Menu
The Supreme Court continues to mess up civil rights for everyone. In this episode Rebecca and Liz discuss the two opinions handed down by the Supreme Court at the end of June, Groff v. DeJoy and 303 Creative v. Elenis. They recap the case, summarize the rulings, and discuss implications of the decisions.
Background
Groff v. DeJoy
303 Creative v. Elenis
Cases
Check us out on Facebook and Twitter.
Our website, we-dissent.org, has more information as well as episode transcripts.
Rebecca Markert:
Welcome to We Dissent, your podcast with secular women attorneys discussing religious liberty issues in our state and federal courts and our work to keep religion and government separate. I’m Rebecca Markert with the Freedom From Religion Foundation.
Liz Cavell:
And I’m Liz Cavell, also with the Freedom From Religion Foundation. And we are without Alison Gill today. It’s just Rebecca and I here to report on two cases the Supreme Court just decided at the end of June.
Rebecca Markert:
That’s right, the court’s term ended last month and two of the cases we were watching were of course decided. Those cases were Groff v. DeJoy and 303 Creative LLC v. Elenis. We will discuss these cases in turn. So first we’re going to discuss Groff v. DeJoy. This was a case we most recently discussed in episode 19 involving a United States Postal Service employee who refused to work on Sundays.
Liz Cavell:
So you probably remember our discussion of this case. We did a whole episode about it. This was the one that involved, uh, United States Postal Service employee filing a claim under Title VII and Title VII, as a refresher, is part of the Civil Rights Act that requires employers to reasonably accommodate their workers’ religious beliefs and practices unless doing so would lead to undue hardship on the conduct of the employer’s business. So that is the exact language, "undue hardship on the conduct of business" that appears in Title VII. And this case kind of revolved around the Supreme Court’s past interpretation of those words. So if you remember the 1977 Supreme Court case that interpreted what the meaning of undue hardship was under Title VII and that case was called Trans World Airlines v. Hardison. And back then the court used the, the term "de minimis" to analyze and describe what constitutes undue hardship.
The court said anything more than a de minimis cost would satisfy that undue hardship standard under Title VII. And in that particular case it was about whether an airline had to diverge from its seniority system in order to accommodate a, an employee who needed off to observe his Sabbath. So since that decision, obviously there have been decades, this is 1977 to today, decades of EEOC guidance and case law kind of working out that standard in order to secure religious accommodations for workers. And courts and the EEOC have been applying the Title VII standard in light of Hardison, but still frequently favoring employees seeking religious accommodations. But that de minimis language being used to analyze undue hardship has been criticized a lot over the years, but it hasn’t necessarily held back a robust application of Title VII in favor of religious accommodations. So here we were in the Groff v. DeJoy case, which had Gerald Groff the employee postal carrier, trying to basically ask the Supreme Court to overturn that case, TWA versus Hardison, and adopt a much broader definition of undue hardship than the de minimis standard.
Rebecca Markert:
And our listeners may recall that Gerald Groff, the plaintiff in this case was a postal service employee. He identifies as evangelical Christian and he asserts that his religious beliefs require that he not work on the Sabbath, which he observes on Sundays. He said that that was essential to his faith. This became a problem when the United States Postal Service began contracting with Amazon to do Sunday deliveries. Then, Groff claimed that his Religion required him to be off every Sunday because of his Sabbath and the postal service initially accommodated him by arranging coworkers to swap shifts and cover Sundays. But this became increasingly difficult when Groff was working in a small rural post office, which at one time only had two other employees who could cover on Sundays. There was a lot of strife within that post office with people quitting and transferring. And so ultimately the postal service determined that continuing to grant this accommodation was causing undue hardship.
Gerald Groff then sued under Title VII of the Civil Rights Act and the courts below had agreed that not working Sundays was an undue hardship for the postal service. So it went up to the Supreme Court and the Supreme Court agreed to consider two questions. The first was whether they should overrule the more than de minimis cost standard that the Hardison case had laid out. And also whether an employee may demonstrate undue hardship on the conduct of employer’s business under Title VII merely by showing that the requested accommodation burdens the employee’s coworkers rather than the business itself.
Liz Cavell:
I wanna harken back to our episode on this that we did after oral arguments because if you recall in that episode, we were describing oral arguments taking place in this case and the fact that it kind of seemed like the more conservative justices that you would expect to be on the side of expanding religious accommodations were trying to figure out common ground was kind of like the theme of the oral arguments — where the parties agreed on what the standards should be, where they could narrowly find agreement between the parties in deciding this case. And we kind of predicted that this wouldn’t PR end up being a maximalist decision, that it might end up being something that was a little bit more narrowly decided while still being in favor of Gerald Groff and doing something to expand the standard that the Supreme Court had laid out in Hardison.
So we weren’t wrong, but I think that we were surprised by the opinion we got because most notably it was unanimous 9 – 0. A unanimous opinion authored by Justice Samuel Alito, also surprising that he could garner a unanimous opinion in anything <laugh> and it was relatively short by Supreme Court opinion standards only 21 pages, guys, super short. I think all of that speaks to how narrowly decided the case was in terms of what it could have done given what the plaintiff was asking the court to do, what Groff was asking the court to do. So just the top lines for me, the court was asked to overrule Hardison full stop and the court did not do that. So the court did say that it was unquote "clarifying" the rule that was laid out in Hardison and pointing to the true fact that the Hardison Court used more than just that de minimis language to describe how courts should analyze the undue hardship standard under Title VII.
So basically that it was wrong to boil down the Hardison opinion to just saying it only requires more than a de minimis cost, but that it wasn’t necessarily overruling that decision because it found that that decision really stood for more than just that narrow test. So it didn’t overrule Hardison and it didn’t do what Groff asked it to do in the second question, which is to rule that an employer couldn’t satisfy the undue hardship standard by merely showing that accommodations would burden coworkers rather than the business itself. It didn’t take that narrow of a view of undue hardship. So in some important ways it didn’t give Groff and his backers what they wanted in the case while still vacating the opinion below and sending it back to the lower courts, which technically is a ruling in favor of Gerald Groff.
Rebecca Markert:
It’s interesting because you have probably seen a lot of news coverage over this case, maybe not because it was handed down the second to last day before the Supreme Court adjourned for its term. But most of the headlines were saying first that it was a victory for Gerald Groff, which we’ll talk about a little bit later. But then also that everybody in this case agreed that the de minimis standard had to go. And so I think that was also not surprising to a lot of people that um, we would get either the Supreme Court overruling Hardison or what we actually got, which was this clarification of the standard and what it meant. So the rule that comes from this case is that an employer must accommodate religious beliefs unless it can show that it would not result in a substantial increased cost in relation to the conduct of the employer’s business. And it’s kind of an interesting case if you’re a lawyer because it really just looks at a lot of definitions from the statute. It looked at the definition of hardship and Alito writes that of course hardship is more severe than a mere burden and the term undue means excessive or unjustifiable. And so if you look at those plain definitions of undue hardship, it has to be more than de minimis.
Liz Cavell:
So a quote from the majority opinion that kind of illustrates this is "We therefore, like the parties, understand Hardison to mean that “undue hardship” is shown when a burden is substantial in the overall context of an employer’s business. This fact-specific inquiry comports both with Hardison and the meaning of “undue hardship” in ordinary speech,” end quote. So that kind of tells you exactly the point that we were making about what the court decided to do with Hardison, which is uh, not overrule it and kind of just clarify that Hardison all along has stood for this broader definition of undue hardship and that some courts have kind of wrongly boiled it down to this more than de minimis standard that doesn’t comport with the full context of Hardison or just the general meaning of undue hardship, which seems to imply more than just a de minimis showing.
Rebecca Markert:
And the case in the end was sent back to the lower court in order for them to evaluate Groff’s claims under this new clarified standard. So this goes to the biggest thing that we took away from this case and something that Liz has been going on and on about since it came down, which is that Groff didn’t decidedly win in this case.
Liz Cavell:
Right? It’s true to say that they found in his favor in the sense that they vacated the decision below, but the Supreme Court often does and fully can come in, decide a new rule and just reverse the finding of the lower court and say, and therefore Groff wins and the USPS did not have an undue hardship and they should have accommodated him. And that’s not what they did here. They gave this new more broad definition of Hardison and they vacated the judgment and sent the case back down to the lower courts to be reevaluated and reheard in light of its opinion. And it very well may mean that Groff wins because it’s a broader analysis, but that’s not the same thing and that’s not what the court decided to do. And just a quote that fully illustrates that is this, "Without foreclosing the possibility that USPS will prevail, we think it appropriate to leave it to the lower courts to apply our clarified context-specific standard, and to decide whether any further factual development is needed" end quote. So that right there is that they’re not making any finding that USPS did or didn’t show undue hardship under the standard they’re announcing today. They’re sending it back and Groff kind of can fight it another day. So that’s an important distinction to make from the headlines unanimous court sides with Christian mail carrier.
Rebecca Markert:
It is certainly not the quote that any of our um, opposition groups like Alliance Defending Freedom, First Liberty and those types of groups, they’re not running around quoting that part of the opinion. They’re all just hailing this wonderful victory again for a conservative Christian who’s been horribly persecuted. He can’t go and watch NASCAR on Sundays. If you’ll recall, that’s what he wanted to do on his Sabbath.
Liz Cavell:
Yes, he, it’s not just for worship, it’s for rest. And by rest we mean watching TV <laugh>, which I, I feel that
Rebecca Markert:
<laugh>, I feel that too. The only other part of the opinion that I wanted to point out to our listeners was that Justice Alito of course brings up the Establishment Clause in the beginning part of the opinion. He devotes some pages to talking about how the Establishment Clause was not part of these other cases, although it was lingering around in the backdrop. But I think he mostly brought it up because he wanted to once again remind everybody that the standard for the Establishment Clause has changed significantly and that we should remember that the Lemon Test which was handed down in 1971, so six years before the Hardison case, was now abrogated. He actually put those words into the decision and I’m not sure that those words were in the Kennedy decision.
I don’t think so either. No.
So I think he really just brought it up so that he could put that in an opinion totally so that all the lower courts could not be confused and they should not be using the Lemon Test in any way, shape or form to analyze any of the Establishment Clause decisions.
Liz Cavell:
Couldn’t agree more. And it has to be pointed out because it is so unnecessary to the flow of this opinion. And you could tell by the way he wrote it that it’s like written with so much restraint like it’s written just as aggressively as it could be written to garner nine votes <laugh> from the other justices. But yet he just had to put it in there. It’s about how Alito thinks that a lot of the reason why the Hardison in court used this de minimis language is because they were thinking that the Establishment Clause is a barrier to Title VII being broadly interpreted. In other words, if we give this broad protection or this broad right to religious accommodations to just religious employees, that poses Establishment Clause problems under Lemon because it means that religious workers are getting preferential treatment in the workplace. And that even though the Hardison opinion did not say that at all in any part of its opinion, it in no way relied on the Establishment Clause, Justice Alito thinks that it was like lurking in the back of people’s minds because people mentioned it in briefing or people mentioned it in oral arguments.
And he thinks that that has in influenced how courts have interpreted Hardison or the way that the EEOC and courts have implemented Title VII under Hardison up until he so kindly abrogated the entire doctrine and clarified for all of us that the Establishment Clause means nothing. And now that’s something that has changed. So it’s just such a good time to make this clarification <laugh> because since Kennedy last year, the Lemon Test is no longer the law of the land and it was just totally unnecessary to the analysis. But he devoted a fair amount of this short opinion to his whole rendering of the Establishment Clause and how it factors into this.
Rebecca Markert:
Yeah, and just to bring up, again, it’s a very short opinion. I mean it’s a little over 20 pages, which is almost unheard of these days. I just told our interns at the beginning of the summer short opinions happened like back in the forties, fifties and sixties where you were getting you know, five or 10 page decisions that just laid out what the law is. But since then, we’ve usually gotten opinions that are hundreds of pages long. And so to get an opinion that was just over 20 was kind of shocking to me. But I also think that there’s a lot of implications, um, and there’s going to be a lot of fallout from this very short opinion. And let’s talk about those a little bit. We can always say whenever the Supreme Court has handed down a decision, made a definitive rule in a particular case, it doesn’t end litigation. It always begets more litigation. And I don’t think that is untrue here either. This case is certainly going to result in more litigation, requests for accommodations are common, um, and I think they’re going to become more frequent under this new standard. So I think we can really expect a rush of new lawsuits. What do you think?
Liz Cavell:
Yeah, I think that’s right. And I think what’s also really important is even though we are making sure everyone recognizes that like Gerald Groff did not win a sweeping victory and did not get the things he presented to the court and asked for, this did broaden even if it was already present in the Hardison in language and courts were already half the time giving this same broad, robust interpretation. It is a step towards broadening the scope of Title VII in terms of when employers have to provide accommodations to religious workers and what the standard is when they want to refuse to provide accommodations. And so in the back of my mind, I’m always thinking this case was about the Sabbath and scheduling employees in ways that don’t conflict with their, their prayer needs, their worship needs, their Sabbath needs. That is a, a common traditional way for Title VII accommodations cases to manifest.
But what I always think that First Liberty, the group that took this case and all of its ilk like Alliance Defending Freedom and all these other Christian nationalists litigation groups, what they have in mind when they’re bringing these cases that are trying to broaden the religious accommodations that Christian employees can demand from employers is all of the cases that they’re concurrently bringing in other courts that involve employees that are seeking air quote "accommodations" in order to like misgender students. So we have cases of these same groups that are backing teachers or professors who are making Title VII claims against their employers who are a school saying that they’re not being given the accommodations that they’re due under Title VII because they don’t want to abide by the gendering of students policy, right? Like we have a case in the seventh circuit of a teacher that is demanding a religious accommodation in order to not have to call trans students by their chosen name or their gender, they want to misgender students and do they have the right to have a religious accommodation to do that when the employer’s rules are no, we’re gonna do what’s best for the students and this is how we’re gonna handle trans students. Cases that involve employees that want to proselytize their coworkers and tell their coworkers that they’re going to hell because that’s, there’s firmly held religious belief and part of their religious practice is like witnessing their faith and telling coworkers that they’re going to hell or that they need to accept Jesus as their savior.
Is that an accommodation that employers have to make under Title VII And then also a really big one in this post-Dobbs world is employees that want to be able to refuse reproductive healthcare to patients or pharmacists that want to be able to refuse contraception to customers. Do they have a right when their employer is a pharmacy or a clinic that says you need to do the thing that we do here, which is provide this service and they say it’s against my religion. What does the employer have to do there? Do they have to accommodate them in a way that really adversely affects other coworkers or just patrons of the business, whether that’s hospital patients, students, customers in a store or whatever. So I think the implications are a lot broader than backers of this case want us all to think. We’re not just talking about scheduling and prayer breaks and religious garb. We’re talking about everything under the sun that could be characterized as a religious need.
Rebecca Markert:
Yep. They’re just planting seeds here for future litigation that will draw on the themes and the analyses that came out in this very short opinion. And of course what we haven’t talked about is obviously the impact that this would have on non-religious employees. They are probably going to suffer the brunt of a lot of these accommodation requests. American Atheists and the Center for Inquiry put out a press release talking about just that. Well I’ll just put that in there for Alison who’s not here today. But they are concerned about what that looks like for our non-religious atheist agnostic friends who are working in these places and will have to cover a lot of these shifts and not receive the accommodations that some of their religious counterparts are receiving.
Liz Cavell:
Right. Which is a fair point because as Justice Alito is mentioning in the Establishment Clause context, and he’s not wrong, and Alison talked about this when we f did the first episode on this case, how far could Congress go favoring Religionists in the workplace, right? Like they couldn’t pass a law that says Christians make more money than atheists. So where are we on the slope of that when it comes to favorable treatment in accommodations and in the rules of the workplace? And of course they’re right, atheists and non-religious workers have no such access to accommodations that might be coming from a place of like deep moral conviction for us but aren’t characterized as religious needs and that’s not really contemplated by Title VII and that raises serious issues and just further kind of expands that divide between religious and non-religious workers in the workplace.
Rebecca Markert:
One of the things that we talked about in the previous episode was just how long the Hardison standard had been in existence for decades and because it involves a statute, we know that Congress could come in and make these definitions and it had chosen not to. What are your thoughts about Congress stepping in now? Do you think this is a rule that they handed down that everybody will be satisfied with? So Congress is still going to be hands off on this or do you think at some point Congress is gonna step in and say this is the standard by which courts and the EEOC need to evaluate these accommodation requests?
Liz Cavell:
So I think Congress will continue to do what it has been doing, which is stay out of this because everything’s functioning fine. And again with this Supreme Court we’re saying this case wasn’t as damaging as it could have been. But again, it’s pretty stupid that they took this case just to do this. This is a really silly thing for the court to do is take this big Supreme Court case, everyone briefs it and argues it and then they come out and say, so we’re not doing anything except clarifying what the 1977 case already said and what most courts and the EEOC was interpreting it to mean. That’s a very silly thing for the court to be doing. I think the reason or maybe not the reason not to be like Alito and just like impute all this on everybody, but I think it’s, it makes sense that Congress didn’t act even though it was given the opportunity to act and adopt this more expansive definition that Groff was pushing.
Because the fact is these cases are being litigated pretty well in terms of fulfilling the purpose and the spirit of Title VII. There are religious accommodations being made and being balanced I think reasonably well and thoughtfully by courts and by the EEOC, thoughtfully balancing the competing interests between the needs of an employer and a business place and the religious needs of coworkers like so much this court is doing, it’s a solution in search of a problem. And I don’t see Congress stepping in to do anything different when the court is really just saying as you were, basically, but still tipping their finger on the scale in favor of religious actors, which they always have to take the opportunity to do.
Rebecca Markert:
Absolutely. Well I think we should probably move and start discussing the second case that came down the end of the term. It actually came down on the very last day of the term that is the 303 Creative LLC v. Elenis case. That our listeners may recall is the case involving Lori Smith who is the owner of 303 Creative, a graphic design company that is based in Colorado. And Smith is a devout Christian who believes that marriage is between only one man and one woman. She is concerned about the state of Colorado enforcing its anti-discrimination statute if she decides that when she designs websites for weddings and she refuses to design such a website for a same-sex couple that the state of Colorado is going to come in and punish her for refusing that service.
Liz Cavell:
So this is all in the theoretical because Lori Smith, even though she owns a graphic design business, if you recall us discussing this at length, she does not currently design wedding websites for any couples that’s not part of her business profile. She’s a graphic designer and she also does design websites but she’s not in the wedding website business. As I discussed today with another colleague, it’s kind of a weird thing to hire a graphic designer to do as we all who have ever gotten married or have friends who have gotten married. There’s all these website services that exist like theknot.com where you go and make a template and it’s free and it’s just in keeping with the level of seriousness that you need for a wedding website. So the whole thing is very odd. Like the fact that you would be a graphic designer that is in the business of designing like actual physical URL websites for a couple that’s gonna get married.
Rebecca Markert:
Well she’s not.
Liz Cavell:
But she’s not so it’s all fine, right? But that’s the whole thing. It’s like theoretical. She wants to expand her business apparently to offer wedding websites, but she’s worried that if she does that there’s this law that could impact her because she can’t in good conscience design websites for same-sex weddings. So that’s the case that wound its way up to the Supreme Court amazingly because again the law was never enforced against her. Unlike the Masterpiece cake shop case, which was an actual baker refusing service to an actual gay couple resulting in an actual enforcement of the law against him. This did not involve any of that. This was a pre-enforcement suit, um, that was challenging the law as a violation of her free speech and free exercise rights under the First Amendment.
Rebecca Markert:
So the issues that came before the court is whether a website design company has a First amendment free speech right to refuse to sell wedding websites for same-sex couples and to advertise this on their website while selling the same product for opposite sex couples. There was also a request by Lori Smith to overrule the Employment Division v. Smith case but the Supreme Court only granted review on the free speech issue. So again, we get a decision in favor of the Christian here in favor of Lori Smith. And this is a decision that is written by our friend Justice Neil Gorsuch. It’s a 6 – 3 opinion. It’s not entirely surprising if you had listened to our earlier episode, we believed that we were going to get a 6 – 3 opinion and I don’t think we were that surprised that it was also from Justice Gorsuch.
Liz Cavell:
Yeah, this is pretty on brand for Justice Gorsuch and we figured it would be like a clean 6 – 3 because that’s the way the wind was blowing in terms of the makeup of the court since Masterpiece, which was by the way only five years ago and what was previewed at oral arguments when we saw this case being argued before the court.
Rebecca Markert:
And so you knew exactly how the court was going to come out when you read the very first paragraph of the opinion, which I’m going to read here for you because I think it pretty much tells you how they’re going to rule Gorsuch starts the opinion like this quote, "Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe." And of course the majority opinion goes into talking about how important the first amendment right to free speech is. Another quote from the majority opinion is this quote, "These cases illustrate that the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply ‘misguided,’ and likely to cause ‘anguish’ or ‘incalculable grief’"
And the court agrees with the 10th circuit, the court below, that the wedding websites Smith wants to design are considered pure speech. The court writes that if she chooses to speak, she’ll face these punishments that are unacceptable under the First Amendment. And because I have a lot of quotes here from this opinion, I’ll read the next one. It says, "If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in ‘remedial . . . training,’ filing periodic compliance reports as officials deem necessary, and paying monetary fines. Under our precedents, that ‘is enough,’ more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely."
Liz Cavell:
So all of this rests on a finding of fact that the speech that we’re talking about when a graphic designer designs a website for a paying customer, the speech in that website is the speech of the graphic designer, not the paying customer. So if you’re listening to this and you’re like, what the hell are they talking about? Because it’s all this high moral language about how important the free speech rights are of people and she has to say what the state is demanding her to say or suffer the consequences. And it’s like we’re talking about a graphic designer designing a website for a paying customer and the speech at issue is the speech apparently of the customers that want to say we’re getting married and because she believes that same sex marriages are, in her words false, just the act of saying anything of the sort is forcing her, the graphic designer, to speak in a way that is against her beliefs.
So that is a very, in a lot of people’s minds including mine, warped interpretation of whose speech is affected in a situation where even when there’s an expressive product whose speech is represented by the finished product, is this the speech of the graphic designer who really has no say over the content of the website, they’re just designing it for a paying customer on the same terms as they would for a straight paying customer. The court obviously is happy to adopt the fiction that the speech is the speech of the graphic designer in this case. And so that kind of undergirds the whole opinion because otherwise where do we get all this compulsory speech analysis if it’s not her speech?
Rebecca Markert:
And Justice Gorsuch’s writing is really infuriating to me because it just has this like aura of pompousness and asshattery that I, is asshattery a word? I don’t know it is a word <laugh>.
Liz Cavell:
I know what you mean. It’s like just this mansplaining tone. It’s like if there was a font called mansplain, it would be everything Justice Gorsuch
Rebecca Markert:
Writes. Exactly. And it is very patronizing.
Liz Cavell:
So patronizing
Rebecca Markert:
And I, I wanna bring up that point a little bit later on, um, about something that also really annoyed me. I know we talk a lot about this like who is the worst Supreme Court justice and there are a lot of contenders of course it’s tough, it’s, it’s tough <laugh>, but I really feel that Gorsuch is like rising to the top for me. I mean I just think he is a horrible person and also just really devious in his writing. So anyway, one of the things that he does in this opinion is of course he just lays out all of these other ways in which people would be appalled to find that they were compelled to produce some sort of expressive activity at the hands of the government. So he lays out a whole bunch of hypotheticals, which is just really funny cuz the entire case is a hypothetical. Mm-hmm <affirmative>. But he rolls in with a result in favor of Colorado would lead to compelled speech for artists everywhere. And he gives a couple of examples. One being an unwilling Muslim movie director who needs to make a film with a Zionist message or of course the atheist muralist who has to paint an evangelical painting
Liz Cavell:
Also known as Da Vinci,
Rebecca Markert:
Right? <laugh>. Yes, exactly. A married gay man who must design websites for an organization that advocates against same sex marriage. So he really just sort of listed all of those quote unquote parade of horribles that of course we would be appalled by. Right?
Liz Cavell:
And also that are not analogous to the situation <laugh> as Justice Gorsuch damn well knows like unwilling Muslim movie director, not a business open to the public, not subject to any of these laws as Gorsuch well knows <laugh>, atheist muralist painting an evangelical painting. Again not a status based action by the business owner. So like let’s say I’m an atheist muralist <laugh>, I hold myself out to the public and I live in a state where place of public accommodation is defined to include me. I don’t paint evangelical paintings cuz I don’t like money <laugh>. And then someone comes up to me and says, I would like you to paint the Sistine Chapel on the ceiling of my house. Um, and I say no I don’t paint those paintings. That is not me declining service on the basis of someone’s status. It’s not a status based distinction. Deliberately pretending you misunderstand the distinctions in these cases by the highest jurist in the land is infuriating to me. It’s like you know that this is not an analogous example, you’re just throwing stuff out there to show woke people, atheists and Muslims how bad this really is and it’s just total bs.
Rebecca Markert:
Right? And he goes into the history of the public accommodations statutes and there is a sense of him patting us on the back like way to go guys like we’ve been trying to solve this problem of discrimination. And the majority writes that there’s no question about the vital role that public accommodations laws play in realizing the civil rights of all Americans. And then he goes into the, this long history about how far we’ve come since those laws first came into being. But then he ends by saying no public accommodations law is immune from the demands of our constitution. And that when a state public accommodations law and the constitution collide, there can be no question which one must prevail.
Liz Cavell:
I read that whole like look how far we’ve come since the civil rights movement as having major Shelby County energy where it’s like do we even need them anymore guys? I feel like discrimination is just eradicated from society so do we really need?
Rebecca Markert:
Yeah we solved that problem. Yeah
Liz Cavell:
So like don’t worry about how this decision is literally gutting and eviscerating decades of civil rights movement in this country cause uh, it’s fine.
Rebecca Markert:
So the other funny part of the majority opinion before we jump into the dissent, which is worth a discussion as well and it’s actually a good segue into the dissent because Gorsuch does spend significant time at the end of the opinion attacking the dissent And he writes this, which I just find really funny. in light of the cases that have come down in the last year, he writes of the dissent, it’s difficult to read the dissent and conclude we are looking at the same case.
Liz Cavell:
No argument here. <laugh>,
Rebecca Markert:
Right <laugh>, I’m like not just this case either. Let’s recall Kennedy, um, where you guys had very different versions of the facts. He also says that the dissent reimagines this case from top to bottom. So why don’t you tell us a little bit about the dissent,
Liz Cavell:
Right? So there was obviously a dissent in this case. It was written by Justice Sotomayor joined by Justices Kagan and Jackson. And from the very beginning she says "Today the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class." And one of the other things she says is "what a difference five years makes." And what she’s saying I alluded to before is that five years ago they decided the Masterpiece Cake Shop case and that case was decided in a weird way to kind of avoid the constitutional questions but it raised the same issues. And it was back when Justice Kennedy was still on the court and it paid a lot of lip service to the idea that everything that happened in this 303 case couldn’t happen. That we know that no one has a constitutional right to discriminate in violation of anti-discrimination laws and all of these other sort of truisms that appeared in the Masterpiece Cake Shop case only five years ago.
But of course what she’s getting at is the changes in the makeup to the court have completely changed the way that our Supreme Court evaluates anti-discrimination and civil rights laws and what is and what isn’t possible in terms of exemptions from those laws. The other thing that is really powerful about Justice Sotomayor’s dissent is that she puts this whole dispute in the context of the attacks and the backlash right now in our country against equality for gender and sexual minorities. And she really draws on that context to compare it to the history of civil rights for racial minorities and women and kind of drawing that parallel, which is like anytime we’ve seen progress in the civil rights of minorities, we’ve seen this backlash and we’re in the midst of a massive period of backlash against LGBTQ Americans gaining civil rights. And this court is complicit in it and the change in the makeup of this court has drastically shifted where the court is on issues of civil rights for LGBTQ people.
Rebecca Markert:
And I really appreciate that because she’s really giving just a practical look at the situation here, what Lori Smith wants to do and how it impacts people in real life and what the public accommodation statutes intend to do in preventing discrimination which we as a society have agreed is something we do not want part of our society. And I also just like it because she’s talking about what’s happening today and when you read the majority opinion he’s hearkening back to the Barnett case, which was a case from the forties and he’s talking about a lot of really older cases but also describing the situation sort of in a vacuum like it’s a very academic exercise for him. And Sotomayor is really focused on this is what’s actually happening in the world and how your decision is going to impact these people. And you know, she even says this is a very sad day.
Liz Cavell:
Yeah. And just like calling a spade a spade, which is this radical court majority that has been put in place in the last five years to be part of exactly this backlash is complicit, right? This is all part of the cultural backlash to LGBTQ advances and rights and the court is part of that. They’re not above it. This is kind of a long quote but I have to read it cuz I just loved it so much from Justice Sotomayor’s dissent and it’s just aimed right at the majority justices, "Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims."
And that is obviously a powerful rebuke to the current justices who sit on this court and who are just acceding to these tried and true nothing new under the sun claims that there’s some constitutional right to engage in the act of discrimination. And I think what’s important about Justice Sotomayor’s dissent as it’s so often plays this role in this current majority is that it it tells the truth of the case. It’s telling the truth of what we’re talking about here. Like this isn’t confusing. We don’t have to pretend that we all don’t understand the difference between conduct and speech and that we have to buy into this narrative of like, well she would never refuse any service to a gay customer, it’s just that she won’t sell a same sex wedding website product. Right? So it’s like no one can buy a same sex wedding website.
Even straight people, it’s like straight people don’t buy same-sex wedding websites, right? So we don’t all have to pretend that that’s a distinction with the difference and Justice Sotomayor doesn’t do that. She doesn’t. She just tells the truth of the case and I appreciate that she lays out just because it is missing from the majority opinion that the law, the Colorado anti-discrimination law does not target speech. It targets the act of discrimination and that has never constituted protected speech under the First Amendment in the history of civil rights. And even if or when these civil rights laws kind of incidentally burden expression in the sense that Justice Gorsuch is telling us is, is this awful violation of free speech. In other words, to the extent that you agree that you’re being forced to express something like approval when you serve people on an equal basis, people made this argument back in the civil rights days, if you force me to integrate my diner, you are making me complicit in desegregation and I don’t believe that and I don’t want to be complicit in that.
And that burdens my speech and association rights. And to the extent that that’s true, it doesn’t constitute protected speech. Like we don’t protect all speech. We do have robust free speech rights in this country as we should and as we should vehemently protect. But we don’t protect every single thing that touches on speech or expressive activity. We don’t, the government forces us quote unquote to engage in expressive activity all the time and to be complicit in things we might not agree with like wearing our seatbelt or anything you do, paying taxes that support wars. Anything you do that the law requires you to do that makes you complicit in something that you don’t agree with or believe in could be argued to be some sort of burden or implication of your speech or expression. It doesn’t mean it’s protected under the First Amendment and Justice Sotomayor just calls it out as discrimination is conduct. And to the extent that it is speech related, it’s not protected and it never has been and it shouldn’t be today. And one of her quotes towards the end of her dissent is "Our Constitution contains no right to refuse service to a disfavored group." Period. And it’s powerful and it’s not respectfully submitted And I appreciate that <laugh>.
Rebecca Markert:
I do think she also really writes with a empathetic tone as well. I mean this just really brought me back to the Dobbs decision when she wrote that descent too where she was really just connecting with the American people who really found these to be heartbreaking decisions and really understanding how awful it is to be a member of this minority group where the law is just not protecting you the way that it should or the way that it once did. Right. And um, I think that’s why she is becoming one of our favorite dissenters because she also just gets it right and then does it with this really wonderful empathetic tone that I think is really relatable to a lot of people.
Liz Cavell:
Well, because it’s what’s absent from the case. And I wanna talk about this just for a second because I think it’s really notable, but what’s absent from the majority opinion is of course, but it’s always still so stark is like any sense of like empathy or even recognition of the impact of this decision on the actual protected class at issue. Like we hear all about the speech rights and how ghastly it is for the state of Colorado to force Lori Smith to engage in speech and there is absolutely no discussion of the impact of this decision on LGBTQ people in the marketplace or the actual practical impact of this decision on the purpose of the civil rights movement and these laws. But one thing that I thought was really interesting that I don’t remember, I didn’t re-listen to our predictions episode, but one of the things I know I expected was some sort of limiting principle in the opinion even though I knew it would come out this way, I was really surprised that like there was no language about how, cuz they talked about this at oral arguments and basically admitted as much the ADF lawyers, that when they’re questioned about how does this analysis not apply to race?
Like if you just substitute interracial marriage and interracial couple, would your argument still stand? And they candidly I think ADF are argues like yeah we think that our argument applies equally to any protected class. And you hear sometimes justices making excuses like my favorite decent and honorable people still disagree about same sex marriage and sexual orientation. And so race is different somehow. Like we’ve decided as a culture that race discrimination is bad, there’s a higher weight on that interest than with sexual orientation and there was nothing limiting like that in this opinion. So in other words the opinion just kind of applies this free speech analysis that Gorsuch does and then just kind of leaves it at that they do say we’re just analyzing the facts here. We’re not gonna predict which other types of businesses would constitute the pure speech interests that are involved here. But there’s no limiting principle as to how this case would come out differently if it involved race discrimination. And I think the implication is it wouldn’t in terms of some of the predictions we made. I mean they’re just leaving open the, the possibility that these same types of constitutional exemptions could be made no matter what basis someone wants to discriminate on.
Rebecca Markert:
It’s really scary.
Liz Cavell:
Yeah. So that was noteworthy and is probably a good segue into future implications or just our impressions and uh, future implications of the decision.
Rebecca Markert:
I wanted to bring up just again how much I hate Gorsuch’s writing <laugh>. Um, we talked a little bit earlier about how pompous it is, but I really wanted to draw listener’s attention to one paragraph of the majority opinion in particular because I really just had a, a pretty physical reaction to reading this paragraph. So he writes, "In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive,’ ‘misguided, or even hurtful,’ But tolerance, not coercion, is our Nation’s answer. 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 I’m really tired of this tone from the ultra-conservative majority on this court. The this is constantly the type of tone that they put forth in all of these majority opinions where it’s really like we all have to be tolerant of these people who are trying to discriminate against people <laugh> and are really just like in my mind, inherently awful people. I guess it’s not just this court, it’s been in previous courts, the Greece versus Galloway decision, if you’ll recall the decision that upheld the practice of Christian prayer before our legislative bodies. There was a lot of language in that opinion talking about how atheists needed to be more tolerant of the Christians who wanted to pray and you know, we wouldn’t be offended if you left the room during that prayer. So don’t be offended if we give this prayer <laugh>. I mean it’s just a lot of that sort of, again patronizing talk about how like, hey you guys need to be more tolerant of my bigot friends. Yeah. Like
Liz Cavell:
Totally oh it’s and it’s a cultural movement and this court is part of it and it’s hilarious to me that the irony is totally lost on him of him uttering the sentence "tolerance is our nation’s answer" in the same case that literally says it’s okay to discriminate in violation of civil rights laws. Yeah you’re the paragon of tolerance. I’m sure Dr. King would be patting you on the back. And also just the gaslighting of it where it’s just like tolerance means being tolerant of intolerant viewpoints. It’s like this, the whole cultural movement against cancel culture, it’s like oh my free speech right to grab a microphone and say the most intolerable thing and that nobody wants to hear also means that everyone else has to sit there and listen. Right? That is not what tolerance is and it’s so infuriating that these are the people with all the consolidated power to tell us all the rules by which we have to live our lives. It’s just infuriating
Rebecca Markert:
What’s also sort of upsetting and things that I’m not sure the general public pays attention to but Gorsuch is the justice who wrote the Bostock decision back in 2020 and found that it was illegal to discriminate against LGBTQ people in the workplace. And it was a decision we were all really excited about and we were all praising at the time. But I think lawyers like us in the civil rights space, especially lawyers who were for true religious liberty were nervous about what was to come. Not just because in that, during that same term we were anticipating the Our Lady of Guadalupe case which involved religious exemptions and we knew that of course they would be expanding the ministerial exception for that case. But I feel like he was also just waiting and dying to write this opinion too. You know, like it’s illegal to discriminate in the workplace unless your religion tells us that you have to.
Liz Cavell:
Yeah. And totally it’s like the companion opinion to the Bostock decision because this is where you pointed out earlier, Gorsuch keeps vying for the top spot as most terrible justice because there’s this calculatedness to his, his whole project, right? Even when he writes a quote unquote good opinions, you know, it’s just kind of like laying the dynamite for whatever’s coming. In the Bostock decision, there was kind of just that throwaway line that said of course this is all subject to like potential constitutional first amendment claims and we’re not gonna say anything about that cuz we’re just talking about the statutory interpretation. And that’s where you knew what he was signaling, which is this is all just my textualist opinion about the statutory language in this case. But when it comes to a case like 303, where someone’s making a constitutional claim about their right to discriminate, that’s a whole different ballgame. And there’s no surprise that this opinion is written by Gorsuch in this way and it’s a shame that he got any credit for his authoring of the Bostock opinion as some sort of like LGBTQ equality hero because of course that was absolutely never part of his jurisprudence.
Rebecca Markert:
And I just hate that we were lauding that opinion while at the same time knowing that something else was coming down the pike. That it was just again one of those like planting, like throwing us a bone. Yeah. Um, but more awful things are are to come.
Liz Cavell:
Yeah. It’s more of a crumb than a bone
Rebecca Markert:
Maybe you’re right. Yes. It’s a crumb. It’s a crumb. Yes.
Liz Cavell:
Don’t, don’t oversell it
Rebecca Markert:
<laugh>. But let’s talk about the future implications because I think we were talking before we started recording how the implications are very similar to what we were saying in the Groff decision. That again we think that seeds have been planted in this decision for other situations like misgendering students and the refusals in healthcare denial of care.
Liz Cavell:
So a lot of like where this decision can go, it depends on the answer to a lot of like persnickety legal questions. And so we, we actually talked about this a fair amount uh, or remember with Alison in our 303 episode prior, which was the definition of a place of public accommodation under these statutes matters a lot in terms of who these laws can even be enforced against. Cuz in plenty of states that have anti-discrimination laws 303 Creative, a graphic design business like an online business would not fall under the definition of public accommodation. Colorado kind of stipulated to the fact that um, their statute applied to 303 Creative and they do have a statutory definition of place of public accommodation that is really expansive. They mean for their statute to apply to pretty much any place that’s open for business and that sells goods and services to members of the public in Colorado.
So that is very broad. Not every state has such a broad statute. Either way, obviously as we can see it’s not gonna matter much as long as the statute can encompass a place of public accommodation, I think the only question is gonna be whether or not there’s a speech right implicated by the business and of course you can argue that principle as far as you want. I mean that was argued in the Masterpiece cake shop case very forcefully and was taken very seriously by Justice Gorsuch in his opinion in that case cuz Kennedy wrote the majority opinion and I can’t remember if Gorsuch dissented or concurred, but he wrote to say that he thought the free speech right in are being argued by the baker in masterpiece was very compelling. And so I think it’s fair to say that this court would find Baker’s have enough of a free speech right implicated by their work to warrant an exemption under the free speech clause. And so I mean argue it out from there a baker, anybody that engages in something that could be described as artistry but also is open for business to the public, this right to violate anti-discrimination laws in the marketplace can extend pretty far, even if it’s only cabin to expressive activities. He goes out of his way to say we’re not deciding today whether this would apply and in other contexts and gave some other examples of things that have been argued. But I think it’s, it’s reasonable to look around at and look at masterpiece and what Gorsuch said back then and look at what’s being argued in all of these cases as implicating speech rights. I mean it’s certainly gonna be argued in every one of these cases no matter what or no matter how tangentially related to speech a given business is, if they wanna discriminate against LBGT customers, they’re gonna argue that they have a free speech right. To do so.
Rebecca Markert:
Right, right. Yeah. These cases are definitely coming
Liz Cavell:
And there’s no, again, principle limiting this to sexual orientation as a class. So I mean there’s no reason why we wouldn’t see more business owners who want to discriminate on the basis of race or some other protected class, religion. You know, we’re gonna see like anti-Semitic discrimination if people so feel that they’re being forced to express some sort of approval that they don’t agree with, whether it’s race or ethnicity or religion or whatever. There’s nothing limiting this, this case to sexual orientation. So we’re, I’m sure we will continue to see an expansion of arguments that there’s a free speech right to discriminate on all the basises
Rebecca Markert:
And it just reminds me of how legislatures have acted, I’m thinking particularly of Texas here have acted in light of the Kennedy decision where they are pushing for new laws that would allow prayer in schools that would allow the Ten Commandments posting in schools. And there is a law now starting in September in Texas about the having chaplains be employees of public schools. And so I’m trying to expand on what you were just saying where a lot of elected officials and state legislatures are gonna look at this opinion and see it as a green light to allow discrimination in many other contexts. And I think there are going to be elected officials who are going to be very risk averse here and are just going to heed to the person who’s screaming, my religious belief compels me to do X and I’m saddened that we live in a world that has been taking away civil rights for people and then also is just opening up the ability to discriminate. It’s just another Supreme Court term where we’re moving backwards, not forwards.
Liz Cavell:
Right, totally. It’s just a really, really sad day for the movement towards greater civil rights. The anti-discrimination statutes were such like the paragon of achievement of the civil rights movement and the Supreme Court has batted down challenge after challenge after challenge of people just like 303 Creative over the years since the Civil Rights Act was enacted. And it’s just so heartbreaking that after all of that, this court can just undo with the flourish of a pen decades of civil rights progress. And it’s just sad, especially in the public accommodation space where we talked on the last, or the other 303 episode about like the purpose of these laws and it’s always been understood by better justices than the ones we have now, that this is not about access to goods and services. It’s about something greater, that as a society, we don’t want to tolerate discrimination in the marketplace because of the harm that it does to our marginalized groups and therefore our society as a whole. It’s about making our marketplace a more pluralistic place that is more tolerant in the real way, not the Gorsuch way, because that means it’s a place where all of our people have dignity. And you don’t get to participate in the public marketplace if you want to discriminate, because we value the dignity of our people above your right to be discriminatory. It’s just so infuriating to see that just, just a huge hole being blown into that, which was something that was the pride of American civil rights.
Rebecca Markert:
Well, I did want to draw listeners’ attention to when we are talking about how much I despise Neil Gorsuch <laugh> Go on. I am putting in the show notes an article that was posted on vox.com and it is entitled "Neil Gorsuch has a problem with telling the truth". And it’s a really good article because it talks about what he did in the Kennedy case by making up facts and seeing it very differently than what was actually happening. So much so that Sotomayor had to put pictures in the dissent in that case. And then he brings up this 303 Creative case where he talks about, if you’re reading the opinion, you get this feeling that Lori Smith is just this persecuted person who’s unable to do what she wants to do because these evil people in Colorado are not gonna allow her to do that. And completely ignoring the fact that she’s not engaged in the production of wedding websites at all, and that this isn’t part of her regular business and things like that. And again, like we’ve said about so many other cases over the years, that this case shouldn’t be before the court at all because it’s manufactured and was just seeking one particular outcome.
Liz Cavell:
Yeah, our subtitle for our prior episode on this case was, This Case Should Be Dismissed. That’s right. Which remains our position. But alas, that did not win the day.
Rebecca Markert:
Did not win the day.
Liz Cavell:
Well, I think that’s as good a place as any to stop, but of course we will be following up on all of these troubling legal trends. The Supreme Court term is over for now, but keep watching this space for more on these topics as the court decides what to hear next term. And we see how these issues are playing out in legislatures and in the courts.
Rebecca Markert:
And please, if you don’t already, please follow us on our socials. We are on Twitter and on Facebook. We’re looking to put together an Instagram account, so be aware that that might be happening sometime soon too. And please follow us on our website, we-dissent.org. Thank you for tuning into our episode. We will see you next time. I’m Rebecca Markert.
Liz Cavell:
I’m Liz Cavell, and thanks for listening.
Rebecca Markert:
We Dissent is a joint production of the Freedom From Religion Foundation and American Atheists. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Other production support comes from Greta Martens. Audio Engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
© 2022 We Dissent Podcast | All Rights Reserved
Partner Organizations
