(dissenting).
I respectfully dissent. The Bill of Rights, which contains the First Amendment, has endured because the federal judiciary has refused to cut constitutional corners to achieve temporary solutions to immediate problems. The majority departs from this tradition today, without thought to the damage that may be done to future generations.
What the majority fails to grasp is that if Congress is permitted to breach *555the First Amendment by granting benefits to religion, it is thereby empowered to breach it to take away religious freedoms. In adopting the Bill of Rights the Framers were exceedingly careful to require of Government a neutral position in religious affairs, declaring religious freedom and denying special privileges to one religious group to the detriment of others. The majority, by judicial fiat, revises the Constitution, bypassing the ratification process. To follow the course advocated by the majority would mean approving a breach of the wall of separation between Church and State erected by the First Amendment. In time, as the breach grows, it could lead to political tyranny, with religious groups advancing their particular interests through our political institutions. I cannot concur in this departure from the neutral position to w;hieh Government is assigned under our form of political life.
Neutrality is the heart of the religion clauses of the First Amendment. The Supreme Court has steadfastly upheld Jefferson’s injunction that Government remain neutral in religious affairs, with the First Amendment standing as “a wall of separation between Church and State.” McCollum v. Board of Education, 333 U.S. 203, 211, 68 S.Ct. 461, 465, 92 L.Ed. 649 (1948); Everson v. Board of Education, 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Reynolds v. United States, 98 U.S. 145, 164, 25 L.Ed. 244 (1878).1 The wall must- protect against friendly assistance as well as hostile assaults, so that religion and government remain free from the sustenance and interference of one another. See Committee for Public Education v. Nyquist, 413 U.S. 756, 788-89, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973); Everson v. Board of Education, 330 U.S. 1, 53, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (Rutledge, J., dissenting). This principle “forbids subtle departures from neutrality, ‘religious gerrymanders,’ as well as obvious abuses.” Gillette v. United States, 401 U.S. 437, 452, 91 S.Ct. 828, 837, 28 L.Ed.2d 168 (1971).
By Regulation 1605.1 and by 42 U.S.C. § 2000e(j), the Federal Government has breached the wall. The Regulation and Section 2000e(j) grant preferences to employees by reason of their religion, forcing modifications in seniority systems, overtime scheduling, and other forms of employee organization. An employee is exempted from work on Saturdays if he demands release for religious purposes, but other employees are not accorded the same treatment if they prefer not to work on Saturdays. Not only are the latter employees not exempted, but they may have to substitute for the absent religious practitioner on Saturdays or lose their jobs.
Exemption from uniform work rules for religious reasons has been recognized as an unfair and undue preference under collective bargaining agreements. See, e. g., John Morrell & Co., 17 Lab.Arb. 280, 282 (1951); Singer Co., 48 Lab.Arb. 1343 (1967). Judicial decisions not directly involving Regulation 1605.1 or Section 2000e(j) have underscored the inequity of a special rule for certain employees on religious grounds. See, e. g., Dawson v. Mizell, 325 F.Supp. 511 (E.D. Va.1971); Eastern Greyhound Lines Division v. New York State Division of Human Rights, 27 N.Y.2d 279, 317 N.Y.S.2d 322, 265 N.E.2d 745, aff’g 34 A.D.2d 916, 311 N.Y.S.2d 465 (1970); Andrews v. O’Grady, 44 Misc.2d 28, 252 N.Y.S.2d 814 (1964); Otten v. Baltimore & O. R.R., 205 F.2d 58 (2d Cir. 1953). See also Hammond v. United Paperworkers Union, 462 F.2d 174 (6th Cir.), cert. denied, 409 U.S. 1028, 93 S.Ct. 464, 34 L.Ed.2d 322 (1972); Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir. 1970), aff’d by equally divided court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971).
Granting special privileges because of the exercise of one’s religion is just as wrong as denying employment opportu*556nity because of one’s religious beliefs. When Government engages in either practice, it discriminates on the basis of religion and abandons its neutrality.
As the majority points out, any rule must surmount three hurdles before it can be approved under the Establishment Clause. As the Supreme Court stated in Committee for Public Education v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948 (1973):
[T]o pass muster under the Establishment Clause the law in question first must reflect a clearly secular legislative purpose [citation omitted], second, must have a primary effect that neither advances nor inhibits religion [citations omitted], and, third, must avoid excessive government entanglement with religion.2
I believe that the rule meets neither of the first two requirements under Nyquist.
The majority finds two “secular” purposes in the rule. First, it asserts that the rule is meant “to put teeth in the existing prohibition of religious discrimination.” Second, it reasons that “the reasonable accommodation rule reflects a legislative judgment that, as a practical matter, certain persons will not compromise their religious convictions and that they should not be punished for the supremacy of conscience.” Neither of these rationales justifies the rule.
There is no doubt that Congress acted with a valid secular purpose in banning employment discrimination based on religion through Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e, et seq. The expressed purpose of that legislation was to end discrimination based on certain factors that had no relation to an individual’s ability and initiative and, accordingly, to end the burden on interstate commerce imposed by various forms of invidious discrimination.3 The object was to make religion a meaningless factor in employment decisions.
This secular purpose does not justify the 1972 religious accommodation amendment, which incorporated EEOC Regulation 16P5.1 into Title VII. Section 2000e(j) defines religion so as to require that persons receive preferential treatment because of their religion. This contradicts the secular purpose behind the original Title VII. Rather than “putting teeth” into the Act, it mandates religious discrimination, thus departing from the Act’s basic purpose. See Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
The second purportedly secular justification for the rule is that it recognizes that “certain persons will not compromise their religious convictions” and ensures “that they will not be punished for the supremacy of conscience.”
The absence of a religious accommodation rule, however, would not amount to punishment. It would simply be a “hands-off” attitude on government’s part, allowing employers and employees to settle their own differences. The rule grants benefits to religious practitioners because of their religion. The second rationale the majority advances, therefore, amounts to an assertion that it is a valid secular purpose to grant preferences to persons whose religious practices do not fit prevailing patterns. Indeed, the legislative history of the 1972 amendment reveals Congressional thinking that the Establishment Clause was not violated because “[i]n dealing with the free exercise [of religion], really, this promotes the constitutional demand in that respect.”4
It is, of course, fundamental that the First Amendment protects the free exercise of all religions, whatever the number of their practitioners. “A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.” Wisconsin v. Yoder, 406 U.S. 205, 224, 92 S.Ct. 1526, 1537, 32 L.Ed.2d *55715 (1972). Thus, Government may not penalize persons on the basis of their religion.
The Free Exercise Clause requires, for example, that when Government distributes unemployment benefits, it not withhold them from persons who refuse to work on Saturday because of their religious beliefs but are willing to take jobs which do not require Saturday work, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). The holding in Sherbert “reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.” 374 U.S. at 409, 83 S.Ct. at 1797. Sherbert means that Government may not grant benefits to a' uniform class of persons but exclude certain people “because of their faith, or lack of it.” Sherbert, 374 U.S. at 410, 83 S.Ct. at 1797, citing Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947). See also Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). But cf. Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961); Cleveland v. United States, 329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12 (1946); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878).
The fact that Government may not penalize particular religions5 does not mean that Congress may favor particular religions. On the contrary, it means that Congress may not. The argument that aid to religious institutions is justified under a broad reading of the Free Exercise Clause has been raised on behalf of aid to parochial schools and other benefits to religious groups. See Lemon v. Kurtzman, 403 U.S. 602, 665, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (White, J., dissenting); Welsh v. United States, 398 U.S. 333, 367, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) (White, J., dissenting); Abington School District v. Schempp, 374 U.S. 203, 308, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Stewart, J., dissenting).6 The argument has appeared in dissenting opinions, and Supreme Court majorities have consistently rejected it. In Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948), for example, where use of the public schools for religious services during school hours was declared unconstitutional, respondents had urged that the First Amendment was “intended to forbid only government preference of one religion over another, not an impartial governmental assistance of all religions.” 333 U.S. at 211, 68 S.Ct. at 465. Their argument was rejected because government aid to all religions “is not separation of Church and State.” 333 U.S. at 212, 68 S.Ct. at 466. McCollum’s reasoning has been reaffirmed repeatedly, Torcaso v. Watkins, 367 U.S. 488, 494, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961); Zorach v. Clauson, 343 U.S. 306, 315, 72 S.Ct. 679, 96 L.Ed. 954 (1952).7 The Free Exercise Clause provides a shield against government interference with religion, but it does not offer a sword to cut through the strictures of the Establishment Clause. The “secular purposes” advanced by the majority are nothing more than reiterations of justifications rejected in McCollum, Lemon, and Torca*558so. There is no valid secular legislative purpose behind the rule. Its purpose is to protect and advance particular religions.
This purpose is clearly evident in the remarks of Senator Randolph, who authored the 1972 amendment. Although the majority cites his argument that the amendment would advance freedom from religious discrimination (despite its requiring discrimination on religious grounds), the majority fails to quote the real reason why Senator Randolph introduced the amendment:
I say to the distinguished chairman of the Labor and Public Welfare Committee, who manages this bill, that there has been a partial refusal at times on the part of employees whose religious practices rigidly require them to abstain from work in the nature of hire on particular days. So there has been, because of understandable pressures, such as commitments of a family nature and otherwise, a dwindling of the membership of some of the religious organizations because of the situation to which I have just directed attention.
My own pastor in this area, Rev. Delmer Van Horne, has expressed his concern and distress that there are certain faiths that are having a very difficult time, especially with the younger people, and understandably so, with reference to a possible inability of employers on some occasions to adjust work schedules to fit the requirements of the faith of some of their workers.8
The purpose evident in these remarks is the promotion of certain religions whose followers’ practices conflict with employers’ schedules. The promotion of a particular religion is not a justifiable ground for legislation. Otherwise, the neutrality principle, which is the core of the First Amendment, would be violated.
Not only does the religious accommodation rule lack a secular purpose. It also fails the second test under Nyquist. It lacks “a primary effect that neither advances nor inhibits religion,” 413 U.S. at 773, 93 S.Ct. at 2965. It is, in other words, neither “even-handed in operation” nor “neutral in primary impact,” Gillette, 401 U.S. at 450, 91 S.Ct. 828. Accord Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The religious accommodation rule violates these principles in two respects.
First, the religious accommodation requirement discriminates between religion and non-religion. Only those with “religious practices” may benefit from the rule. Others are forced to submit to uniform work rules and to bear the burdens imposed by their employers’ accommodation to religious practitioners. Thus, the rule discriminates against those with no religion, although the freedom not to believe is within the First Amendment’s protection. Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961); Board of Education v. Barnette, 319 U.S. 624, 641, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).
Second, it discriminates among religions. Only those which require their followers to manifest their belief in acts requiring modification of an employer’s work rules benefit, while other employees are inconvenienced by the employer’s accommodation. By singling out particular sects for government protection, the Federal Government has forfeited the pretense that the rule is merely part of the general ban on religious discrimination. “The government must be neutral when it comes to competition between sects.” Zorach v. Clauson, 343 U.S. 306, 315, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952).9 It has not been neutral here.
In two respects, then, the religious accommodation rule is neither “neutral in *559primary impact” nor “evenhanded in operation.” Unlike the exemption from the draft laws for those conscientiously opposed to all war upheld in Gillette, the preference here is extended on the explicit basis of “religious practices” under the Regulation and “all aspects of religious observance and practice, as well as belief” under the 1972 amendment. The primary, indeed the sole, impact of the rule is to aid particular persons on the basis of their religion. Thus, it is incorrect to say, as does the majority, that the primary effect of the rule “is to inhibit discrimination, not to advance religion.” The rule mandates discrimination on the explicit basis of religion. Its primary effect is to aid particular religious sects.
Accordingly, the religious accommodation requirement violates the First Amendment. As we stated recently in Daniel v. Waters, 515 F.2d 485, 490 (6th Cir. 1975), citing Epperson v. Arkansas, 393 U.S. 97, 103-40, 89 S.Ct. 266, 21 L.Ed.2d 228:
Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.
As early as 1872, this Court said: “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” Watson v. Jones, 13 Wall. 679, 728, 20 L.Ed. 666. This has been the interpretation of the great First Amendment which this Court has applied in the many and subtle problems which the ferment of our national life has presented for decisión within the Amendment’s broad command.
Because the religious accommodation rule violates the First Amendment under the first two tests of Nyquist, it is unnecessary to consider whether it also fosters “excessive entanglement” of Church and State. Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Walz v. Tax Commission, 397 U.S. 664, 674, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). It is fair to note, however, that the 1972 amendment is worded far more broadly than Regulation 1605.1. The 1972 amendment extends to “all aspects of religious observance and practice, as well as belief.” 42 U.S.C. § 2000e(j). It therefore protects employees who object on religious grounds to making particular products (e. g., a religious pacifist’s refusal to make ammunition), to shaving (e. g., Eastern Greyhound Lines Division v. New York State Division of Human Rights, 27 N.Y.2d 279, 317 N.Y.S.2d 322, 265 N.E.2d 745 (1970)), to joining a union in a closed shop (e. g, Gray v. Gulf, Mobile & Ohio R.R., 429 F.2d 1064 (5th Cir. 1970), cert. denied, 400 U.S. 1001, 91 S.Ct. 461, 27 L.Ed.2d 451 (1971)), and to doing a host of other things often required of employees by employers.10 Disposition of complaints under the amendment will require inquiry into the sincerity with which beliefs are held and force consideration of the validity of the religious nature of claims, procedures which are not favored and may themselves be improper because they put courts in review of religious matters.11
Striking down the religious accommodation rule would not change the law requiring employers to disregard religion in employment decisions. Discrimination based on religion is illegal. If a Saturday Sabbath observer can show that an employer discharged him for refusing to work on Saturdays although similarly *560situated employees were not required to work on Saturdays or were exempted from Sunday work, he could maintain that the actual reason for his discharge was religious discrimination, not his refusal to work on Saturdays. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974). Similarly situated employees must be treated equally. Striking down the accommodation requirement would merely ensure that no employee be treated preferentially because of his religion.
It may be asked whether striking down the religious accommodation rule would deprive our nation of a rich diversity of religious practices by allowing prevailing employment policies to force persons into predominant patterns of religious observance.
Our heritage has not withered because of the constitutional requirement that Government keep “hands off” religion. The heavy hands of Government may not be raised against or in favor of religion. As Judge Learned Hand wrote,
The First Amendment protects one against action by the government, though even then, not in all circumstances [footnote omitted]; but it gives no one the right to insist that in the pursuit of their own interests others must conform their conduct to his own religious necessities. A man might find it incompatible with this conscience to live in a city in which open saloons were licensed; yet he would have no constitutional right to insist that the saloons must be closed. He would have to leave the city or put up with the iniquitous dens, no matter what economic loss his change of domicil entailed. We must accommodate our idiosyncrasies, religious as well as secular, to the compromises necessary in communal life; and we can hope for no reward for the sacrifices this may require beyond our satisfaction from within, or our expectations of a better world.12
This is not to say that a wise employer could not decide that as a matter of sound business practice and good employee relations to accommodate to his employees’ religious practices. Forbidding the government from requiring accommodation would not be a holding that accommodation may not be made by private or public employers. There must be room to maneuver between the Free Exercise and the Establishment Clauses. This space is properly filled by the employer’s discretion. Cf. Stein v. Oshinsky, 348 F.2d 999 (2d Cir. 1965). Striking down the accommodation requirement would merely serve to permit this range of discretion.
Like the majority, I believe that religious discrimination in employment must end. Title VII says that it must and promises that it will. In pursuit of this objective, I cannot condone a rule that mandates discrimination on the basis of religion. This rule breaches the neutrality principle which is at the heart of the First Amendment. Mindful of my obligation to preserve the Bill of Rights, I respectfully dissent.
. Padover, The Complete Jefferson 518-19 (1943). See Kurland, “Of Church and State and the Supreme Court.” 29 U.Chi.L.Rev. 1, 96 (1962).
. See also Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Gillette v. United States, 401 U.S. 437, 450, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971).
. 110 Cong.Rec. 1521-28 (1964).
. Remarks of Sen. Williams, 118 Cong.Rec. 706 (1972).
. The current test is that Government establish a “compelling state interest” to overcome a showing of “undue burden” on the free exercise of a particular religion. Sherbert, supra ; Wisconsin v. Yoder, supra.
. See Schwarz, “No Imposition of Religion: The Establishment Clause Value,” 77 Yale L.J. 692 (1968).
. Zorach held that a public school system does not violate the Establishment Clause by allowing pupils “released time” for religious instruction outside school building and grounds during what would otherwise be “school time.” Zorach explicitly reaffirmed McCollum, 343 U.S. at 315, 72 S.Ct. at 684, stating, “The government must be neutral when it comes to competition between sects.” Zorach’s holding that government “can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction,” 343 U.S. at 314, 72 S.Ct. at 684, does not control this case. Here Government has required employers to accommodate to their employees’ religious practices.
. 118 Cong.Rec. 705 (1972). Although arguments made on behalf of legislation do not condemn it if a valid purpose exists, legislative history is one guide to discerning the purpose of legislation. McGowan v. Maryland, 366 U.S. 420, 453, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).
. See also Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947).
. See generally Comment, “Religious Observance and Discrimination in Employment,” 22 Syr.L.Rev. 1019 (1971).
. See United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944); Founding Church of Scientology v. United States, 133 U.S.App.D.C. 229, 409 F.2d 1146 (1969); Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).
. Otten v. Baltimore & O. R.R., 205 F.2d 58, 61 (2d Cir. 1953).