How religious liberty became the Roberts court’s North Star

During the oral arguments surrounding the religious liberty questions in Groff v. DeJoy late last year, U.S. Chief Justice John Roberts told one of the lawyers that some previous federal cases about religion in American life may no longer be useful as a guide for deciding those in the future.

“Well, the law has developed in this area,” Chief Justice Roberts said, giving a short list of some of the momentous religious freedom rulings issued by the court he has led for almost 20 years. “You will, of course, have to take into account our religious jurisprudence as it exists, right?”

This week, the U.S. Supreme Court added two more rulings to its growing and unprecedented list of pro-religion decisions, which continue to profoundly reshape the nation’s evolving history of religious jurisprudence.

On Thursday, a unanimous Supreme Court overturned over 45 years of precedent when it ruled in favor of an evangelical Christian postal worker who sued the U.S. Postal Service, saying it violated the Civil Rights Act when supervisors would not consistently accommodate his request to have Sundays off, with Sunday being an important day of worship in his life.

Then on Friday, the Supreme Court ruled 6-3 in favor of a Colorado website designer who argued that creating a wedding website for same-sex couples would violate her First Amendment right to freedom of speech. 

During the nearly two-decade tenure of Chief Justice John Roberts, the nation’s high court has in many ways redefined the meaning of religious freedom in America. The Supreme Court has become not only a robust defender of those with sincerely-held religious beliefs. It has also become a court not shy about upending long-standing legal traditions and overturning previous decisions about the meaning of the First Amendment’s religion and speech clauses.

The courts led by Chief Justices Earl Warren and Warren Burger issued pro-religion decisions in roughly half of their cases. It was 58% in the court presided over by William Rehnquist. The Roberts court, however, has caused a “transformation of constitutional protections for religion,” scholars say, issuing pro-religion decisions in over 85% of its cases.

“The Roberts Court is indeed a historic anomaly in its religious liberty decision-making,” says Joanna Wuest, professor of politics at Mount Holyoke College in Massachusetts.

In the unanimous Groff decision on Thursday, the justices agreed that the religious rights of employees needed to be expanded. The Civil Rights Act forbids employers from discriminating against workers because of their religious practices, unless they can demonstrate that such practices cannot be accommodated at work without “undue hardship.”

In 1977, the Supreme Court defined “undue hardship” as anything more than a trivial or minimal cost to the employer, a standard known as “de minimis” that made it more difficult for a worker to obtain accommodations. Writing for the unanimous court, Justice Samuel Alito said that definition was “a mistake.” Now, an employer must prove “substantial increased costs” before denying a religious accommodation.

But in the case concerning the free speech rights of the Colorado website designer, in 303 Creative LLC v. Elenis, the Supreme Court addressed one of the most divisive cultural questions in the country: May those with sincere religious beliefs against same-sex marriage be able to refuse to provide service when it comes to same-sex weddings?

It’s a question that has rankled the country even before the Supreme Court declared same-sex marriage a constitutional right eight years ago in Obergefell v. Hodges. Since then, religious conservatives have been on a legal quest to carve out certain exceptions to laws that protect LGBTQ+ people.

As a legal matter, their claims involve only refusing service for the ritual aspects of same-sex nuptials, as a matter of religious belief and conscience, but not LGBTQ+ people in general, proponents say.

Religious conservatives have based many of their legal arguments on both the provisions of the First Amendment that guarantee the free exercise of religion and freedom of speech. In 2018, the Roberts court declined to issue an opinion on these claims, even though it ruled in favor of a Colorado baker who also refused to provide service for same-sex weddings, saying Colorado’s Civil Rights Commission was biased against religion in its ruling against the baker. 

In Friday’s ruling in 303 Creative, however, Justice Neil Gorsuch was clear: “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees. ... Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”

“Freedom not to speak”

As a legal matter, this was a ruling about the scope of free speech, but not the free exercise of religion, per se. 

“Free speech includes the freedom not to speak,” says Sherif Girgis, professor of law at Notre Dame Law School in Indiana and a former Supreme Court law clerk for Justice Alito. “The government can’t force you to say, do, or make something that carries a message you reject. [This case] will allow refusals to make expressive products based on the messages they convey – not based on the identity of the customers.” 

“It’s a right to be discriminating about messages, not a license to discriminate against customers,” Professor Girgis says. “If you’d make an item carrying a given message for straight people, you have no free speech right to refuse that item to gay people. But if you’d refuse to facilitate a certain message no matter who asked for it, the First Amendment protects your choice.” 

In his opinion, Justice Gorsuch wrote, “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.”

Opponents of the decision, however, say this understanding of free speech not only upends long-standing nondiscrimination principles when it comes to public accommodations – the idea that any public business or service must serve everyone, regardless of identity. It also only bolsters the kind of discrimination that LGBTQ+ people have always had to endure.

“There’s no basis on which people should be excluding each other or denying services or refusing jobs to people when we’re in the public realm,” says Jennifer Pizer, chief legal officer for Lambda Legal in Los Angeles. “That is supposed to be there for everybody – the public marketplace, public services, the entire public realm.

“So in a way, we see this movement to refuse service as very problematic and dangerous, not just for LGBTQ people, who are the particular target of much of their advocacy, but for society as a whole,” she continues.

America’s changing landscape

Taking account of the broader landscape, however, William Eskridge, professor of jurisprudence at Yale Law School and one of the nation’s leading scholars on the legal aspects of same-sex marriage, says that today’s decision will not necessarily thwart the many gains of LGBTQ+ Americans over the past decade. 

“I think the main take home, frankly, is what has not happened,” says Professor Eskridge. “The main gains have been consolidated on both sides. Gay marriage is here to stay. There are now more than a million couples. There’s no way they can touch Obergefell, and there’s simply no effort to revisit that issue. LGBTQ families are here to stay, the lesbian baby boom is still going on in adoption, and most states now have second-parent adoption ideas for both straight and gay couples.”

The number of wedding vendors who would want to exclude LGBTQ+ people is small, and in general, “there doesn’t seem to be hordes of religious people who want to persecute gay people,” he says. “And part of my argument is that religion is changing as much as the country is, and in very distinctive ways.”

Indeed, according to the Public Religion Research Institute’s 2022 American Values Survey, wide majorities of every major religious group support nondiscrimination protections for LGBTQ+ people. This includes 80% of white and Hispanic Catholics, 78% of mainline Protestants, and 74% of Black Protestants. Even among white evangelical Protestants, 60% say they favor nondiscrimination protections for LGBTQ+ people.

Legislation targeting trans Americans

Even so, Professor Eskridge and others have been surprised by the intensity of recent legislation to outlaw transgender health care in conservative states. 

“I am scared in a way that I haven’t been before,” says Deepak Sarma, professor of religious studies at Case Western Reserve University in Cleveland, Ohio, who uses the pronouns they and them. “Since I’m genderfluid, people can’t always figure out what my gender is. And in certain places in Cleveland, I feel OK about that. But in other places, I put a hoodie on, and I try to look like I’m, like, more masculine.

“I have to be careful about what I’m going to wear, where I’m going to go,” they continue. “So do I think things have gotten better? I think things have gotten so much worse.”

Ms. Pizer also has found the recent legislation and legal fronts “such a surprise, and a frustrating surprise,” given the history of religious movements in ending discrimination in other areas of American life.

“Religious leaders of multiple different traditions and ethnic backgrounds and races participated in the social and political push to end racial segregation based on their religious values – it was very much a part of the call to end that practice,” she says. “The recognition that the religious values of love and welcoming the neighbor and embracing each other across differences, values that are so important for some religions – for some people, these haven’t seemed to apply the same way with respect to LGBTQ people.”

Roberts court’s focus

While the Roberts court has fiercely protected the needs of religiously conservative Americans, its jurisprudence has shifted profoundly from the concerns of other courts, says Professor Wuest at Mount Holyoke.

“Whereas many 20th century religious liberty decisions were made on behalf of unpopular religious minorities like Jehovah’s Witnesses and Seventh Day Adventists, the Roberts Court frequently protects religious merchants seeking to deny service to LGBTQ+ customers and publicly-funded religious social service agencies refusing to place foster and adoptive children with LGBTQ+ married couples,” Professor Wuest says in an email.

The Roberts court has redefined the meaning of the First Amendment’s establishment clause, often referred to as the basis of “the separation of church and state,” by opening the door for public funds directed to private religious schools and allowing the public religious expressions of public school employees. It also permitted religious monuments with historical significance to continue to be displayed on government property. 

It has also ruled that closely held for-profit corporations have the right to the free exercise of religion, which allows them to refuse to provide birth control health benefits for their employees. It also allowed religious adoption agencies receiving public funds to decline to work with same-sex couples. 

And while the decision to overturn Roe v. Wade a year ago was not a religious liberty case, opposing the constitutional right to abortion had long been a top priority for most religious conservatives. The Roberts court, whose conservative majority is itself dominated by religious conservatives, provided their decadeslong efforts to erase the right to abortion with a resounding legal victory.

“Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities,” wrote Justice Sonia Sotomayor in a dissent Friday joined by Justices Elena Kagan and Ketanji Brown Jackson. “New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.”