The Supreme Court got it right on free speech and accommodating our LGBT neighbors
The reading on a recent Sunday from the second book of Kings related the charming story of the unnamed woman of Shunem whose hospitality to the prophet Elisha flowered into a grace-filled friendship and even led to the birth—and eventual resurrection—of a son. The story has been celebrated as one in which radical empathy redounds to the benefit of both the woman and the prophet. I’ve had it in mind when reflecting on two cases decided by the Supreme Court in its recently ended term, both of which touched on the accommodation of one’s neighbors and the particular challenge that can pose in a pluralistic society.
In one case, Groff v. DeJoy, a unanimous court reaffirmed our commitment to religious rights under the Civil Rights Act of 1964, asking a lower court to reconsider a ruling against a Postal Service employee and evangelical Christian who refused to work on Sundays.
Six of the nine justices found that a website designer could lawfully decline to create websites for same-sex weddings on free speech grounds.
But there was less unity in 303 Creative LLC v. Elenis, where six of the nine justices found that a website designer could lawfully decline to create websites for same-sex weddings on free speech grounds. The plaintiff, Lorie Smith, had decided to expand her business to include custom websites for weddings, but she did not want to create content that violated her religious beliefs in the biblical model of marriage as being between a man and a woman. So she went to court before taking on clients under a long-recognized doctrine of “pre-enforcement” in cases involving free speech rights (despite much inaccurate commentary wondering why she was allowed to sue before anything had happened to her). She anticipated that she would be charged with violating Colorado state law forbidding all “places of public accommodations” from denying service to persons on the basis of their L.G.B.T. status.
(America readers will likely recall a 2018 case, Masterpiece Cakeshop, that invoked similar issues about whether a baker could be forced to bake a cake for a wedding that violated his religious beliefs about marriage. In that case, the court ruled that Colorado had improperly demonstrated hostility to religion in its enforcement of a nondiscrimination law, but it avoided the question of whether the baker had a constitutional right to deny service.)
Ms. Smith told the court that she serves all customers regardless of sexual orientation but would refuse to craft messages that violated her beliefs for any customer. The inability to refuse such jobs, she argued, would constitute compelled speech, hearkening back to the landmark 1943 case in which the Supreme Court struck down West Virginia’s effort to compel Jehovah’s Witness children to salute the flag. It is important to note that 303 Creative was argued and decided not under the religion clauses of the First Amendment but the Free Speech Clause.
Ms. Smith recalled the landmark 1943 case in which the Supreme Court struck down West Virginia’s effort to compel Jehovah’s Witness children to salute the flag.
The six-justice majority, in an opinion by Justice Neil Gorsuch, was persuaded by Ms. Smith’s arguments that to rule against her would mean, in theory, that the government could force a man married to another man to design a website opposing same-sex marriage or a Jewish writer to create Christian content whose meaning she disavowed.
In dissent, Justice Sonia Sotomayor contended that the majority opinion “grants a business open to the public a constitutional right to refuse to serve members of a protected class.” This is true at a certain level of abstraction, but to put it this way is quite misleading. Remember that Ms. Smith stipulated that she would serve members of the protected class in all ways but those that would require her to create speech that she disagreed with. So while she would decline to create a lesbian couple’s wedding site, she would happily work with them on their business site. It would be more accurate to say that the Supreme Court ruled that while Ms. Smith could not turn away customers on the basis of their sexual orientation, neither could she be forced to say things she does not believe on their behalf.
Many have expressed hurt and sorrow at the 303 Creative decision. They allege it enshrines a right to “bigotry” or at least abets a dignitary violation that harms a vulnerable community. But nothing in the opinion suggests that the proverbial lunch counter may now be closed to L.G.B.T. people. Rather, the narrow ruling around a traditional doctrine in line with multiple precedents leaves both public accommodation law and free speech law in place.
Nothing in the opinion suggests that the proverbial lunch counter may now be closed to L.G.B.T. people.
Back in 2018, America’s editors suggested that it was “unlikely that the deep questions of justice and toleration—both of religious belief and of differences in sexual orientation—turn on what kind of cakes someone is allowed to purchase or can be compelled to bake. But they may well turn on whether we pursue their answers through legal confrontation or human encounter.”
Catholics in particular have wrestled with the danger that the call to chastity for L.G.B.T. people might merge with insult or derision, and documents like 1997’s “Always Our Children” have called us to respect the inherent dignity of all while also upholding church teaching. So the question of how to navigate moral disagreement in charity is not an easy one.
Rights absolutism can make it difficult to engage one another as neighbors and not merely as litigants. As Columbia Law School’s Jamal Greene wrote in How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart, suggestions of compromise are unlikely to satisfy: “[M]any, on both sides, might think no compromise is called for here. But the job of the courts in a pluralistic democracy isn’t to please their base. It’s to work to resolve conflicts, to ratchet them down rather than up. Courts should be reminding us of what we have in common.” Courts must follow the law, of course, but to the extent they exercise judgment and persuasion, Mr. Greene offers prudent guidance.
The Right to Rest on Sunday
In another major case that touches on religious belief, Groff v. DeJoy, the court was less divided. Gerald Groff was an employee of the U.S. Postal Service for a number of years before it began offering Sunday delivery as part of an agreement with the online retailer Amazon. Mr. Groff, an evangelical Christian, faced disciplinary actions for declining to work on Sundays and ultimately resigned his position.
As my Notre Dame colleague Rick Garnett lays out in greater detail here, Mr. Groff brought his legal action not as a constitutional matter but a statutory one: The Civil Rights Act of 1964 and a subsequent regulatory ruling by the Equal Employment Opportunity Commission (later ratified by Congress) requires employers “to make reasonable accommodations to the religious needs of employees” short of imposing an “undue hardship” on the employer. At issue in this year’s case was how to interpret “undue hardship.”
The commitment of the Civil Rights Act to make a reasonable effort to enable our neighbors to live out their most sacred commitments should be honored by more than token efforts.
A 1977 case, Trans World Airlines Inc. v. Hardison, established that anything more than a de minimis (or negligible) cost on an employer satisfied the “undue hardship” qualifier and relieved the employer of a duty to accommodate. But for some time, religious groups across a broad spectrum have complained that a de minimis standard was so low that the obligation to provide accommodations was rendered toothless.
Arguing for the Postal Service in Groff v. DeJoy, Solicitor General Elizabeth Prelogar seemed to offer an olive branch: The court might find room to embrace other language from the Hardison case referencing “substantial” costs to employers, rather than the de minimis formulation, and thereby refine rather than overrule Hardison. This concession made room for a truly hopeful sign: All nine justices signed onto Justice Samuel Alito’s clarifying opinion, sending the case back to lower courts for reconsideration. Mr. Groff himself may still win or lose, but that will turn on determinations about the practical implications of accommodating his desire to have Sundays off, such as the availability of other employees to cover his duties. Such cases require balancing and judgment: Not every accommodation will be feasible, but the commitment of the Civil Rights Act to make a reasonable effort to enable our neighbors to live out their most sacred commitments should be honored by more than token efforts.
The court unanimously followed the path of engaging one another as neighbors rather than litigants in Groff, but it was divided on how to do so in 303 Creative. That means we will continue to have the challenge, and the opportunity, to learn to be more hospitable to those with whom we differ. Rights like free speech, after all, are only meaningful when we recognize them for people with whom we disagree, sometimes passionately. People may also differ about whether pressing one’s right in a given instance is obligatory or wise. We may find in considering such a path of conciliation that graces abound for us, as they did for that anonymous woman of Shunem and the great prophet Elisha.