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Supreme Court clarifies religious practice rights in 2 cases

Written by William C. Duncan

July 6, 2023

The U.S. Supreme Court has now finished its most recent term and takes a break until the next, which starts in the fall. In the last two days of the court’s term, it decided two cases that clarified the obligations of employers and governments to accommodate religious practice.

The first case was decided unanimously. It involved a dispute between a postal employee and his employer. The employee observes the Sabbath on Sunday and wanted to take that day off work for religious reasons. When there was no postal delivery on Sunday, this was not a challenge, but when the post office began Sunday deliveries as part of a contract with Amazon, a conflict arose. The employee was eventually disciplined, and he resigned because of his unwillingness to work on Sundays.

The relevant law addressing these types of conflicts is Title VII of the Civil Rights Act, which forbids employers from discriminating against employees on the basis of the employee’s religion. Specifically, if an employer denies an accommodation that would allow an employee to exercise her or his religious beliefs, the employer must show that the accommodation would create an “undue hardship on the conduct of the employer’s business.”

This reasonably straightforward rule was complicated by a 1977 Supreme Court decision, Trans World Airlines v. Hardison, which included a line that suggested that an employer could decline a religious accommodation if that accommodation created even a “de minimis” (trivial) impact on the employer’s interests. For decades, this has created difficulties for religious employees who would like accommodations to practice religion when doing so might impact their work responsibilities. Lower courts applying the “de minimis” standard almost always sided with employers.

In last week’s decision, Groff v. DeJoy, however, the Supreme Court returned to the Hardison case and pointed out that other parts of that decision had recognized the statutory requirement that an employer accommodate religious practices. The court reasoned that the law’s “undue hardship” language means “that an employer 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 this particular case, the Supreme Court sent the dispute back to the trial court to apply these principles in the dispute with the postal service over Sunday work. More broadly, the decision will give lower courts very helpful guidance in dealing with employer-employee conflicts over religious accommodation. Ideally, it will sensitize employers to the need to accommodate their employees’ religious beliefs as intended by the Civil Rights Act.

The second case was decided 6-3. It involved a Colorado law prohibiting discrimination by business owners based on (among other categories) a customer’s sexual orientation. Here, a business owner who provides website creation and graphic design services was beginning to create webpages for weddings. She asked the courts to clarify whether she would be required to do so for weddings at odds with her religious convictions, such as same-sex weddings. The case was brought, as allowed by law, before a specific dispute had arisen. If the Colorado law was enforced to require her to create wedding pages at odds with her beliefs, she argued, that would create an imposition on her rights of free speech and free exercise of religion.

It is critical to understand that the owner and the state of Colorado both agree that she “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.” This is worth noting, since some commentary has incorrectly implied that the decision could allow businesses to turn away LGBT customers, but the business in that case did not seek to do that.

The Supreme Court majority followed a series of precedents related to speech rights going back at least to the 1940s. These cases establish the principle that a government cannot require a person to endorse a message that the person does not desire to express.

In this case, the religious motivation of the business owner was only incidental to the decision. At its core, this was a decision about free speech. The court explained that “the wedding websites Ms. Smith seeks to create involve her speech.”  Additionally, in requiring the web designer to create content inconsistent with her beliefs, “Colorado seeks to compel speech Ms. Smith does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to ‘forc[e her] to create custom websites’ celebrating other marriages she does not.” The fact that she charges for the content she creates doesn’t matter, since a speechwriter or visual artist would not lose the “First Amendment right to choose for whom he works if he accepts money in return.”

Concluding, the court summarized: “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 court found in favor of the web designer.

At this season of the year, we cannot be too grateful that our nation does not face the kind of direct persecution tragically common in other countries. We should also be grateful that constitutional and other legal principles protect the ability of people to live their beliefs in every part of their lives, including in the workplace.

Insights: analysis, research, and informed commentary from Sutherland experts. For elected officials and public policy professionals.

  • At the close of its recent term, the U.S. Supreme Court issued two religious freedom decisions that clarify the rights of people of faith in workplace settings.
  • The Supreme Court held that current federal law requires employers to accommodate the religious practice of their employees unless doing so would create substantial costs to the business.
  • The court also held that governments cannot compel citizens to endorse government messages just because they offer their creative services in a business setting.

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