Can a government leave policy require judges to use their own vacation days for religious holidays instead of giving them extra paid leave?

Plain-English summary

The State Court Administrator asked the Attorney General whether the Judiciary's leave policy discriminated against religion, and whether the Judiciary had to give judges paid or unpaid administrative leave for religious holidays on top of their regular leave. Under a 2014 amendment to the Judiciary's Administrative Order on Judicial Absences, a judge who needed to be away from court for a religious holiday could only use accrued annual or personal leave (33 days combined per year), not the separate, uncapped "administrative leave" category available for things like jury duty or a delayed opening.

The opinion concluded that this policy did not discriminate on the basis of religion under the Free Exercise Clause of the First Amendment or under Article 36 of the Maryland Declaration of Rights. The policy applied the same 33 days of leave to every judge regardless of religion, and let each judge use that leave for any purpose, religious or not. The opinion found that requiring a judge to draw on already-generous general leave, rather than receiving a separate religion-specific leave category, was not a "substantial burden" on religious exercise under either the current federal standard (from Employment Division v. Smith) or the older, more protective standard (from Sherbert v. Verner) that might still apply to Article 36. The opinion also concluded that no other law, including Title VII of the Civil Rights Act (which does not apply to most judges anyway), required the Judiciary to create additional religious leave.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, leave allotment, or constitutional standard mentioned here.

Common questions

Did a 2015 Maryland opinion say judges were being discriminated against because they had to use their own leave for religious holidays?
No. The opinion concluded that the Judiciary's leave policy, which let every judge use the same 33 days of combined annual and personal leave for any purpose including religious observance, did not discriminate on the basis of religion under the Free Exercise Clause or Article 36 of the Maryland Declaration of Rights.

Did the opinion say the Judiciary was required to give judges extra paid leave for religious holidays?
No. The opinion found no federal or state law requirement for the Judiciary to provide additional administrative leave for religious observance, reasoning that the Free Exercise Clause protects against government interference with religion but does not entitle anyone to additional government benefits.

Did the opinion treat Article 36 of the Maryland Declaration of Rights as offering more protection than the federal Free Exercise Clause?
The opinion did not decide that question. It analyzed the leave policy under both the current federal standard (from Employment Division v. Smith) and the older, stricter standard (from Sherbert v. Verner) that might still govern Article 36, and concluded the policy survived either way.

Background and statutory framework

At the time of this opinion, Maryland judges received 33 combined days of annual and personal leave per year, usable for any purpose, plus separate, non-accruing "administrative leave" for specific circumstances like jury duty or a court closing. Before a March 2014 amendment to the Judiciary's Administrative Order on Judicial Absences from Court, at least one jurisdiction had allowed judges to take paid administrative leave for religious observance once their personal leave ran out. The 2014 amendment closed that path by redefining "Religious Observance Leave" as a use of a judge's own accrued annual or personal leave under Md. R. 16-104, not a separate benefit.

The opinion analyzed this policy under the First Amendment's Free Exercise Clause, which the U.S. Supreme Court in Employment Division v. Smith held requires only rational-basis review for neutral, generally applicable rules, reserving strict scrutiny for laws that target religiously motivated conduct (as in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah). Because Maryland's appellate courts had not settled whether Article 36 of the Maryland Declaration of Rights should be read identically to the Free Exercise Clause or under the older, more protective standard from Sherbert v. Verner, the opinion analyzed the policy under both standards, concluding it survived either one. The opinion also drew on Title VII religious-accommodation case law, including Trans World Airlines, Inc. v. Hardison and a Maryland federal district court decision, Koenick v. Felton, as persuasive guidance on what accommodations courts generally consider reasonable, even though Title VII does not cover most judges.

Citations and references

Statutes and rules:
- Md. R. 16-104, the Maryland Rule governing judicial leave, including the provision that a personal-leave request for a religious holiday may not be denied
- Md. Const. Art. IV, § 24, cited for the principle that constitutional officers may not agree to a reduction in salary (relevant to why administrative leave is paid, not unpaid)
- Md. Code Ann., State Pers. & Pens. § 9-402(b)(2), the state-employee leave rule allowing denial of personal leave for religious observance under limited conditions, contrasted with the judicial rule which does not allow denial
- 42 U.S.C. § 2000e-2(a)(1), Title VII's prohibition on religious discrimination in employment
- 42 U.S.C. § 2000bb-1(b), the Religious Freedom Restoration Act's compelling-interest/least-restrictive-means test

Cases:
- Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990), holding that neutral, generally applicable laws need only survive rational-basis review under the Free Exercise Clause
- Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993), holding that laws targeting religiously motivated conduct must survive strict scrutiny
- Sherbert v. Verner, 374 U.S. 398 (1963), the pre-Smith standard requiring a compelling interest to justify a substantial burden on religious exercise
- Cantwell v. State of Connecticut, 310 U.S. 296, 303 (1940), on the scope of Free Exercise Clause protection for religious belief versus conduct
- Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), holding that Title VII does not require accommodations imposing more than a minimal cost on the employer
- Koenick v. Felton, 973 F. Supp. 522 (D. Md. 1997), rejecting an Equal Protection and Establishment Clause challenge to a Maryland school holiday schedule

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2015/100OAG136.pdf

Original opinion text

136 [100 Op. Att'y

               CONSTITUTIONAL LAW

FREE EXERCISE CLAUSE – WHETHER JUDICIARY MUST ALLOW
JUDGES TO TAKE ADMINISTRATIVE LEAVE FOR
RELIGIOUS OBSERVANCE
December 21, 2015
Ms. Pamela Harris
State Court Administrator
You have asked, on behalf of the Administrative Office of the
Courts, whether application of the Court's Administrative Order on
Judicial Absences from Court, as amended March 24, 2014, results
in unlawful discrimination on the basis of religion. Under the
Court's amended judicial leave policy, a judge seeking to take time
off for religious observances must use accrued annual or personal
leave. In your opinion request, you indicate that one circuit court
judge has requested another type of leave, administrative leave, for
religious observances, partly because the judge wishes to preserve
his or her accumulated annual or personal leave for other purposes.
Given the circuit judge's wish to use administrative leave for
religious observance, you have asked for our opinion on two
questions:
Does the Administrative Order, as applied,
result in unlawful discrimination on the basis
of religion?
Does the Court have an obligation to provide
administrative leave to judges for religious
holidays in addition to the accumulated leave
authorized by Rule where other judiciary
employees are likewise required to use
accumulated leave for religious holidays?
As to your first question, our view is that the Court's judicial
leave policy, because it is of general application and grants leave
equally regardless of how a judge chooses to use the leave, does
not discriminate on the basis of religion. Though some judges have
religious obligations not shared by others, the Free Exercise Clause
of the First Amendment does not require the judiciary to provide
additional leave to the religiously observant. Nor do we believe
that the policy violates Article 36 of the Maryland Declaration of
Rights, even if that provision were interpreted as providing greater
protections for religiously-motivated conduct than its federal
counterpart.
As to your second question, no federal or State law requires
administrative leave for religious observance. Even under Title VII
of the federal Civil Rights Act, which generally does not apply to
judges, employers are not obligated to offer administrative leave
for religious holidays if the employer's leave policy reasonably
accommodates an employee's religious practices or if further
accommodation would result in undue hardship for the employer.
In our opinion, the thirty-three days of annual and personal leave
available for religious observance would ordinarily be a sufficient
accommodation for religious practice even under standards more
protective of religious liberty than the Free Exercise Clause.
Accordingly, we see no basis for concluding that, in addition to the
paid leave available, the policy must also grant additional
administrative leave for religious holidays that fall on scheduled
work days.

                            I
                       Background

A. Judicial Leave Policy
The Judiciary's leave policy regulates the circumstances
under which Maryland State court judges may be absent from
work. Amended Administrative Order on Judicial Absences from
Court (January 21, 2010), as further amended March 21, 2014
("Administrative Order"); see also Md. R. 16-104. Judges receive
two forms of accrued leave: personal leave and annual leave. At
the beginning of each calendar year, every judge is credited with
six days of personal leave, which may be used for any purpose
during that year. Personal leave may not be carried over into the
next year; any unused personal leave is forfeited at the end of the
year. See Md. R. 16-104(c); Admin. Order ¶ 23. Judges also
receive annual leave, which accrues at the rate of twenty-seven
days per year. Up to ten days of unused annual leave may be
carried over into later years as accumulated annual leave, not to
exceed twenty days in total. Accumulated annual leave must be
used within three years or it is forfeited. Like personal leave,
annual leave may be used for any purpose, including religious
observances. See Md. R. 16-104(b); Admin. Order ¶¶ 10, 24.
In addition to the combined yearly allowance of thirty-three
days of annual and personal leave, the Administrative Order
authorizes additional, non-accruing paid leave for a variety of
specific purposes, including holiday leave,1 Admin. Order ¶ 15;
sick leave, family-care leave, and bereavement leave, id., ¶¶ 11, 25;
leave to serve in the military and leave to serve as a disaster service
volunteer or as a bone marrow or organ donor, id., ¶¶13, 20, 21;
leave for judicial education and speaking engagements, id., ¶¶ 16,
22; leave for jury duty and to act as a witness in a legal action, id.,
¶¶ 17, 18; and leave for interviewing with a judicial nominating
committee, legislative committee, bar association, or similar body
considering the judge's nomination to another office, id., ¶ 19.
Some of these categories of leave are capped at a specific number
of days, others not.
Finally, the Administrative Order provides for
"administrative leave," which "may be granted for a variety of
purposes, including jury duty, delayed opening or emergency/early
release or closing." Id., ¶¶ 2, 26. This leave category is a catch-
all; "the Chief Judge of the Court of Appeals may grant a judge
administrative leave for any other absence not specifically
provided for by the Maryland Rules or this Order." Id., ¶ 26. It is
our understanding that the administrative leave available under this
provision is paid leave; the Order does not authorize unpaid leave
for any purpose.2
Requests for leave are submitted to the judge exercising
administrative authority over the relevant court. When considering
whether to grant a leave request, the administrative judge is
directed to "be mindful of the necessity of retention of sufficient
judicial staffing to permit, at all times, the prompt and effective
disposition of [judicial] business." Id., ¶ 5.d.(2)(c); see also Md.

1
Holiday leave is limited to those holidays defined as "employee
holidays" under § 9-201 of the State Personnel & Pensions Article: New
Year's Day; Martin Luther King Day, Presidents' Day; Memorial Day;
Independence Day; Labor Day; Columbus Day; Veterans' Day;
Thanksgiving Day; American Indian Heritage Day (i.e., the Friday after
Thanksgiving Day); Christmas Day; statewide general election days; and
"each other day that the President of the United States or the Governor
designates for general cessation of business."
2
You indicate in your request that the unavailability of unpaid
administrative leave is based on the understanding that constitutional
officers may not agree to a reduction in salary. See Anne Arundel County
v. Goodman, 172 Md. 559 (1937); Md. Const. Art. IV, § 24.

R. 16-104(f). In general, requests for leave may be denied if
granting leave would prevent "prompt and effective disposition of
business," except that "personal leave requested for observance of
a religious holiday may not be denied." Md. R. 16-104(f).3
The Judiciary's religious leave policy has evolved over time.
Prior to March 24, 2014, we understand that at least one jurisdiction
allowed judges to take paid administrative leave for religious
observance where the number of religious holidays exceeded the
number of authorized personal days. An amendment adopted on
that date foreclosed this interpretation in two ways. First, it revised
the term "Religious Observance Leave" to define it as a use of
accrued annual or personal leave:
"Religious observance leave" means annual
or personal leave taken pursuant to Maryland
Rule 16-104, in connection with a religious
holiday that is not a Judiciary holiday, when a
judge's religious beliefs require absence from
court.
Administrative Order, ¶ 2.w (underlining indicates new language).
Second, the 2014 amendment revised paragraph 24 of the Administrative
Order, which governs the use of Religious Observance Leave:

        The appropriate administrative judge shall
        allow a judge to be absent from court on a
        religious holiday that is not a Judiciary
        holiday when required by the judge's
        religious beliefs. A judge may use only annual
        or personal leave for this purpose, in
        accordance with the provisions of Maryland
        Rule 16-104.

Id., ¶ 24 (underlining indicates new language). The 2014 amendment
thus specifies that absences for religious observances must be covered by
the use of annual or personal leave.

3
This aspect of the judicial rules differs from the rules applicable to
employees within the State Personnel Management System, which allow
for the denial of personal leave for religious observance under certain
limited conditions. See Md. Code Ann., State Pers. & Pens. § 9-
402(b)(2).

B. The Religion Clauses of the United States Constitution
The religious liberty clauses of the U.S. Constitution—the
Establishment Clause and the Free Exercise Clause—are embodied
in the First Amendment: "Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise
thereof." U.S. Const. amend. I. In different ways, the
Establishment Clause and Free Exercise Clause ensure
governmental neutrality in matters of religion. "The general
principle deducible from the First Amendment" is that the
Constitution "will not tolerate either governmentally established
religion or governmental interference with religion." Walz v. Tax
Comm'n of City of New York, 397 U.S. 664, 669 (1970). These
guarantees, by operation of the Fourteenth Amendment, are also
binding on the states. Cantwell v. State of Connecticut, 310 U.S.
296, 303 (1940) ("The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws.").
The essence of the Establishment Clause guarantee is "that
government should not prefer one religion to another, or religion to
irreligion." Board of Educ. of Kiryas Joel Village Sch. Dist. v.
Grumet, 512 U.S. 687, 703 (1994). Consistent with that principle,
government may not organize its operations for the purpose of
advancing religion. But a law that confers an indirect or incidental
benefit upon religion is not, for that reason alone, constitutionally
invalid. Lynch v. Donnelly, 465 U.S. 668, 683 (1984).
The Free Exercise Clause protects against government action
regulating religious beliefs or practices. Free exercise of religion
"embraces two concepts—freedom to believe and freedom to act.
The first is absolute but, in the nature of things, the second cannot
be." Cantwell, 310 U.S. at 303-04. Thus, the Free Exercise Clause
absolutely prohibits all "governmental regulation of religious
beliefs as such." Employment Div., Dep't of Human Res. of Oregon
v. Smith, 494 U.S. 872, 877 (1990) (internal quotation marks
omitted, emphasis in original). Religiously-motivated conduct,
however, does not enjoy the same absolute protection. Id. at 879.
Where a government regulation targets conduct because of its
religious motivation, the regulation is subject to strict scrutiny and
will be upheld only if it is narrowly tailored to advance a
compelling government interest. Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993). But "a
neutral, generally applicable law does not offend the Free Exercise
Clause, even if the law has an incidental effect on religious
practice." Hines v. South Carolina Dep't of Corr., 148 F.3d 353,
357 (4th Cir. 1998) (citing Smith, 494 U.S. at 876-79).

C. Article 36 of the Maryland Declaration of Rights
The Maryland Constitution also includes a guarantee of
religious liberty in Article 36 of the Declaration of Rights. Article
36 ("Religious Freedom") provides:
That as it is the duty of every man to worship
God in such manner as he thinks most
acceptable to Him, all persons are equally
entitled to protection in their religious liberty;
wherefore, no person ought by any law to be
molested in his person or estate, on account of
his religious persuasion, or profession, or for
his religious practice, unless, under the color
of religion, he shall disturb the good order,
peace or safety of the State, or shall infringe
the laws of morality, or injure others in their
natural, civil or religious rights; nor ought any
person to be compelled to frequent, or
maintain, or contribute, unless on contract, to
maintain, any place of worship, or any
ministry; nor shall any person, otherwise
competent, be deemed incompetent as a
witness, or juror, on account of his religious
belief, provided, he believes in the existence
of God, and that under His dispensation such
person will be held morally accountable for
his acts, and be rewarded or punished therefor
either in this world or in the world to come.
Nothing shall prohibit or require the making
reference to belief in, reliance upon, or
invoking the aid of God or a Supreme Being
in any governmental or public document,
proceeding, activity, ceremony, school,
institution, or place.
Nothing in this article shall constitute an
establishment of religion.

  The Court of Appeals has described Article 36 as

"embod[ying]" the Free Exercise Clause of the First Amendment.4
See Archdiocese of Washington v. Moersen, 399 Md. 637, 640
(2007); see also 94 Opinions of the Attorney General 81, 82 n.2
(2009) (observing that Article 36, "though differently worded," is
"analogous" to the Free Exercise Clause, and that "an analysis of
the 'free exercise' guarantee in Article 36 is generally similar to
that under the First Amendment"). And when litigants do not
distinguish between their claims under Article 36 and under the
Free Exercise Clause, Maryland courts have sometimes assumed,
without deciding, that Article 36 should be regarded as in pari
materia with the Free Exercise Clause. See, e.g., Supermarkets
General Corp. v. State, 286 Md. 611, 625 (1979); see also Booth v.
Maryland, 337 F. App'x 301, 311 (4th Cir. 2009) ("Maryland state
courts have proceeded on the basis that . . . Article 36 and the First
Amendment of the United States Constitution have the same
effect." (citing Stover v. Prince George's County, 132 Md. App.
373 (2000)). As a result, federal courts sometimes describe
Maryland courts as "interpreting the free exercise and equal
protection provisions of the Maryland Declaration of Rights in pari
materia with their federal counterparts." Bethel World Outreach
Ministries v. Montgomery County, 706 F.3d 548, 561 (4th Cir.
2013).
The Court of Appeals has not, however, expressly foreclosed
the possibility that Article 36 might be interpreted differently from
the Free Exercise Clause. See Miles v. State, 435 Md. 540, 557
(2013) (omitting Article 36 from list of provisions that have been
read in pari materia with federal analogs); see also 69 Opinions of
the Attorney General 92, 95-96 (1984). More generally, the Court
of Appeals has cautioned that "Maryland law may impose greater
limitations (or extend greater protections) than those prescribed by
the United States Constitution's analog provisions." Muskin v.

4
Apart from the obvious textual differences, Article 36 diverges
from the First Amendment in two respects. First, it contains no express
provision directly analogous to the Establishment Clause. See Barghout
v. Mayor & City Council, 325 Md. 311, 327-28 (1992); but see Dan
Friedman, The Maryland State Constitution; A Reference Guide 43, 303
n.242 (2006) (disagreeing with Barghout and describing ways in which
Article 36 contains a "constellation of protections against the
establishment of religion"). Second, the provisions of Article 36
requiring "belie[f] in the existence of God" to give evidence or serve on
a jury have no analog in the First Amendment. The Court of Appeals
has held, however, that those portions of Article 36 are invalid under the
Establishment Clause of the U.S. Constitution. Schowgurow v. State,
240 Md. 121, 131 (1965).

State Dep't of Assessments and Taxation, 422 Md. 544, 556 (2011).
"[S]imply because a Maryland constitutional provision is in pari
materia with a federal one or has a federal counterpart, does not
mean that the provision will always be interpreted or applied in the
same manner as its federal counterpart." Dua v. Comcast Cable of
Maryland, Inc., 370 Md. 604, 621 (2002) (emphasis in original).

                            II
                          Analysis
  Your first question asks whether the judicial leave policy, as

applied, results in unlawful religious discrimination. To answer
that question, we must determine whether the policy, as applied to
a judge whose religious obligations require the judge to be absent
on some scheduled work days, violates the Free Exercise Clause.
In our opinion, it does not. Moreover, even if Article 36 of the
Maryland Declaration of Rights were found to offer greater
protection for free exercise than does the federal constitution, the
judicial leave policy would not result in unlawful discrimination or
interfere with the free exercise of religion under the state
constitution.

A. Federal and State Constitutional Guarantees of Religious
Liberty
1. The Free Exercise Clause
The primary task in assessing the constitutionality of
governmental action under the Free Exercise Clause is to determine
the appropriate level of scrutiny to be applied. Where the object of
a law or policy is to restrict conduct because of its religious
motivation, the law must undergo "the most rigorous of scrutiny";
the law will be upheld only in the "rare case[]" that it serves a
compelling governmental interest "of the highest order" and is
narrowly tailored to advance that interest. Lukumi, 508 U.S. at 546.
On the other hand, "a law that is neutral and of general applicability
need not be justified by a compelling governmental interest even if
the law has the incidental effect of burdening a particular religious
practice." Id. at 531; see also Montrose Christian Sch. Corp. v.
Walsh, 363 Md. 565, 586 (2001). Laws that are neutral and of
general applicability are subject to rational basis review, which
requires only that the law be "rationally related to a legitimate
government interest." Bethel World Outreach, 706 F.3d at 561
(citations and internal quotation marks omitted).
The "neutrality" and "general applicability" requirements are
interrelated; "failure to satisfy one requirement is a likely
indication that the other has not been satisfied." Lukumi, 508 U.S.
at 531. The shared aim of both inquiries is to identify government
actions that target religiously-motivated conduct for unfavorable
treatment while exempting or failing to reach the same conduct
when undertaken for non-religious reasons. See, e.g., id. at 533
(explaining that non-neutral laws have as their object or purpose
"the suppression of religion or religious conduct").
In our view, the policy on judicial leave must be regarded as
both general and neutral with respect to religion. The
Administrative Order applies to all judges without regard to their
religious beliefs or practices, and it purports to regulate
substantially all judicial absences, whether such absences are
motivated by religious concerns or secular ones. All judges are
entitled to the same amount of personal and annual leave, which
they are free to use for any purpose, including religious ones.
Additional paid absences are authorized under specific
circumstances—for personal illness or family care, judicial or legal
activities, military service, and similar reasons—that might arise
for any judge without regard to his or her religious faith or
practices. Amended Administrative Order ¶¶ 9-25 (rules regarding
specific forms of leave). In short, the Administrative Order does
not, on its face, selectively "impose burdens only on conduct
motivated by religious belief." Lukumi, 508 U.S. at 543.
The judicial leave policy does depart from strict religious
neutrality in one respect: it provides that a personal-leave request
for religious observance may not be denied. However, not every
reference to religion or religious conduct renders a law or policy
constitutionally suspect and subject to strict scrutiny under the Free
Exercise Clause. See, e.g., Locke v. Davey, 540 U.S. 712, 720-25
(2004) (declining to apply strict scrutiny to a State scholarship
program that excluded students pursuing a theology degree when
the disfavor of religion was slight and there was no animus toward
religion evident in the text, legislative history, or operation of the
program); Bronx Household of Faith v. Board of Educ. of the City
of New York, 750 F.3d 184, 192-95 (2d Cir. 2014) (declining to
apply strict scrutiny to a board of education rule prohibiting off-
hour use of public school facilities for religious worship services).
If the mere mention of religion triggered strict scrutiny, the
neutrality test would be turned on its head, transforming any
attempt to accommodate religious practices as evidence of an intent
to suppress them. Here, the judicial leave policy's heightened
protection for leave due to religious observance—whether or not
required by the Free Exercise Clause—does not indicate an anti-
religious purpose that would warrant strict scrutiny.5
Although the Administrative Order is neutral on its face and
applies to all judges, courts will also test the order for "substantial
underinclusiveness." In other words, a regulation is not generally
applicable if the government applies the restriction such that
religion bears the burden of the rule. See, e.g., Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1134 (9th Cir. 2009). Lukumi offers a good
illustration. In that case, the City of Hialeah enacted a set of
ordinances prohibiting animal sacrifice, ostensibly to protect public
health and prevent cruelty to animals. 508 U.S. at 533-38.
However, the ordinances were written and interpreted so that the
only conduct effectively proscribed was the religious practice of
Santeria church members, while "killings that are no more
necessary or humane in almost all other circumstances are
unpunished." Id. at 536. The failure to address so much similar
conduct "disclose[d] an object remote from [the City's] legitimate
concerns," namely, to accomplish a "religious gerrymander"
against the Santeria religion. Id. at 535, 536 (internal quotation
marks omitted).
We do not see in the judicial leave policy a comparable
targeting of judicial absences due to a judge's religious duties.
Rather, the Administrative Order plainly reaches judicial absences
attributable to any number of secular motivations; it is not limited

5
   Nor do we think that the Administrative Order's heightened

protection for religious observance violates the Establishment Clause,
although this aspect of the Order demonstrates how the two clauses,
while they "express complementary values," often "exert conflicting
pressures." Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). Laws such
as Title VII that require reasonable accommodation of employees'
religious practices are routinely upheld under the Establishment Clause
on the grounds that they have the "primary secular effect of preserving
the equal employment opportunities of those employees whose moral
scruples conflict with work rules." E.E.O.C. v. Ithaca Industries, Inc.,
849 F.2d 116, 119 (4th Cir. 1988) (rejecting Establishment Clause
challenge to Title VII). Similarly, the Supreme Court has observed that
"it is hardly impermissible for Congress to attempt to accommodate free
exercise values, in line with our happy tradition of avoiding unnecessary
clashes with the dictates of conscience." Gillette v. U.S., 401 U.S. 437,
453 (1971) (rejecting Establishment Clause challenge to selective
service exemption for conscientious objectors) (internal quotation marks
and citations omitted).

to leave taken for religious observance or other religious reasons.
And while additional, non-accruing leave is available for some
specific secular purposes, the Administrative Order does not
provide such leave for whatever non-religious reason a judge may
choose to be away from court. The additional categories of
authorized paid leave advance the administration of justice,
promote the health of judges and their families, and facilitate or
encourage particular kinds of community, public, or government
service. Authorizing additional paid leave for these purposes thus
either contributes directly to the effectiveness of the judiciary, or
else temporarily excuses judges from their judicial duties in the
interest of other forms of service that benefit the community.
Unlike religious observance, which government may
accommodate to some extent but cannot promote, the activities for
which the policy authorizes additional paid leave fall within areas
of legitimate governmental concern. The grant of leave for these
legitimate purposes does not suggest an impermissible targeting of
religious observance.6
Because the Administrative Order is general in its application
and neutral toward religion, it is valid so long as it withstands
rational basis review. See Bethel, 706 F.3d at 561. Regulating
judicial absences rationally promotes a number of governmental
interests. For example, the grant of annual and personal leave,
totaling 33 business days in all presumably assures that judges have
sufficient time away from the bench to maintain good health and
effectiveness. Allocating such leave equally among all judges and
establishing procedures for requesting and granting it facilitates the
6
Although the Order thus appears to be sufficiently general in its
ordinary application, one provision could raise at least a theoretical
concern if applied improperly. Paragraph 26 provides that, subject to the
general policy on staffing and the procedures for submitting leave
requests, "the Chief Judge of the Court of Appeals may grant a judge
administrative leave for any other absence not specifically provided for
by the Maryland Rules or this Order." We have no information about
how this discretionary power has been interpreted or applied, or on what
basis the Chief Judge might grant administrative leave outside the Order.
But if the provision is understood to allow individualized, discretionary
exceptions from the general restrictions of the judicial leave policy, it
would have to consider requests for religious leave upon the same
conditions as other, non-religious requests, absent a compelling
justification. Smith, 494 U.S. at 884; Lukumi, 508 U.S. at 537;
Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004); cf.
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 71 (1986) (noting that,
"when paid leave is provided for all purposes except religious ones," the
arrangement discriminates against religious practices for purposes of
Title VII).

scheduling of the court's business and the equitable distribution of
cases. See Admin. Order, ¶ 5.d.(2)(c) ("prompt and effective
disposition" of court business); Md. R. 16-104(f). As mentioned
above, other kinds of non-accruing paid leave—such as for legal
education, attendance at judicial conferences, and similar events—
contribute directly to the improvement of law and administration
of justice, or increase public understanding of the judicial system.
Sick leave, among other things, promotes judicial effectiveness by
enabling judges to attend to their own health and the health of their
family members. Lastly, administrative leave is available to
facilitate specific kinds of charitable, public, or government
service, such as donating organs or bone marrow, giving aid during
disasters or public emergencies, or serving in the military. The
judicial leave policy rationally serves all of these legitimate
government interests and thus satisfies the rational basis test.
Our conclusion that the Order does not offend the Free
Exercise Clause is also consistent with the well-settled principle
that the clause, while it protects against governmental interference
with religious practices, offers no basis for claims to additional
benefits as compared to those provided to members of other faiths
or to those who are not religiously observant. See, e.g., United
States v. Friday, 525 F.3d 938, 957 (10th Cir. 2008). As the federal
courts have explained:
The crucial word in the constitutional text is
"prohibit." For the Free Exercise Clause is
written in terms of what the government
cannot do to the individual, not in terms of
what the individual can exact from the
government. Put differently, this clause
provides protection from certain forms of
governmental compulsion, but generally does
not provide a basis for demands for
affirmative governmental assistance.
Trinity Lutheran Church of Columbia, Inc. v. Pauley, 976 F. Supp.
2d 1137, 1146 (W.D. Mo. 2013) (internal quotation marks and
citations omitted); see also Bronx Household of Faith, 750 F.3d
at 191 ("The Free Exercise Clause . . . has never been
understood to require government to finance a subject's exercise of
religion[.]"). Non-discrimination under the Free Exercise Clause
does not require the government or employer to bear the cost, in
the form of additional leave benefits, of incidental burdens
resulting from a religious believer's observance of religious duties.
Even under Title VII—which does impose affirmative obligations
on employers to accommodate religious practices—no employer,
public or private, is required to grant an accommodation that
imposes more than de minimis cost on the employer or others.
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). While
offering extra benefits may, in some circumstances, be necessary
to accommodate religious practices under that statute, see E.E.O.C.
v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (2015),
the Free Exercise Clause does not mandate it.
Inevitably, in a religiously diverse society, the judicial
calendar will not correspond precisely with every judge's religious
obligations. But the existence of this disparate impact on members
of different faiths is the starting point for Free Exercise Clause
analysis, not a violation in itself. The test prescribed in Smith
assumes that such disparities will occur, but holds them
unobjectionable so long as they result from a religion-neutral,
generally-applicable rule. See Smith, 494 U.S. at 876-79; see also
Hines, 148 F.3d at 357 (observing that, under Smith, "a neutral,
generally applicable law does not offend the Free Exercise Clause,
even if the law has an incidental effect on religious practice").
We are not aware of any case involving a Free Exercise
challenge to a leave policy similar to the one here, but courts have
routinely upheld similar policies against challenges brought under
other statutory and constitutional theories. In doing so, the courts
have rejected disparate impact arguments similar to the one
suggested by your question. For example, in Tepper v. Potter, 505
F.3d 508 (6th Cir. 2007), a Jewish letter carrier sued the Postmaster
General under Title VII, alleging that the government
discriminated against him by including him in the rotating Saturday
schedule, when his faith prohibited him from working, while no
employees were assigned Sunday work. The "Sunday off" policy,
he argued, enabled non-Jewish employees to observe their Sabbath,
while he could observe his. Id at. 517. In upholding the policy, the
Sixth Circuit noted that the reason letter carriers were not assigned
to work Sundays was because of the light workload on that day, not
because Sunday was the Sabbath for some employees. Id. The
"Sunday off" policy thus had a secular purpose; its aim was not to
allow or encourage Sabbath observance.7 For that reason, requiring
7
In fact, had the policy been designed to promote Sunday worship,
it likely would have run afoul of the Establishment Clause. In Estate of
Thornton v. Caldor, Inc., 472 U.S. 703 (1985), for example, the Court
struck, as a violation of the Establishment Clause, a Connecticut Sabbath
observance law that gave every employee an unqualified right to refrain
from work on the weekday the employee designated as a Sabbath. The
Court held that the primary effect of the law was not secular, but that of
advancing religion.

carriers to accept rotating assignments on Saturdays, but not
Sundays, did not discriminate on the basis of religion.
A similar argument was rejected in Koenick v. Felton, which
involved claims under the Establishment Clause and Equal
Protection Clause. 973 F. Supp. 522 (D. Md. 1997), aff'd 190 F.3d
259 (4th Cir. 1999). There, a Montgomery County public school
teacher challenged the constitutionality of a Maryland statute
creating a public school holiday from "[t]he Friday before Easter
and from then through the Monday after Easter." Md. Code Ann.,
Educ. § 7-103(c)(1)(v) (2014 Repl. Vol.). She alleged that this
holiday violated the Establishment Clause and equal protection
because, as an observant Jew, she was obliged to use personal leave
days or leave without pay to observe certain religious holidays,
such as Passover, while the holiday schedule gave practicing
Christians paid leave to observe their religious holidays, without
need to use personal leave. The district court concluded, however,
that the statute has a secular purpose: The statute simply provided
a four-day weekend over a period "when there is a high probability
of absenteeism." Id. at 528. The court also concluded that the
Equal Protection Clause did not apply because there was no
unequal treatment of similarly situated persons; all teachers were
given the same days off with pay. Id. at 530. This equality of
treatment was not changed by the "ancillary fact" that some
Christians may observe Good Friday as a religious holiday. Id.
Though decided on other grounds, the reasoning of these
cases is consistent with our conclusion under Smith and Lukumi,
that in providing equal personal and annual leave to all judges
regardless of their religious obligations, the judicial leave policy is
consistent with the Free Exercise Clause. We next consider
whether the policy is consistent with Article 36 of the Maryland
Declaration of Rights.

 2.     Article 36 of the Maryland Declaration of Rights
 Whether the amended judicial leave policy is consistent with

Article 36 depends in part on whether the State constitutional
provision is read in pari materia with the Free Exercise Clause. If
the two provisions mean the same thing, then the conclusion we
reach above would hold true as a matter of State law as well. But
given that the Court of Appeals has not foreclosed the possibility
that Article 36 might be interpreted differently from its federal
counterpart, we must also evaluate the constitutionality of the
Administrative Order under an alternative State-law standard.
Although this inquiry necessarily involves some speculation about
how the Court of Appeals will interpret Article 36 if not in part
materia with the Free Exercise Clause, one interpretation presents
itself as the most likely candidate: The "substantial burden"
standard articulated by the Supreme Court in Sherbert v. Verner,
374 U.S. 398 (1963).
Sherbert was the prevailing precedent before it was
"eviscerated" by Smith in 1990. See 79 Opinions of the Attorney
General 45, 49-50 (1994); see also Lukumi, 508 U.S. at 531
(explaining the law after Smith). "Under the Sherbert test,
governmental actions that substantially burden a religious practice
must be justified by a compelling governmental interest." Smith,
494 U.S. at 883; see Sherbert, 374 U.S. at 402-03. Thus, where
Smith now applies the rational basis test to all neutral and
generally-applicable governmental actions, Sherbert would apply
strict scrutiny if those actions incidentally impose a "substantial
burden" on religion.8
Maryland cases decided prior to 1990 seem to have followed
an analytical approach similar to that taken in Sherbert. In
McMillan v. State, 258 Md. 147 (1970), for example, a defendant
who refused on religious grounds to remove a religious head
covering known as a "filaas" was cited for contempt. The Court of
Appeals concluded that wearing the filaas did not undermine the
State's compelling interest in maintaining decorum and respect and
therefore reversed the order. Id. at 152-53 (citing Sherbert). The
Government's demand that the religious objector conform to a
neutral, general rule was evaluated not under the rational basis
test—as would be the case under Smith—but in relation to a
compelling State interest, suggesting that the Court was applying a
standard analogous to the Sherbert test. The Court of Special

8
As Judge Harrell has described, there appear to be two schools of
thought about how much of Sherbert survives, as a matter of federal law,
after Smith. Neustadter v. Holy Cross Hosp. of Silver Spring, Inc., 418
Md. 231, 257-59 (2011) (Harrell, J. concurring). One school sees
Sherbert as applicable "only to those cases involving individualized
exemptions vis á vis a system of unemployment benefits." Id. at 257.
The other school—and the one that Judge Harrell indicates "has garnered
the most support," id. at 258—maintains that Sherbert continues to apply
to "all individualized exemptions, and not only to those involving
unemployment benefits." Id.

Appeals in Snyder v. Holy Cross Hospital, 30 Md. App. 317
(1976), addressed Sherbert specifically, noting that it "is in accord
with the law as we have found it to be" under Article 36. The
intermediate appellate court held that the State's compelling
interest in determining the cause of death for a seemingly-healthy
eighteen-year-old man outweighed the father's religious objections
to an autopsy. Id. at 330-31. And in Levitsky v. Levitsky, 231 Md.
388, 397-98 (1963), Article 36 did not grant to a parent the right to
refuse necessary medical care to her child based on the parent's
religious convictions, given the gravity of the consequences. Thus,
the Maryland appellate courts have evaluated the Government's
demand that the religious objector conform to a neutral, general
rule in relation to a State interest asserted to be compelling,
suggesting a free exercise standard equivalent to that articulated in
Sherbert.
After the Supreme Court decided Smith, the Court of Appeals
appears to have moved away from the Sherbert test when
discussing Article 36. The Court of Appeals in Moersen, 399 Md.
at 640-41, and Montrose, 363 Md. at 585, cited Smith and Lukumi
in discussing the scope of religious protection under both the Free
Exercise Clause and Article 36, suggesting that Sherbert no longer
provides the appropriate constitutional framework. But neither
Moersen nor Montrose involved incidental burdens arising from
neutral requirements of general applicability. Instead, both cases
dealt with Title VII and the so-called "ministerial exception,"
which exempts from that statute's reach employment decisions
involving employees whose "'primary duties consist of teaching,
spreading the faith, church governance, supervision of a religious
order, or supervision or participation in religious ritual and
worship.'" Moersen, 399 Md. at 644 (quoting Rayburn v. General
Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th
Cir. 1985)); Montrose, 363 Md. at 590. Given the different context
of those cases, we do not necessarily read into the Court's
statements a broader endorsement of Smith as the guiding
precedent for Article 36.
Because we cannot say with confidence that Smith would
control here, we also consider the possibility that the Court might
continue to apply the more demanding constitutional standard
articulated in Sherbert. For reference points on how to apply that
standard we have the cases discussed above that appear to have
followed Sherbert, but we also have the cases applying the
Religious Freedom Restoration Act of 1993 ("RFRA"). That Act

is not applicable to the states,9 but because it was intended to codify
and "restore the compelling interest test as set forth in Sherbert"
and its progeny, 42 U.S.C. § 2000bb(b)(1), cases decided under
RFRA provide useful guidance in the event that Maryland courts
continue to follow Sherbert. RFRA provides, in relevant part:
Government may substantially burden a
person's exercise of religion only if it
demonstrates that application of the burden to
the person
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of furthering
that compelling interest.
42 U.S.C. § 2000bb-1(b). Thus, as under Sherbert and the pre-
Smith Free Exercise Clause cases, not every incidental burden on
the exercise of religion violates RFRA, only burdens that are
"substantial." Cf. Hernandez v. C.I.R., 490 U.S. 680, 699 (1989);
Smith, 494 U.S. at 883. A "substantial burden" exists when
government action puts "substantial pressure on an adherent to
modify his behavior and to violate his beliefs." Thomas v. Review
Board of Indiana Employment Sec. Div., 450 U.S. 707, 718 (1981).
Applying the more demanding Sherbert/RFRA test to the
scenario described in your question, we still find it unlikely that a
judge's need to use accrued personal and annual leave for religious
observance would create "substantial pressure" to violate his or her
beliefs. After all, he or she has at least thirty-three days—six and
a half weeks—of combined annual and personal leave, and perhaps
more if accrued leave is carried over from the prior year. Although
a judge might prefer to preserve all of that leave for vacation and
non-religious pursuits, how the judge uses leave is ultimately up to

9
The provisions of RFRA were intended to cover both federal and
state governments, but in City of Boerne v. Flores, 521 U.S. 507 (1997),
the Court invalidated RFRA as applied to the States and their political
subdivisions, holding that the Act was beyond the remedial powers of
Congress under the Fourteenth Amendment. In response, Congress
enacted the Religious Land Use and Institutionalized Persons Act, 42
U.S.C. § 2000cc et seq., as a "reprisal" of RFRA, though with a more
limited focus on certain types of decisions that impose a substantial
burden on religious exercise. See Trinity Assembly of God of Baltimore
City v. People's Counsel for Baltimore County, 407 Md. 53, 88-89
(2008).

the judge. What an observant judge gives up under the judicial
leave policy is thus not one or more days of leave, but a flexibility
in how to use the leave allotted.
The case law shows that the loss of that flexibility is not a
burden of constitutional consequence. For example, the district
court in DiPasquale v. Board of Educ., Williamsville Cent. Sch.
Dist., 626 F. Supp. 457, 459 (W.D.N.Y. 1985), reached that
conclusion with respect to a collective bargaining agreement that
provided employees with various kinds of leave, including "family
leave," on certain religious holidays. The agreement permitted the
plaintiff to use one of only a limited number of personal days for
an absence on a religious holiday that was not covered by the
agreement. The court in DiPasquale concluded that the use of a
personal day, which the plaintiff might have used otherwise, to
observe religious holidays was a "minimal infringement" on free
exercise that "cannot be said to rise to the level of a constitutional
violation." Id. at 459.10
The infringement at issue here—a diminution in one's options
about on how to use leave benefits—also seems less of a burden on
free exercise than the policies that appear to have triggered strict
scrutiny in Snyder and MacMillan, where the State specifically
required observant individuals to take actions prohibited by their
religious faith. Only where the days needed for religious leave
exceeds all available leave is there any potential for direct
interference with a judge's religious practices. But even then, the
Sherbert analysis would require a court to determine whether the
state's interests in the "prompt and effective disposition of
[judicial] business," Md. R. 16-104(f), and in the equitable division
of the courts' workload among all judges, would justify imposing
a reasonable limit on judicial leave. In our view, the total number
of annual and personal leave days allowed does not appear to be
unreasonably restrictive. In short, we do not think that the loss of
choice over a portion of one's accrued leave would create
"substantial pressure" on an individual to act contrary to their
10
Compare Braunfeld v. Brown, 366 U.S. 599 (1961), upholding
Pennsylvania's Sunday closing law as applied to Jewish storeowners
who closed for business on Saturday to observe the Sabbath. Though the
burden was indirect, the law made the practice of the storeowners'
religious beliefs more expensive. The Supreme Court acknowledged
that, although the alternatives facing the plaintiffs "may well result in
some financial sacrifice in order to observe their religious beliefs, still
the option is wholly different than when the legislation attempts to make
a religious practice itself unlawful." Id. at 606.

religious convictions. We therefore conclude that, even assuming
Article 36 were interpreted in line with Sherbert and RFRA, the
judicial leave policy does not impose impermissible burdens on the
free exercise of religion.

B. Whether the Judiciary Must Provide Administrative Leave
for Judges' Religious Observance
You also asked whether paid or unpaid administrative leave
for religious holidays must be provided for judges even though
such leave is unavailable to any other judiciary employees. Given
our conclusion that the Administrative Order, without offering such
leave, does not discriminate on the basis of religion under either the
Free Exercise Clause or Article 36, we see no constitutional duty
to offer judges the additional option of taking administrative leave.
As discussed above, those constitutional provisions speak in terms
of "what the government cannot do to the individual, not in terms
of what the individual can exact from the government." Lyng v.
Northwest Indiane Cenetery Protective Ass'n., 485 U.S. 439, 451
(1988) (quoting Sherbert, 374 U.S. at 412 (Douglas J.,
concurring)).
Nor are we aware of any other legal requirement that would
compel the Judiciary to accommodate the religious needs of judges
through the particular mechanism of paid or unpaid administrative
leave. Even where Title VII imposes an affirmative obligation to
"reasonably accommodate" an employee's religious practices, the
manner of accommodation is up to the employer, despite the
employee's preference for a different form of accommodation.
See, e.g., Ansonia Bd. of Educ., 479 U.S. at 68.
Although judges who stand for retention, like other elected
public officials, are not "employees" within the meaning of Title
VII, see 42 U.S.C. § 2000e(f),11 the reasoning applied in the Title

 11
      Title VII, in relevant part, defines "employee" to exclude:

      any person elected to public office in any State or political
      subdivision of any State by the qualified voters thereof, or
      any person chosen by such officer to be on such officer's
      personal staff, or an appointee on the policy making level
      or an immediate adviser with respect to the exercise of the
      constitutional or legal powers of the office. The
      exemption set forth in the preceding sentence shall not
      include employees subject to the civil service laws of a

  State government, governmental agency or political
  subdivision.

42 U.S.C. § 2000e(f); see also Md. Code Ann., State Gov't Article § 20-
601(c)(2) (providing the same exclusion from State law regulating
discrimination in employment).

  Circuit court and appellate judges must stand for retention in a

general election, Md. Const., Art. IV, §§ 3, 5A; and they are not part of
Maryland's civil service system. See Md. Code Ann., State Pers. & Pens.
§§ 6-303 (excluding from the State Personnel Management System all
positions in the Judicial Branch, except as otherwise provided by law);
6-301 (excluding elective positions and positions provided for by the
Maryland Constitution). They therefore do not qualify as "employees"
for purposes of Title VII. See Gupta v. First Judicial Dist. of
Pennsylvania, 759 F. Supp. 2d 564 (E.D. Pa. 2010) (state judge's law
clerk was "personal staff" of elected official and thus not an employee
covered by Title VII); Bland v. New York, 263 F. Supp. 2d 526 (E.D.N.Y.
2003) (judge's personal secretary excluded from Title VII coverage as
"personal staff" of elected official). District court judges, though not
elected, are also excluded from the definition as "appointee[s] on the
policymaking level." Gregory v. Ashcroft, 501 U.S. 452 (1991)
(interpreting similar language to exclude state judges from coverage
under the federal Age Discrimination in Employment Act); Spann-
Wilder v. City of North Charleston, 2010 WL 3222235 (D.S.C.)
(appointed municipal judge not covered under Title VII); see 76
Opinions of the Attorney General 81 n.1 (1991) (concluding that
standing masters, but not district court judges, are protected under the
ADEA).

VII context sheds light on what sorts of employment policies are
regarded by courts as reasonable ways to accommodate employees'
religious practices.
Under Title VII of the Civil Rights Act of 1964, it is an
"unlawful employment practice for an employer . . . to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's . . . religion." 42 U.S.C. § 2000e-2(a)(1); Westbrook
v. North Carolina A & T State Univ., 51 F. Supp. 3d 612, 618
(M.D.N.C. 2014). "Religion" is defined to "includ[e] all aspects of
religious observance and practice, as well as belief, unless an
employer demonstrates that he is unable to reasonably
accommodate" an employee's "religious observance or practice
without undue hardship on the conduct of the employer's
business." 42 U.S.C. § 2000e(j). Title VII protects against both
disparate treatment on the basis of religion and an employer's
failure to reasonably accommodate the employee's religious
observance or practice. Chalmers v. Tulon Co. of Richmond, 101
F.3d 1012, 1017-18 (4th Cir. 1996). Thus, in addition to barring
unequal treatment on the basis of religion, Title VII imposes upon
the employer a "statutory obligation to make reasonable
accommodation for the religious observances of its employees,
short of incurring an undue hardship." Hardison, 432 U.S. at 75.
Like the heightened protections of RFRA, this affirmative duty to
reasonably accommodate an employee's religious practices
requires more than the neutrality toward religion demanded by the
Free Exercise Clause.
In general, courts have considered the reasonableness of an
accommodation to be a fact-specific inquiry requiring examination
of the totality of circumstances, including the cost to the employer
and co-workers, the nature of the employee's religious beliefs, and
any conflict with the employee's work duties. See, e.g., Sánchez-
Rodríguez v. AT&T Mobility Puerto Rico, 673 F.3d 1, 12 (1st Cir.
2012); E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307,
313 (4th Cir. 2008). But beyond that, the courts have varied
considerably about what constitutes a "reasonable"
accommodation. Some courts have held that an accommodation
that entirely removes the conflict between work requirements and
the employee's religious obligations, if applied in a religion-neutral
manner, is always a reasonable accommodation as a matter of law.
Sturgill v. United Parcel Service, 512 F.3d 1024, 1030-31 (8th Cir.
2008); see also Porter v. City of Chicago, 700 F.3d 944, 951-53
(7th Cir. 2012) (an accommodation that eliminates the religious
conflict is reasonable, whether or not it is the employee's preferred
accommodation); Telfair v. Federal Express Corp., 934 F. Supp.
2d 1368, 1384 (S.D. Fla. 2013) (same). Under that standard, courts
have found that the availability of paid or unpaid leave for religious
holidays or Sabbath observance is generally a permissible way to
eliminate the religious conflict, and thus reasonably accommodate
an employee, even if the employee feels that requiring leave to
eliminate religious conflicts is unfair or coercive. See, e.g.,
Abdelkader v. Sears, Roebuck & Co., 780 F. Supp. 2d 389, 395 (D.
Md. 2011); see also Durant v. NYNEX, 101 F. Supp. 2d 227, 233-
34 (S.D.N.Y 2000).
The United States Court of Appeals for the Sixth Circuit,
however, has held that an accommodation is not reasonable if it
resolves the religious conflict only by requiring the employee to
use all of the employee's paid-leave entitlement, reasoning that the
employee "stands to lose a benefit, vacation time, enjoyed by all
other employees." Cooper v. Oak Rubber Co., 15 F.3d 1375, 1379
(6th Cir. 1994); see also Goldmeier v. Allstate Ins. Co., 337 F.3d
629 (6th Cir. 2003). But that does not reflect the rule in the Fourth
Circuit. Instead, the Fourth Circuit has held that vacation leave
provided under the employer's standard leave plan is a permissible
means to reasonably accommodate an employee's religious
practices, not an employment benefit that is "lost" through the
employee's use of it for religious observance. See, e.g., Firestone,
515 F.3d at 315; E.E.O.C. v. Thompson Contracting, Grading,
Paving, and Utilities, Inc., 499 Fed. App'x. 275 (4th Cir. 2012).
In Firestone, the plaintiff's religious beliefs prohibited him
from working on the Sabbath and on fourteen workdays that fell
within religious holidays. Although the employer's collectively-
bargained attendance package included fifteen vacation days, three
"floating holidays," and sixty hours of unpaid leave, the total
number of days off were still inadequate to completely
accommodate the plaintiff's religious needs, and he was terminated
after he exceeded the leave available under the policy. The
Firestone court concluded that Title VII requires only
"reasonable," but not necessarily "total," accommodation of an
employee's religious practices and found that the accommodations
offered were reasonable. 515 F.3d at 315-16. In contrast to the
Sixth Circuit's reasoning in Cooper, the Fourth Circuit in Firestone
viewed the employee's use of all the leave available to him
exclusively for Sabbath and holy day observance as part of the
accommodation actually provided, not as a loss of leave benefits
based on his religion. Id. at 315-16 ("pre-existing company
policies" concerning seniority, leave, and shift-swapping qualified
as reasonable accommodations).
In our opinion, most courts would usually regard the judicial
leave plan as a reasonable method of accommodating an
employee's need for time off for religious observance. A total of
thirty-three paid leave-days is ordinarily available for this purpose,
including six personal days for which leave on account of religious
observance may not be denied. Even if a judge were compelled to
use all available paid leave to eliminate conflicts with religious
duties, the leave offered would not be unreasonable for that reason
alone. Indeed, the Firestone court did not order the employer to
provide unpaid leave beyond the limits of the collective-bargaining
agreement, even though the standard accommodation package fell
short of completely resolving the employee's religious conflicts.
Given that outcome, the possibility that a court would hold that
Title VII requires unpaid leave solely to allow an individual to
preserve his or her annual leave for other, non-religious purposes
seems remote.
We need not decide whether the Judiciary would have to offer
additional administrative leave as a reasonable accommodation
under Title VII; that statute does not apply to most judges. But the
likelihood that additional leave would not be necessary as a
reasonable accommodation under Title VII reinforces our
conclusion that it would not be necessary under the Free Exercise
Clause either. As discussed above, that constitutional provision
"provides protection from certain forms of governmental
compulsion"; it "generally does not provide a basis for demands for
affirmative governmental assistance." Trinity Lutheran, 976 F.
Supp. 2d at 1146.

                           III
                        Conclusion
  The Court's judicial leave policy, because it is of general

application and grants leave equally regardless of how a judge
chooses to use the leave, does not discriminate on the basis of
religion. Though some judges have religious obligations not
shared by others, the Free Exercise Clause of the First Amendment
does not require the judiciary to provide them with additional leave.
Nor do we believe that the Administrative Order violates Article
36 of the Maryland Declaration of Rights, even if that provision
were interpreted as providing greater religious protections than its
federal counterpart. The infringement at issue here—a diminution
in one's choices on how to use leave benefits—does not create
"substantial pressure" on an individual to act contrary to his or her
religious convictions.
Finally, no federal or State law requires the Judiciary to
provide administrative leave for religious observance. Even under
Title VII, which does not apply to judges, employers are not
obligated to offer administrative leave for religious holidays if the
employer's leave policy reasonably accommodates an employee's
religious practices. In our opinion, the six and a half weeks of
annual and personal leave available for religious observance would
ordinarily be regarded as a sufficient accommodation for religious
practice even under standards more protective of religious liberty
than the Free Exercise Clause. Accordingly, we conclude that, in
addition to the paid leave available, the policy need not grant
additional administrative leave for religious holidays that fall on
scheduled work days.

                           Brian E. Frosh
                           Attorney General of Maryland
                           Jeffrey L. Darsie
                           Assistant Attorney General

Adam D. Snyder
Chief Counsel, Opinions & Advice