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How the Supreme Court’s Idea of Religious Freedom Could Resegregate the Country

The court once held that the Civil Rights Act trumped religious freedom. After these recent decisions, that’s over. The consequences could be enormous.

Chief Justice John Roberts in 2020
Leah Millis/Pool/Getty Images
Chief Justice John Roberts in 2020

The John Roberts court has had no problem treating cases dealing with religion like hand grenades: Pull the pin, throw it out the door, and let it immediately become someone else’s problem. In Dobbs, the court’s conservative majority ended the right to abortion, and now women are being told they must wait out in the car until they nearly bleed to death before the “life of the mother exception” kicks in. As this havoc doesn’t affect the court, they consider it none of their business. The decisions in Groff v. DeJoy and 303 Creative v. Elenis are no exception to this rule of judicial Calvinball and will unleash chaos and suffering in their turn. Discrimination against customers, employees, and co-workers may just have been made a constitutional right.

Groff v. DeJoy gave workers much more power to use their freedom of religion in the workplace to gain concessions. In this case, the court ruled you can’t force people to work on their particular Sabbath. Title VII of the Civil Rights Act of 1964 forbids employment discrimination on the basis of race, color, religion, sex, and national origin. The court held that “Title VII 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.” However, the definition of “substantial increased costs” is left ambiguous. In the case of Groff, the court said that an employee’s disrupting his employer’s work schedules was insufficient reason to deny him Sundays off.

The other case is 303 Creative, which upholds “freedom from compelled speech.” Lorie Smith filed the lawsuit before she ever opened a business. Although she has never had a customer for her proposed website design company, she claimed she was harmed by a Colorado law saying she would have to serve LGBT customers.  In her court filings, she claimed that she had already been approached by a gay couple. Later investigation by The New Republic’s Melissa Gira Grant revealed that this claim was false and that she (or someone) used the name and phone number of an unwitting straight man. Somehow, the court granted her standing and ruled in her favor despite the fact that she never set up a business (much less was accused of discrimination) and that she made up fake customers. The court decided this case on the basis of compelled speech and not freedom of religion.

While some claim that 303 Creative is a narrow decision, it is far from it. The court regards a lot of things as freedom of speech and expression, and it gives the concept wide latitude. Remember: Citizens United found that giving money to political campaigns constituted freedom of speech. Businesses exploit everything being freedom of speech when it comes to labor laws as well. The title of the guy behind the counter at Subway is “sandwich artist.” The people in costumes at Disneyland are “cast members.” The result is that almost anything that’s a service can be considered “art” or “expression” if it involves making something or providing an intangible service (like posing for pictures with visitors or bringing people food at a restaurant).

There are other cases that make this situation worse. The Affordable Care Act required that employers provide contraceptive coverage to employees but that religious nonprofits could opt out. In Burwell v. Hobby Lobby, the Supreme Court ruled that closely held for-profit corporations were also entitled to invoke the exemption if they had sincere religious objections to the provision of contraceptive coverage. Then, in Wheaton College v. Burwell, the Roberts court ruled that entities didn’t have to file the waiver form and that merely informing the Department of Health and Human Services was enough. Finally, in 2016’s Zubick v. Burwell, the court found that even notifying HHS was an intolerable and unconstitutional burden on expression of religion.

The result? The court has established that freedom of religion, and freedom from compelled speech, is broadly interpreted for both employers and employees. It also has a long-standing policy of not adjudicating what a sincerely held religious belief is and isn’t. In practical application, all of these taken together will cause havoc for corporations, while blowing a hole through the Civil Rights Act of 1964 that the Alliance Defending Freedom and even white supremacist groups could drive a tank through.

Let’s look at some potential abuses of these rulings.

It’s not hard to imagine a restaurant owner who doesn’t want to serve LGBTQ customers anything (because it actually happened) because he believes that serving them is a form of compelled speech and the act of serving them dinner indicates that he condones their “lifestyle choices.” Or how about a racist one who claims that he doesn’t have to serve Black people because Ephesians 6:5 states: “Slaves, obey your earthly masters with respect and fear, and with sincerity of heart, just as you would obey Christ”? He could also make the claim that serving them is a form of compelled speech that makes him tell the world that white people should serve Blacks and not the other way around.

Then there’s what this allows employees to do, especially with money as speech. What happens when an employee of a company claims that it impinges on her First Amendment rights to pay into any company benefits (like health care) that go to things she doesn’t like? This could include abortion, birth control, same-sex partner benefits, vaccinations, or transition-related care for trans people. How do corporations, states, and insurance carriers negotiate a radically changed market where individual employees get to decide what is included in other people’s coverage, while at the same time state and federal law determines what must be covered? The short answer is that it’s going to be a legal mess—and that we should expect the courts to side with the religious workers. The resulting destruction is someone else’s problem.

What about a restaurant whose servers (that is, not the owner) claim a religious reason for refusing to serve a customer? Or perhaps a compelled speech reason? What if there’s an employee who refuses to work for a supervisor who is LGBTQ, Black, an unmarried mother, or anything else the employee deems unacceptable? Given the precedents in Zubick, Graff, and 303 Creative, this has the potential to turn into a nightmare for businesses forced to cater to all of their religious conservative employees. If companies do anything that is perceived as punishing religious workers for exercising their rights, they will be in violation of Title VII of the Civil Rights Act. The company must make accommodations such as assigning other workers to the task or moving them to a different (less favorable) shift. It certainly creates legal basis for employees of both public and private entities to misgender transgender co-workers, creating a hostile environment. It also potentially opens the door to unwanted proselytization at work. Every H.R. professional in the country would be on suicide watch right now if they understood what is likely coming.

This theoretically works both ways, allowing discrimination against white people, straights, and Christians. However, it is unequal in practice. A business that serves only whites and straights can still make a profit. A business that only serves gays, minorities, and non-Christians would have a much harder time staying afloat because their potential base of customers is so much smaller.

The decisions of the Roberts court have effectively ended the decision in Newman v. Piggie Park Enterprises (1968), which held that religion cannot be used to circumvent the Civil Rights Act. Now religion can be used to bypass the act in myriad ways, along with most state-level protections of women and LGBTQ people. Most political pundits and legal observers fail to understand that with conservative legal organizations, the chaos is the point. Groups like ADF want a severely disrupted system that grants their co-religionists de facto dominion over everything, where all religions are equal but their brand of Christianity is more equal than all the others combined. They will follow this up with wave after wave of lawsuits widening the breach to reshape the country.

In a decade, we will look back at these decisions and see their role in our national unraveling and descent into theocratic authoritarianism much more clearly. But today, we can only watch in helpless terror as the Roberts court unleashes a Pandora’s Box of horrors courtesy of the religious right; because there is literally nothing we can do to stop it, and they simply do not care what the consequences of their decisions are.