Three cases to watch as the Supreme Court enters its final month of this term
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Three cases to watch as the Supreme Court enters its final month of this term
Best-known dispute involves website designer opposed to same-sex marriage
Three cases expected to be decided by the U.S. Supreme Court in the next few weeks could affect how religious conflicts play out in business or personal relationships.
One of the the most widely watched cases this court term is 303 Creative LLC v. Elenis, where a website designer seeks to reject customers wanting her to work on sites related to same-sex weddings. Like a 2018 decision where the court sided with a baker who refused to design a same-sex wedding cake, this one involves Colorado’s public-accommodations law.
Also getting plenty of attention is Groff v. DeJoy, which raises the issue of the extent to which employers must accommodate their workers’ religious needs.
The religious ramifications are less direct in Counterman v. Colorado, a case involving freedom of speech on social media.
All three cases are expected to be decided in June or early July. Traditionally, decisions on the most-watched cases are announced in the final day or two of the term, so don’t expect a ruling on 303 Creative LLC v. Elenis until near the end of the session.
Here’s a look at the three cases:
Counterman v. Colorado
Background: Billy Raymond Counterman was convicted in a Colorado court in 2017 under an anti-stalking law of sending repeated menacing social-media messages over a two-year period to singer-songerwriter Coles Whalen (identified as C.W. in court documents). The messages caused her mental distress and severely disrupted her career. Counterman was sentenced to more than four years in prison.
Counterman appealed on free-speech grounds and lost his case in a Colorado appellate court in 2021. The appeals court concluded that Counterman had made “true threats” that were not protected by the First Amendment. Counterman then appealed to the Supreme Court, arguing that his messages were protected by the First Amendment because there was no showing by the government that he had known or intended that his messages would be seen as threatening. The Colorado government successfully took the position that the fact a “reasonable person” would have seen Counterman’s message was threatening was sufficient.
How the case relates to religious issues: There are no religious issues directly raised by the case. However, several briefs filed with the court noted that in a polarized society, messages sent to or from adherents of minority religions might be seen as threatening when they weren’t intended that way.
Who’s taking sides: Groups known for advocacy of freedom of speech have sided with Counterman. In its amicus curiae brief that was joined by several free-speech organizations, the American Civil Liberties Union argued that if courts were not to require an intent by a defendant to make threats, the courts could find themselves in the position of punishing speech that is protected by the First Amendment. “[O]ne person’s opprobrium may be another’s threat,” the brief said.
Advocacy groups supporting crime victims and fighting violence against women have sided with Colorado prosecutors. “In this case, a requirement that a stalker must be proved to have a subjective intent to threaten before his repetitive, intrusive, and intimidating speech can be restrained would severely limit the ability of the States to protect their people from such behavior,” said the brief of the Criminal Justice Legal Foundation.
Prediction: One way the court could split the difference is that rather than requiring prosecutors to demonstrate threatening intent by the defendant, as Counterman is seeking, it might allow a conviction as long as the prosecution shows that the speech in question was reckless.
The court also might avoid applying the First Amendment to the case by determining that Counterman’s repeated actions, aside from the words he used, were sufficient to convict him.
Groff v. DeJoy
Background: Gerald E. Groff, an evangelical Protestant, sought an exemption from Sunday work as a rural carrier associate with the U.S. Postal Service. Groff had started employment when Sunday shifts weren’t an issue, and the postal service was able to accommodate Groff’s wishes when it first contracted with Amazon to deliver packages on Sundays. But as Amazon expanded Sunday deliveries, the postal service found it more difficult to allow the shift swaps that Groff had requested, and Groff eventually missed more than 20 shifts to which he was assigned. Facing discipline, Groff resigned and then sued, claiming that he was unlawfully discriminated against because of his religious beliefs.
The precise legal issue facing the court is how to interpret Title VII of the Civil Rights Act of 1964, which requires employers to “reasonably accommodate ... without undue hardship” workers who need accommodations for religious reasons. He is asking the court to reverse a 1977 ruling that sided with an employer that claimed it was reasonable in firing an employee who refused to work on Saturdays.
How the case relates to religious issues: The cases hinges on a narrow point of law. In the 1977 case, an unexplained comment in the 7-2 decision said that an employer is required to make only de minimis or trivial accommodations to satisfy Title VII. Groff’s attorneys argue that in writing the law, Congress intended that employers should be required to do more than the minimum possible. However, as a practical matter, courts already have been expecting employers to make more than trivial accommodations, the U.S. government attorney said during oral arguments.
Who’s taking sides: Numerous minority religious organizations along with groups advocating for stronger protections for religious freedom have filed briefs in support of Groff. Among them are the Council on American-Islamic Relations, the Alabama Center for Law and Liberty, the Sikh Coalition, Muslim Advocates, the American Hindu Coalition, Seventh-day Adventists, The Church of Jesus Christ of Latter-day Saints, the Jewish Coalition for Religious Liberty, and the Louis D. Brandeis Center for Human Rights. About a dozen Republican members of Congress also filed papers to support Groff.
Those siding with the Postal Service fall into two camps: groups advocating for stronger separation of church and state, and those who think employers should have the ability to consider the needs of workers adversely affected by a coworker’s accommodations. In the first group are the Freedom from Religion Foundation, Americans United for Separation of Church and State, the Lambda Legal Defense and Education Fund, and American Atheists. In the second group are the American Postal Workers Union, the National Association of Counties, the National League of Cities, the National Rural Letter Carriers Association, and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).
Prediction: The court will clarify that employers are required to do more than the minimum possible to accommodate worker’s religious needs. However, it is possible that the court also will find that the Postal Service had acted reasonably, meaning that Groff would win the legal arguments but lose on the facts of the case.
303 Creative LLC v. Elenis
Background: Lorie Smith owns a Colorado web design company that is seeking a legal ruling that would allow her to refuse her services to couples planning or celebrating same-sex weddings. Specifically, she is seeking to prevent the Colorado Civil Rights Commission from implementing the state’s public-accommodations law as it applies to her work.
How the case relates to religious issues: Although Smith has said that she opposes same-sex marriage for religious reasons, the Supreme Court has indicated it would decide the case not on the religious provisions of the First Amendment but on free-speech issues. Smith claims that being required to produce a website for subject material she doesn’t agree with would be an unconstitutional requirement for compelled speech.
Although the case wasn’t argued based on the Constitution’s religion clauses, the enforcement of public-accommodations laws is no stranger to disputes involving religious beliefs and practices.
Who’s taking sides: Dozens of religious organizations and groups that advocate for religious freedom have filed friend-of-the-court briefs supporting Smith. Among them are the Center for Constitutional Jurisprudence of the Claremont Institute, Tyndale House Publishers, the Christian Legal Society, Concerned Women for America, the National Association of Evangelicals, the Center for Religious Expression, The Church of Jesus Christ of Latter-day Saints, The Becket Fund for Religious Liberty, the Family Research Council, and the Association of Certified Biblical Counselors Inc.
A few groups known for backing free-speech causes without an emphasis on religion issues are also supporting Smith. Among them are the Cato Institute and Young America’s Foundation.
Not all religious groups agree with Smith. Among those siding with Colorado are the Western Jurisdiction of the United Methodist Church, the Rocky Mountain Conference of the United Church of Christ, the Unitarian Universalist Association, the Reconstructionist Rabbinical Association, Muslim Advocates, the Central Conference of American Rabbis, the Interfaith Alliance Foundation, the Union for Reform Judaism, The Sikh Coalition, the Adventist Forum, and New Ways Ministry.
Various civil-rights and good-government groups also support Colorado. Among them are the American Civil Liberties Union, the American Bar Association, the NAACP Legal Defense & Education Fund, the National League of Cities, and the American Psychological Association.
Prediction: The court will agree with Smith. The question is how narrow the ruling will be — whether it will apply primarily to those who use creativity in their work, or whether it will also apply more broadly to any business or entrepreneur that doesn’t want even a remote connection with causes it disagrees with.