Supreme Court Supported Religious Freedom in 2023

COMMENTARY: This year showed us, once again, the Supreme Court is protecting America’s first freedom.

United States Supreme Court building in Washington, D.C.
United States Supreme Court building in Washington, D.C. (photo: J Main / Shutterstock)

Threats to religious freedom are becoming commonplace, especially as progressive policies brook no dissent. But there is hope. This year showed us, once again, this Supreme Court is protecting America’s first freedom. Take, for example, the Court’s unanimous ruling this summer that federal law requires covered employers to accommodate religious exercise unless doing so involves a substantial increase in the cost of doing business.

That’s right. The decision was unanimous.

The case involved Gerald Groff, a former mailman from rural Pennsylvania. Groff is a Sabbatarian Christian who was told he must work on Sundays even though he had been promised respect for his reverence of the Sabbath.

He left his job after the U.S. Postal Service struck a deal with Amazon to deliver packages on Sundays and wouldn’t allow his work schedule to accommodate his religious practices.

Groff went to court, claiming that the post office’s refusal to accommodate him violated Title VII of the Civil Rights Act.

Title VII of the Civil Rights Act, the federal law barring discrimination in the workplace, requires employers to accommodate an employee’s religious observance or practice unless it places “an undue hardship on the conduct of an employer’s business.”

Justice Samuel Alito, writing for the Court, clarified 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.”

This, Alito explained, is also consistent with the meaning of “undue hardship” in ordinary speech.

Alito also importantly addressed some “recurring issues” to guide covered employers moving forward. “Impacts on coworkers are relevant only to the extent those impacts go on to affect the conduct of the business,” he noted. And animosity to a particular religion or even to religion in general “cannot be considered ‘undue.’”

In another case decided this summer, the Court ruled the First Amendment’s free-speech guarantee protects the right of artists to create consistent with their beliefs.

The victor, Lorie Smith, is a Christian website designer and owner of Denver-based 303 Creative. Smith wanted to expand her business to create custom wedding websites — but only weddings between a man and a woman.

She worried that the Colorado Anti-Discrimination Act (CADA), which prohibits businesses from discriminating against people based on sexual orientation or announcing an intent to do so, would force her to create websites for same-sex weddings.

Justice Neil Gorsuch, writing for the Court’s 6-3 majority, observed of CADA, “Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods and services on equal terms. It seeks to use the law to compel an individual to create speech she does not believe.”

Pointing to a series of prior decisions by the Supreme Court, Gorsuch established that the Constitution’s free-speech guarantee isn’t just a prohibition against censorship. It also prohibits the government from forcing anyone to speak against his will.

“The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and what keeps our Republic strong,” he wrote.

In addition to these two important rulings in support of religious exercise and expression, the Court agreed to hear new cases that, while not specifically addressing issues of religious freedom, most certainly could help safeguard it.

In January, the Court will hear argument in Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo, both involving challenges to a federal rule that requires the fishing industry to pay for the cost of observers who monitor compliance with fishery management rules.

The Court will consider whether to overrule (or substantially limit) Chevron v. Natural Resources Defense Council, which held that when a federal statute is ambiguous, courts should defer to an agency’s interpretation of that law as long as it is reasonable. Under “Chevron deference,” federal agencies can exploit vague language in statutes to justify actions that breached Congress’ original understanding of text, often to the detriment of religious Americans and faith-inspired institutions. Religious-liberty advocates have filed amicus briefs in the cases, urging the Court to overrule Chevron.

The Court has also agreed to hear challenges to laws in Texas and Florida that would regulate how large social-media companies like Facebook and X (formerly known as Twitter) control content posted on their sites. The companies contend that the laws violate their First Amendment right to control what speech appears on their platform.

An amicus brief filed by Becket law group in support of neither party urges the Court to be mindful in its review that “the right doctrinal framework to decide these appeals is crucial to religious people and institutions.”

The religious-freedom group suggests that when determining “how the First Amendment applies to novel regulatory situations,” the Court should distinguish “the greater protections available for core religious speech under both the Free Exercise Clause and the Free Speech Clause.”

Becket also shared its good counsel with the Court in its review of the challenge by a Muslim resident of Portland to his placement on the “No-Fly List” — a database that contains the identity of information of known or suspected terrorists.

The government argues that his case is moot, as he is no longer on the list.

Becket’s amicus brief, in support of neither party, makes two crucial points.

First, the group notes that while it takes no position on the ultimate issues involved in the case, “a government penalizing someone simply because he is Muslim would be as clear a Free Exercise Clause violation, as one might imagine.”

Second, the group points out that “governmental defendants frequently use strategic policy changes to try to moot meritorious religious-liberty claims, meaning that a robust voluntary cessation doctrine is critical to protecting religious liberty in a wide variety of contexts.”

As threats to our freedoms continue, particularly under the Biden administration and like-minded state and local governments, Catholics should be prepared.

But the Supreme Court this year continued its pro-religion tradition, deciding two important cases in support of religious exercise and free expression, giving us reason to be optimistic it’s a trend that will continue.

Edward Reginald Frampton, “The Voyage of St. Brendan,” 1908, Chazen Museum of Art, Madison, Wisconsin.

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