The Supreme Court’s Disorienting Elevation of Religion
By Kate Shaw
Contributing Opinion Writer
This term, the Supreme Court decided two cases involving religion: Groff v. DeJoy was a relatively low-profile case about religious accommodations at work; 303 Creative v. Elenis was a blockbuster case about the clash between religious exercise and principles of equal treatment. (The legal question was technically about speech, but religion was at the core of the dispute.)
In both cases, plaintiffs asserted religiously grounded objections to complying with longstanding and well-settled laws or rules that would otherwise apply to them. And in both, the court handed the plaintiff a resounding victory.
These cases are the latest examples of a striking long-term trend: Especially since Amy Coney Barrett became a justice in 2020, the court has taken a sledgehammer to a set of practices and compromises that have been carefully forged over decades to balance religious freedom with other important — and sometimes countervailing — principles.
The First Amendment’s establishment clause was once understood to place limits on the government’s involvement with or facilitation of religion, but those limits appear to have been smashed. This legal demolition has been accompanied by the demotion of other important principles like equality, public health and simple fairness in law, resulting in a disorienting imbalance of values in American society.
The country will feel the impact of this sharp shift in the years ahead — and may face additional cases that overturn settled precedent and further elevate religion to a favored status under the law. Among the principles that may be vulnerable before this court are longstanding limits on prayer in public schools and the basic value of equality before the law.
In just the past three years, the court has sided with a religious foster-care agency that refused to certify same-sex couples as foster parents; a religious group that wished to fly a Christian flag over Boston’s City Hall; religious schoolsin Maine that sought public subsidies; a public school football coach who insisted on praying at midfield after games, on some accounts causing students to feel pressure to participate; and religious organizations that challenged early Covid restrictions on gathering in large groups.
The legal questions and reasoning differed, but since Justice Barrett replaced Ruth Bader Ginsburg, the court has sided with religious plaintiffs in every major religion case except a few exceptions on the shadow docket, representing an essentially unbroken streak of wins for Christian plaintiffs.
This last point is significant. Where historically some of the court’s mostimportant religious freedom rulings have protected members of minority religions from discrimination, the big winners in the recent cases have been practitioners of mainstream Christian religions.
In the 303 Creative case, Justice Neil Gorsuch’s majority opinion concluded that a Christian website designer who did not want to design websites for same-sex weddings did not have to comply with a public accommodations law in Colorado that prohibits, among other things, discrimination on the basis of sexual orientation by any business engaged in sales to the public.
Religiously based objections to laws like Colorado’s that mandate equal treatment in the commercial marketplace are nothing new. As Justice Sonia Sotomayor’s dissent made clear, these laws have been repeatedly challenged, including some based on an asserted First Amendment right to discriminate. For decades following the passage of the 1964 Civil Rights Act, the court was, in Justice Sotomayor’s words, “unwavering in its rejection of those claims.”
But those cases were decided before the ascent of the conservative supermajority’s boundless conception of the imperative to protect and accommodate the practice of religion in our public life. This court has sought to rearrange competing values — like pluralism, democracy and the mutual respect and tolerance both demand — around that imperative, no matter how much it may diminish them.
The 303 Creative opinion raises a question with possibly far-reaching implications: How will equal-treatment laws survive? The opinion’s lack of an obvious limiting principle — perhaps it encompasses just businesses whose goods or services can be described as expressive, although that’s certainly a large set — seems to suggest that many or most religiously grounded objections to public accommodations laws will be successful.
This could mean that same-sex couples wishing to exercise their constitutional right to marry would find themselves refused service by wedding vendors like bakers, photographers and calligraphers. And the license to discriminate may not stop there. What about birth announcements for the children of same-sex couples? Or entertainment at their birthday parties?
Nothing in the opinion limits its application to same-sex couples and their families. As Justice Sotomayor suggests, under the opinion’s reasoning, a school photo business could deny services to multiracial children on the grounds of an objection to interracial couples, or a corporate headshot business could refuse to photograph women on the basis of a belief that a woman’s place is in the home. If businesses choose to read this opinion broadly, its consequences for many Americans’ ability to obtain goods and services on equal terms could be staggering.
The court’s Groff opinion shows a different aspect of the trajectory of religious rights. It involved an evangelical Christian who for religious reasons did not wish to work on Sundays. When his employer, the Postal Service, began Sunday deliveries at his location, he initially sought and received a transfer. After his new office also began offering Sunday deliveries, the service initially tried to get other carriers to cover Mr. Groff’s deliveries, but he was ultimately disciplined and eventually resigned. He filed a lawsuit arguing that the service was required to do more to accommodate his Sunday Sabbath practice.
The case involved a provision of the 1964 Civil Rights Act that prohibits discrimination in employment on the basis of religion (along with race, color, sex and national origin). When it comes to how to balance the sincere religious beliefs of workers and the needs of a workplace, courts and the key federal employment agency had, until this decision, developed a set of tools that sought to balance the competing values at stake. Most sites of employment have workers with conflicting needs and obligations, involving their families, their health and their religious practices, among other things — and navigating to preserve productivity and also morale can be delicate.
In Groff, the court purported to “clarify” the 1977 Trans World Airlines v. Hardison opinion, which held that a religious accommodation at work was not required if it would impose a “substantial cost” on the employer; the Alito opinion explained that the Hardison formulation was insufficiently protective of religion. By elevating one set of needs — religious obligations — above all others, the court has undermined the ability of employers to respond to a diverse work force in ways that fairly account for different needs.
There is no reason to believe that the court is done. For example, there is little doubt that it will soon formally overrule its 1990 opinion in Employment Division v. Smith and jettison the longstanding rule that neutral laws of general applicability — which apply equally to all individuals, regardless of faith or other personal characteristics — are presumptively constitutional, even if they may impose some burdens on religion.
Depending on what the court offers in its place, laws governing everything from zoning to health care may be subject to successful challenge by people claiming that those laws burden their religious exercise.
For zoning laws, imagine that a house of worship claims that generally applicable laws regarding what kinds of structures can be built, or what kinds of activities they can house, burden their religious exercise.
In health care, there has already been significant litigation asserting religiously grounded objections to providing certain kinds of health care; overruling Smith, together with other developments in the court’s religion jurisprudence, could mean that physicians, hospitals and employers gain a powerful new argument for refusing to provide certain services or coverage to patients or employees.
There’s no question that religious liberty is an important American value, and one our Constitution and our traditions protect. But it is not the only such value.
The court’s elevation of religious exercise above all other principles poses a genuine threat to the ability of our businesses and institutions to make arrangements that account for the competing demands of America’s diverse population.
Kate Shaw is a contributing Opinion writer, a professor of law at Cardozo Law School and a host of the Supreme Court podcast “Strict Scrutiny.” She served as a law clerk to Justice John Paul Stevens and Judge Richard Posner.“
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