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The Supreme Court’s Big Week

Last week’s decision in 303 Creative LLC v. Elenis struck a major blow for the right of religious Americans to follow their consciences



he current US Supreme Court is probably the most solicitous of rights of religious liberty and conscience of any Supreme Court in history. And that is very fortunate for Torah Jews, as fewer and fewer Americans profess any religious affiliation and religious values command declining respect among the general public.

Last week’s decision in 303 Creative LLC v. Elenis struck a major blow for the right of religious Americans to follow their consciences in refusing to promote certain messages through their work, despite state statutes forbidding discrimination on the basis of race, religion, or gender. The Court determined that Colorado could not force a web designer to create a website celebrating a civil marriage that violated her religious belief that marriage is a union between one man and one woman.

Some may have thought that the decision followed naturally from the Court’s 2018 ruling in favor of Masterpiece Cakeshop and against the Colorado Civil Rights Commission. In the earlier case, the Court ruled that the CCRC had wrongly punished baker Jack Phillips for his refusal to bake a cake celebrating a same-gender ceremony. But nothing could be further from the truth.

The Court decided the earlier case based on very narrow grounds, which depended heavily on a specific factual situation — to wit, the evident hostility of the CCRC, or at least one commissioner thereof, to Phillips’s religious beliefs. That hostility, and that hostility alone, removed the case from the rule of Employment Division v. Smith (1990) that neutral state statutes, enacted with no particular animus toward a particular religion or religion in general can be enforced even when they impinge on individuals’ free exercise of their religion.

Rather the evident animus against Phillips and his beliefs put the case under the umbrella of Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, in which the Court struck down a local ordinance banning animal sacrifice based on evidence that the facially neutral ordinance was enacted with the specific intent of stopping the practices of a particular Afro-Caribbean sect.

But the protection of City of Hialeah was, in fact a slim protection, for Jack Phillips and others in his position, as Phillips soon found out. Another case was brought against Phillips for refusing to bake a cake for a gender-transition ceremony, and this time the punishment was upheld by a Colorado appeals court. The CCRC had understood the message of Justice Kennedy’s opinion in the Masterpiece Cakeshop ruling, and learned to hold its tongue.

In Masterpiece, only Justice Gorsuch joined Justice Thomas’s opinion that forcing Phillips to bake a wedding cake in contravention of his religious beliefs constitutes a form of “coerced expressive speech.” But that is precisely the basis for the Supreme Court’s ruling last week in 303 Creative. The state of Colorado generously stipulated for the record that Mrs. Smith’s websites are “original, customized creations,” and they are “expressive” of the overall message her business wishes to create, celebrating her religious views of marriage.

This time Justice Gorsuch wrote the majority opinion for the Court, which ruled in Mrs. Smith’s favor. And it was a ringing defense of her rights under the First Amendment: “Ms. Smith seeks to engage in protected First Amendment speech; Colorado seeks to compel speech she does not wish to provide.... Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to compel her to create custom websites celebrating other marriages she does not.”

Then came the real zinger: Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.” Indeed, the Tenth Circuit recognized that the coercive “elimination of dissenting ideas about marriage constitutes Colorado’s very purpose in seeking to apply its law to Ms. Smith.”

After acknowledging Colorado’s coercive intent to expunge certain ideas, often religious, from the public sphere, the Tenth Circuit nevertheless ruled that Colorado could do so because Ms. Smith’s design business is a “public accommodation.”

But she had not refused to serve any class of customers based on race or gender, refusing only to produce content conveying certain messages. And that, opined Justice Gorsuch, she was entitled to do. Public accommodation law, he wrote, is not immune from the demands of the Constitution. Public accommodation statutes sweep too broadly when deployed to compel speech.

In Masterpiece, Justice Thomas wrote that nothing more had been achieved than ensuring “religious liberty had lived to fight another day.” But no more. After 303 Creative LLC, the liberty to refrain from broadcasting views at odds with one’s most deeply held beliefs is secure — at least for now.

Justice Gorsuch’s opinion appeared to resolve another question that has long been held like the sword of Damocles over the heads of religious institutions, ever since Obergefell v. Hodges (creating a constitutional right to same-gender marriage). At the time, Justice Samuel Alito worried that Obergefell would be used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.”

Solicitor-general Daniel Vercilli was asked in oral argument in Obergefell whether a finding for petitioners might result in institutions advancing traditional religious teachings on marriage losing their tax exempt status. He could provide no assurances to the contrary. 303 Creative, however, would appear to put that concern to rest — at least for now.

303 Creative was not the only case decided the last week in June with far-ranging implications for the Orthodox community. Under a 1972 amendment to Title VII of the Civil Rights Act of 1964, employers are required to make “reasonable accommodation for an employee’s religious observance and practice,” absent an employer’s demonstration of an “undue hardship” to its business. As it turned out, the amendment to the 1972 Civil Rights Act was drafted by renowned Orthodox attorney Nathan Lewin.

In a 1977 case, TWA v. Hardison, however, Justice Byron White, writing for the Court, interpreted that requirement to mean that TWA was only required to demonstrate something more than a de minimis cost in order to avoid liability for refusing to “carve out an exception to its seniority system in order to help Hardison meet his religious obligations.” In that case, TWA would have been forced to offer premium pay under the company’s labor contract to induce an employee with greater seniority than Hardison to substitute on the latter’s Saturday shifts.

Lewin points out that the same term “undue burden” that he used in drafting the amendments to Title VII appears in the Americans with Disabilities Act, and courts have consistently interpreted it to require significant employer expenses to accommodate disabled citizens in the workplace. And that makes sense; Congress would not have gone to the trouble of enacting the relevant amendment to Title VII, if all it required was some minimal expenditure on the employer’s part.

But that is precisely what Justice White determined Congress had done in Hardison. And in so doing, Lewin writes, he effectively blocked the doors on scores of claims by Sabbath-observant employees.

The Court did not explicitly overrule Hardison last week in Groff v. Dejoy, a suit by an evangelical postman who was required to work on Sunday by virtue of the Postal Service’s agreement with Amazon to provide seven delivery days. But the Court did require the defendant to show that accommodating a religious employee would entail “substantial costs in relation to that particular business,” rather than just something more than a minimal outlay. It remanded the case for further factual findings on that issue, but the unanimous decision of the Court was a not-so-subtle hint to the trial court on plaintiff’s behalf. And that is good news for Sabbath-observant employees of all faiths.

EVEN A BRIEF REVIEW of some of the major decisions issued by the Court at the end of its term must include some discussion of the case essentially banning affirmative action on the basis of group racial identity in college admissions, SFFA v. Harvard.

It remains to be seen how large the impact of the Court’s ruling will be on college admissions themselves, as many leading colleges and universities have given indications that they will seek to circumvent the Court: e.g., by getting rid of standardized tests, like the SATs, LSAT, and MCATs in the admissions process; and turning the admissions process into something wholly subjective. It is an open question whether they will heed Chief Justice Roberts’s warning — “universities may not simply establish through other means the regime we hold unlawful today.... What cannot be done directly cannot be done indirectly.”

But I’d like to discuss another aspect of the case that has received less attention, but may ultimately have a larger impact. The Court took dead aim at the entire Diversity, Equity, and Inclusion bureaucracy that plays such a large role in such areas as faculty recruitment and graduate school admissions, where it will be more difficult for universities to hide their footsteps.

The definition of equity, according to Ibram X. Kendi, the high priest of the DEI movement, is that any difference between the number of blacks receiving any valuable societal good — other than starting positions in the NBA — and their percentage of the population is by definition proof of racism.

The Court’s majority position was the exact opposite: The 14th Amendment and the Civil Rights Act of 1964 both prohibit the pursuit of racial quotas. Citizens must be judged as individuals, not as members of racial groups. Discrimination on the basis of race sounds the death knell of the promise of equality embedded in the 14th Amendment.

Justice Thomas put it clearly in his concurrence: “These policies appear to be leading to a world in which everyone is defined by their skin color, demanding ever-increasing entitlements and preferences on that basis. That is the same naked racism upon which segregation itself was built. Small wonder, then, that these policies are leading to increasing racial polarization and friction.”

Justice Roberts, the author of the majority opinion, was equally skeptical toward the claim that racial quotas are justified in pursuit of diversity and that diversity constitutes a “compelling interest.” Far from being compelling, Roberts found such noble goals as “training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas” — to be too incapable of measurement and definition to constitute a compelling interest.

In addition, the value of diversity has been dramatically undercut by the voluntary re-segregation by blacks on many campuses — black eating halls, black residences, black graduation ceremonies. And it is clear that universities do not believe a word of their rhetoric about new knowledge based on diverse outlooks or the free marketplace of ideas because they do nothing to promote viewpoint diversity, the one form of diversity that has been clearly linked to improved educational results.

Indeed, DEI bureaucrats are busy promoting just the opposite of viewpoint diversity by requiring applicants for teaching positions or admissions to graduate programs to write essays about how their work will further the goals of DEI, rather than how they seek to advance human knowledge.

In short, applicants must first subscribe to the regnant catechism. And that catechism constitutes a form of compelled speech in direct opposition to the Constitution’s quest for a color-blind society, as described last week by the Supreme Court.

Just to be sure that I am on to something, I wrote one of my most brilliant law school classmates, who gave up a professorship at Emory Law School and a position at one of Atlanta’s leading law firms, to move to the hill country outside of Atlanta, and from there represent as a solo practitioner “little guys” against establishment institutions like Georgia Power.

I asked him: What impact will the Supreme Court’s decision in SFFA v. Harvard have on the entire DEI regime — academic departments seeking only candidates of color for job openings, or medical schools requiring essays from applicants on what they will do to advance diversity?

His reply: “Plaintiff’s attorneys like me will be eager to pursue cases on behalf of those candidates for hiring who have been discriminated against on the basis of race disguised as enlightened DEI social engineering.”

Let’s hope.


(Originally featured in Mishpacha, Issue 969. Yonoson Rosenblum may be contacted directly at rosenblum@mishpacha.com)

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