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A BAPTIST IN GOMORRAH

Benjamin Endres, a good Baptist, wanted to be a good cop. When circumstances prevented him from being both at the same time, he lost his job. Now he has asked the Supreme Court to give it back.

The story has two plausible sides.

Endres joined the Indiana State Police in 1991. Everything went along nicely until March of 2000, when he was ordered to work as a Gaming Commission agent at the Blue Chip Casino in Michigan City. Under Indiana's program of law enforcement, gaming agents function in part as ombudsmen or facilitators. They may be assigned full-time to investigate gamblers' complaints, certify gambling revenue, and conduct licensing investigations for the casinos and their employees.

The assignment created a dilemma. Endres is a member of the Community Baptist Church in South Bend, 28 miles away from the casino. As a matter of faith, he regards games of chance as sinful. He and his fellow congregants believe they must neither gamble nor assist others in doing so. Facing a choice between his job and his church, he requested an alternative assignment. His superiors declined. When he refused to report to the casino for duty, he was fired for insubordination.

Endres sued the State Police under Title VII of the Civil Rights Act of 1964. The act makes it unlawful for covered employers to discharge any individual "because of such individual's religion." He won in the District Court, but last summer the 7th U.S. Circuit reversed and entered final judgment for the State Police. Three judges dissented.

Judge Frank Easterbrook spoke for a panel of the circuit court. The judge is known for his crisp opinions. This time he was even crisper than usual. He noted that many police officers have religious scruples about activities involved in their work.

"Baptists oppose liquor as well as gambling, Roman Catholics oppose abortion, Jews and Muslims oppose the consumption of pork. ... If Endres is right, all of these faiths, and more, must be accommodated by assigning believers to duties compatible with their principles. Does the act require the State Police to assign Unitarians to guard the abortion clinic, Catholics to prevent thefts from liquor stores, and Baptists to investigate claims that supermarkets mis-weigh bacon and shellfish? Must prostitutes be left exposed to slavery or murder at the hands of pimps because protecting them from crime would encourage them to ply their trade and thus offend almost every religious faith?"

Easterbrook concluded that to require the State Police, a paramilitary body, to juggle assignments according to such requests "would not be reasonable" -- and the act calls only for reasonable accommodation. Agencies such as police and fire departments may rightfully insist that "all of their personnel protect all members of the public -- that they leave their religious and other views behind so that they may serve all without favor on religious grounds."

Three circuit judges, speaking through Judge Kenneth F. Ripple, strongly dissented. Easterbrook's opinion, said Ripple, "sets our court apart" and deprives public safety officers "from a protection they enjoy in every other circuit." There had been no convincing demonstration that the State Police were unable to accommodate Endres. The case law supports his request for relief.

Said the dissenters: "Time and time again, we profess that, in interpreting a statute, we begin with the plain wording of the statute. Unless there is an ambiguity, we apply the explicit command of Congress. No one suggests that Congress has left any doubt as to what it expects in this situation. Unfortunately, however, our current decisional behavior does not follow the course of our rhetoric. In future cases, judges, attorneys and litigants will have to accept the reality that they must observe not what we say, but what we do."

I doubt that the Supreme Court will grant review to officer Endres. The pivotal questions boil down to these: What accommodation is a reasonable accommodation, and how much hardship is undue hardship? These are fuzzy-wuzzy questions, heavily reliant on particular facts, but four other circuits have wrestled inconclusively with the same issues raised by Judge Ripple. My own sympathies lie on balance with Trooper Endres. His fellow Baptists are bound to wonder, what's a nice fellow like you doing in a place like the Blue Chip Casino?

(Letters to Mr. Kilpatrick should be sent in care of this newspaper, or by e-mail to kilpatjj@aol.com.)