In a 6-3 decision, the U.S. Supreme Court ruled in favor of a web designer refusing to make a website for same-sex marriages, despite a Colorado law that prohibits discrimination against gay people. In another case involving a mail carrier who was refusing to work on his Sabbath, the courts unanimously decided to broaden religious protections, creating a new standard for testing religious accommodations. Jim Oleske is a law professor at Lewis & Clark Law School. He joins us to break down the two cases and dig into the complicated intersection of religious freedoms and other constitutional values.
Note: This transcript was computer generated and edited by a volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. We turn now to the complicated intersection of religious freedom and other constitutional values. These are the issues at the heart of a few recent Supreme Court decisions. The highest profile one was the 303 Creative case where a web designer said she wanted to be able to refuse to make wedding websites for same-sex couples, despite a Colorado law that prohibits discrimination based on sexual orientation. The court’s conservative majority ruled in her favor. Another case involved a mail carrier who was refusing to work on his Sabbath. The court unanimously decided to broaden religious protections, making a new standard for testing religious accommodations.
Jim Oleske is a law professor at Lewis & Clark Law School. He focuses on religious freedom and sometimes competing values and rights. He joins us once again. Jim, welcome back.
Jim Oleske: It’s great to be with you, Dave.
Miller: I want to start with a specific issue at the heart of the Colorado case. What did this web designer, Lorie Smith, argue?
Oleske: So she made two arguments and actually, the same two arguments have been made by most of the wedding vendors over the last decade that have brought these claims. As your listeners will no doubt recall, the most famous of those cases, called Masterpiece Cakeshop, which involved a baker who refused to make a cake for a same sex-couple in Colorado. We have a case like that here in Oregon in the Sweet Cakes by Melissa case. There’s a florist case up in Washington and of course, the case decided last week, as you mentioned, involved the website designer and all of these wedding vendors, what they have argued is two things. One, that the First Amendment’s free exercise of religion clause gives them a right to exemption from the nondiscrimination obligation.
And second, that the First Amendment’s free speech clause gives them a right not to comply with anti-discrimination law. And the theory there is that if they are required to provide services to same-sex weddings, they’re being required to send a message expressing celebration of something that they oppose, [that] their speech is being compelled against their will. Now in the case that the court decided last week, interestingly, the court did not grant review on both issues. It did not grant review on the religious liberty claims. So although the case is often talked about as a religious exemption case, it’s actually not. They only grant a review on the free speech issue and they ruled in favor of the website designer on the free speech issue, that it would violate her free speech rights for Colorado to apply its nondiscrimination law and require her to make websites for same-sex couples, if she makes websites for opposite-sex couples.
Miller: There’s a lot to dig into here. But just, the law that she was arguing was unconstitutional was Colorado’s anti-discrimination law. Broadly, what did it say?
Oleske: So, like the laws in about 45 states, the law prohibits businesses from discriminating against people on certain grounds. The most common are race, sex, religion, disability. And then about half the states including Colorado, including Oregon, have included in their anti-discrimination laws, protection against discrimination based on sexual orientation. And that’s why in Colorado, if she served straight couples, but not gay couples, she would be violating Colorado’s nondiscrimination law because it bans discrimination based on sexual orientation.
Miller: And it was Oregon’s version of that same kind of law that was at stake in the Sweet Cakes by Melissa case where the Bureau of Labor Industries cracked down on the bakery. Is that right?
Oleske: Exactly right. And that case is still going on. So the day after the court decided the 303 Creative case out of Colorado, it sent back the Sweet Cakes by Melissa case, back to the Oregon Court of Appeals. This is by the way, the second time this has happened. This case has been going on for a very long time. It went all the way up to the U.S. Supreme Court. When Masterpiece Cakeshop was also pending there, the case out of Colorado, after the court decided Masterpiece Cakeshop, it sent Sweet Cakes by Melissa back to the Oregon Courts. The Oregon Courts reaffirmed the decision and went back up to the U.S. Supreme Court. Now the U.S. Supreme Court has sent it back yet again to the Oregon Courts, for further consideration in light of their decision in 303 Creative.
Miller: What did Neil Gorsuch, writing for the conservative 6-3 majority, focus on in his decision?
Oleske: Excellent question. And I would submit two different ways to read the opinion. There is a narrow way to read the opinion and a broader way to read the opinion. So a lot of the opinion relies very, very heavily on the stipulations of fact that Colorado agreed to with the website vendor, and those facts included that she was going to be very selective in choosing who she made websites for. She was going to vet them carefully to see if their values lined up with hers. There was a stipulation that when she makes these websites for customers, they’re gonna express her message of celebration and approval, which we ordinarily wouldn’t think is necessarily true of businesses. So like when a business makes a happy birthday cake, even though they’re writing the words “Happy Birthday,” we typically don’t think of the baker as being the one sending that message. We think of it as the customer’s message. But here, Colorado stipulated that when 303 Creative makes these websites, it would be her message. That was a very damaging stipulation to make for Colorado and Justice Gorsuch relied very heavily on that.
Now, if that’s all the majority opinion said, you might say, well, this is a very narrow decision, very few businesses are gonna be in that situation. But he also has language in his majority opinion that more broadly casts doubt on nondiscrimination laws. At one point, he says that the very purpose of applying anti-discrimination laws is to eliminate ideas. And if you actually take that seriously, all anti-discrimination laws will be unconstitutional violations of the First Amendment. Now, other portions of the majority opinion make clear that that’s not where the court is going, but that broader language does make one wonder if the decision might have broader impact than just cases where a state stipulates to the very specific facts that were stipulated in this case.
Miller: I want to focus in on the free speech argument in particular because it’s, I mean, every time we’ve talked about this, I guess I’ve been slightly befuddled by it. Mainly, I guess I’m wondering how far it goes if a cake or a message on a cake could be considered speech? If in this case the, “Have a great wedding”, or whatever would be written on the website is also the speech on the part of the business, then what about a sandwich? I mean, which is half a joke, half not, right? I mean, that is a creative expression of somebody’s culinary skill and cultural experience? What about a B & B, where the B & B owner put the pillows on the bed in a certain way that expresses their understanding of who’s gonna sleep in that bed, and you can go on and on.
So many things that we pay for in life, what is art, what’s expression and what is just a pure business transaction with no message attached?
Oleske: So it’s an excellent question. Justice Sotomayor, in her dissent, dives into this issue and basically says, look, if you look at compelled speech, the way the majority does, you can find compelled speech everywhere and you can basically carve a huge loophole into anti-discrimination law. Your overall impression you get from reading the majority’s opinion is no, they’re not gonna go there. You’re serving sandwiches at Subway, you might call yourself a Subway artist, a sandwich artist, but you’re not gonna be able to refuse to make the sandwich. But, OK, what about the artisanal cake maker that serves cake for desserts at high end restaurants and a couple comes in for an anniversary - Can they refuse to make the cake, because that’s custom made and particularly expressive? I’d submit that the court doesn’t tell us what the test is. And again, part of the reason they didn’t have to tell us what the test is because you have these stipulations by Colorado that these websites by 303 Creative did express her speech, not just the customer speech. So we don’t have the test.
What about in future cases where the parties disagree, whether it’s the customers speech or the businesses’ speech? We don’t have a test from the court in this case to decide those hard cases that you just mentioned. So I think where that leaves us is that lower courts are gonna continue to split. So, Oregon may come out one way when Sweet Cakes by Melissa comes back down to the Oregon Court of Appeals and a court in another state may come out a different way and I suspect we’re going to see this issue for a third time go back up to the U.S. Supreme Court.
Miller: We’ve heard a lot about standing over the years and we’ve talked about Supreme Court cases or cases at any level with the ability of someone to properly bring a suit. Just briefly, this case, in recent days, there’s been some interesting things that have come out, which is that Lorie Smith does not currently have a wedding web design business. She never turned down a same-sex couple. She was never fined or prosecuted under Colorado’s anti-discrimination law. She argued and said that if she did refuse to provide services to same-sex couples, then she would run afoul of the state law. And then there was a whole Oregon addendum to this in recent days where it turned out that one of the people that she said or her lawyers said had asked for her services for a same-sex wedding, that case seems to have been fabricated.
There’s a lot of background which is not exactly related to the legal question at hand, but how did she have standing given that she actually never suffered harm? It was all perspective.
Oleske: So the court has long allowed what’s known as free enforcement challenges to laws that a party may be arguing is unconstitutional, so long as there’s a realistic risk of injury. And in this case, because Colorado and 303 Creative agreed that if she refused to serve same-sex couples equally with opposite-sex couples, that that would violate Colorado law. It was pretty clear that if she began her business and she started saying, I’m gonna make services available to opposite-sex couples but not same-sex couples, which is what she wanted to do, that she would then be charged with violation of the law. So the party didn’t disagree about that sort of imminent injury that would occur if she started to operate that portion of her business.
And I should just add, because this wasn’t clear in all of the reporting, she has long had a website business. She’s made websites, 303 Creative, has been in business since at least 2012 and made lots of websites. She wanted to add this sort of line of products, the wedding website line of products, more recently. And that’s where this conflict arose.
Miller: Let’s turn to another recent ruling. It was brought by a U.S. Postal Service employee named Gerald Groff. Why did he bring suit?
Oleske: So he brought suit because he takes Sunday as his Sabbath and he worked for the U.S. Postal Service and for a while, he was able to not work on Sundays. At one point, the U.S. Postal Service wasn’t providing services on Sundays. Then after they started providing services, he was still able to work out not working on Sundays. But at a certain point, from the Postal Service’s perspective, it became impractical to allow him to take all Sundays off. And he argued that he had a right under Title VII of the 1964 Civil Rights Act. This is a law that prohibits employers from discriminating on a number of grounds, including religion and which specifically requires employers to accommodate, reasonably accommodate, the religious practices of their employees. He argued he had a right to be accommodated from the obligation to work on Sunday.
This statute was interpreted by the Supreme Court four decades ago, in the late seventies, to be a relatively weak accommodation requirement for businesses vis-a-vis their employees. And he argued that interpretation was incorrect and it should be interpreted as a stronger accommodation requirement. And a unanimous court agreed that the accommodation requirement has more teeth than many have perceived it to have over the past 40 years. So the case is going to go back to a lower court where he can make his argument under this new stronger standard. He may still lose, by the way. The Postal Service maintains that even under the standard the court has adopted, they have a justification for not accommodating him, but he’s at least going to get to make his case under the new standard.
Miller: I wanna make sure that I understand the difference in the two standards. If I’m correct, for 40-plus years, it was if an employer could show that there was even a trivial way in which the accommodation would impact their business, then they could refuse an accommodation? So far, so accurate?
Oleske: Yeah, and this precise phrase they used was not trivial but, “de minimis burden” was the precise phrase.
Miller: Yeah, I’m trying to translate from the Latin name.
Oleske: No, no, no, that’s good.
Miller: OK. And now it’s that if there are substantial increased costs to the business, to the employer, then they could refuse an accommodation. Is that right?
Oleske: Right. That’s correct.
Miller: So what’s the legal justification for tying whether or not someone could actually be able to follow their religion according to their faith or their faith leader, tying that to the cost to their employer? I’m just wondering what the legal justification is for that.
Oleske: So the legal justification is that’s what the statute requires. So unlike the first case we discussed, this is not a constitutional case where the court is sort of interpreting the Constitution and deciding what standard should apply. Here, Congress passed the statute and it specifically said employers have to reasonably accommodate, but there’s a defense they do not have to accommodate if it would impose a, and this is the statutory language, “undue hardship” on the conduct of the employer’s business. And so the whole question in these cases have been, well, what does undue hardship mean? In the earlier case, as you pointed out, it seemed like, well, anything more than a trivial burden would be viewed as an undue hardship. After the Groff decision, it’s a substantial cost will be viewed as an undue burden.
Miller: I guess it could make sense if you’re a business. Is there any clearer way to know the impact it’s having on you than saying our bottom line is being substantially impacted?
Oleske: Well, so “substantial” is not a self defining term. And so the court did not really put meat on those bones in terms of figuring out exactly what a substantial cost is. Instead, it sent the case back down to the lower courts for consideration in the first instance with this new standard. And I think it’s gonna take some time to figure out what exactly is a substantial cost, in terms of monetarily or burdens on other employees, because they have to work weekends if the religious employee doesn’t. That’s all to be worked out. But what we know is the employer is gonna have to shoulder at least more than a trivial cost. To put this in sort of number terms, maybe if on a scale of 0 to 5, 0 is no accommodation requirement, and 5 is the strongest possible accommodation requirement. The Supreme Court was long interpreting the accommodation requirement as a 1 or a 2. The Groff case was arguing for like a 4 and the Supreme Court seemed to settle on a 3. What exactly is a 3? They haven’t told us yet, but it seems sort of like a middle ground, a substantial but not super strong accommodation requirement in the workplace.
Miller: I’m gonna turn to the big picture. Two years ago, the legal scholars, Eric Posner and Lee Epstein wrote in a paper that quote, “The Roberts Court has ruled in favor of religious organizations including mainstream Christian organizations more frequently than its predecessors.” And they had numbers to back that up. That was before Ruth Bader Ginsburg died and was replaced by Amy Coney Barrett.
How big a change have you seen in terms of the court’s older, say mid-20th century approach to religious freedom and other intersecting rights and the current courts approach?
Oleske: Well, first thing I’d say is the 20th century was not a constant approach. The court flip-flopped on these issues back in the 20th century, quite substantially. But I think the most recent sort of big change is probably best captured by what happened during the pandemic. The first cases that reached the court on religious liberty challenges to COVID restrictions failed at the court, with Chief Justice Roberts joining the perceived liberal members of the court in rejecting those 5 to 4. Then Justice Barrett replaced Justice Ginsburg and those cases suddenly started turning out the other way and the religious claimants were winning those cases. So that’s probably the sort of clearest indication of the changing composition of the court resulting in a change in results on these religious liberty claims.
Miller: What do you see as the next frontiers in religious liberty, religious accommodations or associated issues?
Oleske: So as I mentioned earlier, the court, notably in the 303 Creative case, didn’t take up the religious liberty claim. It decided on free speech grounds and the court’s religious liberty jurisprudence is still unsettled. So the court has flip-flopped throughout the last 60 years on whether the Free Exercise Clause of the First Amendment grants a right of religious accommodation against government action, and if so, how strong that right might be. And the court, in a case you probably recall, Employment Division v. Smith back in 1990, said there’s no right of religious accommodation under the Free Exercise Clause of the First Amendment. In more recent years, the court seems to be moving back to, there’s a strong right of religious exemption including in those COVID cases, but the court has not clarified the law for the lower courts.
And so I think the next step is for a majority of the court to sort of land this plane and tell us definitively well, what is the right, if any, of religious exemption under the Free Exercise Clause of the First Amendment.
Miller: I should remind folks that we actually devoted a whole segment recently to a podcast episode about that, Employment Division of Oregon v. Smith Case, a fascinating conversation and a fascinating case. Jim Oleske, thanks very much.
Oleske: Thank you. It’s been a pleasure.
Miller: Jim Oleske is a law professor at Lewis and Clark Law School.
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