Individual Toolkit: What recent supreme court decisions mean for you

Introduction

This toolkit is intended to provide major takeaways, analyses, and concrete action steps following the recent Supreme Court decisions in 303 Creative LLC. v. Elenis and Groff v. DeJoy. The toolkit includes polling data showing current American public sentiment on freedom of speech and religion and messaging that supports the America First Agenda.

What the Decisions Mean for You

303 Creative LLC v. Elenis

In 303 Creative LLC, website designer Lorie Smith wanted to create wedding websites, but under Colorado’s Anti-Discrimination Act, she would have been compelled to create websites that violated her religious beliefs. The Colorado law would have forced Lorie to choose between violating her deeply held religious beliefs and shutting down her business. The Supreme Court’s decision protected Lorie’s freedom of speech by emphasizing that state governments cannot compel artists and creators like Lorie to produce and sell products that violate their convictions. The following list outlines some key aspects of the decision and how it protects your rights.

• The decision protects freedom of speech. It emphasizes that the government cannot compel individuals to say things contrary to their personal beliefs.
• The decision reflects the role of freedom of speech in commerce. This freedom is not limited merely to what someone says—states also cannot compel someone to make or sell a creative product that violates that person’s convictions.
• Just as states cannot remove disfavored ideas from the public space solely because the government dislikes them, including marriage, gender identity, and sexuality, governments cannot compel individuals to alter their speech in public spaces in ways that conflict with their personal convictions.
• The decision further protects freedom of religion. Colorado can no longer compel Lorie Smith or any other business owner/employee in the creative arts to forsake that person’s sincerely held religious convictions. Lorie Smith, along with millions of Americans, can maintain their faith convictions through the art they produce in their work.
• An individual need not wait for bad law to hurt them before deciding to act. Lorie Smith proactively brought legal action because the existence of the law and the threat of its enforcement were enough to violate her rights. The threat of compelled speech that conflicted with her beliefs constituted a basis for legal action to prevent its enforcement.
• If a business involves the creative arts, personalized expression, or a distinct element of speech—for example, photography, videography, art, digital design, fashion design, speech writing, or advertising—First Amendment protections for freedom of speech trump local laws. A law that would penalize someone for refusing to create a product that violated that person’s convictions cannot overcome constitutional speech protections.

Groff v. DeJoy

Under Title VII of the Civil Rights Act, American citizens have a right to request religious accommodations from their employers (certain small businesses are exempt from Title VII). For decades, employers denied accommodation requests if the employer would incur even a “trifling” burden—a minor inconvenience to the business. This “de minimis” test, which many courts had previously accepted, was challenged and overturned in Groff. By rejecting the de minimis test, the Court clarified that Title VII strongly protects the religious liberties of Americans in the workplace. An employer now seeking to reject a religious accommodation request must prove that granting the request would incur a substantial cost related to the conduct of the business.

For context, religious accommodations vary greatly but can include:

• wardrobe exceptions, such as headscarves, hijabs, yarmulke, and long skirts;
• grooming exceptions, such as payot or the Islamic rule regarding men’s beards;
• alternate work hours or shifts on or near High Holy Days, during designated periods of fasting, and Sabbath;
• designated prayer breaks and designated prayer spaces;
• permission to be excused from any religious invocations at staff meetings; and
• conscientious objection and request for reassignment.

The list below provides some key takeaways following the Groff decision and how the decision can affect you.

• The Court’s decision means that religious employees can now more easily request religious accommodation and have a stronger chance of receiving it.
• Employers must now reconsider their procedures for analyzing religious accommodation requests from employees. An employer who denies a religious accommodation will need to show that the denial is because the requested accommodation would result in a substantial cost related to the conduct of the employer’s business. An employer that denies an accommodation due merely to its inconvenience without analyzing its actual cost may run afoul of the Civil Rights Act.
• If someone has had a religious accommodation denied in the past, the Court’s rejection of the de minimis test could now provide additional protections, and reapplying could result in a new outcome.
• While all religious accommodations are subject to this heightened standard, each business has different needs. What may be a substantial cost or impact to one company may be incidental to another. For example, most firefighters must shave facial hair for safety reasons, which may be a compelling reason to deny religious accommodation. The same shaving requirement would be less compelling for those in other roles, such as cashiers.

Summary and In-Depth Analysis

303 Creative LLC. v. Elenis

The June 2023 Supreme Court decision in the closely watched case of 303 Creative LLC v. Elenis protected specific aspects of freedom of religion and speech. Digital designer Lorie Smith started her company, 303 Creative LLC, to create wedding websites for engaged couples. But Smith knew that due to her deeply held religious beliefs, she would need to limit her services to marriages that conformed to her moral convictions. Her beliefs ran afoul of the Colorado Anti-Discrimination Act, which would compel her, as the owner and operator of 303 Creative LLC, to produce messages with which she did not agree. The Supreme Court affirmed the constitutional protection for free speech, holding that no government could compel a person to speak or create in a way that violates that person’s deeply held religious beliefs.

The decision has made it clear that the government at both state and federal levels has no authority to dismantle the individual freedoms guaranteed to every American by the First Amendment of the Constitution. In a time when religious freedom is threatened on a global scale, and the right of each individual to adhere to sincerely held religious beliefs is being challenged, this decision adds another layer of protection for this fundamental freedom.

Case Recap

The case sets a strong precedent for both religious freedom and freedom of speech. Lorie Smith, a digital artist and website designer, successfully fought to exercise her personal religious beliefs in the face of a law that would have infringed on her freedom of speech. Smith had sought to expand her business by designing wedding websites while embracing a traditional view of marriage. Under the Colorado Anti-Discrimination Act, the website design business would be considered a public accommodation, meaning Smith could have been civilly fined for (1) failing to provide equal services on the basis of sexual orientation and for (2) publishing any message indicating a refusal to provide equal service on the basis of sexual orientation. Smith would have faced significant fines if she had refused to design a wedding website for a same-sex wedding. The 303 Creative decision now provides robust protections from government infringement on freedom of speech.

Groff v. DeJoy

The unanimous Supreme Court decision in Groff v. DeJoy successfully entrenched the safeguards for religious freedom for faith-loving Americans. On June 29, the Court issued a decision in favor of Gerald Groff, an evangelical Christian who served as a rural carrier associate for the U.S. Postal Service and had sought a workplace accommodation to observe the Sabbath faithfully. The Court declared that under Title VII of the Civil Rights Act, employers must provide a religious accommodation unless the employer would incur a substantial cost related to the conduct of the business. The case is returning to the lower court to receive the fair treatment it deserves under this more robust standard.

In the four decades since its previous paramount case on Title VII religious accommodations, Trans World Airlines, Inc. v. Hardison, lower courts had steadily whittled down Title VII protections. Since that case in 1977, the standard for these protections had effectively been reduced to a mere de minimis test in which an employer could essentially deny a religious accommodation request if it would impose a trifling burden on the employer’s business. The test has been used by employers for decades to deny religious accommodations in the workplace. In Groff v. DeJoy, the Court disavowed the “de minimis” analysis in a historic victory for religious liberties.

The standard embraced by the lower courts derived from an oft-quoted singular line in Hardison stating that religious accommodation that would incur more than a de minimis cost is an undue hardship on the employer. This line was selectively emphasized while the lower courts ignored significant additional language in Hardison that set the standard as “substantial” “costs” or “expenditures.” Here, the Supreme Court criticized the over-emphasis on the de minimis line by lower courts, saying it ignored the broader context of Hardison.

Case Recap

Officially, Groff v. DeJoy narrows the circumstances under which an employer may refuse a religious accommodation request, thus expanding the protections for religious freedoms for everyday working Americans. Now, an employer that wants to reject an accommodation request must show that the employer would incur a substantial cost from granting an accommodation request, a cost that would be directly related to the conduct of the business. Under Groff v. DeJoy, workers are further protected in exercising their religious beliefs, such as observing the Sabbath.

National Polling Data

Below are select results from national polls conducted by Scott Rasmussen in 2022 on issues included in the America First Agenda (agenda.americafirstpolicy.com). The data shows the importance the American people place on freedom of religion and speech. It is important to remember that 80% of the world’s population lives in countries where religious liberty is threatened, restricted, or banned—making it paramount to protect this key value in America. National polling results on top religious liberty issues indicate that:

• 81% believe Coach Joe Kennedy should not have been fired for silently praying after football games in Bremerton, Washington.
• 44% think the American legal system is hostile to religious expression.
• 64% would side with their own beliefs over what the government says.
• 55% think teachers should be allowed to lead prayer in public schools.
• 65% believe people should be able to freely express their views on social media, including views that others find offensive.

Values Messaging

Here are some key ways to communicate the America First message regarding the values of religious freedom and freedom of speech.

• The Founding Fathers of the United States of America were clear in their convictions to protect in the First Amendment the freedom of religion and speech for all citizens.
• Government does not have the right to compel people to produce messages that conflict with the convictions of the individuals communicating them.
• Religious accommodations for people of faith should be secured and celebrated. Employers must have a strong reason to require people of faith to work on certain significant days, such as the Sabbath.
• Religious freedom is among the first freedoms secured in the Constitution of the United States and must continue to be safeguarded for future generations.

Get Informed and Take Action

An informed public is an empowered public. When people know their rights, they become better stewards of their civic responsibilities and are empowered to hold the government accountable for ensuring it does not infringe on their God-given rights. There are immediate steps that people can take to advance their freedom of speech and religion.

• If your local government has an anti-discrimination law in place that could be used to infringe on your sincerely held beliefs, that could be enough reason to bring legal action to prevent such infringement.
• If an employer is forcing you to work on a day that would infringe on your religious practice, the employer must prove that your absence would incur a substantial cost related to the conduct of the business. An employer that fails to do so may be violating your rights.

For further information on these topics, including commentaries by Pastor Paula White-Cain and Matias Perttula on the recent cases, please visit AFPI’s online resources at:

• AFPI Center for American Values
• EXPERT INSIGHT: Groff v. DeJoy decision upholds religious freedom
• EXPERT INSIGHT: 303 Creative LLC v. Elenis

To engage with the CAV team, please contact [email protected].