It has become an annual fixture in reviews of the Supreme Court’s term to note the extension of the winning streak in merits cases for religious freedom and expression. This term added two cases to that streak.
In Groff v. DeJoy, the Court ruled unanimously in favor of the postal worker who avoided work on Sundays as a matter of religious obligation. This corrected a longstanding distortion in judicial interpretation of Title VII of the Civil Rights Act of 1964, under which Gerald Groff had sued the postal service after it failed to accommodate and instead disciplined him. For decades, the Court’s decision in Trans World Airlines v. Hardison (1977) contained language that set an unfortunate standard for review of Title VII employment discrimination claims based on religion: Employers need not accommodate the religious beliefs of employees when doing do would require employers “to bear more than a de minimis cost.” Lower courts applying this language would overwhelmingly side with employers whenever a religious accommodation would impose any burden on them. Justice Samuel Alito’s opinion for the Court rejected that problematic language from Hardison and held that a demonstration of hardship for employers requires a showing of “substantial” burdens—a higher standard, and a concept repeatedly referenced in the Court’s Hardison decision notwithstanding its conflicting “de minimis” language. The Court’s decision in Groff will ensure greater protection for religious freedom claims by employees going forward.
In 303 Creative LLC v. Elenis, Justice Neil Gorsuch’s majority opinion held that a graphic designer who believed as a matter of religious faith in the traditional definition of marriage could not be forced to create websites for same-sex weddings under Colorado’s Anti-Discrimination Act. I explained recently how this expanded on the Court’s 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, where a cake artist was protected from an enforcement action under the same Colorado law, along with a line of precedents that prohibit compelled speech. While Masterpiece Cakeshop had been decided on free exercise grounds, the Court granted relief to Lorie Smith, the owner of 303 Creative, on free speech grounds. Together these precedents recognize the First Amendment’s protection of the freedom of conscience.
In 2020, I identified a streak of fourteen wins going back to 2011 that advance the cause of religious freedom and expression, whether they arose under the First Amendment or under a protective statute like the Religious Freedom Restoration Act. Since then, the Court’s October 2020 term added four more cases to the total, followed by three cases last term. Adding Groff and 303 Creative to the tally, the winning streak in merits cases rises to twenty-three going back a dozen years.