This year, in the 303 Creative and Groff cases, the U.S. Supreme court upheld the first amendment free exercise of religion and free speech rights of Christians. And that confirms there has probably never been a better time for religious freedom in the United States
Readers may recall that in its 2018 Masterpiece Cakeshop decision, the U.S. Supreme Court held that it violated the First Amendment rights to freely exercise religion—and to not be compelled to speak—for the Colorado bakery owner in that case, Jack Phillips, to be forced to create a specialized cake for a same-sex wedding. That is because such marriages violate his sincere religious beliefs. And the specialized cakes he creates are an act of First Amendment expression.
The Court in Masterpiece Cakeshop held that Colorado commissioners displayed “a clear and impermissible hostility” toward Mr. Phillips’ sincere religious beliefs,” so he could not be held liable for violating the Colorado Anti-Discrimination Act “CADA.”
But the decision was relatively narrow.
So, Masterpiece Cakeshop did not end these disputes. Rather, it led to many new lawsuits involving the issues of religious freedom and free speech versus claims of “public accommodations” discrimination that many state statutes prohibit. Some activists tried to “weaponize” the CADA [and similar laws in other states] to effectively punish Christian business owners. For example, the Christian owners of a bakery in Oregon were fined over $100,000 by the state when they would not create a customized cake for a same-sex wedding.
But this year, in a win for free speech and religious liberty, the U. S. Supreme Court decided a case called 303 Creative LLC v. Elenis. It is the “bookend” to Masterpiece Cakeshop. It involves a website designer being asked to create a customized website for a same-sex wedding. The Court stated that the case presents this legal issue: “Can a state force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?” And it held the answer is “no.”
The Court stated: “The First Amendment extends to all persons engaged in expressive conduct, including those who seek profit.” And “a commitment to speech for only some messages and some persons is no commitment at all.”
The 303 Creative case involves Lorie Smith, a graphic artist and website designer based in Colorado. She was asked to create a website for a same-sex marriage. But she would not because of her sincere religious belief that marriage is solely between one man and one woman. She was then sued, and held liable for violating the CADA.
Despite acknowledging that Ms. Smith was “willing to work with all people regardless of sexual orientation,” in 2021, a federal appeals court ruled against her.
But this year, the Supreme Court reversed, and ruled in favor of Ms. Smith.
The Supreme Court in 303 Creative initially noted that Ms. Smith and the state stipulated to a number of facts. Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender.” And she “will gladly create custom graphics and websites for clients of any sexual orientation.”
Thus, just like Mr. Phillips, the Christian baker, Ms. Smith does not deny members of her community websites because they are gay. Instead, she rejects the idea that the government can compel her to affirm beliefs contrary to her own with a form of speech—the websites she creates.
An example makes this key distinction clear. If a gay person contacted Ms. Smith and told her that, as a wedding present for a straight couple, he wanted to buy her services to produce a website for that wedding, Ms. Smith would not (and legally could not) respond that she will not sell her services to any gay person.
But Ms. Smith, as the Supreme Court recognized, “will not produce content that “contradicts biblical truth, regardless of who orders it.” Ms. Smith’s belief that marriage is a union solely between one man and one woman is “a sincerely held conviction.” Ms. Smith provides design services that are “expressive,” and her “original, customized” creations “contribute to the overall message her business conveys through the websites it creates.” The wedding websites she plans to create “will be expressive in nature,” will be “customized and tailored” through close collaboration with individual couples, and will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage. Viewers of Ms. Smith’s websites “will know that the websites are her original artwork.” Also, “there are numerous companies in the state of Colorado and across the nation that offer custom website design services.” So, people in a same-sex marriage have many other options.
The Supreme Court then held that, under the guise of “antidiscrimination” statutes, the government cannot force religious Americans like Ms. Smith to affirm beliefs they do not hold.
The Court stated that “the First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy.”
Justice Gorsuch, writing for the 6-member majority—Justices Jackson, Sotomayor, and Kagan dissented—stated that the government cannot force Ms. Smith to make wedding websites celebrating same-sex couples because it would violate her constitutional right to exercise her Christian belief that marriage is only between a man and a woman. He stated: “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is reversed.”
And the Court stated that “public accommodations statutes can sweep too broadly when deployed to compel speech. … When a state’s public accommodations law and the Constitution collide, there can be no question which must prevail.”
Next, this year, the U.S. Supreme Court unanimously ruled in favor of a Christian postal worker who claimed he was targeted and disciplined by his employer for refusing to work on Sundays because of his religious beliefs. (The U.S. Postal Service now operates on Sundays in part to make Amazon deliveries.)
In Groff v. DeJoy, the Court held that federal law requires an employer that denies an employee a religious accommodation to show that the burden of the accommodation would result in “substantial” increased costs.
The Court in Groff thereby rejected the prior “de minimis” standard. It was used to deny employees’ religious accommodation requests if they presented more than a “trivial cost” to the employer.
That prior standard interpreted Title VII of the Civil Rights Act to mean that employers were obligated to accommodate workers’ religious requests only if they posed no more than a trivial cost. The Court’s Groff decision overturns that interpretation.
In Groff, Justice Alito wrote: “Courts should resolve whether a hardship would be substantial in the context of an employer’s business in the commonsense manner that it would use in applying any such test.”
Though recognizing that “Title VII requires an assessment of a possible accommodation’s effect on the conduct of the employer’s business,” Justice Alito stated that “impacts on coworkers are relevant only to the extent those impacts go on to affect the conduct of the business.”
And Justice Alito clarified that bias or hostility toward religion cannot be considered a factor in determining whether to grant a religious accommodation request. “A hardship that is attributable to employer animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue.’”
If “bias or hostility to a religious practice or a religious accommodation provided a defense to a reasonable accommodation claim, Title VII would be at war with itself.”
Thus, the Groff decision greatly strengthens protections for the sincere religious beliefs of all employees. Now, employers cannot avoid accommodating religious accommodation requests simply by arguing that it would cost them more than a de minimis‒or “trivial”‒amount. Employers instead should accommodate religious employees’ requests unless doing so would result in “substantial increased costs” to their business.
In ruling in favor of Mr. Groff, the Supreme Court also united many religious people. They see the Groff decision as a needed corrective to the challenges they face in balancing their work with their sincerely held religious beliefs. Many religious advocacy groups submitted “friend of the court” briefs supporting Mr. Groff.
And after Groff was decided, for example, Cardinal Timothy Dolan of New York, chairman of the U.S. Conference of Catholic Bishops’ Committee for Religious Liberty, said of the Groff decision that “in so many ways today we see people of faith being told that they can only follow their religious beliefs in private or within the four walls of a church.” But “religious freedom means nothing if it does not extend to the public square. And the public square is better off when religion is welcome there.”
Cardinal Dolan also noted how the Groff case relates to the efforts of many employers to honor diversity. “In the workplace, we meet and collaborate with people from other walks of life. Working together requires navigating personal differences with compassion and respect. And that obligation applies to religious differences no less than others.”
Now, the reader may ask: “I run a church or a religious school. Why do the new 303 Creative and Groff cases—and their secular settings— matter to me?” The answer is that religious entities are increasingly the target of parents, students, employees, and parishioners supporting the “woke” agenda. And schools and their administrators may support or oppose that agenda.
But the point is that in the end, under the First Amendment, it is solely up to the church or religious school—not courts—to decide what its policies will be. For example, they cannot be forced to refer to a transgender person by their chosen identity, or use particular pronouns.
Also, 303 Creative and Groff confirm that the “tide has turned” in favor of religious freedom and free speech. Thus, churches and religious schools facing challenges to their policies should keep in mind that the law is now generally in their favor. And, of course, every lower court, regardless of its location, is bound to follow U.S. Supreme Court decisions.
Thus, churches and religious schools should not allow themselves to be “pushed around” when it comes to their First Amendment rights, regardless of the latest political trend.
