The just-completed SCOTUS term hardly matches the last one in terms of blockbuster church-and-state decisions. The justices did issue a couple of important rulings, though, one of which suggests they may be rethinking an important element of their anti-discrimination jurisprudence.
The first case is Groff v. DeJoy, which concerns the meaning of a phrase in Title VII, the federal law that prohibits employment discrimination based, among other things, on religion. Title VII provides that an employer must reasonably accommodate an employee’s religious practice unless the employer is unable to do so “without undue hardship on the conduct of the employer’s business.” Decades ago, in TWA v. Hardison (1977), a typically confusing Burger Court opinion, the Court suggested that “undue hardship” means any cost that would be beyond “de minimis.” Thus, if accommodating an employee’s religious practice would require anything more than a trivial adjustment, the employer would need to do nothing. That’s pretty weak tea, especially for an anti-discrimination statute.
In Groff, the Court ruled unanimously that the de minimis standard is not the correct reading of Title VII. True, Hardison used the phrase “de minimis” in describing an employer’s obligation, but other language in the decision suggested a stricter standard. In fact, the Groff Court said, the test for “undue hardship” is whether accommodating an employee’s religious practice would cause the employer to incur a substantial increased cost in the context of the employer’s business. The Court left it for the EEOC (and lower courts) to apply the substantiality test in “a common-sense manner.”
The Court predicted that not much would change because of its decision, since the EEOC already does a pretty good job at this. It’s true that “common-sense manner” doesn’t provide a lot of guidance—and in today’s polarized culture, the notion that “common sense” exists on a question of religious accommodation might be aspirational. But a 9-0 opinion suggests that the Court thinks enough shared ground exists to support a reasonably predictable jurisprudence on what a “substantial” cost would be.
The second case is 303 Creative v. Elenis, which has received much more attention. Although 303 Creative is a free speech rather than a free exercise case, it has church-state implications. Colorado’s public accommodations law, known as CADA, prohibits discrimination based on, among other things, sexual orientation. In 303 Creative, a commercial web designer argued that requiring her to create websites for same-sex weddings, as CADA would do, would violate her free speech rights, since it would require her to say something she did not believe. Designing a website for a same-sex wedding, she argued, would express her approval of same-sex marriage, which she disapproved on religious grounds.
In a 6-3 decision by Justice Gorsuch, the Court ruled for the designer. Colorado had a compelling interest in preventing discrimination in the market, Gorsuch wrote, but that interest did not outweigh the designer’s free speech rights. He noted that Colorado had stipulated that the designer was willing to serve gay customers: she didn’t object to serving gay people, but to the message she would be asked to express. Justice Sotomayor’s dissent ridiculed this distinction, but Justice Gorsuch is not the first high-court judge to make it. In Lee v. Ashers Bakery (2018), the UK Supreme Court drew the same distinction in ruling that UK anti-discrimination law did not require a baker to design a cake with a pro-same sex marriage message. Indeed, Justice Gorsuch cited Ashers Bakery in support of his conclusion.
The distinction between discrimination based on a customer’s status (not allowed) and discrimination based on the message a customer requests (constitutionally protected) could turn out to be important in other contexts as well. For example, a dozen years ago, in CLS v. Martinez (2010), the Court dismissed the idea that a Christian student group at a public university could legally exclude persons who engage in same-sex conduct. The Christian group maintained that it did not wish to exclude persons because of status but conduct: the group did not wish to endorse conduct it found objectionable on religious grounds. The Court dismissed that argument. In the context of LGBT rights, it wrote, discrimination based on conduct amounts to discrimination based on status, much as a tax on wearing yarmulkes would amount to a tax on Jews. The distinction the Christian group was trying to draw did not exist.
Many people would agree with that, but 303 Creative suggests the Court no longer does. Martinez was a factually complicated case that, like 303 Creative, turned on the parties’ stipulations. But, after 303 Creative, couldn’t a Christian group maintain that it excludes LGBT persons based on message, not status—more precisely, that the group doesn’t want to express approval of conduct it finds objectionable on religious grounds? Perhaps the Court won’t take the logic that far. But Justice Gorsuch’s opinion in 303 Creative suggests the Court might decide a case like CLS v. Martinez differently today.