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Thornton V. Caldor: Will the Supreme Court Put the Squeeze on Lemon;Recent Developments in Public Law Michael D

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Thornton V. Caldor: Will the Supreme Court Put the Squeeze on Lemon;Recent Developments in Public Law Michael D Journal of Legislation Volume 12 | Issue 1 Article 7 1-1-1985 Thornton v. Caldor: Will the Supreme Court Put the Squeeze on Lemon;Recent Developments in Public Law Michael D. Woerner Follow this and additional works at: http://scholarship.law.nd.edu/jleg Recommended Citation Woerner, Michael D. (1985) "Thornton v. Caldor: Will the Supreme Court Put the Squeeze on Lemon;Recent Developments in Public Law," Journal of Legislation: Vol. 12: Iss. 1, Article 7. Available at: http://scholarship.law.nd.edu/jleg/vol12/iss1/7 This Essay is brought to you for free and open access by the Journal of Legislation at NDLScholarship. It has been accepted for inclusion in Journal of Legislation by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. RECENT DEVELOPMENTS IN PUBLIC LAW THORNTON V. CALDOR: WILL THE SUPREME COURT PUT THE SQUEEZE ON LEMON? In 1983, the Connecticut Supreme Court ruled that a state "Sabbath statute" violated the establishment clause of the United States Constitution.' The statute provided that an employee's refusal to work on a day he designates as his Sabbath is not an appropriate ground for his dismissal.2 The employee, Donald Thornton, petitioned the United States Supreme Court for a writ of certiorari, which was granted in March of 1984.' This recent development comment discusses the Connecticut Supreme Court's holding and rationale. It also predicts how the United States Supreme Court will decide the case based on the language and holdings of previous religion clause cases. Finally, it explores the possible ramifications of the predicted Supreme Court holding. THORNTON V. CALDOR Facts Caldor, Inc. required Donald Thornton, a department manager, to work one out of every four Sundays.4 After complying for two years, Thornton refused to continue working on Sundays, the day of his Sabbath.' Caldor executives met with Thornton and offered him two choices: (1) to continue as a supervisor at a Massachusetts store that did not require Sunday employment; or (2) to remain at his current store as a nonsupervisor and join the employee union whose contract provided for Sabbath days off.6 Thornton rejected both r roposals7 and resigned after the parties failed to reach a satisfactory agreement. Thornton protested Caldor's actions to the Connecticut state board of media- tion and arbitration, alleging that Caldor violated state law by not allowing him to observe his Sabbath.9 The state law, Connecticut General Statute § 53-303(e), provided: (a) No employer shall compel any employee engaged in any commercial 1. Caldor, Inc. v. Thornton, 191 Conn. 336, 464 A.2d 785 (1983), cert. granted sub nom. Estate of Thornton v. Caldor, Inc., 104 S. Ct. 1438 (1984) (No. 83-1158, 1983 Term) 2. CONN. GEN. STAT. ANN. § 53-303(e) (West Supp. 1984). 3. The Court granted the requested writ of certiorari on March 5, 1984. See - U.S. -, 104 S. Ct. 1438 (1984). 4. 191 Conn. at 338, 464 A.2d at 788. Caldor began opening for business on Sundays in 1977. All department managers were required to work one out of every four Sundays. Id. 5. Thornton worked thirty-one Sundays between 1977 and 1979, but in November of 1979 he informed Caldor that he would no longer work on Sunday because it was his Sabbath day. Id. 6. Id. 7. Id. Thornton claimed that the change to Massachusetts would involve undue hardship by forcing him either to commute or change his residence. Moreover, becoming a union member included a decrease in pay from $6.46 to $3.50 per hour. Id. 8. Id. Thornton's last day of work was March 8, 1980. 9. Id. 1985] Thornton v. Caldor occupation or in the work of any industrial process to work more than six days in any calendar week. An employee's refusal to work more than six days in any calendar week shall not constitute grounds for his dismissal. (b) No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day. An em- ployee's refusal to work on his Sabbath shall not constitute grounds for his dismissal. (c) Any employee, who believes that his discharge was in violation of sub- section (a) or (b) of this section may appeal such discharge to the state board of mediation and arbitration. If said board finds that the employee was dis- charged in violation of said subsection (a) or (b), it may order whatever rem- edy will make the employee whole, including but not limited to reinstatement to his former or a comparable position. (d) No employer may, as a prerequisite to employment, inquire whether the applicant observes any Sabbath. (e) Any person who violates any provision of this section shall be fined not more than two hundred dollars. Caldor answered that Thornton had not been "discharged" within the meaning of the statute and that the statute was unconstitutional.' Construing its authority as "quasi-judicial,"" the board assumed the constitutionality of the statute until a court ruled otherwise." The board held that under the statute13 Thornton had been illegally discharged, and it issued an award in his favor. Caldor filed an application with a state trial court seeking to vacate the board's award,' 4 but the trial court affirmed the board's ruling. Caldor then appealed to the Connecticut Supreme Court. He asserted that the award was illegal'" and beyond the power of the arbitrators because the statute violated the establishment clause of the United States Constitution.'6 Although the Connecticut Supreme Court found that the board had acted within its power in determining that Caldor had violated the statute, 17 the court ruled that the statute violated the strictures of the establishment clause.'" 10. 191 Conn. at 339, 464 A.2d at 789. 11. Id. at 339, 464 A.2d at 788. 12. Id. at 339, 464 A.2d at 788. 13. Id. at 339, 464 A.2d at 788. 14. CONN. GEN. STAT. § 52-418 (1978): (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imper- fectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. (b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators. 15. 191 Conn. at 339, 464 A.2d at 788. 16. Id. at 339, 464 A.2d at 788. 17. Id. at 340, 464 A.2d at 789. 18. Id. at 340, 464 A.2d at 789. The establishment clause provides that "Congress shall make no law respecting an establishment of religion .... " U.S. CONST., amend. 1. The establishment clause is applicable to the states through the fourteenth amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Journal of Legislation [Vol. 12:96 The Reasoning of the Connecticut Supreme Court The Connecticut Supreme Court based its decision upon the three -pronged test set out by the United States Supreme Court in Lemon v. Kurtzman.' Under that test, a statute violates the establishment clause unless it has a secular legisla- tive purpose; its principal or primary effect is one that neither advances nor inhib- its religion; and it does not foster an excessive entanglement of government with religion.20 If a statute fails any prong of the Lemon test, it violates the establish- ment clause.2 Applying the Lemon test, the Connecticut Supreme Court found that the statute failed all three prongs and, therefore, violated the establishment clause.2 2 The court reasoned that the statute did not have a secular legislative pur- pose.23 It rejected Thornton's assertion that subsection (b) 24 of the statute merely allowed employees to designate their day of rest, thus reflecting the secular pur- pose of protecting persons from the "physical and moral debasement which comes from uninterrupted labor.",25 Subsection (a) 26 prohibited employment for more than six days in a calendar week, thus addressing the secular purpose that Caldor claimed subsection (b) provided.27 The court reasoned that subsection (b) must have been meant for a different purpose; namely, to authorize each employee to designate his or her choice of day to observe a Sabbath. The court concluded that such a provision had the unmistakable purpose of promoting the freedom to prac- tice religion.28 Applying the second prong of the Lemon analysis, the court found that the 29 statute had the primary effect of ,,advancing j religion.r'30 Although the statute did not provide direct aid to religion in the form of money or property, only em- ployees who observe a Sabbath day could avail themselves of the benefit of choos- ing their day of rest from work.
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