It’s been about a month since the Supreme Court term ended, and we’ve been slowly processing the impact of the high court’s latest assault on civil rights. Recently described as “volcanic June,” the last month of the term has been serving up a series of gut punches for civil rights attorneys like those at the Freedom From Religion Foundation.
While this year seemed lighter than last — we were only monitoring two cases rather than four — June 2023 wasn’t any less stressful for our legal team. The court continues to chip away at the wall of separation by paving the way for greater privilege for those individuals adhering to the majoritarian religion. FFRF attorneys were particularly interested in two cases that were decided at the end of June involving religious liberty issues: Groff v. DeJoy and 303 Creative v. Elenis.
Groff v. DeJoy involved a Christian postal worker who refused to work on Sundays because his religion requires him to rest on the Sabbath. In a unanimous opinion written by Justice Samuel Alito, the U.S. Supreme Court issued a narrow ruling “clarifying” the standard for evaluating religious accommodations in the workplace. Under Title VII of the Civil Rights Act, employers must reasonably accommodate workers’ religious beliefs unless doing so would lead to undue hardship on the conduct of an employer’s business. Previously, relying on a case from 1977 known as TWA v. Hardison, the lower courts and the Equal Employment Opportunity Commission interpreted that to mean anything more than “de minimis.” On June 29, the court ruled that the plain language of Title VII means more than de minimis, finding instead that a substantial burden in the overall context of the employer’s business is required to deny an employee’s request.
Of note, despite what Christian legal outfits like First Liberty would lead you to believe, the opinion did not give Gerald Groff and his conservative Christian backers what they asked for and wanted. Groff asked the court to overrule Hardison and change the legal test to drastically favor religious employees. He also asked the court to rule that burdens on employees are never sufficient to establish undue hardship on the conduct of a business. The unanimous court did not do any of those things. Instead, the court sent Groff’s case back to the lower court writing: “Without foreclosing the possibility that USPS will prevail, we think it appropriate to leave it to the lower courts to apply our clarified context-specific standard.”
Also, because Alito never misses an opportunity to espouse his views on the Establishment Clause, he put the final nail in the coffin of the Lemon test, noting in the majority opinion that the test has been “abrogated” by the court. That strong language rebuking the test hasn’t been used in previous cases, including Kennedy v. Bremerton, which shelved the test, and serves as a signal to lower courts that they should not be using Lemon to evaluate any Establishment Clause claims. Groff reminds us that the legal landscape for the separation of church and state has changed dramatically in the last couple of years. The standards by which we all understood the Establishment Clause are no longer in play.
At first glance, this case doesn’t seem to change much in the legal world, but there are broader implications. In terms of accommodations for employees, the “clarification” in Groff will certainly lead to more deference granted to religious workers, which obviously will further the divide between religious and nonreligious people in the workplace. Atheists and agnostics will bear the brunt of employers granting accommodations. Furthermore, this case was decided in a world where we’re seeing groups like Alliance Defending Freedom and First Liberty litigate cases for further religious “accommodations,” which really are just seeking more license to discriminate.
Which leads us to the subsequent judgment the following day, June 30, when the Supreme Court ruled in favor of Lorie Smith, a would-be wedding website designer, who doesn’t want to design websites for same-sex couples. Smith is a Christian who believes that marriage is between one man and one woman, and if she chooses to expand her business to design websites, having to do so for same-sex couples would violate her religious beliefs. In a 6-3 decision written by Justice Neil Gorsuch, the majority ruled that the Colorado Anti-Discrimination Act violates Smith’s free speech rights. The court found that the state of Colorado cannot force her to speak in ways that defy her “conscience about a matter of major significance.”
Smith had never designed a wedding website at all. She never refused service to a same-sex couple seeking to get married. She never faced repercussions for her refusal of services. The entire case was a hypothetical — and therefore should not have been before the Supreme Court at all (certainly if tables were turned and it was an atheist plaintiff, this case would have never made the docket). She was in court on a pre-enforcement challenge, arguing that if she did engage in this practice, she’d suffer consequences. The majority agreed, “If she wishes to speak, she must either speak as the state demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in ‘remedial training,’ filing periodic compliance reports as officials deem necessary, and paying monetary fines. Under our precedents, that ‘is enough,’ more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.”
In a pompous, condescending tone, Gorsuch writes: “Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive,’ ‘misguided or even hurtful.’ … But tolerance, not coercion, is our nation’s answer.” It’s particularly biting to get this decision from Gorsuch, who just a few years ago wrote the majority opinion in Bostock v. Clayton County ruling that Title VII of the Civil Rights Act protects LGBTQ-plus employees from discrimination in the workplace (though many of us even back then were anticipating a future exception for “religious beliefs”).
After discussing how much progress we’ve made towards eradicating discrimination against protected classes through public accommodation laws, he told us that Colorado went too far. He wrote: “No public accommodations law is immune from the demands of our Constitution.” Gorsuch added, “When a state public accommodations law and the Constitution collide, there can be no question which must prevail.”
This case too has broader implications. Aside from the fact that this ruling would extend to any business that could be characterized as involving “expressive activity,” there is also no limiting principle in the decision narrowing it to only discrimination on the basis of sexual orientation. We all expected (assumed) the majority would at least distinguish racial discrimination in some way, but it did not. The court left open the possibility that these constitutional exemptions could be made no matter what the basis for discrimination.
This is why Justice Sonia Sotomayor, our indignant dissenter, called it a “sad day” for American constitutional law. She rightfully pointed out that “the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.” Joined by Justices Elena Kagan and Ketanji Brown Jackson, she argued that the law targets conduct, not speech and that an “act of discrimination has never constituted protected expression under the First Amendment.” She noted, “Our Constitution contains no right to refuse service to a disfavored group.”
None of these rulings is surprising. FFRF long ago warned about the impact of Christian nationalist judges on the separation of state and church. A recent study detailed in the New York Times indicates that judges appointed by President Trump ruled in favor of Christian plaintiffs more often than judges appointed by other presidents. Muslim plaintiffs, not surprisingly, did not gain more “religious liberty” rights before Trump judges. The study also confirms what FFRF noted back in 2016: These judges have “stronger or more numerous religious affiliations” to churches and groups like Alliance Defending Freedom and First Liberty than judges appointed by other presidents.
This is the legal landscape FFRF is grappling with when we’re looking at future litigation. Going into the next Supreme Court term starting in October, there are no cases FFRF is currently watching, but that could change this fall as the court not only hears new cases, but also continues to grant review in new cases. And we know Christian nationalist legal groups are teeing up cases around the country to further divide Americans on religious grounds. FFRF’s voice in this fight is more important than ever — and our team stands ready.