S4, Ep. 26: SCOTUS decides Groff and 303 Creative
Amanda and Holly close out season 4 with a look at two decisions from the final days of the Supreme Court’s term: one clarifying decision and one deeply regressive decision.
The Supreme Court waited until the last two days of its term to release two decisions with religious liberty implications. On this season 4 finale of the Respecting Religion podcast, Amanda and Holly look at the unanimous clarifying decision in Groff v. DeJoy and the deeply regressive decision in 303 Creative v. Elenis. They discuss the implications of both of these decisions, noting the conspicuous lack of snark in Justice Samuel Alito’s Groff decision and Justice Neil Gorsuch’s defensive attempt to make his big decision seem not all that remarkable.
Segment 1 (starting at 00:38): The clarifying decision in Groff v. DeJoy
Holly released this statement after the decision on June 29, which was mentioned in this article from SCOTUSblog: Justices rule in favor of evangelical postal worker.
Read the decision by Justice Samuel Alito and concurrence by Justice Sonia Sotomayor at this link.
For more resources, visit BJC’s page on the case: BJConline.org/Groff.
Segment 2 (starting at 13:08): The problems with the 303 Creative v. Elenis decision
Amanda and Holly discussed the oral arguments for 303 Creative v. Elenis in episode 8 – an episode we titled “hypotheticals, reeducation, and a preemptive claim.”
Read the opinion by Justice Neil Gorsuch and the dissent by Justice Sonia Sotomayor at this link.
Segment 3 (starting at 38:55): Saying farewell to season four
Thank you to our listeners and to everyone who contributes to this program. Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC.
Transcript: Season 4, Episode 26: SCOTUS decides Groff and 303 Creative (some parts of this transcript have been edited for clarity)
Segment 1: The clarifying decision in Groff v. DeJoy (starting at 00:38)
AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.
HOLLY: And I’m general counsel Holly Hollman. Today we’re going to review two decisions the Supreme Court released on the last two days of its term that have religious liberty implications: Groff v. DeJoy and 303 Creative v. Elenis. We’ve done other podcasts on these cases earlier this season, so it’s fitting that we close out our season with a conversation about these final two days of the Court’s term.
AMANDA: That’s right. I don’t know, Holly, if we really expected to have to wait to the very last two days of this long term to get the two cases that we had been most focused on, but such as it is. And so, here we are, the first week of July, recording our final reactions for this season and closing out this season.
Before we focus on these two cases that have implication for religion and the law, we also want to note that, as expected, this term had other seismic changes in the law, particularly in a case that came out last week in which a 6-3 majority of the U.S. Supreme Court ended Affirmative Action in higher education, and noting that this case will have long-term implications for the long fight for racial equality in this country.
HOLLY: It was a momentous term. There were several very impactful cases, including, as you mentioned, Amanda, the Affirmative Action case. And they left it to the end, so we were waiting for this decision while we were also kind of trying to catch up on these other important decisions that will affect people day to day, particularly with regard to their college education and paying for college education.
AMANDA: That’s right. Well, for this last episode of season four, let’s first talk about Groff v. DeJoy. It was a unanimous decision from the Court. The case arose out of an employment dispute, and it addresses the Court’s interpretation of Title VII of the Civil Rights Act, specifically the protection against religious discrimination in the workplace that requires employers to reasonably accommodate the religious needs of employees, unless doing so would create an undue hardship.
The short facts of this case, Groff v. DeJoy, involved Gerald Groff, an evangelical Christian, and a dispute he had with his employer, the U.S. Postal Service. Mr. Groff worked as a part-time mail carrier, and he was denied a religious accommodation not to work on his Sabbath, which is Sunday.
The 3rd U.S. Circuit Court of Appeals ruled that the U.S. Postal Service could refuse his request, because allowing him to not work on Sundays impacted other employees and amounted to an undue hardship.
We previewed this case back in episode 17, and we analyzed the oral arguments in episode 19 and found that the Court seemed to be searching for common ground. And you can learn more about the case on BJC’s website at BJConline.org/Groff.
HOLLY: Those earlier podcasts show that we were excited that our perspective about the case seemed to be something that the Court was at least considering during oral arguments, and then we didn’t know exactly how it would come out, but then we were quite pleased with the decision.
AMANDA: And, in fact, pleased that it was a unanimous decision, which is a rarity really in any case for this Court but particularly in cases involving religious liberty. In the decision, released on June 29, the Court stated 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.
When the opinion came out last Thursday, Holly, you quickly reacted with a statement that was picked up by SCOTUSblog, and in your statement, you said this:
“The U.S. Supreme Court was right to revisit its 1977 decision in Trans World Airlines, Inc. v, Hardison and disapprove of the ‘more than de minimis cost’ standard. Title VII of the Civil Rights Act plays an important part in ensuring equal opportunities for workers of all faiths. The decision upholds religious freedom protections consistent with congressional intent and clarifies the duties of employers.
“This decision is a victory for religious minorities who disproportionately claim the need for workplace religious accommodations. It provides guidance to lower courts to ensure the statute works as it was designed. ‘Substantial increased costs’ is an improved test for applying Title VII.
“Providing workplaces free from religious discrimination requires all businesses to consider how some religious observances conflict with general work rules and business operations. The statute requires religious accommodations that protect workers without undue harm to business.”
And then you went on to say, “This decision clarifies that the statute means what it says. While there will certainly be future disputes, today’s unanimous decision points us in a positive direction where all Americans across ideological and religious differences can come together to defend faith freedom for all.”
It’s a great statement, Holly.
HOLLY: We were really pleased that the Court’s decision lined up so well with our advocacy, including the advocacy in an amicus brief that we joined with other religious organizations, really arguing that the Court should make clear that Congress’s intent in passing Title VII with its duty to reasonably accommodate religious needs in the workplace could not be so easily met by the employer, and in fact, it meant what it said, that the employees should be accommodated, unless there really was an undue hardship on the business.
And we saw some media attention about the case, with some, you know, misleading headlines that made it seem like that because Mr. Groff won, that the Court may have done more than what it actually did. And, in fact, Mr. Groff doesn’t win yet. His case goes back to the lower court where the court is instructed to apply this refined standard, using more precise language in saying what an undue hardship is on a business.
So I think it’s a good decision and not some broad change that would allow employers to impose the religion of some employees on other employees, which, of course, was the concern of some, given the way this Court often leans in to the claims of religious claimants.
So in addition to us being very pleased with the decision, there were some notable takeaways. As you said, Amanda, it was a unanimous opinion, and that is pretty rare in our area of law. We often see very splintered cases. You know, the law of religion can be quite complex — particularly when the Constitution’s involved — and this was a statutory case, so maybe that made it a little bit easier.
It was a decision by Justice Samuel Alito, and it was surprisingly straightforward. I loved it. I felt like I was just reading a nice clean case from law school from maybe the old days where the Court says, Here’s what the statute says; here’s what the parties claim; here’s how we analyze it. It was remarkably devoid of that Justice Alito kind of snark and swiping. Of course, I guess he had no one to swipe at, because it was unanimous, and I appreciated that.
I appreciate the Court all came together and just clarified this standard that — I think — will make a real difference for employees, for workers, who need a Sabbath day off, and the Court clarifies that employers should listen to those requests and accommodate them and can do so without harm to other employees.
AMANDA: I completely agree with you, that it was refreshing to have a decision that was devoid of a lot of the amped-up emotion that we’ve gotten in some of these other cases. And it was also refreshing because finally, after 50 years, we had some additional guidance from the U.S. Supreme Court to deal with something that had caused some confusion in lower courts below, to say that undue hardship cannot mean de minimis, that those two words just don’t go together under a clear reading of the English language and of the statutory language here.
And as you note, Holly, that doesn’t mean that Mr. Groff wins his case against the U.S. Postal Service, but now we have some better standards and language for the lower court to consider it.
And we think that this is important, because it also shores up the value of religious accommodations, and we at BJC, you know, who have long stood up for religious accommodations and how helpful they can be in navigating a religiously pluralistic society and making sure that everyone’s rights are accommodated, to see a unanimous Court defend the principle of religious accommodation was also very helpful.
HOLLY: Right. And to explain it as such, so that people can see that it does require something different when accommodating religion. It’s a little bit different from the way employers have to protect other categories, and it makes sense.
It was also helpful that the Court made clear that in not reversing the Hardison case but instead clarifying it, that they left in place one of the core holdings, and that had to do with whether the religious accommodation could require an employer to violate its collective bargaining agreement, and in TWA v. Hardison, the Court had said, no. And that part of the opinion remains.
And instead, you get this guidance that employers will encourage voluntary swaps, different kinds of scheduling arrangements to accommodate religion, but it’s not going to require religious accommodations at the expense of other important contractual rights.
AMANDA: And for those who are concerned particularly about labor rights, I think that must have been a very welcome part of this decision, especially this term where the Court did do some damage to labor rights in other decisions.
HOLLY: I think we should also note that Justice Sotomayor issued a very short concurrence following up on that point, that the statutory standard is undue hardship, like the statute says, not just some trivial cost. And she also wanted to make clear that it was an important decision that the Court decided it this way in light of the doctrine of stare decisis, particularly when it comes to the Court’s role in interpreting statutes.
She noted that Congress many times had been asked to change Title VII in response to the Hardison case and had not done so, and she drops a footnote showing that, that if Congress wanted to change the law, it could have, and that the Court didn’t need to today. It could just clarify the statute.
That footnote, Amanda, gave me little flashbacks of earlier work at BJC, because it was basically a list of the years in which we spent substantial time asking Congress to change the standard in Hardison under the proposal known as the Workplace Religious Freedom Act. That was not successful, but today I’d say we are successful, because we have a nice decision that returns to what Title VII actually says about religious accommodation.
AMANDA: And I don’t know what’s easier, Holly, getting this Court to issue a unanimous decision or trying to go to Congress to change the statute. But at least whatever way it happened, we have something that’s more faithful to the original text of the congressional statute here.
HOLLY: A very positive decision.
Segment 2: The problems with the 303 Creative v. Elenis decision (starting at 13:08)
HOLLY: Well, the good news from Justice Alito was not very long-lasting, because the next day, we got a very disappointing decision from Justice Neil Gorsuch in 303 Creative v. Elenis, the higher profile case that returned to the contentious issue of religious objections to same-sex marriage and what kind of impact such objections can have on the application of nondiscrimination protections for LGBTQ people and for other people.
AMANDA: Yeah. Before we get to our analysis of this case and how disappointing it is and really concerning it is for the status of nondiscrimination protections and public accommodation laws, let’s briefly review the facts, such as we have them.
The case was brought by ‑‑ you’ll get what we mean in a moment. The case was brought by Lorie Smith, an individual business owner with a website design business called 303 Creative. And Ms. Smith has said that she plans to expand her business to make wedding websites, but she does not want to serve same-sex couples who are seeking wedding websites.
And she claims that as she understands the state law here, that it would compel her to speak in ways that violate her conscience by not allowing her to make wedding website for heterosexual couples only. The case is presented as a Free Speech challenge to this Colorado law that prohibits discrimination in the commercial marketplace, including discrimination based on sexual orientation. And she had originally brought the case with other claims, but the Court only took it up on the Free Speech question.
Now, keep in mind that Ms. Smith never actually designed these wedding websites, and no one ever asked her to design such a website. Her lawsuit is what’s called a pre-enforcement action, so she just wants to be sure that if she were to offer this service and if someone came to ask for a same-sex wedding website, then she would be protected in saying no.
HOLLY: Yeah. That’s one of the most troublesome parts of this case is that we know it was unnecessary for the Court to take it, and it was manufactured to provide a greater exemption from nondiscrimination laws. It really reveals, I think, the ideological nature of the majority on the Court, at least on some issues.
And we know at BJC, given our work over past decades — and I would say, so do the advocates who’ve been working hard on LGBTQ issues — that there are hard cases, that there are some times that there are constitutional conflicts and implications to nondiscrimination laws that, you know, require very careful decisions to ensure that we can have both a marketplace without discrimination and Free Speech rights that protect us and all our different views, including religious views.
But this case was unnecessary and, in our view, not a good vehicle for deciding that matter and, instead, opened the Court up to make a broader decision than we think is warranted.
We reviewed the oral arguments for the case in episode 8, an episode that we called “Hypotheticals, reeducation, and a preemptive claim,” as we discussed the case and the Court’s very aggressive and interested oral arguments. We noted that if this conflict sounds familiar, it should, because it deals with the same Colorado statute that the Court had considered in the Masterpiece Cakeshop back in 2018.
In that case, BJC joined a brief, really explaining that you couldn’t have an exemption for Jack the cake maker to sell cakes to opposite sex couples but not same-sex couples without opening the door to all kinds of claims. An exception to nondiscrimination laws, based on the objection ‑‑ religious objection to same-sex marriage is not easily confined.
If you provide that kind of exception to a business, it’s very hard to say that there’s not likewise an exception to other nondiscrimination categories and other beliefs at odds with those protections. Anti-discrimination laws, like the one in Colorado, really protect not only against LGBTQ discrimination but also importantly, against race and religious discrimination and other kinds of discrimination that are really important to society and that the Court has acknowledged is a worthy object for the state.
As you noted, Amanda, this case goes up only on the issue of Free Speech, and when we think about a Free Speech claim, based on the kind of religious objection we have here, it might be limited to certain kinds of businesses that are more involved in speech than cake-baking, but at the same time, it’s troubling and can be more expansive because it’s not relying on religious claims, as we do in the Free Exercise arena, but it can be any kinds of opinions and speech.
And so it feels to me that in applying the Free Speech clause in this case, in this way, in this kind of dispute, the Court is almost encouraging businesses that have objections to whatever protected categories to frame their businesses as involved in some kind of expression or speech.
AMANDA: When you say that speech is going to be protected, then suddenly every claim is going to try to fall into this expansive idea of what is speech. And we’ll get, I think, more into the particulars in a moment.
You know, we noted at the outset how unusual a unanimous Court is on these issues, and here we do not have a unanimous Court. We have a 6-3 Court, and there is a wide gulf between the two opinions in this case, the majority opinion, of course, written by Justice Gorsuch, as you’ve explained, the dissenting opinion written by Justice Sotomayor.
We looked at it, and about a quarter of the majority opinion, six of the 26 pages, are directly addressing why Justice Gorsuch thinks the dissent is wrong. So I think it shows a really divided Court in this case.
HOLLY: A little defensive.
AMANDA: And some defensiveness, too. We do want to start actually with the dissent, because the dissent gives a history lesson on the development and use of public accommodation laws, and this is a case that has to do with a public accommodation law, although reading the majority opinion, you might not recognize that at first reading.
The history of public accommodation laws actually dates back to right after the Civil War and to the Civil Rights Act of 1875, and part of telling the history is telling when the Supreme Court was on the wrong side of history. And in that case, the Supreme Court found that Civil Rights Act of 1875 to be unconstitutional, and once those public accommodation statutes were repealed, the Southern states replaced them with Jim Crow laws. And it was from that period of Jim Crow then that the modern public accommodation laws had to be passed in order to protect against discrimination across a number of different protected categories.
HOLLY: So it’s not surprising that that history was not far from our minds and the minds of the justices as they addressed this claim, which is the first time we could have a constitutional exception to public accommodation laws.
AMANDA: In the case, the Court held, quote, “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees” ‑‑ end quote. And to me, Holly, that sounds like a hall-of-mirrors interpretation of what a public accommodation law case came up to the Court as.
HOLLY: So we should give some excerpts from the majority opinion. Justice Gorsuch opens with a statement, noting the importance of public accommodations laws. But then unfortunately he sort of twists things to no longer say that this public accommodation is about getting goods or services but about business owners and the impact on them.
He says, quote, “Like many states, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. 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.”
That was his statement right out of the box, and it’s that last statement that we’re like ‑‑ mmmmm ‑‑ it’s kind of hard to see here.
AMANDA: Yeah. I mean, it is the first paragraph of the opinion, and it sets the tone for the rest of the opinion. And what I got from reading Justice Gorsuch’s opinion here is that he really does not trust the state or its motives behind anti-discrimination law and public accommodations.
And we got a viewpoint of this, Holly, from the oral argument, where there was this really bizarre and ugly questioning from Justice Gorsuch when he was terming the anti-discrimination law in Colorado to be some kind of reeducation, like comparing it to Communist China.
AMANDA: And, you know, we noted actually in our review of the oral argument how well the government’s attorney did to kind of not get sidetracked by that perspective and return to the case at hand. Unfortunately, Justice Gorsuch was sidetracked by that interpretation of the law, and now we have a majority opinion that reflects his viewpoint.
I just want to give some examples of his hyperbolic language in the opinion itself. He says that the state is trying to coopt an individual’s voice for its own purposes, and he also says that if we don’t have a rule limiting it, like he does in this case, that an artist’s or a writer’s voice “could be conscripted to disseminate the government’s preferred messages.” So he really, I think, sees himself as saving American democracy from communism in this case, is what it sounds like.
HOLLY: Yeah. It was a very short appreciation for public accommodation laws before the tone switched and he started making those arguments, which just shows that he quickly decided to frame this very different from what we’ve seen in other public accommodation cases, particularly in states, and that is that they typically involve regulating conduct, the conduct of a business, not the speech of the business.
And this was really part of the extensive oral arguments: distinguishing between a business owner’s right to sell certain services — like wedding services or sell Christmas goods or whatever — the distinction between that freedom and the imposition by the state on saying that if you come into the public marketplace under our laws, you should offer those goods and services without regard to status under these protected categories. So he just quickly moves away from the intent and important role of public accommodations to be so concerned about what impact this might have on 303 Creative.
AMANDA: And in order to buttress his position, he takes some hypotheticals about artists and speech writers and others who he says would be required to speak what they do not believe on pain of penalty. You know, Holly, I don’t want to live in that society either, but those people are also not subject to the public accommodation laws. Speechwriters and artists and filmmakers and directors, they are not businesses open to the public, so it’s really confusing for him to use these hypotheticals here.
HOLLY: Well, and for months now, we’ve all heard about Lorie Smith and 303 Creative, so it is hard for anyone not to know what she thinks and what her speech is about marriages and what marriages are “false” and what her beliefs might be in creating websites.
So it hardly seems like an important Free Speech value to decide the case this way in order to protect her from having to say something, as he said, that the state wants her to say, as opposed to just acknowledging that the state wants businesses to make their goods and services available without regard to protected status.
AMANDA: And I think here part of Justice Gorsuch’s defensiveness towards the dissent is trying to make it seem like what he’s doing is not all that remarkable. Right? And so here he quotes Masterpiece actually, and he says, “States may protect gay persons, just as they can protect other classes of individuals in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.”
HOLLY: That is so funny, when I read that. Not ha-ha funny, but of course there are so many businesses and services that don’t implicate Free Speech. The problem is, now under this decision, how many businesses will be seen as implicating Free Speech? Because now he’s given this opportunity for exemptions to nondiscrimination laws that can do real harm to people. And there’s not a lot of guidance here.
AMANDA: There isn’t. And from the dissent’s perspective, they read the majority opinion to say that as long as the business is offering services that are, quote, “customized and expressive,” then the Free Speech clause of the First Amendment will shield those businesses from a generally applicable law that prohibits discrimination. And the dissent says that is wrong, profoundly wrong.
HOLLY: Well, that is wrong, and I think the state of Colorado in its statement after this decision made clear that they would continue to uphold their statute and make sure that this ruling did not extend beyond the kind of pure speech businesses that the Court held 303 Creative to be.
I think one way that I would sum up the problem with Gorsuch’s decision, it’s very similar to what he did in the Kennedy v. Bremerton case at the end of last term. He says that public accommodations are important and the state can pass such laws and they might ‑‑ you know, they might serve a legitimate purpose. But then he says, “At the same time, this Court has also recognized that no public accommodations” ‑‑ “no public accommodations law is immune from the demands of the Constitution. When a state public accommodations law and the Constitution collide, there can be no question which must prevail.”
Well, yes. The Constitution has to prevail over a statute. So we agree with that general idea. But the decision undercuts so much more than it needs. This was not a speechwriter case. This was not a songwriter case. This was a case that barely is seen as an expressive ‑‑ I mean, the parties stipulated it was pure speech, but as oral arguments showed us, it’s kind of a mixed bag of Ms. Smith’s speech and the speech of the wedding parties coming together to tell their story.
So I think the Court goes way beyond what is necessary to prove the point that we would concede, which is sometimes the Constitution may be implicated and override some public accommodation interests.
AMANDA: Yeah. And I think we really felt the lack of real facts in this case. I mean, you noted there, Holly, that the parties stipulated to facts. That’s when at the outset, they find out what they can agree on. And, I mean, not to Monday-morning-quarterback here, but maybe the state shouldn’t have agreed to so many of these facts, because now we can see, you know, how they bore out here in the opinion.
And, Holly, for time reasons today, we don’t really ‑‑ can’t really get into it, but there’s even more drama around this case, because there are now allegations that someone had come to ask for a website who claims now that he never did. So that’s a whole side issue that we just wanted to note but that doesn’t really impact how this case was decided.
But there were a lot of more narrow ways that the majority could have ruled in this case that wouldn’t have opened up such a potentially wide exception to nondiscrimination laws, and the dissent points them out here. They say that 303 Creative could, for example, only offer wedding websites with biblical quotations describing marriage as between one man and one woman.
HOLLY: That was my dream, is that the oral arguments would have convinced this ideological majority to say, You don’t have to do this; let’s find a more narrow way and avoid this big conflict by just saying that Ms. Smith can say what she says and offer what she offers without creating this exemption to nondiscrimination laws that’s going to be so problematic.
AMANDA: And I remember Justice Jackson really trying very hard in the argument to offer all different kinds of hypotheticals, both to show the extreme nature of what could be required but also to find ways in the middle. But, alas, those hypotheticals were not taken to heart in the majority opinion.
The dissent also says 303 could refuse to include the words “Love is love,” if it would not provide those words to any customer. And then they go on to say ‑‑ and this is a direct quote ‑‑ “To repeat (because it escapes the majority): The company can put whatever ‘harmful’ or ‘low-value’ speech it wants on its websites. It can ‘tell people what they do not want to hear.’ All the company may not do is offer wedding websites to the public yet refuse those same websites to gay and lesbian couples.”
HOLLY: Yeah. That reminded me the part of the oral argument that I think was, in our view, one of the more devastating points for Ms. Waggoner, who was representing 303 Creative, and that’s when she admitted that her client would not sell the exact same website to a gay couple as she had sold to a straight couple.
If, you know, a customer came and said, I love what you did; it’s beautiful; let’s just change the names; can we do this, even for a save-the-date kind of notice or something like that, which to me made very clear that, at least in the case of 303 Creative, it’s hard to say that this is about the business and the speech, but it seemed to be about the status of the customer.
AMANDA: And what we don’t have are any real limiting principles here, as far as limiting it to this particular LGBTQ class of discrimination.
HOLLY: That’s right. So we know that there’s been a lot of difficulty, some good faith and some bad faith, some, you know, really ‑‑ I don’t know ‑‑ all kinds of different discussions and trying to reconcile some people’s religious views about marriage and the proper demands of LGBTQ people to be treated with dignity in civil society. And we’ve seen a lot of that, and it’s important. And we will continue to work on reconciling it, so we can all live together.
But one reason that this has been so difficult is because it’s really difficult to find some kind of rule of law that allows special dispensation for those who are struggling with same-sex marriage religiously without opening the door to those who disagree with all kinds of views and interests that ‑‑ and people that need to be protected and have been protected under nondiscrimination laws.
AMANDA: Yeah. Justice Sotomayor spoke movingly and with great empathy for the LGBTQ community in her dissent. I mean, first she did a really full-throated and empathetic opinion for the LGBTQ community, and then she writes, “Although the consequences of today’s decision might be most pressing for the LGBT community, the decision’s logic cannot be limited to discrimination on the basis of sexual orientation or gender identity. The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because ‘Almighty God…did not intend for the races to mix.'” That’s from Loving v. Virginia, the case that ended laws prohibiting interracial marriage.
She says, “Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for ‘traditional’ families. And so on.”
And so this just points to the deeply regressive nature of this opinion and also the potentially far-reaching implications.
HOLLY: Justice Sotomayor’s dissent, joined by Justices Kagan and Jackson, was longer than the majority. It was powerful. It was sharp. It was clear, and it was concerning. It showed, as you noted, not only the importance and hurtful nature of how she saw the Court’s decision but concern for the future.
And it reminded me, Amanda, of how we often talk about decisions when the Court moves away from important religious liberty protections that we’ve always fought for, that we’ve often noted that what is legal because the Court says so is not always right.
And I thought about that, as I know you did, when we read Justice Sotomayor’s statement in the opinion when she said, quote, “I fear that the symbolic damage of the Court’s opinion is done, but that doesn’t mean that we are powerless in the face of the decision. The meaning of our Constitution is found not in any law volume but in the spirit of the people who live under it. Every business owner in America has a choice whether to live out the values of the Constitution. Make no mistake: Invidious discrimination is not one of them.”
And then she cited earlier precedent saying, “‘Discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.'”
AMANDA: And there she’s citing the case Korematsu v. United States, which is one of the most shameful precedents from this country’s history where the Court held that Japanese internment camps were constitutional and which, of course, was later overturned and invalidated.
And so when we see that case invoked in a decision, one, we understand how strongly the dissent feels about the majority’s opinion and how wrong it is, but also, I think, a signal to the future, to say that this case does not always need to stand, and it is up to the people to say, We, the people, are the Constitution. We have a decision to make about free life and democracy.
And so, on this very dark day, you know, with this decision and the possible implications for the future, I think there is hope here that she’s giving us for all people to live into the spirit of the Constitution.
HOLLY: Well, as the two sides of the Court, the majority and the dissent, had such sharp and differing views that they really laid out the differences and how to see this case legally, I do really appreciate that call for citizen action, citizen good constitutional behavior.
And I would say, Amanda, you know, that we’re going to continue to call for civil engagement, religious understanding, ways that we can come together in civil society as citizens, as customers in a marketplace, and treat each other very fairly, without regard to religious differences, and without exacerbating those differences and inviting people to treat each other differently based on their status.
Segment 3: Saying farewell to season four (starting at 38:55)
AMANDA: Well, Holly, we are about to wrap up today’s show. This is our last episode of season four, and we want to take a little extra time today to thank everyone who makes this podcast series possible.
HOLLY: Yes. We’re the ones that get to have these conversations, but many people on BJC’s staff help us prepare for the podcast. First and foremost, this podcast would not exist if it were not for the creativity and attention to detail and editing of our producer, Cherilyn Crowe Guy.
She’s in here with us each week, showing us time cues, writing down notes when we laugh at ourselves, helping us get back on track as we trip over a phrase. And then she takes our conversation and turns it into just the right digestible segments for our listeners.
AMANDA: She also creates the show notes we post online. Cherilyn has been recognized for her work on the podcast with awards from the Religion Communicators Council for the past two years. Congratulations, Cherilyn, and thank you for leading us on this project.
HOLLY: We also thank BJC’s Jennifer Hawks and Jaziah Masters who provide immeasurable research help for these episodes. Their expertise, insight, and attention to detail help us stay organized and provide the right amount of information each week, both in our conversation and in the show notes. Jennifer particularly did a lot of additional legal research, too, on cases and bills that we talked about this season.
AMANDA: And thank you to our communications director Guthrie Graves-Fitzsimmons for his work on Respecting Religion. Before he joined our team at BJC last year, he was a Respecting Religion listener. Guthrie helped us launch this season with new promotional materials, an op-ed in USA Today, our first ever paid advertising campaign that may have brought you to our podcast, and with new ideas and energy on the direction our episodes can take.
HOLLY: I want to thank Guthrie and Jennifer as well for their assistance in editing the podcast each week with fact-checking and suggestions on the narrative flow. We’re grateful for their ears on these discussions, to make sure we didn’t leave anything important out.
AMANDA: We also want to note that we now post transcripts of each episode, and we want to thank our transcriber, Anita Tyler, for writing down our words each week, turning these off-the-cuff conversations into complete sentences for publication. Her background transcribing courtroom conversations proved especially beneficial when we use legal terms in the middle of our discussions.
HOLLY: And Karlee Marshall and Georgia McKee in Communications have also helped post video clips, audio clips, and graphics online, promoting this program. This season marks a first for us: Some of our video clips were posted on the TikTok account for the Christians Against Christian Nationalism campaign. Thanks to that team for helping us expand our reach.
AMANDA: And finally, thank you to our BJC interns for their assistance, who helped set up and break down a podcast recording studio each week.
HOLLY: Season four ran the course of three different semesters, so thank you to the BJC interns Elizabeth Tadlock, Harrison Dickerson, Molly Racsko, Taylor Everitt, Lindsey Gradowski, and Devin Withrow. We appreciate your help.
AMANDA: And I want to thank you, Holly, for your dedicated and detailed work each week on these programs, from outlining the conversations to transferring your legal expertise into something that is accessible for everyone. This show would not be possible without you, and I’ve really enjoyed spending this time with you each week. These conversations give me hope, and I am grateful to be in this work with you.
HOLLY: Same to you, Amanda. You and I spend a lot of time on these topics in our work at BJC, and that includes finding ways to bring listeners into our work. Thank you for your partnership in making sure this podcast happens.
I also want to thank our listeners. This podcast exists for you, and we’ve had more people than ever join us for these discussions this season.
AMANDA: At one point this season, we ranked as high as number 32 on the chart for all podcasts that discuss politics, and we’ve demolished our previous record for downloads in a season. Thank you for coming to the table with us each week and walking through Supreme Court cases, federal regulations, troubling bills, and congressional testimony, just to name a few topics this season. Our top episode this season was episode 22, when I talked about attending the ReAwaken America Tour.
HOLLY: That episode does stand out as one of the best in this our longest season yet. We’ve released 26 episodes since October, and we’ll be back for season five.
This brings us to the official close of this episode and this season of Respecting Religion. Thanks for joining us. For more details on what we discussed, check out our show notes.
AMANDA: If you enjoy the show, share Respecting Religion with others and tag us on social media. We’re on Twitter Instagram and YouTube @BJContheHill, and you can follow me on Twitter @AmandaTylerBJC. This summer is a great time to go back and catch up on episodes you missed, and then why not leave a five-star rating and quick review while you’re at it.
HOLLY: As always, you can email both of us by writing to [email protected]. We love hearing from you.
AMANDA: Thank you for supporting this program. You can visit our show notes for a link to donate to support this podcast, and for more episodes, you can see a full list of shows, including transcripts, by visiting RespectingReligion.org.
HOLLY: We encourage you to take a moment to find out more about BJC and how we’ve been working for faith freedom for all since 1936. Visit our website at BJConline.org for a look at what we do and some of our latest projects.
AMANDA: We hope you have a great summer, and join us in the fall for season five of Respecting Religion.