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8 adopted a test under which any law whose “principal or primary effect” “was to advance religion” was unconstitutional. Id., at 612–613. Because it could be argued that granting a special accommodation to a religious practice had just such a purpose and effect, some thought that Lemon posed a serious problem for the 1972 amendment of Title VII. And shortly before review was granted in Hardison, the Court had announced that the Justices were evenly divided in a case that challenged the 1972 amendment as a violation of the Establishment Clause. Parker Seal Co. v. Cummins, 429 U. S. 65 (1976) (per curiam).

Against this backdrop, both TWA and IAM challenged the constitutionality of requiring any accommodation for religious practice. The Summary of Argument in TWA’s brief began with this categorical assertion: “The religious accommodation requirement of Title VII violates the Establishment Clause of the First Amendment.” Brief for Petitioner TWA in O. T. 1976, No. 75–1126, p. 19. Applying the three-part Lemon test, TWA argued that any such accommodation has the primary purpose and effect of advancing religion and entails “pervasive” government “entanglement … in religious issues.” Brief for Petitioner TWA in No. 75–1126, at 20. The union’s brief made a similar argument, Brief for Petitioner IAM, O. T. 1976, No. 75–1126, pp. 21–24, 50–72, but stressed the special status of seniority rights under Title VII, id., at 24–36.

Despite the prominence of the Establishment Clause in the briefs submitted by the parties and their amici, constitutional concerns played no on-stage role in the Court’s opinion, which focused instead on seniority rights. The