John G. Roberts, Jr.: We will now hear argument in Case 10-930, Ryan v. Gonzales. General Horne.
Thomas C. Horne: Mr. Chief Justice and may it please the Court: I would like to start picking up on a question asked by Justice Ginsburg on the Rees case. The Rees case is pre-AEDPA. If there is one thing that Congress had in mind when it passed AEDPA, the Antiterrorism and Effective Death Penalty Act, it is that the death penalty process needs to be speeded up, and habeas should not result in undue delays to give effect--
Antonin Scalia: You don't think that AEDPA would alter the outcome of Rees? Do you think Rees would come out the other way after AEDPA?
Thomas C. Horne: --Well, I think that Rees didn't really deal with our issue, which is competence to aid counsel.
Antonin Scalia: That's a different point.
Thomas C. Horne: Yes, I agree, Your Honor, but I thought it would be relevant to point out that it was pre-AEDPA. And then, on that point, this Court has said several times that habeas should not be used to grant indefinite stays. In fact, even pre-AEDPA, in the Barefoot case, this Court said that habeas is not a time to retry a case, and even less is it a time to grant indefinite stays. So the sentence with, “ even less ”, followed the sentence with, “ not ”. So it was even less than not that it should grant permanent stays.
Sonia Sotomayor: So tell me how you define indefinite stays, meaning are you okay with the six months to a year stay for a court to try to get someone back to competence, assuming that there is a claim in which the defendant's information is necessary?
Thomas C. Horne: Yes, Your Honor. We agree with the Ohio position. In the American Psychiatric brief, I think it's page 10, note 20, they said that up to 90 percent of the cases are solved in six to nine months. And I think that if this Court set a standard of no more than a year for the successive stays, that would give some guidance to the courts.
Sonia Sotomayor: So how do you deal with Justice Kagan's earlier question of what difference does it make if the person's still necessary -- or the information, potential information is still necessary, what makes it unnecessary after a year?
Thomas C. Horne: Because I think the consequence of AEDPA is that a balance has to be drawn between the fact that there has to be finality. In fact, this Court has said the purposes of AEDPA include finality, comity, federalism, and reduction of delays in death sentence cases. There needs to be a balance between that and the need to have a competent defendant, if we can have one, in a case where the testimony is necessary. This Court has said several times -- I was going to mention also the Heinze case, where this Court thinks that -- very clearly that stays cannot be indefinite. So I think it would be very helpful for this Court to give a guideline to the courts and say, the way to balance this is that if they get the time in which 90 percent of the cases are--
Sonia Sotomayor: But those cases didn't establish a limit on how long states needed to take to adjudicate claims. They just said a district court should put in conditions that move things along--
Thomas C. Horne: --Yes. That's correct, Your Honor.
Sonia Sotomayor: --that require defendants to press their claims within a reasonable time that required periodic updates, that required monitoring by the court, but it didn't set an artificial end time. It just said you can't just do an open-ended stay and not give conditions to comply with. Why should this be treated differently?
Thomas C. Horne: Your Honor, we think it would be helpful -- and we agree with Ohio on this -- we think it would be helpful if the Court gave some kind of a standard so that there would be some guidance and uniformity, and so that -- so that courts did not get around this Court's--
Anthony M. Kennedy: How would you define that standard? What standard do you suggest?
Thomas C. Horne: --The standard we would suggest would be that six to -- six to nine months would be the standard, and certainly no more than a year; that it would be in months and not years, including not just the first stay, but any successive stays.
Antonin Scalia: In all cases?
Thomas C. Horne: In all cases. In all cases where a stay was appropriate. Now, in the record-based case, no stay is appropriate.
Stephen G. Breyer: What if the -- it might be unusual, but you can't try a person who's not competent. You can't try him.
Thomas C. Horne: That's correct, Your Honor.
Stephen G. Breyer: So what about -- and now he's been tried, and he's been convicted and been appealed and gone through the procedures. But some case could arise where, in habeas, they made like a prima facie showing or a -- convinced the judge that there really is a very good chance here, or maybe even I think it's probable that the basic trial was unfair, to the point where it's like not having a trial. What about in that situation, if it ever arises? I mean, should we leave the door open just for that possibility?
Thomas C. Horne: I think the answer to that is no, Your Honor, because the assumption -- once the conviction has occurred, the presumptions shift. In the criminal trial, all the presumptions are in favor of the defendant. The case has to prove -- the state has to prove its case--
Stephen G. Breyer: I have that. That's why I put in the possibility that on the basis of what's presented to me, the judge, I think I have so much without this defendant's testimony here suggesting it was unfair, that maybe the presumption should shift back. That's what's worrying me in the back of my mind, that there could be such a case. There have been in history.
Thomas C. Horne: --Well, this Court said in Daniels that the presumption is that the conviction was valid, and it becomes the burden of the petitioner to overturn that, or the burden of the prisoner to overturn that--
Stephen G. Breyer: Which he can't do if he's not competent.
Thomas C. Horne: --Sorry?
Samuel A. Alito, Jr.: If there is a time limit -- if there is a time limit of six to nine months--
Thomas C. Horne: Yes.
Samuel A. Alito, Jr.: --at what point does it begin to run? Does it begin to run at the time when the petitioner moves for a stay, even if no effort was made prior to that to restore the petitioner to competency?
Thomas C. Horne: I would believe the time would begin to run with the treatment, because the basis for the six to nine months was what was in the amicus brief against us by the American Psychiatric Association indicating that in six to nine months almost 90 percent of the cases are cured. So we needed to have some basis to suggest a standard to the Court.
Samuel A. Alito, Jr.: No, but my question is this: Suppose that no effort has been made by counsel to provide -- to obtain treatment for the petitioner to restore the petitioner to competency prior to the point when a motion is made to stay the proceeding. The six-to month period would still begin to run at the time when the motion for the stay is made, or would it begin to run at some earlier point or some later point?
Thomas C. Horne: Your Honor, I would think, if the motion is made and the other requirements are shown, that it -- that the prisoner's testimony is essential, then -- and that it's not a record-based case, then I would think the six to nine months would begin to run when treatment begins, because that is our basis for the standard we are suggesting.
John G. Roberts, Jr.: When treatment begins after some sort of initial hearing, right?
Thomas C. Horne: That's correct, Your Honor. When the Court -- if the Court grants the motion for the temporary stay, and presumably treatment would begin right away, or perhaps treatment has been ongoing, but from that point on we suggest a six to nine months standard.
Ruth Bader Ginsburg: In which cases would you say the defendant's ability to assist counsel is necessary, on what issues? You say that if -- the assistance has to be necessary to a fair adjudication--
Thomas C. Horne: Yes, Your Honor.
Ruth Bader Ginsburg: --in what cases would that be so?
Thomas C. Horne: We have difficulty coming up with cases at that stage of the proceeding, Your Honor, because presumably the information the prisoner would have would be known to others. Especially if it's newly discovered evidence, that would typically be from outside, such as a -- somebody admitting -- somebody else admitting to the crime, DNA evidence, something of that sort. It appears to us highly unlikely that the prisoner has information that he didn't disclose earlier when he was competent in the state proceedings and in the post-conviction proceedings at the state level, so we think it would be a very rare case, Your Honor. But we are prepared to admit that if a showing were made that his testimony is necessary, that a six to nine month temporary stay be granted, as long as--
John G. Roberts, Jr.: Why is it -- I don't mean to be nit-picking, but why is it six to nine months? Eight months -- I mean, why isn't it six months? Or nine months? I don't understand why there's--
Thomas C. Horne: --We had to find something to suggest to the Court, and so we took it out of the--
John G. Roberts, Jr.: --So six months? Or nine months? Why does it need to be six to nine months?
Thomas C. Horne: --Oh, I agree, Your Honor. Then it should be nine months, because that's the point at which the American Psychiatric Association says almost 90 percent of the cases are solved.
Anthony M. Kennedy: And if it isn't solved after nine months, then what?
Thomas C. Horne: Then the case proceeds--
Anthony M. Kennedy: If competency cannot be restored?
Thomas C. Horne: --Correct, Your Honor, then the case proceeds, which was the--
Anthony M. Kennedy: Based on the record.
Thomas C. Horne: --Based on the record -- well, if it's record based, there should be no continuance at all.
Antonin Scalia: I don't really understand why the American Psychiatric Association said six to nine months, too. Ninety percent are cured within nine months, right?
Thomas C. Horne: Yes, Your Honor. That's correct.
Antonin Scalia: So you don't have to follow them in that non sequitur, it seems to me.
Thomas C. Horne: No, we don't, Your Honor. We're just suggesting there should be a guideline, and we had to find some basis for the guideline.
Antonin Scalia: Because they are not lawyers, right? They are psychiatrists.
Thomas C. Horne: That's correct, Your Honor.
Samuel A. Alito, Jr.: Well, what happens if after 9 months mental health experts come in and they say there's a 90 percent chance of restoring the petitioner to competency in another 9 months or another three months or another month.
Thomas C. Horne: Your Honor, we're suggesting that the Court should draw a line to guide the other courts, so that -- so that -- because once you allow one additional period, there can be successive additional periods and then it becomes an indefinite stay.
Stephen G. Breyer: Why? I mean -- sorry. I didn't mean to say it in that particular tone. But I mean, trial judges run their trials. You know, that's what they're hired for. And once we make it clear, it shouldn't go on forever, and why can't we trust them to do their job?
Thomas C. Horne: Well, this Court in Heinz said that pre-AEDPA, the courts had discretion to grant stays, but AEDPA circumscribe -- circumscribes that discretion, and so I think this Court needs to give guidance to the courts as to the--
Stephen G. Breyer: It shouldn't be indefinite. The object of this is you're trying to give -- like you would with any witness who's not around at the moment, you're trying to produce a hearing that will reach a result with this witness. And if you think after a reasonable period of time, that witness will recover and be available, fine. And if there is no hope of that, forget it. I mean, you know, something like that.
Thomas C. Horne: --I understand, Your Honor. Our suggestion is -- is that the Court give a guideline. I understand Your Honor's position. I do want to save some time for rebuttal. I just wanted to make one quick point about that the -- that the witness has to be essential to the case being made. It was suggested in the Ohio case that -- that if there were a possibility that he could be helpful, that that would be sufficient. But the American Psychiatric Association and the ABA both agree that there has to be a particularized and substantial case made that the witness is necessary or -- or they also use the word “ essential or necessary ”, and we think that that -- that standard should prevail. And I'd like to reserve time for rebuttal. Thank you.
John G. Roberts, Jr.: Thank you, General.
Thomas C. Horne: Thank you.
John G. Roberts, Jr.: Ms. O'Connell.
Ann O'Connell: Mr. Chief Justice and may it please the Court: The United States agrees with Ohio and Arizona on the general framework for when no stay is allowed and for when a limited stay is allowed in Federal post-conviction proceedings. I'd like to provide the Court with a practical example of how a limited stay might work, since that seems to have been of some concern. An analogous Federal statute is 18 U.S.C. section 4241, the Federal competency hearing statute that the Court cited or provided a CF citation to in Rees. That provides the framework for how a district court determines competency for a prisoner to stand trial and could provide a framework for how a district court should proceed with competency hearings in a case where it would be appropriate. Under section 4241 the criminal defendant, if he is found incompetent, the district court may give an initial period of up to 4 months for him to be treated to determine whether he can come back to competency. If he cannot regain his competency at the end of that 4-month period, then the court can grant an additional reasonable extension of that time if the doctors say that there is a reasonable probability that this prisoner can be restored to competence. That could provide a framework, if that's what this Court is looking to do, for showing district courts how they could enter a limited stay.
Antonin Scalia: Well, what's a reasonable extension?
Ann O'Connell: Well--
Antonin Scalia: Another 4 months? 6 months?
Ann O'Connell: --I think we agree on the outer end that--
Antonin Scalia: I was with you. It seemed to me you had something really, really clear and solid until, you said “ reasonable extension ”.
Ann O'Connell: --Well, but this is what district courts do. They do it whenever a competency motion is filed in a Federal criminal trial, and we agree with the -- the outside limit of about a year. It depends on the -- the interests at stake, the interests at stake in the State in proceeding with its judgment and the interests in finality and whether the doctors think that there's actually a chance that this prisoner could be restored to competence if they work a little harder. If the -- if the evidence is crucial or necessary or there's some indication that we want to work hard to get this information from the prisoner, we would go for a little bit longer. But at some point, that attempt to restore the prisoner to competency has to end and the -- and the proceedings should move forward based on the best evidence that's available.
Elena Kagan: But, Ms. O'Connell, where does that outer limit come from? You suggested looking to that statute as an analogy, but there would be no outer limit in application of that statute, would there?
Ann O'Connell: There's not. But -- but at some point we do give up, and the district courts have discretion to determine how long that would be, and -- and again, we propose an outer limit of about a year, but it's up to the district court in that particular circumstance to see how hard they want to work to try to get that evidence into the proceeding.
Antonin Scalia: Is that any different from what the defendants are arguing here?
Ann O'Connell: Well--
Antonin Scalia: They're saying, you know, give a -- give a temporary stay and extend it as long as -- as you need to.
Ann O'Connell: --Well, the--
Antonin Scalia: So you're taking their position.
Ann O'Connell: --No. The difference between our position and that position is that if after a reasonable period of time the prisoner cannot be restored to competence, the claim should move forward without him using the best evidence that's available. That's because when we arrive at post-conviction proceedings, we have a conviction and a sentence that have been affirmed on direct appeal and are presumed to be valid, and although it's a valid consideration for the district court to take into account whether the prisoner is competent and could assist his counsel has a role in these proceedings, there's no right for the prisoner to be competent during the post-conviction proceedings.
John G. Roberts, Jr.: You said shortly after a reasonable period of time. I thought you were saying after a year. I think it's -- it's some guidance to say no more than a year. It's really no guidance to say after a reasonable time.
Ann O'Connell: Yeah. We think the outer limit should be presumptively about a year. It's not to say that the United--
Ruth Bader Ginsburg: You're talking about a very narrow range of cases, because I take it your principal position is it -- it would be unusual that the defendant needs to be competent in order for the lawyer effectively to represent him on habeas. So, under what circumstances do you think competency matters so that the lawyer should not be expected to go on without a competent client?
Ann O'Connell: --Justice Ginsburg, we think that it would not be an abuse of discretion for the district court to allow the defendant to try to regain his competence and help his lawyer with the proceedings if there is some opportunity for him to present evidence or to present new claims in his proceeding. That may be the case. It will often be the case for a section 2255 petitioner. It is his first round of Federal post-conviction proceedings. It may be his first opportunity to present an ineffective assistance of counsel claim. And in those circumstances, if he has something that -- if the lawyer has something that he wants the prisoner's assistance with or may need testimony from -- from the prisoner, we think the district court has discretion to allow a stay, a limited stay to allow the prisoner to regain his competence.
Samuel A. Alito, Jr.: So it's not limited to cases where the review is restricted to the record.
Ann O'Connell: Right. In those cases, we think that no stay is appropriate, that it would be an abuse of discretion to enter a stay. AEDPA doesn't tolerate delay without a justification, and if it's a record-based claim like a State prisoner where he's barred by section 2254(d) in Pinholster from bringing in new evidence and that the review is strictly limited to the State court record, then there is no role for the prisoner to play and it would be an abuse of discretion for the district court to stay the proceedings in an effort to bring him back.
John G. Roberts, Jr.: What is the standard when the district court is deciding whether to stay the proceedings? We've heard a number of them, plausible basis in the record, truly plausible, Iqbal. Which -- which -- what is the Government's position on the appropriate standard?
Ann O'Connell: We -- we think that the district court has discretion to grant a stay when the prisoner's participation could be -- he could provide a useful source of evidence or guidance in the proceedings.
John G. Roberts, Jr.: Could.
Ann O'Connell: Yes.
John G. Roberts, Jr.: Your standard is “ could provide ”?
Ann O'Connell: Yes. In those circumstances, we don't think the district court would abuse its discretion by allowing him an opportunity to regain his competence.
Antonin Scalia: “ Could provide ” means might provide; is that it?
Ann O'Connell: Yes, yes.
Antonin Scalia: So just a possibility--
Ann O'Connell: Right.
Antonin Scalia: --that's all it takes?
Ann O'Connell: If there is an opportunity for this prisoner to present new claims or new evidence in his section 2255 proceeding, that we don't think it's an abuse of discretion for the district court to allow him that opportunity.
Sonia Sotomayor: But you cap it by saying as long as the discretion is not exercised for more than a year.
Ann O'Connell: That's right. We think it has to be just a limited stay. We -- the United States would be opposed in any circumstances to a stay that's conditioned only on the prisoner's ability to regain his competence. At some point if he can't, we move forward.
Sonia Sotomayor: Would that standard have been met in both of these cases? Meaning, Carter's claim -- and the one that concerns me the most is why he was excluded from trial, and what if he did or did not do with his attorneys afterwards. And Gonzales is a slightly different case. But would your position be that in both cases there was enough?
Ann O'Connell: Not just that there was enough, but that the Federal court would be prohibited from considering further information.
Sonia Sotomayor: No, no, no. My question was, on the facts of both of these cases, was there a basis for granting the stay with respect to--
Ann O'Connell: No.
Sonia Sotomayor: --their conditions?
Ann O'Connell: No. Because both -- all of the claims involved in these two cases are limited to the state court record and Federal post-conviction proceedings under Section 24 -- 2254(d) and Pinholster. This prisoner could not provide any new evidence to his client that could be introduced at court or that could be relied on by the Federal court.
Sonia Sotomayor: Neither Carter or Gonzales?
Ann O'Connell: That's right.
Stephen G. Breyer: Why would we, in this kind of case, as opposed to, say, some other case where a witness is missing and it's crucial? The district court does have authority to grant stays. And we haven't said, but no longer than a year. Why do we say, but they do it in a reasonable time? If they abuse their discretion, there is mandamus, or there are other ways of controlling the discretion. Why are we suddenly here, in this case, imposing a fixed number of days? I mean, the reason, of course, that the psychological association says six months to nine months is they have different studies. In some places, it's six months; in some places, it's nine months. And so why are we picking a number out of a hat here when we don't elsewhere?
Ann O'Connell: The Court doesn't have to do that. We're -- we were suggesting a year as the outer limit just because that is sort of what the amici say is sort of the outer limit for when people will be restored to competency if they are going to be able to be restored; but, the Court doesn't have to -- to set an outer limit. I mean, it -- it -- but it -- what we are most--
Stephen G. Breyer: It should, but it should be something like reasonable or don't abuse your discretion or -- I mean, at the moment, I'm just not seeing why this is different than 10,000 other kinds of instances where we set that kind of limit, rather than days.
Ann O'Connell: --Well, perhaps it isn't. But to -- to go along with that analogy, if a different piece of evidence or a different witness were unavailable, we wouldn't allow the district court to hold up the proceedings indefinitely to wait for that witness. And so it should be no different when the Petitioner--
John G. Roberts, Jr.: You don't mean -- you are not suggesting that don't abuse your discretion is a limit, are you?
Ann O'Connell: --Well, you know, if the Court wants to provide more -- more guidance to district courts, I mean, we would say that about a year is how long it would take for a person--
Ruth Bader Ginsburg: Well, why should the--
Ann O'Connell: --to regain their competence.
Ruth Bader Ginsburg: --why should the Court do that? Why should it provide any guidance if, as you say, in both of these cases the review is limited to the record, and we would never get to the question of, if it weren't reviewed, limited to the record, then what?
Ann O'Connell: That would be a perfectly appropriate -- also a perfectly appropriate way to dispose of this case, to conclude that all of these claims were limited to the record, and that it was an abuse of discretion to grant a stay in these cases. Thank you.
John G. Roberts, Jr.: Thank you, Counsel. Ms. Marquez.
Leticia Marquez: Mr. Chief Justice, and may it please the Court: I'd like to begin by correcting a statement by the United States. Mr. Gonzales is not precluded by 2254(d) or Pinholster. Mr. Gonzales has identified several ineffective assistance of counsel claims that would be ripe for review under this Court's decision in Martinez and, therefore, would be available in district court. And we would also be able to present new evidence.
Elena Kagan: Ms. Marquez, could you tell me, if it were the case that somebody was limited to the state court record, what's your best example of a case in which, nonetheless, a stay would be appropriate; in which, nonetheless, consultation with the client was necessary for a full and fair adjudication? Because I have been trying to think of examples, and, you know, I'm not doing very well, quite honestly. So what's your best one?
Leticia Marquez: Well, in our particular case, we -- we raise several claims in habeas -- in habeas proceedings. We raise guilt claims, and we also raise sentencing claims. And it is often the case with our clients that, at their direction, they choose not to -- not to pursue or do not want to pursue sentencing claims and want to only pursue guilt claims. So those are claims that are strictly on the record, and under the ABA guidelines the client is the ultimate decisionmaker as to where the particular representation is going. So that is a huge, all-encompassing decision that a client needs to make as to the ultimate outcome of his or her case.
Sonia Sotomayor: Well, that is that you're -- that seems like almost a due process argument, that in every single case you have to grant a stay. You're -- you're parting from the Respondent in Carter, and you are making a broader argument.
Leticia Marquez: Well, Your Honor, where it does -- just an example of where if there is a client in -- in that particular situation--
Sonia Sotomayor: No incompetent client, presumably, can help you make those decisions. So tell me, are you saying that in every single case, the client is entitled to a stay?
Leticia Marquez: --No, Your Honor, we're not saying in every single case.
Sonia Sotomayor: So why does that situation give you an entitlement if it's not in every single case?
Leticia Marquez: The -- that situation goes with the ABA guidelines and what an attorney's duties are to maintain communication with the client. And that's just but one reason why we need a -- a competent client. But to answer your question--
Antonin Scalia: Excuse me. If the client is incompetent, you -- you bring both claims, right? You -- you both -- you both challenge the guilt, and you challenge the sentence.
Leticia Marquez: --That -- that is if a client is incompetent. I suppose, if that's -- if we were forced to do so, we would.
Antonin Scalia: So why -- why -- why is it -- it is unfair to prevent -- to stop everything so that the client can tell you not to bring one of those things? I don't know why that's unfair.
Leticia Marquez: That's just but one -- one reason why we would need a client. But to answer Justice Kagan's question, we -- we -- there are several claims. Ineffective assistance of counsel claims are -- are necessary for -- for us to be able to talk to our client. And especially in this case, where there was an antagonistic relationship between his -- the client and the trial lawyer, that would put the situation in context, and we would able to -- be able to identify those facts.
Ruth Bader Ginsburg: Why couldn't you use the transcript? Everything -- all -- all the exchanges between the defendant and the trial judge are in the transcript.
Leticia Marquez: Well, in -- there -- there are -- transcripts are -- are available and -- but there are situations that are not transcribed. In inner -- in ineffective assistance of counsel claims, the interactions between the lawyer and the client at the prison, at the jail--
Antonin Scalia: But you can't get that in, right? I mean, aren't you limited to the record? So what -- what use is it--
Leticia Marquez: --Well--
Antonin Scalia: --to -- to find out these little -- little secret things that your client knows if they cannot be admitted?
Leticia Marquez: --Well, as this Court held in Pinholster, not all Federal habeas claims fall within the scope of 2254(d). And there are situations where we would be granted an evidentiary hearing. In this particular case, we have not yet been -- briefed our 2254(d) claims. We are at the stage where we're going to brief merits claims, and, in addition to that, we are going to brief evidentiary development in this case, where we would have to assert what -- what facts need to be developed and, also, the diligence standard.
Sonia Sotomayor: What in the record could plausibly, certainly be seen that would suggest that your defendant has information that could be valuable? Assume it's not the ABA standard, but the plausibility standard or the certainty standard or something.
Leticia Marquez: Well, there was -- there is information in the record that the trial judge and our client had an antagonistic relationship. And there was comments -- the trial prosecutor was interviewed -- or said on the -- on the record that the judge and the defendant, Mr. Gonzales, snarled and snapped at each other.
Sonia Sotomayor: Well, that you can see from the record.
Leticia Marquez: Right.
Sonia Sotomayor: What would plausibly give rise to a belief that there was some ex parte exchange between the judge and the defendant? Is there anything to suggest that in the record?
Leticia Marquez: Well, we would -- we would suggest that the actual relationship itself. We would have to know where -- where this relationship went awry, or why it is that Mr. Gonzales and the trial judge were basically at each other's throats. The intensity--
Sonia Sotomayor: Do you have anything to suggest that there had been an ex parte exchange that would account for that snarling?
Leticia Marquez: --We currently have not been able to get that information from our client as to -- to sit down to -- with our client and say, what happened in this situation?
Ruth Bader Ginsburg: The district judge in this case explained why he concluded that there was no issue that couldn't be fairly adjudicated on the basis of the record. What was wrong with his explanation? He looked at the case carefully and he said: There's nothing that can't be fairly adjudicated on the record.
Leticia Marquez: First, initially, the district court judge agreed with -- with Mr. Gonzales that there was a need for Mr. Gonzales to be competent at his habeas proceeding. And we actually began a course of -- of a competency determination. And -- and that is a longer record. Also, our client went into -- was treated at the State mental hospital. However, the -- we believe the trial, or the district court judge, was in error when he made that finding. The trial judge did not have -- or the district court judge did not have all the evidence before it when the district court looked at the particular claims. We were just asked to identify. We did not put forward a -- a complete briefing on that issue. And the--
John G. Roberts, Jr.: Counsel? I'm sorry--
Leticia Marquez: --the judge decided it just on a motion.
John G. Roberts, Jr.: --If -- if we think it's necessary to set some objective limit on how long an inherent authority could be exercised, is there any reason to adopt any limit other than the one that the psychiatrists have suggested, which is, I gather, most people, if they're going to, will recover competence within 9 months?
Leticia Marquez: Excuse me, Your Honor. No. We -- a year or 6 months, just by listening to the questions from the Court, seems to be problematic. We suggest that this is all within the district court's discretion.
John G. Roberts, Jr.: So if we're looking for a little more guidance than that, and feel the need for an objective standard other than abuse of discretion, you don't have any number that has any basis in psychiatric evidence, or anything else, besides the 9 months?
Leticia Marquez: Well, Your Honor, we would suggest that the Court look to this decision in Rhines, where -- and my answer is, we can look at a year. And possibly, if the client is not competent at the end of that year, then explore other options such as next friend or perhaps proceeding. But what we would do is direct the Court to this Court's decision in Rhines, where stays were -- where district courts are allowed to -- to stay a proceeding so that the petitioner could -- could go back to State court and exhaust. And in -- in that decision, the Court was specific as to guidelines for the district court to assert its discretion. 30-day updates, make sure that clients are not -- are not being dilatory in seeking these stays, and so forth. And the -- there has not been a problem with Rhines stays. The district courts have been able to handle those stays.
Sonia Sotomayor: Counsel, in this case, the district court denied a stay. If this is an equitable power, how can you be comfortable that the Ninth Circuit as an appellate court overrode the district court's equitable discretion?
Leticia Marquez: We believe that the district court was -- abused its discretion, but first did not apply the correct standard, which is essential communication. The district court erroneously decided that Mr. Gonzales was not essential, or his communication was not essential to the proceedings.
Sonia Sotomayor: But you're not claiming that that issue is always in the district court's hands to start with.
Leticia Marquez: Yes.
Sonia Sotomayor: So please identify for me what -- how we establish or set a standard so that appellate courts are not overriding that at whim?
Leticia Marquez: Well, we would -- we would urge the Court to adopt the district -- or the Ninth Circuit's essential communication standard, where you first have a finding of competency, and then a determination of whether that client's communication is essential to the proceeding.
Sonia Sotomayor: Oh, you're flipping it. You're saying first you give a stay for competence. You've determined competency first and not essentiality first?
Leticia Marquez: Well, that's how the cases are -- are being raised. Always there is a question of competency, and then the courts are looking to whether or not there is essentiality. I would also like to address the argument that the AEDPA somehow -- or AEDPA -- somehow forecloses any types of stays. Congress recognized the need for finality to be balanced against a firm regard for due process and full constitutional protections. So we are--
John G. Roberts, Jr.: Nobody here thinks today -- no one's arguing that it prevents any kind of stay today, right?
Leticia Marquez: --But I was just -- I was just letting the Court know that the AEDPA does not foreclose stays. I thought I heard--
John G. Roberts, Jr.: I didn't understand -- I thought everybody was focusing on the limitation on stays. And surely AEDPA is pertinent when it comes to recognizing the need for those limits, right?
Leticia Marquez: --Exactly, Your Honor. Also, I would like to address the Court's -- or the Government's concern as to whether or not these cases, or Rohan decisions, would open the floodgates to district court stays. The -- we've pointed out in our briefs on page 32, 33, the few stays that have actually been granted. The district courts have been handling these motions. And unless there's any further questions--
Samuel A. Alito, Jr.: Well, if there -- if the Court were to point to some guideline as to the maximum length, or the presumptive maximum length of a stay, what -- because that's the period within which there's a good chance in most cases of restoring a petitioner to competency -- at what point would that begin to run? Would there be any obligation to begin the treatment prior to the -- to the time when the motion for a stay is -- is filed? Could many years go by with the same attorney representing a client, and then at the very last minute -- and no effort is made to obtain treatment that would restore the petitioner to competency, and then at the very last minute, a motion for a stay is entered, and then this period of time -- 6 months, 9 months, a year, whatever it is -- would begin to run?
Leticia Marquez: --I believe there's an obligation for counsel to continue to try to effectively communicate with his client. And once that attorney gets to a point where that incapacity forestalls that attorney from being able to move forward on his case, then that attorney is at that point under a duty to raise this claim with the district court.
Anthony M. Kennedy: Well, is he under duty to raise it as soon as possible, at the risk of forfeiture if he doesn't? That's the import of the question.
Leticia Marquez: Well, that's -- that's the million dollar question. I would think that the--
Anthony M. Kennedy: Well, that's why I'm asking. [Laughter]
Leticia Marquez: --I -- I think the ABA guidelines on ethical duties guide attorneys to make that decision. And yes -- I'm sorry -- if there is dilatory action on the part of the attorney, that is something for the district court to consider in issuing a stay.
Samuel A. Alito, Jr.: Well, here, the motion -- when was the motion made, the motion for a competency determination and a stay?
Leticia Marquez: The motion in this case was made when we -- the stay was lifted in district court, and we were ordered to do -- to do merits briefing.
Samuel A. Alito, Jr.: And when was that? Do you remember the date, roughly?
Leticia Marquez: That was in 2000 -- February 2006.
Samuel A. Alito, Jr.: And when was the initial habeas petition filed in district court?
Leticia Marquez: It was filed in July 2000.
Samuel A. Alito, Jr.: Of 2000?
Leticia Marquez: Yes.
Samuel A. Alito, Jr.: So why wasn't there -- then there was no obligation to do anything between 2000 and 2006?
Leticia Marquez: The counsel was attempting to communicate with the -- with Mr. Gonzales the entire time. At that point, the case was stayed in district court for Rhines and Ring and Summerlin determinations. And--
Samuel A. Alito, Jr.: It was only after 6 years of being unable to communicate with him that the attorney said maybe there's a competency problem here?
Leticia Marquez: --No. We were having difficulty with the client the entire time since we started -- since we first got on the case. And after -- and we just thought he was a difficult client. And after we -- we filed the amended petition, which was basically a notice pleading, the -- within a month of that, we first got in contact with mental health experts saying there's something wrong with this guy, and sought to put together his mental health history. At that point, Mr. Gonzales was back in State court exhausting issues and raising Ring claims. In that court -- in the State and district court -- in that court, his post-conviction counsel raised ineffective assistance -- I'm sorry, competency issues -- and it was -- and it was an incompetency to assist in post-conviction -- post-conviction -- and that claim was denied.
John G. Roberts, Jr.: So, did -- did he begin treatment prior to the district court order on Federal habeas?
Leticia Marquez: No. It was not until the district court ordered -- or, actually, the district court ordered him transported back to -- or transported to the state mental hospital, and there he was to be evaluated to finally determine competency. And while there, he was -- he was treated. And while he was being treated, he was starting to regain competency, at least to some extent. Then treatment stopped.
Ruth Bader Ginsburg: Treatment stopped because he said there were side effects?
Leticia Marquez: Because he had back pain. And then we began briefing on what the course of treatment should be, if any.
John G. Roberts, Jr.: Well, so how -- what is this nine months or one year? Is that the amount of time he's under treatment or the amount of time from the district court determination?
Leticia Marquez: I believe he was at the state mental hospital for about six months, and he was being evaluated. And as -- inadvertently, then, the state mental hospital began treatment.
Sonia Sotomayor: The million dollar question: Assume we say you have to spend a reasonable time trying to get someone to competency. And, here, there appears to have been efforts to do so. And your client is saying, I can't be treated because the drugs make me sick. So when does all of this end?
Leticia Marquez: Well, first, our client did not say he couldn't be treated because -- that he couldn't be treated. It was just these specific drugs. And we were on a course of trying to figure out what, if any, other regimen was available. And we believe that it is within the district court's--
Sonia Sotomayor: Well, that time has passed by now, hasn't it? That that -- they stopped treating him?
Leticia Marquez: --They -- they quickly transported him back to DOC, and he is not being treated currently.
Sonia Sotomayor: No one's continuing to monitor him or trying to treat him?
Leticia Marquez: No, Your Honor. And we are -- we do not have -- he will not see us, and we do not have access to medical records because we do not have a current release. And the district court did not grant us an order to get those records on a consistent basis. So we have no access to our client whatsoever.
Sonia Sotomayor: I'm a little confused as to-- I think the Ninth Circuit remanded so that treatment could be had. So why has it stopped?
Leticia Marquez: Well, we haven't moved forward in district court. We have been here appealing our decision. Or the state has appealed the decision.
John G. Roberts, Jr.: Thank you, counsel. General Horne, you have three minutes remaining.
Thomas C. Horne: Thank you, Your Honor. I need to disagree with the Solicitor General on one point about the standard. The standard has to be essentiality. The witness has to be essential. In fact, you heard my friend representing Gonzales emphasize essentiality, and it was emphasized in their -- in their responsive brief at pages 1, 2, 9, 10, 11, 12, 21, 30, and 39. On all of those pages, they said the witness's testimony must be essential.
Elena Kagan: General, could I ask you, you have been arguing on two different axes. One is how tight the standard should be to grant any stay at all, and the other is what limits there should be on how long a stay can be if a stay is warranted. And I'm just curious, if I forced you to prioritize in terms of the state's interests in effective habeas adjudication, which is more important, you know, cranking up the standard, or making sure that there is a time limit in place?
Thomas C. Horne: Well, I think the first -- the first priority is that there should be no indefinite stay, and the second priority is that there should be no stay in a records-based case. Those are the two prongs of the Ninth Circuit decision which we think--
Elena Kagan: But ordered in that way, that, for you, the time limit is the more important?
Thomas C. Horne: --The time limit is crucial, but I have to say no stay on a records-based case is a matter of pretty clear law that is--
Elena Kagan: Yes, I know. But, really, I said, if I forced you to prioritize between the two.
Thomas C. Horne: --I would say it can't be indefinite. That would be the first priority. But I think it's also clear from this Court's very definite statements in a number of cases that -- that there cannot be a stay in a records-based case. Now--
Ruth Bader Ginsburg: Opposing counsel says there is an exception for ineffective assistance of counsel under our decision in Martinez.
Thomas C. Horne: --Your Honor, in this case, the district judge specifically found that there is no possibility for a case of ineffective assistance of counsel, that those were waived by the -- by -- when the case was sent back to the state for additional post-conviction relief proceedings, that claim was waived. It's in the district court's order, Appendices B and C to our -- to our petition. And even the Ninth Circuit didn't argue that. The Ninth Circuit argued that there was an issue as to whether there was prejudice by the judge. But there is a very detailed analysis, again, in the district court's order, showing that every time that claim was made, and was claim -- made a number of times in the state proceedings, it was clear that those were on-the-record comments. There was nothing secret. There was nothing ex parte. Those were on-the-record discussions that were being complained about. And the district court judge found that if there was something secret, then those have been waived by the petitioner because he didn't bring it up in the numerous case -- times that it came up at the state level, and he was talking only about on-the-record comments by the trial judge.
John G. Roberts, Jr.: Thank you, General, counsel. The two cases are submitted.


William H. Rehnquist: We will hear arguments next in Ansonia Board of Education against Ronald Philbrook. You may proceed when you're ready, Mr. Sullivan.
Thomas N. Sullivan: Thank you, Mr. Chief Justice. Mr. Chief Justice, and may it please the Court: This case raises two issues with regard to the provisions of Title VII of the Civil Rights Act of 1964, which prohibit discrimination by an employer against an employee because of his religion. The first issue is whether an employee who needs to be absent from work to observe his religion, and who is provided a combination of paid leave and unpaid leave for that purpose, proves a prima facie case of discrimination under Title VII, based upon the employer's refusal to compensate him for all of his absence for religious observance. The second question posed is whether an employer who has implemented a reasonable accommodation of an employee's religion, is nevertheless required to accept the accommodation the employee prefers, absent the showing of undue hardship and the conduct of the employer's business. Now, the essential facts in this case are as follows: The respondent, Ronald Philbrook, is a public high school teacher, employed by the petitioner, Ansonia School Board, as a business teacher. Since 1968, Philbrook has been a member of the Worldwide Church of God, and as such, he is required by his faith to absent himself for approximately six days a year from his employment to observe religious holy days. Under the governing collective bargaining agreement, all of the school board's teachers, including Philbrook, are provided three days annual paid leave for religious observance. Teachers are also provided under the agreement with 18 days of annual leave for other reasons, such as illness. And these are confined to specific numbers of days per occurrence per reason. Teachers are also provided, in addition to the three days for religious observance and the 18 days of annual leave, with three days of annual leave for necessary personal business. Under the specific provisions of the bargaining agreement, these days may not be used for any reason for which leave is otherwise provided under the bargaining agreement. And they may be used only for reasons which require a teacher's absence from work.
Antonin Scalia: Is that so during the entire period here?
Thomas N. Sullivan: No, it wasn't. Your Honor, early on in the bargaining relationship between the union and the school board, the leave provisions were more lenient in that respect.
Antonin Scalia: Between, what was it--
Thomas N. Sullivan: '67 and '68.
Antonin Scalia: --'67 and '69, they could use those three days, as far as we know, for anything they wanted?
Thomas N. Sullivan: That's correct.
Antonin Scalia: But nonetheless, Philbrook was not allowed to use it for religious reasons.
Thomas N. Sullivan: The record is not clear on that. The evidence in terms of Philbrook's absences for religion relate back to the 1970-71 school year, which you can see set forth in the appendix to our brief. The record is not clear in this case as to how he was treated prior to that time. It's our understanding that he was allowed, up until the 1970-71 school year, all of the leave he needed, with pay, for religious observance. So that the change came when the parties to the bargaining agreement negotiated specific restrictions on the use of personal leave. Now, because the bargaining agreement--
Sandra Day O'Connor: Counsel, is it possible, since the court below didn't really decide these factual questions on how the three-day personal leave provision was in fact administered, or how Mr. Philbrook was treated with regard to it, that some remand might be necessary on the 703 issue?
Thomas N. Sullivan: --Your Honor, we don't think so, and for this reason: We feel that the record in this case permits no other conclusion than that the leave provisions of the contract have been consistently interpreted in accordance with the explicit provisions of the contract so as to preclude the use of necessary personal business leave. And that's the leave we're really talking about here, those three days which Philbrook claims ought to be allowed for religious observance. Those three days, under the contract, cannot be used for any reason for which leave is otherwise provided. And the administration of the school system has determined--
Sandra Day O'Connor: Even under the terms of the contract, it looks like the one day which can be granted on the request of the teacher alone without any inquiry at all would lend itself to use for any purpose whatever, in practice.
Thomas N. Sullivan: --We don't agree with that, Your Honor. The one day that the teacher can use by only stating the reason is a personal reason still can only be used under the contract for reasons which require the teacher's absence from work. And that one day, even though discretionary in the sense that the teacher need only state, it's for a personal reason, cannot be used for one of the reasons for which leave is otherwise provided. We feel the contract is clear on that. And the record shows that the superintendant of schools strictly enforced these leave provisions. There's no evidence to the contrary.
Antonin Scalia: You're just saying that this... as to this one day, it's not practically enforceable, and it's left up to the conscience and responsibility of the teacher.
Thomas N. Sullivan: That's correct. A teacher can be disciplined after the fact, if it's found out that the day was improperly used.
Antonin Scalia: What's the purpose of the provision, that one day provision? That it may be something so confidential that the teacher wouldn't want to spread it on the record, or something of that sort?
Thomas N. Sullivan: We don't have any bargaining history on that, so it's simply a matter of conjecture. But I would say yes. In collective bargaining agreements, personal day leave provisions, it's not unusual to give a teacher a discretionary day, because the reason may be so personal as to cause embarrassment if it's shared with anyone else. But it still must be a day that requires the teacher's absence from work.
Speaker: What does that mean?
Thomas N. Sullivan: It means that the business--
Byron R. White: It means that you can't be in school and some place else at the same time.
Thomas N. Sullivan: --No, Your Honor, it means, I think, that the particular reason--
Byron R. White: Well, what if you want to go to a wedding, like yours, I mean, like the teacher's. You know, they could have put it on a Sunday or a Saturday.
Thomas N. Sullivan: --The leave provisions do provide leave for weddings already.
Byron R. White: Well, what does it mean, require to be away from work?
Thomas N. Sullivan: The interpretation of the contract, as indicated by the superintendant of schools in his testimony, is that the reason for the leave must concern a matter than cannot be handled outside the workday. So in that sense, it's necessary personal business. In other words, arrangements cannot be made outside of work to conduct that particular business.
Byron R. White: So I have to meet my mother-in-law at the airport. That qualifies?
Thomas N. Sullivan: It might depend on the consequences of not meeting your mother-in-law. I don't know, Your Honor.
Byron R. White: What about yours?
Thomas N. Sullivan: Those are the kind of judgment calls, obviously, that have to be made in administering these kinds of provisions. And I don't think you can make a conclusive list, in this area.
Byron R. White: I'm buying a house and I want to be present when the engineer looks at it to give me an estimate on what repairs are necessary.
Thomas N. Sullivan: If the arrangements cannot be made on another day, then that might very well constitute necessary personal business. Now, because the bargaining agreement limits paid leave for religious observance to three days per year, and Philbrook generally needs more, the school board has allowed Philbrook the additional time off without pay. Dissatisfied with this arrangement, and having satisfied the jurisdictional requirements, Philbrook brought suit in District Court, claiming a violation of Title VII, as well as the First Amendment, based on the school board's failure to compensate him in some way for all of his days of leave caused for religious observance. The District Court found no discrimination, and dismissed the complaint. The Court of Appeals reversed, deciding only the statutory issue, and remanded for a determination as to whether any of the accommodations proposed by Philbrook could be implemented without undue hardships. And those proposed accommodations essentially involved the use of those three necessary personal leave days for religious observance, or the payment of the cost of a substitute teacher, which would have lessened the economic impact on Philbrook for having to take that time off without pay. Philbrook had also proposed that he be allowed to do some other meaningful work in conjunction with one of those accommodations. In reversing the District Court and remanding the case, the Court of Appeals held that Title VII requires an employer to accept an employee's proposed accommodation, where the employer and the employee each propose a reasonable accommodation to the employee's religious beliefs.
William H. Rehnquist: Didn't they say, unless there was undue hardship, or something like that?
Thomas N. Sullivan: Yes, the Court of Appeals viewed the reasonable accommodation provisions as necessarily having to involve a determination of undue hardship on the employer, the theory apparently being that unless there is some hardship, short of undue hardship on an employer, the employer has to go beyond the reason accommodation it has made, and consider the proposal of the employee.
Antonin Scalia: Isn't that what the EEOC regulations seem to require?
Thomas N. Sullivan: Yes, I think so. And because the EEOC regulations guidelines... not regulations... do indicate that the employer has to attempt to implement the accommodation which least disadvantages the employee in terms of, in this case, compensation. This Court has, of course, stated on several occasions that the EEOC guidelines do not have the force of law. And we feel that the guidelines, in that particular respect, are in conflict with the plain language of the statute. Title VII makes it an unlawful employment practice for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, or conditions, or privileges of employment, because of such individual's religion. The statute defines religion to include all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's observance or practice without undue hardship on the conduct of the employer's business.
Sandra Day O'Connor: Mr. Sullivan, how would you define what is a reasonable accommodation under Title VII?
Thomas N. Sullivan: Your Honor, I would define a reasonable accommodation as one that resolves the conflict between the employee's religious needs, in this case in terms of religious observance, and his job requirements. And that is, I think, the crucial factor in this case. Because the employer has implemented an accommodation, which resolves the conflict between Philbrook's need to be on the job and his need for religious observance, a reasonable accommodation has been made. And the statute has been satisfied as a result. Consequently, we feel that the District Court was correct in determining that Philbrook had not established a prima facie case of discrimination. Now, the Court in doing that implemented a three-pronged test to determine whether or not there was a prima facie case of discrimination in this case. First of all, the Court said: Is there a conflict between the employee's religious needs and the job requirements? Secondly, has the employer informed the employee of his conflict? And thirdly, has the employee been disciplined as a result of a failure to comply with the job requirements. In this case, we feel there's no conflict, as I've indicated in response to Justice O'Connor's question. And thirdly, there's been no discipline in any sense. Certainly Philbrook's not been discharged from his employment. He's not been deprived of any benefit to which he would otherwise have been entitled except for his religion. He's not been disciplined in any way.
Sandra Day O'Connor: Would you take the position, Mr. Sullivan, that an employer who's told employees they could have no time off for any personal reason or any religious purpose whatever, except to the extent they want to take time without pay... you won't lose you job, but you can take the time off; you just won't be paid for it. Is that a reasonable accommodation, in your view?
Thomas N. Sullivan: Well, I'm not sure I understand your question. If the employer is saying... if the employer provides some kind of paid leave, but no leave for religious observance, I would view that as clearly discriminatory.
Sandra Day O'Connor: No paid leave for any purpose, but you can take time off for personal or religious reasons, without pay. Is that, in your view, a reasonable accommodation?
Thomas N. Sullivan: Yes. Because the three-prong test of religious... to determine a prima facie case of discrimination was not met in this case--
Antonin Scalia: Excuse me, because this ties in with what Justice O'Connor just asked. You answered the way you did, I presume, because the employer in that hypothetical is being... is treating both religious and nonreligious leave equivalently?
Thomas N. Sullivan: --That's correct, Your Honor.
Antonin Scalia: Now, is he doing the same here? How do we know that three days of leave for days of rest, religiously required, how do we know that that's enough, that that's equivalent to 18 days for nonreligious reasons? How do we know that that's an equivalent treatment of religion?
Thomas N. Sullivan: Well, we don't. I'm not sure that the mere fact that the leave provisions are under-inclusive, in the sense that they do not provide Philbrook all the leave he needs for religious observance, is determinative of the issue.
Antonin Scalia: Oh, it isn't that they don't provide him all that he needs. The issue is whether, without the use of those three other days, the employer is treating religious leave and leave for other than religious purposes equally. And I look at it. And gee, there are only three days for religion, and there are 18 days for other than religion. So we really don't have the kind of hypothetical that Justice O'Connor gave you, where you get no leave for any reason; no paid leave for either religion or nonreligion.
Thomas N. Sullivan: Well, Your Honor, I don't believe that Title VII requires an employer to provide that kind of equal treatment. What Title VII indicates is that employees shall not be discriminated against on the basis of their religion. And if, in fact, there is some evidence of discrimination, then that triggers the duty to accommodate.
Antonin Scalia: So you can give... suppose it said 18 days for any reason except religious; that's all right?
Thomas N. Sullivan: I think that would be perfectly all right, absent a showing of discriminatory intent or motive.
Antonin Scalia: What do you mean, discriminatory? I don't understand. Isn't that discriminatory on its face? Any reason will suffice except a religious reason?
Thomas N. Sullivan: Well, that's not what the leave provisions say, though.
Antonin Scalia: No, I understand that. Suppose he just gave them, you know, 18 days for other than religious reasons; two hours for religious reasons. At what point does it become nondiscriminatory? How do you know that three days is enough to make it nondiscriminatory?
Thomas N. Sullivan: I would agree that there would be some point where, on the face of the bargaining agreement, so much accommodation has been made to secular needs, and so little accommodation made to religious needs, that on the face of the provisions, the leave provisions are discriminatory. I do not believe that this is a case like that.
Antonin Scalia: Maybe not. I just don't know what the test is. Is the test, perhaps, that there was some estimate by those who bargained in the collective bargaining agreement as to how much time off the average employee needs for all these other purposes. And when they figured it all out, the average employees needs 18 days for nonreligious, and three days for religious?
Thomas N. Sullivan: Your Honor, I'll confess I have no idea where these leave provisions came from. There's no bargaining history to indicate why the parties through the years structured this kind of a leave provision.
John Paul Stevens: Well, Mr. Sullivan, it isn't quite right, is it, that the normal employee would get all 18 days? For example, it's not every year that you have a death in the immediate family, a family funeral to... all those, I assume, happen infrequently rather than regularly.
Thomas N. Sullivan: Your Honor, I think that's correct, and I think that's important in determining the reasonableness of the leave provisions in this particular case.
John Paul Stevens: And isn't it true that except for the three days of personal leave, each of the other 15 days is earmarked for a specific, narrow purpose?
Thomas N. Sullivan: That's correct, Your Honor.
John Paul Stevens: And so the question is whether you can impose the limit on the three days for personal leave provision.
Thomas N. Sullivan: And of course that limit is no different from the limit imposed on the other reasons for which leave is provided. I would also say this, and the record indicates, that for teachers such as Philbrook, who needs the three days leave with pay every year, those are guaranteed to occur in terms of the cost impact on the employer. The other leaves may or may not occur. Certainly the necessary personal business leave may never occur for any teacher, hypothetically speaking.
Sandra Day O'Connor: Mr. Sullivan, would an employer's policy that just says, across the board, no personal leave for anyone for any purpose, meet the requirements of Title VII for religious accommodation?
Thomas N. Sullivan: No leave for any purpose or for any reason?
Sandra Day O'Connor: Right.
Thomas N. Sullivan: I would say that in that case there would still be a duty on the part of the employer to attempt to accommodate the employee's religious beliefs.
John Paul Stevens: May I ask one other question? Does the record tell us how frequently, for the work force in general, the personal leave privilege was exercised? I noticed for eight years in a row, the respondent didn't take any personal leave. Do most employees take some?
Thomas N. Sullivan: The evidence indicates, Your Honor, that for the last year, the most recent year for which we have any information, in 1983-84, which is the year that impacted the time of trial, two teachers, out of a total of 150, had used all of their necessary personal business leave days. So the record indicates that these days are not frequently used.
Byron R. White: And what would you say if the employer gave paid leave only to people who wanted off for religious purposes? No paid leave for anybody else for any other reason. Now, is that... could you do that?
Thomas N. Sullivan: No paid leave for any reason, but paid leave only for religion? Well, I feel that--
Byron R. White: That certainly is an accommodation.
Thomas N. Sullivan: --That would be an accommodation, certainly, and I think the private employer could do that. I think--
Byron R. White: Well, isn't the person who wants personal leave off for some other... for some secular purpose, says, Mr. Employer, you give this fellow time off for going to church; I want to go attend a class at the university. And you're discriminating against me.
Thomas N. Sullivan: --If Title VII is interpreted to require that kind of result--
Byron R. White: No, not Title VII; this is a preference for religion.
Thomas N. Sullivan: --It could constitute a preference for religion. If a school board did that--
Byron R. White: But an employer could do that, but a school board couldn't?
Thomas N. Sullivan: --I don't think a school board could do that, Your Honor.
William H. Rehnquist: Mr. Sullivan, your time has expired. We'll hear now from Mr. McWeeny.
Robert F. McWeeny: Mr. Chief Justice, and if it pleases the Court: I represent the union, party to this collective bargaining agreement. And I speak in support of the school board and the petition. I'd like to address some of the factual concerns about the leave policy. In addition to the record showing that only two of the 150 teachers use three days, plaintiff's Exhibit 18 shows that most teachers took no personal... necessary personal business days during the year. And I think also we have the superintendant of schools' testimony about the professional nature of the employees, and that they abide by those restrictions that it be necessary business, and also that it be business that cannot... despite all reasonable efforts... be planned and conducted outside of a time which conflicts with a 180-day work year for employees. I'd also like to point out that the 18 days of leave... I think the record shows in Connecticut by state statute 15 days has to be afforded teachers for sick leave, so that's the major portion of that 18 days... I'd also point out that one of the uses of the 18 days of annual leave is for immediate family religious ceremony. So there is, I think, no bias toward religious practices. In addition to the three days of religious observances, religious ceremony, immediate family religious ceremony--
William H. Rehnquist: Well, what's the differences between those two, Mr. McWeeny? The immediate family religious ceremony, and the religious activity.
Robert F. McWeeny: --Well, I would just offer that to... the religious ceremony would be similar to the other types of activity. And I think it shows that the leave policy does not discriminate against religion in the overall leave policy, as well as affording a specific leave for religious practice, or religious observance.
William H. Rehnquist: But as I understand it, you couldn't use any of... if you've used the three days you want for religious observances, under the contract, you could not then use some of the 18 days for other religious observances like the ones the three days are devoted to.
Robert F. McWeeny: That's correct; you could not. And I would also submit that the--
Antonin Scalia: I don't understand that at all. I understood you could not use any of the three days for that, but--
Robert F. McWeeny: --Well, you could not claim it was a sick day. Sick days, or for leave... the general leave provision, that annual leave provision, sets for specific reasons for which it can be availed. It is not vacation. It is sick days. It is other specific types of personal necessities.
Antonin Scalia: --The three religious days off are day-of-rest provisions, right?
Robert F. McWeeny: That's correct, religious practice.
Antonin Scalia: For days when you religion doesn't allow you to work. And as I understand the scheme, if you wanted off for another religious reason, not because it's a day of rest, because you want to make a religious retreat or something like that, as far as we know, after 1969, at least, that could have been... that could have come within the three day "other" provision, right?
Robert F. McWeeny: That's true. That could have, in the sense that there is no evidence in the record that Mr. Philbrook or anyone else asked for, was denied, a personal leave day for counselling with a religious official, or a request of that nature. I'd like to also address the statutory construction issue, which I think is at the heart of this case. The Second Circuit stated that the interpretation of Title VII with respect to reasonable accommodation and undue hardship was crucial to the resolution of the case. I agree. I submit that they erred on that construction. I think the language clearly indicates that reasonable accommodation is the obligation of the employer and the union; and that once that is met, there's no reason to go beyond that determination that there's been a reasonable accommodation of the employee's religious practices. Undue hardship really, in effect, creates a defense to a failure to reasonable accommodate. And in terms of allowing a person to resolve that conflict between their religious practices and their employment obligations in a manner which allows them to continue the employment. I think that the cases the Second Circuit talks about, or those termination cases, where clearly there was no reasonable accommodation or there's a reason to inquire whether there was a reasonable accommodation, or whether something could have been to allow a reasonable accommodation, in the sense of allowing an employee to continue in his employment and observe his religious obligations. I'd also like to speak to a claim that Mr. Philbrook makes that he is really in a situation of substantial pay, no work. I submit that the only evidence referred to by Mr. Philbrook is three pages of the transcript which have nothing to do with that which merely state that there was education going on because he had a plan for the students to follow during the course of the year. And that in that... in those three pages of transcript, evidence designed to deal with the question of whether there was a problem with the educational experience caused by the use of substitute teachers. And I think there's nothing in there that talks about the amount of time that would be spent, or that in effect there is no work without pay. I would think that at this time I would like to leave the few minutes that are remaining to me for rebuttal.
William H. Rehnquist: Very well. We will hear now from you, Mr. Rosen.
David N. Rosen: Mr. Chief Justice, and may it please the Court: Ansonia has drawn an explicitly religious line through its personal leave rule, disfavoring religious exercise, prohibiting religious exercise. This explicitly religious line is presumptively unlawful, and there were no findings addressing or supporting the claims of lawfulness of this explicitly religious line that were made by the District Court.
Antonin Scalia: Why is it an explicitly religious line? As I understand their scheme, you can use these three days for anything, religious or nonreligious, so long as it's not one of the things for which days are specifically provided for. Now, there are some things for which days have been specifically provided for that are secular, and there are other things that are religious, it seems to me.
David N. Rosen: Your understanding... I have to disagree with the understanding you were given a couple of minutes ago. The contracts, all of the contracts, say that personal leave may not be used not only for mandatory religious observance, which is specifically provided for in the religious leave, but also may not be used for quote any religious observance unquote. Those are the more recent contracts. The earlier contracts used similar language, saying that personal leave cannot be used for, quote, any religious activity. So what I would call the claim of neutrality between religious and secular uses, that is, that a neutral reason has been chosen for excluding religion from the ambit of personal leave, is in fact nonexistent. In this contract, these contracts, because the provisions aren't parallel--
Antonin Scalia: We just have a dispute as to the contractual interpretation, then. Never mind the statutory issue.
David N. Rosen: --Yes, that's right. Except that my statutory interpretation does have going for it the statutory language. For example, on page 92 of the joint appendix, personal business shall not include, without limitation, colon, f, any religious activity. So--
Antonin Scalia: But if the board is telling us that it interprets the contract the other way, why do we have to get in a fight over what the contract means? Can't we decide the case on the assumption that the board will apply the contract the way it represents it now interprets it? I mean, I didn't realize that this was going to be a contracts case. I thought it was Title VII.
David N. Rosen: --The representation... I should say the representation was made by the union, not the board. I don't know what the board's position is.
Antonin Scalia: Oh, I think the board's position is the same, as I understand it. That those three days can be used for anything not specifically covered by other days off, religious or nonreligious.
David N. Rosen: That understanding has been communicated for the first time here today. And I think that if we take that to be the understanding, an unfairness remains, which is... can be seen by taking the example of Mr. Philbrook and a colleague, each of whom uses the three days for religious holidays to satisfy religious needs. The hypothetical colleague then uses the fourth day to fulfill, let us say, a deeply held but nonreligious ethical commitment to aid the poor by working in a soup kitchen. This would be permissible use of personal business leave. The teacher would simply note the use of personal business leave. Mr. Philbrook could not work beside his colleague in the soup kitchen if that work in the soup kitchen were part of a religious holy day obligation of his church, if the soup kitchen were sponsored by his church. So the line is an explicit religious line. There are no findings in the District Court to uphold that line.
William H. Rehnquist: Is it as clear as you suggest that this personal religious thing that is embraced within the 18 days might not be extended to the soup kitchen example, if Mr. Philbrook felt a religious desire to do that?
David N. Rosen: The... what is embraced within the 18 days is religious ceremonies, which says... in the contract after it, there's a parenthetical description saying, Bar Mitzvah, ordination, first vows, and the like. There was in fact, and there is in the record, evidence of an arbitration proceeding on behalf of Mr. Philbrook in which it was argued that he would like to apply that leave category to his own religious observance, and as a matter of contractual interpretation, it was held that that applied only to this... things like Bar Mitzvahs and so forth.
John Paul Stevens: Mr. Rosen, can I ask you a question about your facial reading of the contract? I happen to have the contract in the cert petition at page 4A and 5A before me; I guess that's the most recent one. If you eliminated the provision for mandated religious observance in paragraph 10, and also eliminated subparagraph 4 of the exclusion for any religious observance, but retained the exclusion for all other purposes set forth in the agreement, would that contract then avoid violating Title VII?
David N. Rosen: Yes, yes. There is a... that is--
John Paul Stevens: Let me follow up with another question. Would that contract be more or less favorable to your client?
David N. Rosen: --It would less favorable. And our claim is not that Mr. Philbrook is entitled to some particular measure of favorable treatment. It is that in the according of whatever treatment he is given, whatever accommodation is made for his needs, that it be on a nondiscriminatory basis.
John Paul Stevens: Then let me ask you an intermediate question. Suppose you take the contract as it is and merely delete the words, excluding for any religious observance, but retain the words, purposes set forth under any other leave provision, which would of course have the same effect. Would that be facially bad, or would that be permissible?
David N. Rosen: No, it would still be discriminatory. Because although it--
John Paul Stevens: It would treat the religious leave just like all other kinds of leave. Put that would be explicitly anti-religious.
David N. Rosen: --Well, let me give an example that I hope will explain why that would be unfair. Let's assume that an employer, perhaps a private employer, sets aside space for its employees for religious observance; a chapel, if you will. And the employer also has a lounge. The employer, we suggest, could not put a sign up in the lounge, "No reading the Bible in the lounge. " Or to be more exact: "No reading the Bible in the lounge for religious purposes. " Even though space had been set aside specifically an exclusively for religious reasons. Now, perhaps to take your example--
John Paul Stevens: No, but it would have to be changed to say, "You don't get paid for time reading the Bible in the lounge. " Because there's no specific prohibition against it. It's only that you don't get paid for those days.
David N. Rosen: --Well, except that my analogy is, I'm using... I'm using available space instead of money paid. But as far... but the thing... we make no general claim to paid leave. We are entitled to paid leave here only because paid leave is accorded for personal business, which is, except for the specifically religious exclusion, something that would cover the religious exercise for which Mr. Philbrook needs the leave. Now, Justice Stevens, to follow up, and also Justice Scalia, the point you were making about what I've termed neutrality, the claim of neutrality, it's true that the definition, the contract, if it were changed, would be framed in terms of, any leave otherwise provided for in the contract. But with our hypothetical employer, let's assume that there was also a periodical room made available to the employees. The employer, we suggest, still could not say, "No reading the Bible for religious purposes, or reading periodicals, or performing any activity for which space is otherwise provided in the lounge. " We think that would still be a line that was drawn on an explicitly religious basis and we--
Sandra Day O'Connor: Mr. Rosen.
David N. Rosen: --Yes, sir. Yes, ma'am.
Sandra Day O'Connor: Is there any reason under Title VII why the accommodation made by the employer cannot be broken down to provide so many days a year sick leave, so many days a year for business necessity, and so many days a year for religious observance?
David N. Rosen: There is none. Our claim is--
Sandra Day O'Connor: You wouldn't claim that that kind of a breakdown is inherently discriminatory under Title VII?
David N. Rosen: --We would not. We claim no entitlement to use the days which are set aside for illness for religious observance. The difference we see, the fundamental difference, between illness and personal business leave is like in kind and character to the kind of conduct... in my soup kitchen example, it could be the identical conduct... to what is permitted. And the difference is the difference only made by drawing an explicit religious line by the employer across that leave. Now--
Sandra Day O'Connor: Well, is it invalid for the employer to say, so many days a year sick leave, so many days a year secular-purpose leave, of any kind, and so many days a year for religious observance?
David N. Rosen: --Yes. That we think would be invalid. We think that the line that is drawn--
Sandra Day O'Connor: Even if the fact-finder determines that the amount given for religious accommodation is in fact reasonable?
David N. Rosen: --Yes, because the claim is one not of accommodation but of discrimination. We think that it does not make a difference if the employer gives no days for religion, or gives several days for religion. And I recur to the chapel example. Even if the chapel is a large and beautiful structure, much grander, let us say, than the lounge, what is obnoxious under Title VII is the drawing of explicit religious lines which disfavor religion. That, at minimum, is presumptively unlawful, and--
Sandra Day O'Connor: That's your claim under Section 703a-1, or whatever it is?
David N. Rosen: --Yes. The anti... that is the anti-discrimination right.
Byron R. White: Well, I suppose, if the employer just cut out the three days for religion and said, three days for personal leave of any kind, including religion; that would satisfy you?
David N. Rosen: That would be nondiscriminatory. It would be, in a sense, less favorable than what is now provided. But if there is a nondiscriminatory provision... it could be three days, it could be six days, it could be some number of days in between--
William H. Rehnquist: Your client would be no better off?
David N. Rosen: --Our client would be no better... he would be free of the discrimination, but he would be no better off. Our claim is not that he's entitled... it's not essentially that he's entitled to any fixed amount of leave. It is that in the provision of leave, he is entitled to be free from discrimination.
Byron R. White: Well, then, if the employer said, we don't have any leave around here on pay; no paid leave whatsoever. But there's unpaid leave up to 18 days a year for anything.
David N. Rosen: That would probably... probably still be all right under Title VII. You see our... my client is put, as anyone else is, into the collective bargaining process. And if what comes out of that process is three days, or six days, of general purpose personal leave--
Byron R. White: Well, is the school board in any trouble if it says, no paid leave for anything except religion? That's not a Title VII problem, probably, but how about a constitutional problem?
David N. Rosen: --We think that it depends how much paid leave they give for religion. We think there's room--
Byron R. White: Well, they give three days paid leave for religion, but no paid leave for anything else.
David N. Rosen: --We think that the free exercise clause of the Constitution provides enough free play... and Title VII certainly does provide enough free play to make that kind; three days a year would be all right.
Byron R. White: But would you think that Title VII would require that?
David N. Rosen: No, no. No. We think that just as Title VII would not require this accommodation, an explicitly religious accommodation by the employer, as a general rule, so such an accommodation does not justify, cannot justify an explicitly religious line disfavoring religion with regard to personal leave provisions.
Byron R. White: So you think you know enough about what personal leave is allowed for in this specific instance to say that it discriminates against religion?
David N. Rosen: We have not cross-petitioned. We are here supporting a judgment which remanded this case for further findings about the scope of personal leave. In that sense, I can't tell you that I think that you should know. I think that what the record will show--
Byron R. White: You don't object to the remand?
David N. Rosen: --We don't object to the remand. We did not cross-petition.
Antonin Scalia: I'm not clear about your position. Suppose there were 18 days for a listed number of nonreligious reasons. No days of paid leave for any religious reason whatever. That would be all right in your view?
David N. Rosen: As the government points out in its brief, that would be a somewhat different and a more difficult case. Because then there would be questions of comparability of treating specific secular reasons different from a specific religious reason. So that might be--
Antonin Scalia: You're undecided on that?
David N. Rosen: --I'm undecided on that.
Antonin Scalia: What about if the 18 days were... in this case were expanded to 21 days; 21 days for explicit secular reasons, and 3 days for religious observance; that would be all right?
David N. Rosen: For example, if on remand it were demonstrated, contrary to my expectation, that personal--
Antonin Scalia: No, it's a new contract. It's a new contract.
David N. Rosen: --All right.
Antonin Scalia: The three-day wildcard is gone.
David N. Rosen: That would be all right.
Antonin Scalia: And you get 21 days for explicit nonreligious reasons, and three days for religious reasons. That's all right?
David N. Rosen: That would be all right.
Antonin Scalia: How about one day for religious reasons?
David N. Rosen: Even that is probably all right.
Antonin Scalia: Half a day?
David N. Rosen: I think perhaps no days are all right. But that's the question on which I'm undecided. And a question which I think is really not presented on our view of this case, because whatever the employer may be required to do to accommodate religion does not defend an employer's subsequent or additional action, as here with regard to the personal leave days, discriminating against religious exercises.
John Paul Stevens: Mr. Rosen, would you tell me again, because I'm not really sure I followed your argument, whether or not, and if not, why not, just striking the words, any religious observance, from that fourth exclusion would satisfy the facial attack, even though it would leave in effect the general exclusion of all other provisions covered by leave. Tell me again what your view on that is--
David N. Rosen: My view on that is as with the chapel example that I used, it would still be an explicitly religious line. It would be that religion is not permitted... because it is religion not because--
John Paul Stevens: Because it is one of the 16 exclusions.
David N. Rosen: --That is--
John Paul Stevens: But that's still a specific religious line?
David N. Rosen: --That, I suggest, Justice Stevens, is presented as what is claimed to be a good reason to discriminate against religion, if you will. A good reason being, well, that religion is being limited--
John Paul Stevens: Religion is like other things for which leave has already been provided; and that's discriminating against religion.
David N. Rosen: --Religion is--
John Paul Stevens: You see, it seems to me possibly you could win the case and have that provision stricken, and you'd be right back where you started from. The contract would have precisely the same meaning, but would have deleted some language that you find offensive. I just don't see how the general exclusion of all other leave already specifically provided for can be said to be a religiously... facially discriminatory against religion. That's what I hang on.
David N. Rosen: --All right. The difference, as I see it, is that it's legitimate of the state or the employer to make any limits it wants on all these other categories without running afoul of religious discrimination provisions in Title VII. With regard to the religious discrimination provisions, however, the employer is limited even if... even if it has drawn the line which also applies to the other categories, it is still going along saying, no religion allowed. This creates the same problems of excluding religion because it is religious; excluding activities which are identical because of their motivation; excluding Mr. Philbrook from using a religious holy day to observe or commemorate the death of a loved one, although his co-employee could take such a similar commemoration by going to a gravesite, so long as the form of commemoration was a nonreligious one. So it still draws a line--
Antonin Scalia: But it's acceptable to you so long... or you think it may be acceptable to you, so long as they list all of the conceivable nonreligious purposes, and fail to list any religious purposes? That's all right. The only thing that sticks in your craw is if they say, provided no religious observance. As long as they just list nothing but secular observances, that's okay, or may be okay.
David N. Rosen: --The line I suggest would not be particularity, but comparability, Justice Scalia; that if commemoration of the death of loved ones is permissible, and that commemoration takes the form of observance of a religious holy day, I would say that exclusion of the religious holy day is discriminatory.
Antonin Scalia: I see.
David N. Rosen: In sum, our view is that the line here is--
Byron R. White: Of course you'd say--
David N. Rosen: --Yes, Justice White.
Byron R. White: --anytime you permitted paid leave for a wedding, which is a church ceremony, in the sense that you aren't considered married unless you get married in the church, according to church ritual, if you allow that, you're really allowing... shouldn't you also allow other leave for religious purposes?
David N. Rosen: We think that the right line is all weddings... if weddings are allowed, then you can't discriminate between secular weddings and religious weddings.
Byron R. White: Yes, but how about other religious activities?
David N. Rosen: I think it's all right for an employer to identify a specific purpose like a wedding.
William H. Rehnquist: Your time has expired, Mr. Rosen. We'll hear next from you, General Fried.
David N. Rosen: Thank you.
Charles Fried: Thank you, Mr. Chief Justice, and may it please the Court: The United States appears here in a dual role. We are the principal enforcer of Title VII, and we are also the nation's largest employer subject to the strictures of Title VII. So it's important for us to get it right, and to situate Title VII within the constitutional landscape of the two religion clauses. The free exercise clause sets the floor on the matter. It's addressed to prohibitions, prohibitions on belief and exercise, and by extension, to discriminatory treatment... discriminatory treatment of religion and religious exercise. After that, we believe there is wide room for accommodation by government, as for instance, 5 U.S.C. 550a, which deals with religious observance by federal employees. And also there's wide room for government to mandate accommodation by private parties before there is a bumping up against the ceiling of the establishment clause. The establishment clause involves entanglement, preference and the imposing of religion on the citizen by support. But as Justice Marshall said in the Hardison case, accommodation is not establishment, even though the accommodation is not required by the free exercise clause. Title VII, in our view, operates largely in that space between the floor and the ceiling. It repeats the floor obligation, government may not prohibit, government may not discriminate, in its treatment of religion. But it extends it. It extends it to private employers; that already goes beyond the free exercise clause. And it extends it in another very important way, which may be implicated in this case, that is, where there is a disparate impact... not disparate treatment but a disparate impact... on religious observance, there is a duty to accommodate. Now, we stay clear of the ceiling set by the Thorton case, because that duty is only a duty to accommodate reasonably, and it's limited in any event by undue hardship. In this case, we have possibly a case of straightforward discriminatory treatment because, and I think we need a remand to the District Court, and we support the judgment of the Court of Appeals for that reason, we need to know about this personal business leave, because if these personal days are in fact an almost wide open, take the time off if you like, or at least one day of it is, we consider, as does Mr. Rosen, that it would be offensive, that it would be discriminatory treatment for an employer to say, take the day off, do whatever you want, just don't pray; just don't go to church. Do anything else. Just don't go to church. That is discriminatory treatment, and would, for that reason alone, violate Title VII.
Antonin Scalia: What if it said... what if it meant, do anything you want. Just don't use it as a day of observance for which we've given you three days under another provision?
Charles Fried: That would be another, more difficult case. But we do have... we do have the specific language which says you got three days for mandated religious observance. And then they go into a good bit of detail. And then it's excluded, however, for any religious activity. So the exclusion is much wider.
Antonin Scalia: Well, it isn't. Because the category from which you're excluding is necessary personal business. When you exclude religious observance as a subcategory of necessary personal business, you're excluding necessary religious observance. Which seems to me to be the same thing as mandated religious observance.
Charles Fried: I think with respect, Justice Scalia, that they do talk, at least in some versions of the collective bargaining agreement, and all versions are relevant, because we've got a back pay claim here, too, in some versions they spell out what they mean by mandated religious observance, and it talks about days required by the rules of the church. Religious activity is not spelled out in that way, and might involve other activities other than the observance of a particular holy day-- In any event--
Antonin Scalia: Well, might that be another issue that it would be well to have clarified, if there is a remand?
Charles Fried: --Oh, no doubt. No doubt. And that is why we support a remand. Since there's an alternative reading of that provision, which would be quite unexceptionable in terms of discriminatory treatment. It may be that those three days are intended for quite narrow and nonrecurring events, things that don't come around every year, regular as clockwork, or regular as the calendar, and also which are not... which are compelled by external compulsion. In that event, if that is what we find on remand, then in our view there is no discriminatory treatment. There may however be discriminatory impact. That is to say, as Philbrook has been claiming, that because of his particular religious needs, this provision bears on him in a more burdensome way than on other persons; those without those religious needs, or those with only three required religious holidays. Now, as to discriminatory impact, it is our view that it is only there that the duty of reasonable accommodation comes in, and as to that duty, that is where we part company with the Court of Appeals, and in fact, join company with all the other Courts of Appeals which have considered this matter. And in our view, once we're talking about reasonable accommodation, the only obligation that the employer has is to offer a reasonable accommodation. If it has done that, he has satisfied his literal obligation under the statute. Nothing else is required. And it seems to us that in a general way what we're talking about a few days a year, offering unpaid leave is a reasonable accommodation. It may not be the reasonable accommodation which an employee prefers. But it is nevertheless a reasonable accommodation, and discharges the obligation under the law. I'm quick to say that if you have an employee for whom the problem arises not three times a year, but once a week, to say, well once a week you can take off without pay, that might become another matter. Because at that point you are talking about an imposition on employment status. You are saying that this man has got to be paid 80 percent of his salary, rather than just missing a few days' pay. And at that point, it may be that leave without pay is not a reasonable accommodation. But in the context of this case, it is our view that leave without pay is a reasonable accommodation, and discharges the employer's obligation.
Antonin Scalia: It may also be that there's no possible accommodation without an undue burden. I mean, if you're suggesting leave with pay, 52 days a year--
Charles Fried: When an employer can show that every reasonable accommodation nevertheless entails an undue burden, then this Court has held in the Hardison case, that's too bad, we regret it, but that's the end of the story. And the employee is not accommodated. But this is all in disparate impact rather than in disparate treatment cases. If there are no further questions, I thank the Court for its attention.
William H. Rehnquist: Thank you, General Fried. Mr. McWeeny, you have three minutes left... you have two minutes left.
Robert F. McWeeny: I would just like to emphasize that the necessary personal business leave I think is well documented in the record as to the limited use of it by the professional staff in Ansonia. Also, there is absolutely no evidence that there has ever been a denial of necessary personal leave... necessary personal business leave for anything other than religious observance. If there's nothing that... these hypothetical claims about work in the soup kitchen have not been presented. And I think the evidence is that the policy is being interpreted and applied in a way that would not lead to that result. And I think that's clear both on the... it is not a general leave provision. It is personal business leave that cannot be scheduled at any other time. And there is just no record of any evidence of a denial for any purpose other than for what leave is provided for, religious observance. And Mr. Philbrook is being allowed all the days that he finds necessary to observe his religion, some with pay, and some without pay. And I submit that perhaps there are lines, as the Solicitor General indicated, that have to be drawn in some of these situations.
William H. Rehnquist: Thank you, Mr. McWeeny. The case is submitted.