The Supreme Cult has continued its attack on the underpinnings of democracy in this just finished session. We dodged a fatal bullet in the “independent legislature” nonsense and got unexpected positive rulings in the Indian Child Welfare Act and gerrymandering cases.

But we got the expected negative rulings on affirmative action and student debt. Two religious privilege cases were on the agenda, and both gave special privileges to those who claim religion as an excuse to harm other people.

Groff v. DeJoy: Religious Privilege

In Groff v. DeJoy a rural postal carrier argued that he should be able to take all Sundays off because of his religious practice as an evangelical. To allow him to do so meant that other employees would be forced to take Sunday shifts to cover for him.

A written agreement outlined how employees are chosen to work on Sunday to deliver Amazon packages. He fell into the third category of employees compelled to work on a rotating basis.

To accommodate him, others — including the postmaster who normally did not deliver mail — did the work or it was assigned to the regional hub for other carriers. Several grumbled; one filed a written complaint. Groff received progressive discipline for failing to work and then in 2019 he resigned.

Freedom From Religion Foundation (FFRF), American Atheists (AA), and Center for Inquiry filed amicus briefs in the case. FFRF argued that a negative impact on other workers should be a consideration in “undue hardship.” AA and Center for Inquiry argued that religious employees should not be favored by imposing burdens on non-religious employees.

Unfortunately, imposing burdens on non-religious employees is precisely what the court did.

Much of the argument focused on the standard used from the TWA v. Hardison case. But in that case, the constitutional arguments were ignored in favor of focusing on the fact that an airline did not have to violate its seniority system to accommodate an employee who observed Sunday because under EEOC rules, seniority systems were protected.

That ruling does not give much support to the constitutional arguments. The TWA case said that “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.” 35 F. 4th 162, 174, n. 18 (quoting 432 U. S., at 84).

Lower courts have grabbed the “de minimis” language as the standard to determine “undue hardship.” That was rejected in the Groff case for a new standard that requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. (Pp. 4–21).

The TWA case actually cited a need to avoid unequal treatment of employees based on religion, but the court later said that “mere neutrality with regard to religious practices” is not the standard but “gives them favored treatment” in order to ensure religious persons’ full participation in the workforce. EEOC v. Abercrombie & Fitch Stores, Inc., 575 U. S. 768, 775 (2015).

This is a very dangerous proposition. If the religious have favored treatment, then the rest of us are second class citizens.

Regulations issued by the EEOC obligate employers “to make reasonable accommodations to the religious needs of employees” whenever doing so would not create “undue hardship on the conduct of the employer’s business.” 29 CFR §1605.1 (1968).

The cost in Groff was the burden imposed on coworkers, disruption of the workplace and workflow, and diminished employee morale.

In 1970, the court made a sensible decision in Dewey v. Reynolds Metals Co. (429 F. 2d 324, 334) that to accommodate a religious practice would violate the Establishment Clause. Subsequent Congresses and supreme court decisions have continued to erode this constitutional principle and made the establishment clause weaker.

In other words, more freedom to express your religion; fewer restrictions on the government not to endorse religion. This bodes poorly for the non- religious.

The Groff court said there must be “substantial” burdens and that is a fact specific inquiry. The court also says the employer cannot prevail just by showing some sort of additional cost. “Undue” means substantial increased cost in relation to the conduct of its particular business and relevant factors including nature, size, and cost of an employer.

The court claims it is doing nothing more than adopting EEOC’s interpretation of the meaning and that courts should use common sense – a thing that seems to be in short supply these days.

The court shows immediately that it has no common sense by saying that the impact on the employees is relevant only to the extent it affects the conduct of the business. All impacts on employees affects the business – that’s common sense and that is how the dissent justified their signing of the opinion.

But the court continues to show its lack of common sense by saying that “reasonably accommodate” does not mean an employer can conclude that forcing other employees to work overtime is a burden… of course forcing other employees to work overtime is a burden!

In what world do the justices live? Employees were already grumbling, and one filed a written complaint about it. It was and is a burden. To refuse to consider that burden so a self- proclaimed religious person can get Sundays off is to privilege certain religious people over all others (Jews want Saturday off and Muslims Friday).

The court goes on to say that employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice, cannot be considered “undue.” Bias or hostility to a religious practice or accommodation cannot supply a defense.

What about the belief of the non-religious that religion is a superstitious myth about a violent fictional character that has caused and still causes much harm to the planet and the people?

When that was voiced in Colorado, the Supreme Cult claimed it indicated hostility to religion. Yet atheists are vilified all the time and that is not counted as hostility to non-religion.

The field is not level. Religion is privileged.

So like the supervisor in Colorado, if I speak honestly about my opinion of religion – i.e. that it’s been responsible for violence, genocide, slavery, abuse of women, inquisition, witch hunts, crusades, etc. — that is considered hostility to religion and my opinions reflect negatively while those who believe in religion as a positive force, their opinions count positively.

So as not to harm the case to deny Sundays off, I must remain silent. That is censorship. That is discrimination and religious privilege.

In Groff, the district court and third circuit ruled for the employer because the forced overtime affected both workflow and reduced employee morale. The supreme cult rejected this finding.

What then does count as “undue burden?” EEOC has already said that the employer cannot count as a burden the administrative costs of redoing schedules, payment of overtime for those forced to cover the time, and voluntary substitutes of time.

The court left it up to the lower courts on a case-by-case basis: “We think 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. Hardison, 432 U. S., at 83, n. 14.”

The court repeats that lower courts must look at the particular accommodations and their practical impact in light of the nature, “size and operating cost of [an] employer.” The court declined to accept ADA language and also declined to say that Hardison was correct.

The court said that their decision will not affect EEOC guidance i.e. there is no undue hardship imposed by temporary costs, voluntary shift swapping, occasional shift swapping, incentive pay, or administrative costs. But to clarify, the court opined about their own interpretation – effects on workers do not count unless it has an impact on the conduct of the business.

This seems to me to illustrate that the court has zero awareness of the real world and must never have held a job.

A worker’s dislike of religious practice or expression is not a factor that can be used. That makes sense if the reason is a dislike of Muslims or members of the Satanic Temple or orthodox Jews.

But if the reason is a dislike of the harms caused by such beliefs, e.g. the Taliban’s attacks on women, the Catholics’ attacks on reproductive justice and children, the Evangelical attacks on public schools that belief should be allowed to be expressed under the free speech clause of the first Amendment.

But the court has made it clear from their decision in Masterpiece Cake that such honest statements will be used as proof of a dislike of a particular religion or religiouspractice. Thus our speaking is censored.

Justifiable anger about one employee being treated more favorably, i.e. not working on a weekend, is also not a factor that can be considered according to the court. Forced shift swapping would not be sufficient to show undue burden.

So while the feeling of the religious person is considered, the feelings of the other or non-religious person is not. The court is concerned about “giving effect to religious hostility” but they are not concerned about giving effect to religious preference. They ignore the hostility toward those most affected.

At our founding, government intervention in religion was commonplace, then it was forbidden, then neutral, then accommodation, and now we are back to preference for religion again.

In the dissent, Sotomayor and Jackson claimed that using the words “undue hardship on the conduct of the employer’s business” maintains the focus on employees, because conduct of business must include hardship on employees because, in fact, the workers are the most important factor in every business.

However, the majority decision explicitly said those things cannot be considered unless you can tie it to the operation of the business specifically. So that will be the next argument.

303 Creative v Elenis: Legal Discrimination

The infamous 303 Creative case was the other religious case that resulted in numerous amicus briefs. FFRF, AA, American Humanist Association, and Center for Inquiry submitted an amicus brief that focused on the complete sham of this case.

The plaintiff had never done or been asked to do a gay website. There was no customer; it was entirely invented.

Under constitutional law, that means there is no Article 3 case and controversy, and the decision is an advisory opinion which is prohibited under the Constitution. But the Supreme Cult ignored the standing arguments completely.

Instead they had a political goal to give so-called religious people preference and the ability to discriminate against LGBTQ people.

Those with a specific agenda in mind have no concern for the actual Constitution. They stomp over every precedent and doctrine on their way to theocracy.

Some 30 religious organizations also filed an amicus brief. They argued that anti- discrimination laws in fact ensure that religious minorities have full and equal access to the public marketplace. To create an exception for “expressive” products would limit the market access.

It would in fact harm so called religious people and will be expanded beyond public-accommodations laws, which is precisely what the religious plaintiffs intend to do. Finally they argue that protecting religious liberty requires balancing religious speech, expression, and equality, which this court refuses to do.

A constitutional professor submitted an argument that said what we all know: it’s not about the website or the cake or the flowers any more than sitting at the counter was about the hamburgers.

Public accommodations laws do not regulate speech but conduct. The laws do not compel speech or impose beliefs. The court should not replace a clear rule with an unworkable standard with no limit and should never decide a case in which the plaintiff has never offered the services it claims.

The Colorado brief argued that the law regulates sales practices, not speech or belief, nor does it regulate what a person sells, only who can buy what it sells. At the least, any burden is incidental and therefore intermediate scrutiny would be required because the state has a compelling interest in ensuring equal access to public goods and services.

However, in a 7-3 decision, Gorsuch ignored it all. From the beginning, he mischaracterized the law to claim it compels a person to create speech she does not believe. When phrased in that way, the outcome is already determined. That is the importance of framing the question, as the dissent points out.

Allegedly, the plaintiff wanted to create wedding websites tailored specifically to the couple in question. She had not yet done so, though she claims to serve customers regardless of sexual orientation except that, to her, marriage is one man and one woman.

She claims her websites are “expressive” and that she can’t contradict biblical truths in her sincerely held religious beliefs. If she refuses, they can go elsewhere. But she also says she’ll serve LGBTQ, just not a wedding.

But if it’s her sincerely held religious belief, shouldn’t she reject LGBTQ all together?

She claimed standing by simply citing the Colorado anti-discrimination act. She claimed there was a credible threat, though no one had even asked her to design such a website.

She cited Masterpiece Cake as her proof, though the case was sent back from the Supreme Cult. Yet in a case here in AZ, the Alliance Defending Freedom (sic) claimed that doctors did not have standing to challenge the ban on genetic abortions because no one had yet been arrested or lost their license, though both were consequences of violating the law already in force.

The Colorado district court ruled against her, as did the 10th circuit. The 10th found she had standing and, according to the Supreme Cult, no one challenged that. Perhaps they didn’t know yet that her alleged customer was fake, but they should have done appropriate research.

The 10th said the website was “pure speech” protected by the First Amendment. No, it is commercial speech, which has a lesser protected status. It is not pure speech, which refers to political speech, but speech in the marketplace that can be regulated. All that caselaw was ignored.

According to the 10th circuit, the state did meet the strict scrutiny standard of showing they had a compelling reason for the regulation, and that no less regulation would do. The court found equal opportunities was such a compelling reason.

Hoisted on her own petard, the court found that if her services are indeed unique, then they can’t be found elsewhere and therefore the person cannot just go somewhere else.

In their perverse ruling, the high court cites many of the bedrock rulings that we rely on to guarantee freedom of speech to rule for religious privilege. They cite West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) to say “[i]f there is any fixed star in our constitutional constellation,”, it is the principle that the government may not interfere with “an uninhibited marketplace of ideas,” (The marketplace of ideas is not a commercial marketplace.)

They also cite Barnette in which the court ruled that children do not have to salute the flag or recite the Pledge of Allegiance. (Children are vulnerable citizens to protect and in a state institution.)

Focusing on their “forced speech” analogy, they cite Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995) where the court ruled that Veterans organizing a St. Patrick’s Day parade in Boston do not have to include LGBTQ groups because it would conflict with their message for the parade.

Likewise they cite Boy Scouts of America v. Dale to say that excluding a gay assistant scoutmaster from membership was okay because the organization did not have to violate its principles.

They also cited Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 505–506 (1969) to say the government cannot force you to say messages you don’t agree with.

The problem is that none of those cases involved a commercial for-profit business operating in the public sphere. All were association cases.

The court agreed that 303 was “pure speech” completely ignoring the commercial aspects. They also said it was her speech ignoring that it was created with and for someone else.

So according to the court, your advertisement about a wedding means you agree with the wedding that comes from it. Does this then mean that your advertisement about a gun means you agree with the murder that results?

The court justifies its decision by saying that it would mean the government could force Muslims to make movies about Zionists, and an atheist muralist to paint a mural celebrating Evangelical zeal, and a gay man to make a website for an organization that advocates against gay marriage.

But in each example, the person being forced to speak against her/his interest is the protected person. The nondiscrimination language is to prohibit the privileged person (the straight, white, designer) from refusing to serve the protected person (the Muslim, the atheist, the gay man) not the other way around.

The court says they recognize the value of public accommodations laws in the civil rights of Americans, that they “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 250 (1964) and that’s all right when the rules are imposed on common carriers and places of traditional public accommodation like hotels and restaurants.

But they claim that these rules have now expanded to cover virtually every place of business in any sales to the public. Bu more troublesome is that the laws now prohibit discrimination against more “groups” e.g. sexual orientation.

The court says the state may do that if they choose, but there are “innumerable goods and services that no one could argue implicate the First Amendment” so they can’t be included. This makes no sense, especially when it’s commercial speech.

The court claims a concern that public accommodations laws must comply with the Constitution i.e. not discriminate against anyone, but that concern was obviously fake as they were not concerned about discriminatory educational admissions that violated the Constitution as they eliminated affirmative action.

Their hypocrisy screams out loud and clear.

Colorado argued the website was commercial speech and the burden was incidental. But no, says the plaintiff, my speech is expressive. Isn’t all speech expressive?

The Supreme Cult says the fact the speech is commercial means nothing, contrary to decades of precedent that gives commercial speech less protection than political speech.

The majority accuses the dissent of reimaging the facts – like the majority did in the Kennedy decision of the prior year – the pot calling the kettle black. They claim the horrors of the dissent are all fiction, but the dissent gave examples that had already happened, not fictional ones (a funeral parlor that refused to bury a gay man and a monument company that refused to chisel the requested saying “life partner” on the stone).

Justices Sotomayor, Kagan, and Jackson joined in the dissent. They started with Masterpiece Cakeshop, in which the court said that the general rule is that one cannot use your own religious or philosophical objections to gay marriage to deny services under a neutral law because of serious stigma.

Now, only two years later, they throw that out. It is an example of the creeping incrementalism that is poisoning our legal jurisprudence and why you must fight every case.

The dissent outlines the use of public accommodations laws over the years to exclude Blacks and women and people with disabilities. Whenever progress was made to extend equality of rights to a group, there was a backlash. The same is happening here against LGBTQ people, but this time, the court is facilitating it rather than prohibiting it.

Like the amicus, the dissent argues that the actions are conduct not speech, that the act of discrimination is not protected expression, and that no constitutional right to refuse service to a disfavored group exists. The point of the public accommodations laws is equal access to publicly available products and services and equal dignity in the common market.

Under this ruling, what is to keep Hobby Lobby from saying their religion forces them to prohibit gays or unmarried couples or those of another religion or atheists from going to their stores (to which I hope no one is going)?

If a profit-making entity wants to participate in the public market, they should and have been required from antiquity to serve the public, follow the law, and serve all comers equally. From the beginning, business has sought exemptions and the court always refused.

Until now.

We need to evolve in our understanding and coverage of protective measures, not regress. But regress is precisely what the SCOTUS majority does wants to do.

Refusal to deal with or serve a class of people is not an expressive interest protected by the first amendment. That was precisely the argument made by opponents of the Civil Rights Act of 1964. They said it would force business owners to defy their beliefs.

But the court in the Heart of Atlanta Motel case said that prohibition of racial discrimination in public accommodations did not interfere with personal liberty. Justice O’Connor pointed out the difference in rights of commercial and expressive association, which this court ignored.

This court said the website owner could put up a sign saying “no LGBTQ need apply” because it was speech. But earlier cases said you must remove “white only” signs because it was conduct, not speech, even though it was written words.

As the dissent said, the 303 proprietor could put bible quotes on her website, she could refuse to say “love is love” to anyone, she could put negative messages on her website, she could peddle her services privately rather than publicly – what she can’t do is publicly offer services to some people and refuse to others. That is what is profoundly wrong.

The dissent pointed out that the majority asked the wrong question; i.e. the question is about state action and the first amendment not compelled speech. The evidence showed 303 would deny services to an LGBTQ couple that she would offer to a hetero couple.

That’s status discrimination and not allowed. It’s also religious discrimination. That argument was not touched.

Yet the support for slavery and opposition to reproductive justice and interracial marriage was based on religion.

Sotomayor says the majority profoundly misunderstand the case, but I would argue that no, they didn’t. They are doing exactly what they were put there to do – restrict the rights of those they don’t like.

I would also disagree that the refusal marks LGBTQ as second-class citizens; in today’s culture, it rather marks the 303 proprietor as a backward person.

In both cases, FFRF and Lambda Legal and other legal groups have minimized the holdings as they did in Kennedy to limit the damage in real world terms and in future cases. But that also means not making it clear to the public in what serious danger we are and how much our rights have been degraded.

This will continue unless we rebalance the court. We have nine members because we had nine circuits. Now we have 13 circuits and should have 13 members.

That is the only way to blunt this renegade court from continuing to attack democracy and destroy steps toward equality.

Secular AZ continues to fight against religious privilege. To support our legal team, please become a member or make a donation today.