In this installment, we bring you summaries of two cases that address accommodations for religious beliefs and practices without invoking either the Free Exercise or Establishment clauses of the First Amendment. In 303 Creative LLC v. Elenis (No. 21-476), a 6-3 Court held that the Free Speech clause of the First Amendment prohibits Colorado from using its public-accommodations law to compel a Christian website designer to create wedding websites for same-sex couples. Meanwhile, in Groff v. DeJoy (No. 22-174), a unanimous Court held that Title VII of the Civil Rights Act requires employers to reasonably accommodate their employees’ religious practices unless doing so would pose a “substantial hardship” on the conduct of the employers’ business, discarding stray language from a 50-year-old decision suggesting that employers could refuse an accommodation if it would pose “more than a de minimis cost.”
We’ll start with 303 Creative, a sequel of sorts to Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). In both cases, Colorado wedding vendors contended that the First Amendment prohibited the State from forcing them to cater to same-sex marriages. As you’ll recall, the Court punted in Masterpiece Cakeshop, avoiding some thorny merits questions: Do the First Amendment rights of businesses trump neutrally applicable public-accommodations laws? Are cakes speech to begin with? Instead, it decided that that the Colorado Civil Rights Commission had exhibited overt animus toward the Christian baker who refused to provide customized cakes for same-sex marriages. But Masterpiece Cakeshop was…well, a masterpiece of the Justice Kennedy oeuvre: some lofty language about dignity and mutual respect, but no lines drawn. Five years later, Justice Gorsuch has replaced Kennedy (and Justice Barrett, Ginsburg). So when the issue returned to the Court, as was inevitable, a 6-3 conservative majority was ready and waiting.
This time, the issue arose in the context of wedding websites. Lorie Smith is a committed Christian who offers website and graphic-design services. She recently decided to begin offering her services to couples seeking websites for their weddings. These sites would all be “customized” and “tailored” creations, she alleges, that are “expressive in nature” and designed “to communicate a particular message.” And that particular message would be associated with Smith, for she is the sole owner of 303 Creative, whose name would be included on every website. While Smith had “laid the groundwork” for this expansion into the wedding game, she was reluctant to pull the trigger because she feared that the State would use the Colorado Anti-Discrimination Act (CADA) to compel her to create websites celebrating marriages she does not endorse—namely, same-sex weddings. So she filed a lawsuit seeking to enjoin the State from forcing her to create websites celebrating same-sex marriages. The parties stipulated to a number of facts, including that Smith’s websites are “expressive”; that she sincerely believes that marriage is between one man and one woman; and that she is willing to create custom graphics and websites for people of all classifications, but will not produce content that “contradicts biblical truth” regardless of who asks for it. The District Court nevertheless denied injunctive relief, and the Tenth Circuit affirmed. The Tenth Circuit agreed with Smith that she had standing to sue (despite not having commenced her wedding-website business or faced any sanction from the State) and that CADA forced her to engage in “pure speech” that she disagreed with. But it concluded that the State had a compelling interest in ensuring “equal access to publicly available goods and services” and that there were no less restrictive means of accomplishing that goal.
The Supreme Court reversed, 6-3. Writing for the majority, Justice Gorsuch invoked Justice (Robert H.) Jackson’s assertion that, “[i]f there is any fixed star in our constitutional constellation,” it is that the government cannot prescribe orthodoxy in matters of opinion. The Founders saw the freedom of speech “both as a means and an ends,” Gorsuch observed. “An end because the freedom to think and speak is among our inalienable human rights. A means because the freedom of thought and speech is indispensable to the discovery and spread of political truth.” The Court has therefore generally prohibited government efforts to “prescribe orthodoxy.” Gorsuch seized in particular upon West Virginia v. Barnett (1943)—the case in which Justice (Robert H.) Jackson uttered the famous phrase above. There, the State of West Virginia sought to compel schoolchildren to salute and pledge their allegiance to the flag. The Court rejected that enterprise, holding that the First Amendment prohibited the State from “invad[ing] the sphere of intellect and spirit which it is the purpose of the First Amendment…to reserve all official control.” More recently—in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1994) and Boy Scouts of America v. Dale (2000)—the Court has held that the First Amendment prohibits States from using public-accommodations laws to force organizations to accept gay members or participants when that would change or dilute a group’s expressive messages. These cases, Gorsuch summarized, show 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.”
Applying these principles, Justice Gorsuch concluded that the First Amendment would prohibit Colorado from compelling Smith to provide customized wedding websites to same-sex couples. First, Gorsuch agreed with the Tenth Circuit that the wedding websites Smith wants to create are “pure speech” and that they qualify as “her speech,” even though they will likely also contain the speech of the couples for whom they are created. To the extent the State would compel Smith to provide these customized wedding websites to same-sex couples, Gorsuch continued, it would be compelling speech that Smith disagrees with. But while the Tenth Circuit found that the State could compel Smith’s speech consistent with the First Amendment, Gorsuch disagreed. In his view, Colorado has put Smith to the same choice that the Court found impermissible in Hurley and Dale: “If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs.” That is an impermissible abridgment of the First Amendment’s right to speak freely. Were it otherwise, Gorsuch warned, “the government [could] force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe in pain of penalty.” Imagine the government requiring a Muslim movie director to make a Zionist film, or an atheist muralist to accept a commission celebrating Evangelical zeal. Just because these speakers accept payment to create some messages, does not mean they can be compelled to create (and in a sense endorse) all messages.
Justice Sotomayor dissented, joined by Justices Kagan and (Ketanji Brown) Jackson. In her view, the majority opinion marked “the first time in its history” that the Court had granted “a business open to the public a constitutional right to refuse to serve members of a protected class.” As Sotomayor observed, “[n]ew forms of inclusion have been met with reactionary exclusion” throughout our nation’s history. But in the past, when public establishments claimed a constitutional right to discriminate against protected classes (sometimes based on sincere religious beliefs), “[t]he brave Justices who once sat on this Court decisively rejected those claims.” Faced with a similar challenge in this case, the majority reached the “[p]rofoundly wrong” conclusion that the First Amendment protects the right to discriminate in public accommodations.
Much of Sotomayor’s dissent was focused on the history and purpose of public-accommodations laws, which serve to promote both equal access to publicly available goods and services and equal dignity in the common market. “LGBT people, no less than anyone else, deserve that dignity and freedom,” Sotomayor argued. On the merits, Sotomayor maintained that (notwithstanding the parties’ stipulation), Smith’s websites were not “pure speech,” but rather commercial products that must be sold to all members of the public on equal terms. As she noted, no one is trying to prevent Smith from espousing, communicating, or advocating her views on marriage. Nor does Colorado seek to compel Smith to “speak its preferred” message. She could exclusively create websites with biblical quotations describing marriage as between one man and one woman, but she cannot refuse to sell those products to a class of customers based on their protected characteristics. Because all the law requires Smith “to do is offer [her] services without regard to customers’ protected characteristics,” any effect on her (or her company’s) “speech is therefore ‘incidental’ to the State’s content-neutral regulation of conduct.” And because the burden on speech is merely incidental, it is not necessary for CADA to survive strict scrutiny.
Although it is unlikely the majority and dissent would have seen eye to eye in any event, it’s worth noting that the opinions shared very little common ground as a starting point. (As Gorsuch himself asserted, “[i]t is difficult to read the dissent and conclude we are looking at the same case.”) That’s largely because the two opinions start from different premises. Gorsuch (citing the parties’ stipulations and the Tenth Circuit’s decision) assumed that Smith’s creation of wedding websites was “pure speech” and analogized her predicament to that of a speechwriter or an artist being compelled to produce expression with which she disagrees. Sotomayor, by contrast, began from the premises that Smith’s wedding websites were simply “goods” that must be made equally accessible to all consumers, therefore analogizing 303 Creative to Ollie’s Barbecue and other Southern restaurants that refused to serve Black customers. Neither side, it must be said, did all that much to justify its starting premise or clarify where the line between speech and conduct is drawn in the public-accommodations context. So, while the Court at least decided this case (unlike Masterpiece Cakeshop), it seems likely we’ll continue to see challenges involving florists, caterers, limo drivers, and others claiming a First Amendment right not to cater to same-sex weddings.
Given that it was decided at the end of the term and also involved a claim that an individual’s religious beliefs should be accommodated, some viewed Groff v. DeJoy (No. 22-174) as another potentially divisive blockbuster. But in fact, it turned on a fairly simple question of statutory interpretation, which drew a unified answer from the Court. In a unanimous decision, the Court essentially held only that courts should continue applying Title VII’s requirement that employers “reasonably accommodate…an employee’s or prospective employee’s religious observance and practice” unless the employer is “unable” to do so “without undue hardship on the conduct of the employer’s business.” Why the fuss? Because a nearly 50-year-old Supreme Court decision may (or may not) have read the term “undue hardship” to mean “more than a de minimis cost.” And, while essentially everyone agreed that can’t be the right test, it takes a little extra work to revisit longstanding statutory precedents. Here, much of that work went into making the case that the precedent, TWA v. Hardison (1977), didn’t actually establish a “more than de minimis” test to begin with, so there won’t be a tectonic shift in Title VII accommodations law if courts just do what the statute says. We’ll unpack all of that as we go, but first the facts.
Petitioner Gerald Groff is an Evangelical Christian who believes, for religious reasons, that he must devote Sunday to worship and rest, not work. So he got what seemed to be the perfect job: mailman. That worked out fine until the USPS started facilitating Sunday deliveries for Amazon. Groff was unwilling to take on these Sunday shifts, forcing USPS to redistribute his work to other staff, who weren’t too happy about it. (Because Groff worked at a rural outpost with few other employees, his refusal to work Sundays was more disruptive to others than it might have been in a larger post office.) After receiving progressive discipline for his refusal to work Sundays, Groff eventually resigned and then brought suit under Title VII of the Civil Rights Act of 1964.
As amended in 1972, Title VII requires an employer to “reasonably accommodate” an employee’s religious observance or practice unless the employer is “unable” to do so “without undue hardship on the conduct of the employer’s business.” The ultimate question in Groff’s case, then, was whether permitting him to have all Sundays off would pose an undue hardship on the postal service, particularly considering the burden that places on other employees. But Groff’s suit didn’t get very far, because the District Court and Third Circuit (like many other courts) believed that Hardison required an employer to show only that the requested accommodation would impose something more than a “de minimis” burden. As the Third Circuit observed, accommodating Groff had “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale,” all more than de minimis burdens on the USPS’s business.
Groff sought certiorari, noting that courts and commentators had long struggled to reconcile Hardison’s “de minimis” formulation with Title VII’s actual text (“undue hardship”). As the case came to the Court, both Groff and the Government (along with dozens of amici) agreed that a de minimis standard is inconsistent with Title VII’s text. But they disagreed on whether Hardison should be overruled and what standard should be installed in its place. In his opinion for a unanimous Court, Justice Alito delivered some degree of victory to both parties. The Court held that Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in “substantial increased costs in relation to the conduct of its particular business.” So the de minimis standard is out (win for Groff). But the Court declined to reverse Hardison, reasoning that it never really announced a de minimis standard to begin with, and that the Equal Employment Opportunities Commission has basically been applying Title VII correctly all along, notwithstanding Hardison’s loose language (win for the Government).
Alito devoted much of his 21-page decision to carefully unpacking the historical and procedural context in which Hardison was decided. As originally enacted in 1964, Title VII prohibited employment discrimination on the basis of “religion,” but didn’t explain what it meant by “discriminat[ion].” The EEOC subsequently issued regulations obligating employers “to make reasonable accommodations to the religious needs of employees” whenever doing so would not create “undue hardship on the conduct of the employer’s business.” But some lower courts held that Title VII could not be read to require religious accommodations, because that would violate the Establishment Clause. Congress then doubled down, amending Title VII to track the EEOC’s regulatory language by requiring reasonable accommodations unless they imposed an undue hardship on the employer’s business. That language was tested in Hardison, a case involving a TWA employee (and union member) who refused to work on Saturdays for religious reasons. As Justice Alito explained, the parties in Hardison focused more on the potential Establishment Clause implications of religious accommodations and not so much on Title VII’s “undue hardship” language. (The case came hot on the heels of Lemon v. Kurtzman (1971), and many (then) thought the (now-abandoned) “Lemon test” posed a serious problem for the 1972 amendment.) The Court, however, did not address these constitutional concerns, instead focusing on the fact that the accommodation Hardison sought would require TWA and the union to override the seniority system they’d agreed on and deprive senior employees of their seniority rights in order to accommodate a junior employee’s religious practices. Framed that way, the Court concluded that Title VII imposed no such requirement. In its discussion, the Court made the following observation: “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” That stray sentence led many in the ensuing decades to conclude that the standard for showing an undue hardship under Hardison is merely whether an accommodation would impose more than a de minimis cost.
As Alito stressed, this “more than a de minimis cost” line was never really intended by the Court to be the definitive test for when an employer need not provide a religious accommodation under Title VII. Comparing the majority and dissenting opinions in Hardison, Alito showed how the disagreement was not over whether “undue hardship” meant “more than a de minimis cost,” but rather whether the more serious burdens TWA and the union would face to accommodate Hardison (given the impact on the seniority rules in their collective-bargaining agreement) were enough to relieve them of Title VII’s requirement.
In sum, Alito clarified that Hardison’s “more than a de minimis cost” formulation was never meant to be taken “literally,” in a manner that would seemingly modify Title VII’s actual “substantial hardship” test. What matters is the language of the statute itself, which plainly requires something more severe than a de minimis cost. A “hardship,” after all is “something hard to bear.” And if the hardship is “undue,” that necessarily means it is “excessive” or “unjustifiable.” So based on the plain text of Title VII, an “undue hardship” means something very different from a burden that is merely more than de minimis. So what does it mean? On this point, the parties differed, with Groff arguing that the undue-hardship standard should incorporate case law interpreting the Americans with Disabilities Act, and the Government arguing that the EEOC’s application of Hardison (which largely glossed over the de minimis language) was sufficient. Though Alito agreed that “[a] good deal of the EEOC’s guidance in this area is sensible and will, in all likelihood, be unaffected by the Court’s clarifying decision,” he declined to adopt it (or the interpretation of the ADA) wholesale. It was sufficient for now to simply clarify that “undue hardship” in Title VII “means what it says, and courts should resolve whether a hardship would be substantial in the context of an employer’s business in the commonsense manner that [they] would use in applying any such test.”
Alito did, however, provide a few additional points of clarification going forward: First, the relevant test is whether an accommodation would pose an undue hardship on the employer’s business. The impacts of an accommodation on an employee’s coworkers are only relevant to the extent they go on to affect the conduct of the business. The mere fact that other employees might be annoyed or resentful is thus not enough to constitute an “undue” hardship. Second, Title VII requires that an employer “reasonably accommodate” an employee’s religious practice, not merely that it assess the reasonableness of one proposed accommodation. In other words, when an employer is faced with an accommodation request like Groff’s, it must do more than concludethat the particular accommodation would pose a hardship and deny it; the employer must consider other possible solutions. With that advice, Alito returned the case to the Third Circuit to apply the undue-hardship standard anew.
Although Alito’s opinion reversing the Third Circuit’s judgment for the Government was joined by the entire Court, Justice Sotomayor penned a separate concurrence (joined by Justice Jackson) which stressed the ways in which the Court declined to rule in Groff’s favor. It “wise[ly]” rejected Groff’s request to overrule Hardison entirely and replace it with a “significant difficulty or expense” standard. And even though the majority’s decision stressed that impacts on other employees alone cannot justify the refusal to accommodate religious practices, it recognized that the “conduct of the employer’s business” necessarily includes the management and performance of employees. While Sotomayor agreed that mere animus toward religious practices among other employees would not constitute a “hardship,” she noted that the Court’s clarification did not forbid consideration of the effects of an accommodation on other employees, which may in some instances qualify as an undue hardship on “the conduct of the employer’s business.”