The United States Supreme Court has made headlines recently with two cases, 303 Creative LLC et al. v. Elenis et al. and Groff v. DeJoy. In essence, the Supreme Court has changed legal doctrines decided many years ago. It appears that the decision in the first case is a sign of the partisanship that will control the Court for the foreseeable future.
Related: Why Law School Applicants Should Forge Faculty Relationships
303 Creative Case Supports Freedom of Speech, But Causes Controversy
In the first Supreme Court case, 303 Creative LLC et al. v. Elenis et al., plaintiff Lorie Smith petitioned to nullify part of the Colorado Anti-Discrimination Act (CADA). She was worried that through CADA, the Colorado state government will compel her to create wedding websites for gay couples.
Smith has a religious objection to same-sex weddings. Smith also wants to put a message on her website to explain her religious objections to same-sex weddings.
In the legal proceedings she initiated, Smith said that CADA should be clarified. She also argued that CADA should protect her First Amendment right to free speech in regard to the religious objection message for her website and the website content she would have to create for gay couples’ weddings.
Part 6 of CADA has verbiage that prohibits “public accommodations” from denying “the full and equal enjoyment” of goods and services to any customer based on that customer’s race, creed, disability, sexual orientation, or other statutorily enumerated trait. The important element to Smith’s argument is that according to CADA, “public accommodation” has a very broad definition. For anyone reading the verbiage of CADA, it appears that almost every public-facing business in Colorado is subject to this law.
In other words, Smith argued that her right to free speech should allow her to refuse to create a website for a gay couple. The content of that website could be considered a unique expression and therefore could be protected by the First Amendment.
The opposition to Smith was based on two arguments: procedural and substantive. In regard to the procedural argument, Smith’s petition is not ripe. She had not yet been asked to prepare a wedding website for a gay couple, so her legal action was premature. The substantive argument was that the creation of a website is not tantamount to an expressive statement that is protected by the First Amendment.
The Supreme Court ultimately decided in favor of Smith and her right to free speech. However, the dissenting opinion by Justice Sonia Sotomayor was unusually sharp.
Justice Sotomayor noted, “Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history.”
She added, “By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians as second-class citizens. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’”
For some, the Supreme Court’s decision in this case was heralded as a great victory for free speech. According to Fox News, “The First Amendment thus presupposes the right of every American to hold and express opinions—to attempt to persuade others by the communication of ideas.”
As Justice Neil Gorsuch stated, “The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding [by] the Constitution’s commitment to the freedom of speech means that all of us will encounter ideas…we consider ‘unattractive,’….’misguided, or even hurtful.”
Justice Harlon Stone also noted, “If these civil liberties have any meaning… they must prohibit government from compelling the expression of belief.”
This decision is not the end of cases involving religious beliefs and business. It is likely that our courts will once again be asked to adjudicate other cases involving objections to providing goods or services to the public, based on religious or political grounds.
Related: Supreme Court: Social Media Is Not Responsible for Its Content
Supreme Court Decision in Groff v. DeJoy Improves Religious Accommodation in the Workplace
A few months ago, I wrote about a case, Groff v. DeJoy, that involved the United States Postal Service’s Postmaster General versus the religious accommodations that a USPS employee requested. This case questioned a long-held Supreme Court decision that determined that an employer should only accommodate an employee for religious reasons if those accommodations only impose a very small cost to the employer.
This month, the Supreme Court made a unanimous decision in favor of Groff and expanded the federal protections of religious employees in the workplace. Justice Samuel Alito wrote the majority opinion, accompanied by the concurring opinion of Justice Sotomayor.
The Supreme Court’s decision in Groff raised the duty of an employer to an employee. Now, an employer that denies a religious accommodation to an employee must show that the burden of granting an accommodation would result in “substantial increased costs” in relation to the conduct of its particular business.
In her opinion, Justice Sotomayor gave examples of what accommodations could be considered to create “substantial increased costs” for an employer. She observed, “To be sure, some effects on co-workers will not constitute ‘undue hardship’ under Title VII. For example, animus toward a protected group is not a cognizable ‘hardship’ under any antidiscrimination statute…..In addition, some hardships, such as the labor costs of coordinating voluntary shift swaps, are not ‘undue’ because they are too insubstantial.”
Agudat Yisrael of America, an organization supporting Haredi Orthodox Jews, submitted an amicus brief in support of Groff. According to Agudath Israel’s Vice President for Government Affairs and Washington Director Rabbi Abba Cohen, “The previous standard was the key obstacle to providing religious employees of all faiths the protection the law offered. The standard was so low that employers didn’t even bother trying to accommodate the employees, and employees didn’t bother asserting their rights, knowing that they would suffer aggravation and expense on a losing case. Now, we are confident that the law better reflects what Congress desired and intended when it sought to protect the rights of religiously observant employees.”
In the years to come, the Supreme Court will continue to be a battleground based on party and ideological lines. While there are voices that call for extreme steps such as stacking the court, it will be wise to remember that such a move opens the door for an opposing political party to simply change the makeup of the Supreme Court the next time it takes over Congress.
Note: The views and opinions expressed in this piece are the author’s and not reflective of the University’s.
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