Religious Freedom or Discrimination: Tackling Recent Supreme Court Rulings

[0:00] We tackle the controversial Supreme Court decision 303 Creative, LLC vs. Elenis. This case revolves around a Christian graphic designer from Colorado who wants permission to refuse to provide services to same-sex couples. We debunk a historical fable that has been used by courts to allow legislative prayer for decades. And finally, we look at the Groff v. DeJoy ruling that privileges the religious in the, workplace. I’m Doug Berger and this is Secular Left.

[0:38] Music.

[0:45] There was another monumental church and state Supreme Court decision that was made in their final, it was actually handed down on the final day of their term last week. It was the 303 Creative LLC versus Elenis. And the basic thing about this case is that there was a graphic designer, Evangelical Christian graphic designer in Colorado, who wished to expand her business and design wedding websites. But because she’s Evangelical Christian, she hated LGBT people and so she did not want to design wedding websites for same-sex couples.

[1:35] Colorado has an anti-discrimination law that any business has to provide services for people that want to take on their services and that they cannot the businesses cannot discriminate based on the protected classes, you know, like sex, religion, sexual orientation, veteran status, things like that. The basic protected statuses. And so this woman that’s running this graphic design, business filed a federal lawsuit in order to preempt getting in trouble for not providing wedding websites for same-sex couples. At the time that she filed her lawsuit she had not been asked to design a website for same-sex couple.

[2:36] It was shortly after she had filed her lawsuit that she claims that she was contacted by a same-sex couple to do one, and she refused. There is some question at this point, after this decision had come down, that this supposed request to make one was actually made up and added to the case in order to fluff up her arguments.

[3:09] And I’ll get to in a minute why she would have done that, or why her lawyers would have done that. But anyway, so the court ruled that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees. And so what that means is that if you are an evangelical Christian and you oppose same-sex marriages, they believe that if you do a website for a same-sex couple, you are going against your religious beliefs and endorsing that marriage. It’s not true. It’s always been a false narrative in these kinds of cases, but that’s what these evangelical Christians believe. But what’s ironic about it is in the trial, during the trial when it was moving up through the federal courts, she told the court that she would be more than happy to provide graphic services to an LGBT individual. She just didn’t want to do a wedding website for a same-sex couple. So that means that her religious beliefs aren’t that absolute.

[4:29] So that’s one red flag about this case. The other one being about the made-up injury. And I wanted to point this out because what’s different about this case is she filed this lawsuit and it got to the Supreme Court, but she filed this lawsuit when she had not even and started designing wedding websites. You know, she wanted to preempt the Colorado law so she wouldn’t get in trouble for it the first time, that she refused service to a same-sex couple. The problem is that the civil rights cases, about the Bill of Rights is you have to show an injury by the actions of the state. Not potential injury, but an actual injury. And this is the first religious case, religious rights case that I’ve seen, and I’m not a lawyer, I’m not much into it, so if I’m wrong, please correct me if I’m wrong. But this is really the first time a U.S. Supreme Court has accepted a case based on a hypothetical situation.

[5:53] They never do this for secular people. When we’ve complained about Ten Commandment monuments on courthouse lawns, or in courthouses, or courtrooms, or the under God in the pledge, it always comes down to were you forced to do something by threat of penalty, and if you could not say that you were, they would throw out the case. They would say you don’t have what they call standing. That’s what they call. You have to be, you can’t bring a, you cannot bring a, well, until this time, you couldn’t bring a case to the federal court for a civil rights violation unless you actually had your civil rights violated, because they just wouldn’t hear it. They would just say, you don’t, you lack standing.

[6:45] You know, it’s like, let’s say I’m a visitor to Austin, Texas, and on the grounds of the Texas State House they have a Ten Commandments monument, and I walk past that monument, I’m, offended, but I’m from California, I could not file a lawsuit saying that I was injured. Because federal courts in the last few years have not accepted psychological or mental injury. You know, feeling like you’re a second-class citizen or seeing Bible quotes in a courtroom and getting offended by that because you don’t.

[7:29] You aren’t religious. The only time that you ever see the court ruling for secular people or for religious neutrality is where you have either been injured or there is a 99.9% chance you were going to be injured, such as prayer in the school. They’re saying that kids have to be in school. It’s legal, it’s the law in most localities that children have to attend public school. So if you have a teacher reading the Bible verses and the kids having to recite these Bible verses, these kids in public school are being forced to say these religious prayers or recite these religious things because they’re not free to leave. You’ll see this on a lot of these cases that people lose. Not only do they look at an intent, legislative intent, but they also look whether or not a reasonable person would be offended. Since most people, you know, 80% of the population is religious, they’re not going to see a Ten Commandments monument and be offended by it. You know, I think, and I’ve always felt this way, that on the surface, that the government is.

[8:55] Taking on this monument to the Ten Commandments, so they are endorsing these religious texts, because they’re putting them on the lawn. So they have to accept, you know, if people donate it, or if they spend tax dollars to build it, they are endorsing what this thing says or what it means. Having a Ten Commandments monument on a courthouse lawn is no different than Mississippi having the Confederate flag in their state flag. It’s sending a message. You know, it’s also called virtual virtue signaling. You know, they’re kind of going wink, wink, nudge, nudge, I’m religious.

[9:44] So if this person, this graphic designer, just accepting money from a same-sex couple and designing a wedding website, if that violates her religious beliefs, then I feel that Ten Commandments or any religious graphics or sayings or anything on public property, on courthouse lawns or statehouse lawns or in police stations or fire stations or wherever, that is forcing me to endorse that speech. So, that’s the only way that this court decision in 303 Creative is anywhere good for for secular people and for.

[10:39] Because like I said, the court accepted a case based on a hypothetical. She hadn’t been been injured. And they just kind of picked and chose what, that her message endorsed, same sex weddings, which it does not. And then the other thing, too, was when Justice Neil Gorsuch was the one that wrote the majority view. It was a decision joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brent Kavanaugh, and Amy Coney Barrett. He explained that Colorado cannot force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. He indicated that court’s decision would provide similar protection to other business owners whose services involve speech, such as artists, speechwriters, and movie directors. The First Amendment, Gorsuch explained, protects an individual’s right to speak his mind, even when others may regard that speech as deeply misguided, or it may cause anguish, and the First Amendment generally also protects an individual from being required by the government to voice a particular message.

[11:56] In this case, Gorsuch observed, even the U.S. Court of Appeals of the Tenth Circuit agreed that the websites that Smith wants to create are speech, but if Smith wants to speak, he stressed, she must choose between following her conscience, which means only creating, wedding websites for opposite-sex couples and violating Colorado law, or following the law and violating her religious beliefs. Under the Supreme Court’s cases, interpreting the First Amendment, Gorsuch concluded, that is enough, more than enough, to represent an impermissible abridgment of First Amendment’s right to speak freely. And Gorsuch warned that Colorado’s position could lead to quote dangerous unquote consequences. As Chief Judge Timothy Timilkovic noted in his dissent from the Tenth Circuit’s decision, Gorsuch wrote, Governments could force an unwilling Muslim movie director to make a film with a Zionist message. They could compel an atheist muralist to accept a commission celebrating evangelical zeal. And they could require a gay website designer to create websites for a group advocating against same-sex marriage. So long as these speakers would accept commissions from the public with different messages. What I have to say about that is a Muslim movie director making a film about a Zionist message would never happen. I’m telling you right now, it would never happen.

[13:24] The Muslim movie director would quit.

[13:28] And there’s stories scattered all over the place of directors and screenwriters quitting a film because of creative differences, they call it. So it happens all the time and it doesn’t have to be religious. It’s any any time, any time an artist like a director or screenwriter doesn’t like the project anymore, they leave, they quit.

[13:56] It’s a time-honored thing. It’s a job. You can quit a job. And, like I was telling some people the other day about this 303 Creative.

[14:05] There are businesses every day that turn down business for one reason or another. You know, these guys that won’t, these guys that have the let’s go Brandon flags in their store, I’m sure that they don’t take jobs from, liberals. And what’s different about some of these businesses is they figure out a way to turn down business that isn’t bigoted and a, violation of somebody’s civil rights. So let’s say I have a woodworking shop and I have an African-American guy come in and say, I need you to make me a birdhouse. And let’s say I’m a member of the KKK and I don’t like black people. So I’m going to say, I’m sorry man, I’m just all full up. I can’t, I don’t have any time to do it. I got these big projects here. And then maybe I know somebody who doesn’t mind black people and I say, you know what, go to so-and-so and they’ll build a birdhouse for you. Businesses do this all the time. They always find some other reason that’s not a violation of somebody’s civil rights in order to not serve them or not do, not to take their business.

[15:29] You know, so if this woman got a reel, and that’s the other part too, is the supposed person that asked her to do a website after she had filed the lawsuit claims that it wasn’t him. So there’s a big brouhaha in the news about that. But basically, you know, even if somebody said, you know, my name is Tom and I’m getting married to John and we want you to do a website, There’s a myriad of things, I think they have whole seminars about this, about how to turn down work or not serve people that won’t get you in trouble with the law. And so there’s, you know, it’s like in the in the Groff v. DeJoy case where the court ruled for Groff, it said that the Postal Service could look at other ways of accommodating him. It’s the same with the 303 Creative. There were other ways that she could get out of doing websites for same-sex couples that didn’t involve her saying, I just don’t do websites for same-sex couples. The, other problem with this 303 Creative ruling is it really puts a cherry on the the top about how how much bigotry, religious bigotry, this court allows.

[16:52] She wanted, the woman that brought the lawsuit, wanted to get out of making same-sex marriage websites.

[17:02] LGBT people. And we’ve seen over the course of several years, a couple years now, that the LGBT community has been extremely targeted by Christian nationalists for having their rights stripped away and being discriminated against. And this is exactly what is being allowed. Because I can tell you, if she wanted to not serve black people, she wouldn’t have won her case. If she didn’t want to serve women she wouldn’t have won her case. And just as Sotomayor kind of alluded to that.

[17:37] That religious privilege to discriminate against LGBT people in her dissent, Sotomayor’s 38-page dissent argued that the Constitution contains no right to refuse service to a disfavored group. Colorado’s public accommodations law, she contended, only bars business owners from discriminating against members of the public based on, among other things, their sexual orientation. It does not regulate or compel speech at all. If a business owner, like Smith, offers her goods or services to the public, Sotomayor suggested, she remains free under state law to decide what messages to include or not to include. But what Smith can’t do, do, Sotomayor stressed, is offer wedding websites to the public, yet refuse those same websites to gay and lesbian couples. And that’s the thing. Because it’s LGBT, the Christian Nationalists on the court said, hey, it’s okay for you to discriminate against these people. So basically the case included false evidence. The woman hadn’t even been designing wedding websites when she filed the lawsuit. People never get a break like that to have the standing just glossed over.

[19:00] If this had been a secular person complaining about having to provide services to a religious couple, they would have lost the case just on standing alone. And I think that 303 Creative LLC decision is just terrible on the whole for church and state separation.

[19:21}This is Doug, the host of Secular Left, letting you know that I also get tired of hearing myself talk all the time. Would you like to be a guest on the show or know someone who you think would make a good guest? Then let us know on our website secularleft.us slash guest.

[19:46]Some past court cases, U.S. Supreme Court cases, had involved what they call legislative prayer. So when a legislature or board or school board or town council brings on a chaplain or priest or a minister to say a prayer or benediction or whatever they call it nowadays. There was one case. the town of Greece.

[20:17] The Supreme Court ruled that it was okay. It was okay for to have legislative prayers as long as, the governmental body didn’t dictate what was to be prayed and that they didn’t limit it to only, one sectarian person. You know, they let other people do the prayers rather than just ministers and priests and all that stuff. In practice, that hasn’t happened and nobody’s been sued or anything about it. I mean, there’s been lawsuits and stuff, but it hasn’t made it back to the Supreme Court. One of the things that Andrew Seidel, he is the vice president of strategic communications at Americans United for Separation of Church and State. He’s a lawyer. He’s written a couple of books about the history of the United States in relation to separation of church and state, and one of the books that he has written is called The Founding Myth, Why Christian Nationalism is Un-American, which examines and debunks the historical disinformation that forms the basis of the Christian nationalist identity in the United States.

[21:31] And one of the things that he talks about in an article that came out yesterday, July the third is that he talks about how the courts, federal courts and the US Supreme Court have used this story that’s been told by Christian nationalists over the decades about why legislative prayer is allowed today is because the Continental Congress had appointed a chaplain who did a prayer. And the thing is that some of that… Some of that story is they did appoint a chaplain and he did do a prayer, but it was in 1774, and it was before the Constitution was ratified or came into existence.

[22:24] But courts have been saying that the Constitution allows legislative prayer because Because 15 years before, the Continental Congress appointed a chaplain. So Andrew Seidel writes, he says, when the Congress first met, Mr. Cushing made a motion that it should be open with prayer. Much like Adam’s electoral loss after meddling in religion, Thomas Cushing was ousted from the Congress the following year, though more likely for his opposition to the colonies declaring independence.

[23:07] Cushing’s prayer motion, wrote Adams, was opposed by Mr. J. of New York and Mr. Rutledge of South Carolina because, We were so divided in religious sentiments, some Episcopalians, some Quakers, some Anabaptists, Presbyterians and some Congregationalists, so that we could not join in the same act of worship. John Jay and John Rutledge, who would become the first and second Chief Justices of the Supreme Court, opposed the prayer because the Continental Congress was religiously diverse. And the more diverse a company, the greater the division religion sows. It’s best to remove religion from the political equation. Our framers eventually enshrined that idea in the Constitution. Because Christian nationalists like to cherry pick their idea, they don’t talk about John Jay and John Rutledge’s opposition, they talk about the next part of the story where Sam Adams arose and said he was no bigot and could hear a prayer from a gentleman of piety and virtue who was, at the time, a friend to this country. And so the motion passed. And Seidel continues, he says, now when we hear that story today, it’s often used to suggest that people who oppose elected officials abusing government power to impose their religion on others are the bigots that Sam Adams disclaimed.

[24:32] That ignores the fact that this was still a British colony with an established church and that the U.S. Constitution wouldn’t invent the separation of church and state for another 15 years or so. And it says, but there is another dimension to the story. The prayer motion was born of political, not religious, considerations. The delegates had carefully selected Duce, that’s the chaplain, in order to influence a large sect that was relatively unsupportive of American independence. Duce was an ordained Episcopal clergyman who presided over a loyalist congregation but was willing to affiliate with the soon-to-be rebels. Proposals. Sam Adams only approved of Ducey because he had heard that Mr. Ducey was a friend to his country, despite being part of King George III’s church.

[25:24] In other words, this prayer proposal wasn’t about religion or about the delegates joining hands for worship. This was real politic. It was a strategic piety. John Adams recorded in his diary the observation of another delegate which admits as much. We never were guilty of a more masterly stroke of policy than in moving that Mr. Ducey might read prayers.” Unquote. Policy, not piety. And so the story goes on that when the British captured Philadelphia in 1777, Ducey spent one night in jail before he became a Loyalist again. And he condemned American independence, the Continental Congress, the soldiers fighting for Independence, in a letter to George Washington, he assured Washington that his political apostasy was genuine and he was not coerced by the British and that the letter expressed the real sentiments of my own heart such as I have held for a long time.

[26:23] So in effect, Duche was saying that he used his religion for political ends, just as the Congress was using him. When our founders later chose to separate church and state, They did so in part because religion and government will both exist in greater purity the less they are mixed together, as James Madison explained. This prayer may be a fine example of that failing. But yet, with this guy, this Duche, who turned out to be a traitor to the rebel cause, is, used as an example by courts today to allow legislative prayer or to look the other way. And I just thought that that was a very interesting story for our 4th of July holiday week when this, episode is being recorded and possibly published. And so it just amazes me that Christian nationalists will go to such lengths to cherry pick history for their own ends. And it’s just something to think about.

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[27:53]As we’ve seen over the course of a couple of years or a few years, the US Supreme Court, has tilted to the right when it comes to religious privilege in the United States. Before this conservative court was dominant, you used to have courts that were a little bit more demanding of government neutrality towards religion. And that’s why you had the prayer cases where you couldn’t have school staff members leading prayers in school. But now it’s kind of shifted the other way to where the court will now defer to religious privilege above all other civil rights. And we had that on some cases this past week. And one of them I’m going to talk about today is Groff v. DeJoy, and this was decided on on June 29th. And basically what it was, is that this postal worker, Groff.

[29:04] Got a job at the postal service because he was a religious person and wanted his Sundays off to go to church or do other activities of his religion. And so he thought it’d be perfect, this postal service job would be perfect. He’d have Sundays off. After a couple of years of being there, the postal service, the U.S. Postal Service, signed a contract with Amazon, the online retailer, and agreed to deliver packages for Amazon on Sundays. So that required Groff to come into work.

[29:45] He was not happy, and so he asked for accommodations. And the Postal Service tried to give him accommodations and give him Sundays off again where he didn’t have to work. And then eventually they weren’t able to get anybody to cover his shift. And so then they started denying his days off on Sunday. And it started the discipline process for him. And eventually in 2019 after he had filed this lawsuit, he to get fired. And so he resigned from the an evangelical Christian who demanded that the Postal Service give him Sundays off. And the Postal Service says, we can’t, it’s too expensive, we can’t find people to cover for you, we can’t do it. So the question in this case was, what does it mean for a business to have undue hardship to where they are not able to take care of the accommodation and And it would not be a violation of the person’s civil rights.

[30:54] And so the court actually ruled unanimously 9-0 for Groff in this case. It wasn’t a full vindication for Groff because Groff wanted an extra high bar for employers.

[31:11] For accommodations and the court rejected that. And they also rejected the government’s idea, that it be a slightly higher bar but still less than what Groff wanted. They rejected that. And so, it says the question of when additional costs constitute an undue hardship received relatively little attention, Alito stressed. So, although the court’s opinion in Hardison, this was the previous case that Groff wanted overturned, indicated that it would be an undue hardship to require the airline to bear more than a de minimis cost in order to give Hardison Saturdays off to observe the Sabbath. That language, Alito reasoned, was not necessarily intended as an authoritative interpretation of what it means for something to be an undue hardship. In de minimis, in legal language, means trivial. So before this decision, courts were using a more than trivial cost. So basically this is what could happen. They would say, you know, I’m this X religion and I need this day off or I need this accommodation. And the business would say, well, that’s gonna cost us X amount of dollars. That’s an undue hardship, no.

[32:34] Well, the Supreme Court in this Groff v. DeJoy decision, they pretty much, they say clarified things in that it says Alito rejected both Groff’s suggestion that the employer must accommodate employees’ religious practices unless the employer would incur significant difficulty or expense, and the Biden administration’s suggestion, which focused on the substantial expenditures or substantial additional costs that the employer would incur. Instead, Alito concluded, it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.

[33:19] So then he sent Groff’s case back to the lower courts for more proceedings. So even though Groff won his case, he didn’t necessarily, won this Supreme Court case, he didn’t necessarily win his complete court thing that he’s doing because it was sent back to the court. And basically what it is, is now the Supreme Court is saying that when considering undue burden for business, that the courts have to err on the side more favorable to the employer, employee rather than the employer. So it has to be a context specific standard. And Justice Sotomayor was joined by Justice Jackson. They wrote separately to note that although Groff had asked the justices to hold the employer, hold that the employer must show undue hardship to its business from, accommodating employees’ religious practices, the court on Thursday had indicated only that the employer must show undue hardship on the conduct of the employer’s business, which Sotomayor emphasized could include burdens on the business’s employees.

[34:30] Indeed, Sotomayor stressed, for many businesses, labor is more important to the conduct of the business than any other factor. And that was one of the points that was made when people were talking about this case before the ruling was, you know, this Groff got this job and he wanted, to be accommodated by giving Sundays off. Well, those hours still need to be covered. And usually it’s the people that are still working are the ones that are going to cover it.

[35:00] The Postal Service is a union operation, so it’s not like they can hire somebody off the street, as a part-timer to work Groff’s shift on Sunday. They’d have to go through the contract, you know, go through the contract and talk to the union, and it had to be somebody probably in the union that would take that job. I know from experience with union work, a lot of times if you are called in to work for somebody, even if you don’t work the whole day, you get paid for a whole day.

[35:35] If it’s overtime, sometimes if it’s a Sunday, sometimes you get double overtime, you know, so that’s going to incur some cost. And in the analysis, the parts that I’ve been been reading from the SCOTUS blog website, it said in this paragraph where it talks about Alito sent the Groff case back to lower courts for more proceedings because the U.S. Court of Appeals of the Third Circuit had relied on the more than trivial cost standard, he wrote. It may have overlooked other possible accommodations, such as the cost of incentive of pay or the administrative costs of coordination with other nearby stations with a broader set of employees. The lower courts, he indicated, should apply the clarified context-specific standard that the court had outlined on Thursday.

[36:31] So basically what this decision is, and this is just for religious accommodations, is that if the employer cannot maintain maintain that it’s an undue hardship, that it’s a substantial cost to doing business, then they have to grant the accommodation to the employee. And so I can see, you know, and this is just one guy. Now imagine if you had a, a workroom full of evangelical Christians, or other religious people, let’s say Muslim people you know Muslim people they have prayer time, they want to be accommodated and get time off to do to pray or they have their fasting periods maybe they want to be off while they’re fasting you know and so this is just going to throw a lot of, a lot of stuff into the chaos for businesses.

[37:42] And so what it could lead to is that maybe people who are overtly religious when they apply for a job may not get hired because a business doesn’t want to accommodate. They don’t want to accommodate any employee for anything. There’s a lot of stories about companies bending over backwards to get out of accommodating disabled people. So if you go in there wearing a cross, quote in scripture and saying you need Sundays off, you actually might not get the job. That’s one thing that would happen. And the thing is, a lot of these companies, they work a little bit smarter than a lot of people in that they’re going to find another reason to turn you down for the job. They’re not going to say, well, you’re too religious because that gets them in trouble, because you’re not allowed to discriminate against people for jobs based on their religion. But they’re going to see this and they’re going to just say, we don’t want to even bother, with trying to accommodate this stuff because it’s just going to be a mess and we’re going to have upset co-workers and it’s just going to cause too many problems. So we’re just not going to do it. So anyway, that’s what the Groff v. DeJoy case did.

[39:00] It basically is going back to the district court to decide whether or not the Postal Service does have a claim of an undue hardship. So they’re going to retry that case in the district court. It could end up back in the Supreme Court if Groff and his evangelical lawyers aren’t happy with the outcome. Either using the contact form on the website, or by sending us a note at comments at secularleft.us. Our theme music is dank and nasty, composed using Amplify Studio.

[40:15] Music.