion that required animal sacrifice).

65. See Employment Div. v. Smith, 494 U.S. 872, 890 (1990) (holding that Oregon could criminalize the possession of the drug peyote, and refuse to exempt American Indians, whose use of the drug is central to their religious rites).

66. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 236 (1972) (holding that Wisconsin's refusal to exempt fourteen and fifteen year old Amish students from the requirement of attending school until the age of sixteen violated the Free Exercise Clause because a central part of the Amish religion is that members be informally taught to earn their living through rural activities; and compulsory high school attendance conflicted with that belief).

67. See, e.g., Sherbert v. Verner, 374 U.S. 398, 410 (1963) (holding that South Carolina's refusal to grant unemployment compensation benefits on the grounds that the plaintiff declined to accept suitable work when offered (because her religion did not allow her to work on Saturdays) violated the Free Exercise Clause because the state, in effect, forced the plaintiff to choose between receiving benefits and following the requirements of her religion).

68. Ira C. Lupu, Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion, 140 U. Pa. L. Rev. 555, 559 (1991) (footnote omitted). Lupu also suggests that the "second element of the definition, that the claim not be one of constitutional right" is perhaps of greater importance than the first. Id. at 560.

69. Id. at 567 (footnote omitted). Lupu suggests that the Establishment Clause is primarily a religious equality provision, only secondarily affecting religious liberty. See id. Therefore, the equality of religion and nonreligion is as important as religious freedom. See id.

70. See Gey, supra note 27, at 76 ("In its new broad form, the accommodation principle has become a justification for enacting into law the religious preferences of the political majority."). See also Everson, 330 U.S. at 16 (allowing New Jersey to pay for transportation of students to church run schools); Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 336 (1987) (allowing religious organizations to be exempt from Title VII's prohibition against discrimination in employment on the basis of religion); Frazee v. Illinois Dep't of Pub. Sec., 489 U.S. 829, 835 (1989) (requiring state to extend unemployment compensation to employee who leaves job for religious reasons).

71. See, e.g., Estate of Thornton v. Caldor, 472 U.S. 703, 710 (1985) (holding that a Connecticut statute requiring private employers to give every worker a day off on his day of Sabbath observance violated the Establishment Clause because the statute had the primary effect of advancing a particular religious practice).

72. See Blackman, supra note 25, at 288; see also, e.g., Lee v. Weisman, 505 U.S. 577, 599 (1992) (using the Establishment Clause to prohibit school prayer during graduation ceremony because the state coerced the students into participating in the prayer).

73. See Blackman, supra note 25, at 288; see also, e.g., Sherbert v. Verner, 374 U.S. 398, 410 (1963) (holding that a Seventh Day Adventist, who refused to work on Saturdays, her religion's day of rest, could recover against the state because the state violated the plaintiff's right to the free exercise of her religion when it refused to give her unemployment compensation benefits because she refused to work on Saturdays).

74. See Blackman, supra note 25, at 288.

75. Lupu, supra note 68, at 570. However, proper interpretation of the religion clauses should not "advance one of the goals at the expense of the other," but should instead try and resolve the conflicting interests by looking at "all competing values." Id.

76. See infra notes 139-239 and accompanying text; see also Gey, supra note 27, at 76 (discussing the relationship between accommodation principles and the First Amendment's religion clauses). Gey ultimately concludes that the accommodation principle has no place in Establishment Clause jurisprudence because the Establishment Clause stems from the "secular, relativist political values of the Enlightenment, which are incompatible with the fundamental nature of religious faith." Id. at 79. Therefore, accommodation is in direct conflict with the Establishment Clause, which "requires that the political influence of religion be substantially diminished." Id.

77. See Pielech v. Massasoit Greyhound, Inc., 668 N.E.2d 1298, 1300 (Mass. 1996).

78. See id.

79. See id. The trial court was not sure if the two women were "suspended" or "fired." Id.

80. Mass. Gen. Laws ch. 151B, § 4(1A) (1996).

81. See Lewis v. Area II Homecare For Senior Citizens, Inc., 493 N.E.2d 867, 874 (Mass. 1986) (holding that a plaintiff suing her employer under section 4(1A) must show that her religion required her to take time off from work).

82. See Pielech, 668 N.E.2d at 1300.

83. Id.

84. See id.

85. See id. at 1301.

86. See id.

87. See id.

88. See Pielech, 668 N.E.2d at 1299. The majority opinion was written by O'Connor, J., joined by Wilkins, J., Lynch, J., and Fried, J.

89. See id. at 1304.

90. Id. at 1303 (citing School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 381 (1985); Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985); Larson v. Valente, 456 U.S. 228, 245 (1982)).

91. See id.

92. See id.

93. Id. (quoting Kolodziej v. Smith, 588 N.E.2d 634, 637 (Mass. 1992) (citing Frazee v. Illinois Dep't of Employment Sec., 489 U.S. 829, 834 (1989))).

94. Pielech, 668 N.E.2d at 1303 (citing Dalli v. Board of Educ., 267 N.E.2d 219, 222 (Mass. 1971)).

95. See id.

96. See id. at 1304.

97. See id.

98. See id. at 1303 (citing Redmond v. GAF Corp., 574 F.2d 897, 900 (7th Cir. 1978)).

99. Id. (quoting Walz v. Tax Comm'n of the City of New York, 397 U.S. 664, 669 (1970)); see also David E. Steinberg, Alternatives to Entanglement, 80 Ky. L.J. 691, 702 (1991). The United States Supreme Court uses the three part Lemon test for Establishment Clause cases: (1) the government's purpose must be secular; (2) the primary effect of the government's action must neither advance nor inhibit religion; and (3) the government's action must not foster an "excessive governmental entanglement" with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1970). Thus, in Pielech, the SJC struck down section 4(1A) under the third prong of the Lemon test because section 4(1A) forced courts to determine the requirements of a religion; and this determination fostered excessive government entanglement with religion. See Pielech, 668 N.E.2d at 1304.

Lemon's excessive entanglement requirement could produce "`political division among religious lines.'" Steinberg, supra note 99, at 699 (footnote omitted). However, Lemon and later United States Supreme Court cases, give "few clues for identifying those statutes that suggest impermissible potential for political divisiveness." Id. (footnote omitted). Therefore, "the political divisiveness prong of Lemon's entanglement doctrine seems little more than a means of rationalizing a predetermined Establishment Clause conclusion." Id. at 702 (footnote omitted).

100. Pielech, 668 N.E.2d at 1303 (quoting Alberts v. Devine, 479 N.E.2d 113 (1985)).

101. See id. (citing United Kosher Butchers Ass'n v. Associated Synagogues of Greater Boston, Inc., 211 N.E.2d 332, 334 (Mass. 1965); Moustakis v. Hellenic Orthodox Soc'y, 159 N.E. 453, 455 (Mass. 1928)).

102. See id. at 1304.

103. See id.

104. See id. The majority could have struck down the statute on the favoritism theory alone, rather than using the entanglement theory, which ultimately causes confusion with future Establishment Clause cases.

105. See id. at 1302.

106. See Pielech, 668 N.E.2d at 1302.

107. See id. at 1304.

108. See id. (Abrams, J., joined by Liacos, C.J. and Greaney, J., dissenting).

109. See id. (Abrams, J., dissenting).

110. See id. at 1305 (Abrams, J., dissenting).

111. See id. (Abrams, J., dissenting).

112. See Pielech, 668 N.E.2d at 1306 (Abrams, J., dissenting) ("It is the court's interpretation of the statute, and not the words of the statute, which thwarts the legislative intent.").

113. Id. at 1305-06 (Abrams, J., dissenting).

114. See id. at 1305 n.3 (Abrams, J., dissenting) (citing Frazee v. Illinois Dep't of Employment Sec., 489 U.S. 829, 832-33 (1989) (holding that Sherbert v. Verner, 374 U.S. 398 (1963), Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707 (1981), and Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987) all "rested on the fact that each of the claimants had a sincere belief that his or her religion required him or her to refrain from the work in question not on consideration that each was a member of a particular religious sect or on a tenet of a sect forbidding such work.")).

115. Pielech, 668 N.E.2d at 1305 (Abrams, J., dissenting).

116. See id. (Abrams, J., dissenting).

117. 267 N.E.2d 219 (Mass. 1971).

118. See Pielech, 668 N.E.2d at 1304-05 (Abrams, J., dissenting).

119. Mass. Gen. Laws ch. 76, § 15 (1967) (amended 1971).

120. Dalli, 267 N.E.2d at 223 (holding that a vaccination statute is unconstitutional under both the First Amendment's Free Exercise Clause and the Fourteenth Amendment's Equal Protection Clause when it protects only members of organized religions).

121. See Dalli, 267 N.E.2d at 222.

122. See Pielech, 668 N.E.2d at 1305 (Abrams, J., dissenting).

123. Id. (Abrams, J., dissenting) (citations omitted).

124. See id. (Abrams, J., dissenting).

125. See id. (Abrams, J., dissenting).

126. See id. (Abrams, J., dissenting).

127. See id. at 1306 (Abrams, J., dissenting); see also Brief of the Attorney General amicus curiae at 5, Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 668 N.E.2d 1298 (Mass. 1996) (No. 6785). The Attorney General argued that "religious requirements . . . are matters of fact to be proved by the employee . . . obviously intended to eliminate the potential for the court to become involved in adjudicating religious controversy." Id. at 12.

128. See Pielech, 668 N.E.2d at 1306 (Abrams, J., dissenting).

129. See id. (Abrams, J., dissenting).

130. See id. (Abrams, J., dissenting).

131. See id. at 1304, 1305 (Abrams, J., dissenting).

132. See id. (Abrams, J., dissenting).

133. See supra notes 111-21 and accompanying text.

134. See supra note 114 and accompanying text.

135. See supra notes 122-27.

136. See Pielech, 668 N.E.2d at 1304.

137. See Pielech, 668 N.E.2d at 1304; id. at 1306 (Abrams, J., dissenting).

138. See id. at 1303; id. at 1305 (Abrams, J., dissenting).

139. See infra notes 142-51 and accompanying text.

140. See infra notes 162-239 and accompanying text.

141. See Mass. Gen. Laws ch. 151B, § 4(1A) (1996), amended by Restoring Religious Freedom in the Workplace Act, ch. 2, § 2, Mass. Gen. Laws ch. 151B, § 4(1A) (Supp. 1997).

142. See Pielech, 668 N.E.2d at 1303.

143. 159 N.E. 453 (Mass. 1928).

144. See id. at 455.

145. 211 N.E.2d 332 (Mass. 1965).

146. See id. at 335.

147. 389 N.E.2d 966 (Mass. 1979).

148. See id. at 968.

149. See Pielech, 668 N.E.2d at 1303.

150. See id.

151. See id. at 1304.

152. See id. at 1303.

153. 493 N.E.2d 867, 875 (Mass. 1986) (determining that the plaintiff's religion did not require her to take time off to perform missionary work, even though performing missionary work was found to be an essential part of the plaintiff's religion).

154. 588 N.E.2d 634, 638 (Mass. 1992) (determining that the plaintiff's employer did not force the plaintiff to alter her religious belief by requiring her to attend religiously based seminars).

155. See Pielech, 668 N.E.2d at 1301.

156. See id.

157. See Mass. Gen. Laws ch. 151B, § 4(1A) (1996), amended by Restoring Religious Freedom in the Workplace Act, ch. 2, § 2, Mass. Gen. Laws ch. 151B, § 4(1A) (Supp. 1997).

158. Id. (emphasis added).

159. See id.

160. See Pielech, 668 N.E.2d at 1304.

161. See Opinion of the Justices to the House of Representatives, 673 N.E.2d 36 (Mass. 1996), in which the SJC answered to the Legislature that the then pending amendment to section 4(1A) is constitutional.

162. See Mass. Gen. Laws ch. 151B, § 4(1A) (1996), amended by Restoring Religious Freedom in the Workplace Act, ch. 2, § 2, Mass. Gen. Laws ch. 151B, § 4(1A) (Supp. 1997). "The employee shall have the burden of proof as to the sincerity of his or her convictions that a given practice or observance is required according to his or her sincerely held religious beliefs." Act of Aug. 17, 1996, ch. 151B, § 4(1A) (Proposed Official Draft 1996) (reestablishing employees' rights in the workplace with respect to religious observances).

163. See Kolodziej, 588 N.E.2d at 637 (citing Frazee v. Illinois, 489 U.S. 829, 833 (1989) (citing Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 713 (1981) ("`Only beliefs rooted in religion are protected by the Free Exercise Clause.'"))).

164. See Mass. Gen. Laws ch. 151B, § 4(1A) (1996), amended by Restoring Religious Freedom in the Workplace Act, ch. 2, § 2, Mass. Gen. Laws ch. 151B, § 4(1A) (Supp. 1997). The new standard is "sincerely held religious beliefs." Id. (emphasis added). See David E. Steinberg, Rejecting the Case Against the Free Exercise Exemption: A Critical Assessment, 75 B.U. L. Rev. 241, 276 (1995); Maureen E. Markey, The Price of Landlord's "Free" Exercise of Religion: Tenant's Right to Discrimination-Free Housing and Privacy, 22 Fordham Urb. L.J. 699 (1995); Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933, 953 (1989) for a discussion regarding these two elements of the sincerely held religious belief standard in free exercise clause adjudication.

165. See infra notes 166-239 and accompanying text. But see Mass. Gen. Laws ch. 151B, § 4(1A) (1996), amended by Restoring Religious Freedom in the Workplace Act, ch. 2, § 2, Mass. Gen. Laws ch. 151B, § 4(1 A) (Supp. 1997) (not requiring accommodation of sincerely held religious beliefs if such accommodation unduly burdens the employer).

166. See infra notes 191-93 and accompanying text.

167. See infra notes 194-98 and accompanying text.

168. See Mass. Gen. Laws ch. 151B, § 4(1A) (1996), amended by Restoring Religious Freedom in the Workplace Act, ch. 2, § 2, Mass. Gen. Laws ch. 151B, § 4(1A) (Supp. 1997).

169. William James, The Varieties of Religious Experience 31 (1910).

170. See infra notes 171-90 and accompanying text; see also Lupu, supra note 164, at 957 & nn.87-88. However, as Lupu notes, "the human capacity for variation in matters of spirituality suggests little reason to believe that lawyers will improve the situation." Id.

171. See Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir. 1978) (citing Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1969) (cited in Pielech v. Massasoit Greyhound, Inc., 668 N.E.2d 1298, 1303 (Mass. 1996))).

172. Id.

173. United States v. Seeger, 380 U.S. 163, 187-88 (1965) (holding that a federal statutory exemption for conscientious objectors applied to those whose objection to war stemmed from a belief in relation to a Supreme Being, as well as non-theistic beliefs); see also Welsh v. United States, 398 U.S. 333, 343-44 (1970) (interpreting statutory language giving conscientious objectors exemptions from going to war more broadly to include objections based on strongly held moral views or even strong "considerations of public policy").

174. See, e.g., Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (holding that government cannot "aid those religions based on a belief in the existence of God as against those religions founded on different beliefs").

175. Seeger, 380 U.S. at 184.

176. Laurence Tribe, American Constitutional Law 827-28 (1978). Professor Tribe also suggests that while the Free Exercise Clause should include an expansive notion of religion, the Establishment Clause should include a less inclusive notion of religion. See id. Tribe argues that "anything `arguably non-religious' should not be considered religious in applying the [E]stablishment [C]lause." Id.

177. United States v. Allen, 760 F.2d 447, 450 (2d Cir. 1985). Religion is an individual's "`"ultimate concern"- whatever that concern be.'" Id. (quoting International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440 (2d Cir. 1981)). The court in Allen held that under the Free Exercise Clause a "person who expounds `nuclearism' as his religion, consciously worshipping [nuclear] weapons as gods of destruction" could be entitled to protection. Id. However, for Establishment Clause purposes nuclearism does not constitute a religion because the state's interest in protecting government property is higher than the individual's religious freedom. See id.

178. See United States v. Ballard, 322 U.S. 78, 81-82 (1944) (holding that, although the Free Exercise Clause prohibited the jury from determining the truth or falsity of the defendants' self-professed faith healing claims, the jury could determine whether the defendants sincerely believed these claims).

179. See Attorney General v. Desilets, 636 N.E.2d 233, 242-43 (Mass. 1994) (holding that a statutory mandate prohibiting landlords from discriminating against unmarried couples in renting accommodations substantially burdened landlords' sincerely held religious belief against cohabitation).

180. See id. at 235.

181. See id. at 241.

182. Mass. Const. amend. art. 46, § 1.

183. Mass. Const. art. II. It is important to note that the Massachusetts Constitution "precedes and was, in large measure, the model for the Federal Constitution." Desilets, 636 N.E.2d at 243 (Liacos, C.J., concurring).

184. Desilets, 636 N.E.2d at 241.

185. Id. at 235. For instance, the Supreme Court has held that "`a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.'" Id. at 236 n.4 (quoting Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531 (1993)). However, the SJC, in affording greater religious protection than the Supreme Court, has held that even if such a law is neutral and is of general applicability, if that law burdens religion, "that law must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest." Id. (citing Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531-32 (1993)).

186. See id. at 242.

187. Dalli, 267 N.E.2d at 222 (quoting McCartney v. Austin, 293 N.Y.S.2d 188, 199 (1968)).

188. Desilets, 636 N.E.2d at 244 (Liacos, C.J., concurring).

189. See Recent Case, Establishment Clause- Definition of Religious Beliefs- Massachusetts Supreme Judicial Court Invalidates Religious Holiday Statute Protecting Only Established Religions.- Pielech v. Massasoit Greyhound, Inc., 668 N.E.2d 1298 (Mass. 1996), 110 Harv. L. Rev. 541, 546 (1996). "[T]he dissent's argument and the reenacting legislation are problematic because they grant protection to beliefs irrespective of their source." Id. "Only beliefs grounded in a higher authority, whether called religious or not, are of the type that may claim to trump legally enforceable, secular duties. . . ." Id. (citation omitted).

190. See Lewis v. Area II Homecare For Senior Citizens, 493 N.E.2d 867, 874 (Mass. 1986). In Lewis, the SJC held that a statute that dealt "with the full panoply of religious beliefs, practices, preferences, and ideals . . . would create difficult if not impossible problems of application and enforcement." Id. Therefore, since this revised section 4(1A) does deal with the full panoply of religious beliefs, practices, preferences, and ideals the SJC must allow everything to be considered religious beliefs because otherwise the statute would be impossible to enforce. See id. The revised section 4(1A) is therefore, "overinclusive because [it] neglect[s] the principle that only beliefs grounded in extra-human authority can justifiably trump secular duties. . . ." Recent Case, Establishment Clause-- Definition of Religious Beliefs- Massachusetts Supreme Judicial Court Invalidates Religious Holiday Statute Protecting Only Established Religions.-- Pielech v. Massasoit Greyhound, Inc., 668 N.E.2d 1298 (Mass. 1996), 110 Harv. L. Rev. 541 (1996).

191. Pielech, 668 N.E.2d at 1303 (quoting Redmond v. GAF Corp., 574 F.2d 897, 900 (7th Cir. 1978) (quoting Fowler v. Rhode Island, 345 U.S. 67, 70 (1953))).

192. Id. (quoting Alberts v. Devine, 479 N.E.2d 113, cert. denied sub nom. Carroll v. Alberts, 474 U.S. 1013 (1985)).

193. See Desilet, 636 N.E.2d at 244. (Liacos, C.J., concurring) "[I]f this or any court purports to consider whether a practice is truly a form of worship, then in essence the court is inquiring into the validity of a religious belief. No civil court, however, may make such an inquiry." Id. (citing Murphy v. I.S.K.Con. of New England, Inc., 571 N.E.2d 340 (1991) (quoting Madsen v. Erwin, 481 N.E.2d 1160 (Mass. 1985)); Lewis v. Area II Homecare for Senior Citizens, Inc., 493 N.E.2d 867 (Mass. 1986); Alberts v. Devine, 479 N.E.2d 113 (Mass. 1985)).

194. See Pielech, 668 N.E.2d at 1303 (holding that if a statute prefers one or more religions over another then that statute violates the Establishment Clause).

195. See id.

196. See Lupu, supra note 68, at 586 (arguing that "[a] regime of accommodation, designed at least in part to produce substantive equality between nonreligious and religious interests, is highly likely to privilege mainstream, well-known religions, or locally dominant ones, and thereby to aggravate conditions of religious inequality"); Lupu, supra note 164, at 958. See also Carter, supra note 16, at 128.

In Employment Div. v. Smith, 494 U.S. 872 (1990), the Supreme Court held that, without balancing the state's and the individual's religious freedom, the state of Oregon could criminalize the possession of the drug peyote and refuse to give an exemption to Native American Indians whose use of the drug is a central part of their religious rites, "demonstrates that the political process will protect only the mainstream religions." Id. Perhaps this suspicion toward religious belief exists in American politics because "[a] religion is, at its heart, a way of denying the authority of the rest of the world; it is a way of saying to fellow human beings and to the state those fellow humans have erected, `No, I will not accede to your will,' and therefore religion is an "ultimate radical possibility of refusing to accept the will of the state. . . ." Carter, supra note 16, at 41.

197. See West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 640-42 (1943), in which Justice Jackson discussed the danger of the government determining what is and is not "religious" in an attempt to compel coherence and unity among the people. As Justice Jackson noted:

Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

. . . .

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in . . . religion, or other matters of opinion or force citizens to confess by word or act their faith therein.Id.

198. Pielech, 668 N.E.2d at 1303 (citing School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 381 (1985); Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985); Larson v. Valente, 456 U.S. 228, 245 (1982)).

199. See Mass. Gen. Laws ch. 151B, § 4(1A) (1996), amended by Restoring Religious Freedom in the Workplace Act, ch. 2, § 2, Mass. Gen. Laws ch. 151B, § 4(1A) (Supp. 1997). The Act's language explicitly prohibits discriminatory practices by an employer, such as requiring an employee to "violate, or forego the practice[s] . . . required by . . . [his or her] sincerely held religious beliefs. . . ." Id. (emphasis added).

200. See Pielech, 668 N.E.2d at 1303 (holding that a court may not define a religious belief).

201. See, e.g., Allen, 760 F.2d at 452 (assuming that the defendants' religion of "nuclearism" was in fact a religion since the court could not make a "judicial interpretation of scripture and the contours of religious faith") (citation omitted).

202. See Pielech, 668 N.E.2d at 1304.

203. See Act of Aug. 17, 1996, ch. 151B, § 4(1A) (Proposed Official Draft of 1996) (reestablishing employees' rights in the workplace with respect to religious observances) ("The determination of whether a practice or observance is required . . . shall be based on the sincerity of an employee's convictions that a given practice or observance is required according to his or her sincerely held religious beliefs.").

204. See Steinberg, supra note 164, at 278.

205. Id. at 278 (citing Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933, 954 (1989); Developments in the Law- Religion and the State, 100 Harv. L. Rev. 1606, 1762 (1987)).

206. See id. at 280 (citing Gallahan v. Hollyfield, 516 F. Supp. 1004, 1006 (E.D. Va. 1981) (concluding that a Native American prisoner demonstrated a sincere religious belief that he must wear long hair because the prisoner had practiced his beliefs since he was five years old)).

207. See Pielech, 668 N.E.2d at 1306 (Abrams, J., dissenting). The dissent held that the case should be remanded to the Superior Court to determine "whether the plaintiffs sincerely believed that their religion forbade them from working on Christmas." Id. (Abrams, J., dissenting) ("The issue on remand is purely one of credibility.").

208. See infra text accompanying notes 209-15.

209. 322 U.S. 78 (1944), rev'd on other grounds, 329 U.S. 187 (1946).

210. Id. at 79-80.

211. See id. at 88.

212. See id. at 81.

213. Id.

214. Id. at 82.

215. See Ballard, 322 U.S. at 82.

216. See generally Steinberg, supra note 164, at 278. Courts often look at the claimant's prior actions regarding his or her religious claims in order to determine whether the claimant is committed to his or her religion, and therefore "sincere" in believing in that particular religion. See id.

217. See id.

218. Ballard, 322 U.S. at 92 (Jackson, J., dissenting). Jackson went on to ask, "How can the Government prove [the Ballards] knew something to be false which it cannot prove to be false?" Id. at 93 (Jackson, J., dissenting).

219. Id. (Jackson, J., dissenting).

220. See Patrick v. Lefevre, 745 F.2d 153, 157 (2d Cir. 1984). "Sincerity analysis is exceedingly amorphous, requiring the factfinder to delve into the claimant's most veiled motivations. . . ." Id.

221. See id. at 159 (holding that the district court improperly granted summary judgment on a claimant's sincerity because such a determination requires a "factfinder . . . [to] delve into the internal workings" of the claimant's mind and "assess the credibility of his claims" and this determination is therefore a question of fact, rather than law).

222. See Ballard, 322 U.S. at 86 (Jackson, J., dissenting) ("Men may believe what they cannot prove.").

223. See id. (Jackson, J., dissenting).

224. Steinberg, supra note 164, at 278 n.187 (quoting Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933, 954 (1989)).

225. Id. (quoting Ira C. Lupu, Developments in the Law- Religion and the State, 100 Harv. L. Rev. 1606, 1762 (1987)).

226. See Pielech, 668 N.E.2d at 1303 (holding that courts cannot determine what practices are mandated or prohibited by a tenet of an individual's religion and that courts cannot determine the truth of an individual's religious belief).

227. Id. at 1298; Id. at 1306 n.4 (Abrams, J., dissenting).

228. See id. (Abrams, J., dissenting).

229. See id. at 1306 (Abrams, J., dissenting).

230. See, e.g., Mosier v. Maynard, D.O.C., 937 F.2d 1521, 1527 (10th Cir. 1991) (holding that a prisoner is "sincere" in believing that his Native American religion requires him to keep his hair long if the prisoner can prove his sincerity with "significantly probative evidence concerning the validity of . . . his sincerity").

231. See Mass. Gen. Laws ch. 151B, § 4(1A) (1996), amended by Restoring Religious Freedom in the Workplace Act, ch. 2, § 2, Mass. Gen. Laws ch. 151B, § 4(1A) (Supp. 1997). The revised statute uses the language, "required by his or her sincerely held religious beliefs." Id. The overturned section 4(1A) used the language, "as required by that creed or religion." Mass. Gen. Laws ch. 151B, § 4(1A) (1996).

232. See supra notes 229-30 and accompanying text.

233. Pielech, 668 N.E.2d at 1304.

234. Lupu, supra note 164, at 957. Professor Lupu suggests that "[u]nless we have a developed view of what kinds of doctrines form the basis of religion - that is, unless we can distinguish religiosity from other kinds of commitments- inquiry into sincerity will not take us to the heart of an assertion of a free exercise right." Id.

235. See supra notes 166-90 and accompanying text.

236. See Pielech, 668 N.E.2d at 1303 (citing Redmond v. GAF Corp., 574 F.2d 897, 900 (7th Cir. 1978) (citing Fowler v. Rhode Island, 345 U.S. 67, 70 (1953))).

237. See Desilets, 636 N.E.2d at 237. "`Both this court [the SJC] and the United States Supreme Court have recognized that the concept of free exercise of religion involves both belief and activity.'" Id. (citing Murphy v. I.S.K.Con. of New England, Inc., 571 N.E.2d 340 (1991)). The SJC's "opinions concerning the free exercise of religion have also recognized action based on religious beliefs as the exercise of religion." Desilets, 636 N.E.2d at 237 (citing Fedele v. School Comm. of Westwood, 587 N.E.2d 757 (Mass. 1992) (holding that the right to maintain religion includes the "freedom to believe" and the "freedom to act on that belief")).

238. See Gedicks, supra note 28, at 99. The United State Supreme Court made explicit in Employment Div. v. Smith, what "has always been the functional law of free exercise: whenever the religious action at issue is significantly out of step with majoritarian values and is not defensible by reference to secular principles of constitutional law, an exemption is not constitutionally required." Id.

239. See Blackman, supra note 25, at 408-09 (advocating the destruction of the separational wall metaphor, which took the form of "neutrality" under the three prong Lemon test (primary purpose, effect and excessive government entanglement), and replacing the wall with a balancing of interests between religion, government and others); Lupu supra note 68, at 555-56 (asserting that the idealized separational wall metaphor "presents an image untrue to both life and law" because it is impossible to keep separate the secular and the sacred and because the metaphor is "unreasonably tilted toward nonestablishment and away from free exercise," and therefore the separational wall metaphor is doomed for the same fate that "befell its cousin from the field of race law--the doctrine of separate but equal"). See also Scott C. Idleman, The Role of Religious Values in Judicial Decision Making, 68 Ind. L.J. 433, 434 (1993) (advocating the allowance of "certain religious values . . . into the judicial decision-making process"); Gedicks, supra note 28 (discussing the repercussions of building the separational wall between Church and State so hastily by the Court).

240. N.Y. Executive Law § 296 (10) (a) (McKinney 1993); 43 Pa. Cons. Stat. § 955.1 (1991) (emphasis added).

241. See infra note 245.

242. See infra note 254.

243. See Pielech, 668 N.E.2d at 1304 (striking down a statute with similar language to statutes in New York and Pennsylvania).

244. See Pielech, 668 N.E.2d at 1304 (construing section 4(1A) as protecting the requirements of one's religion, rather than the individual's sincerity in