For ten years the American Civil Liberties Union, where I am a deputy legal director, has been documenting cases in which an institution or individual seeks to violate an antidiscrimination law because complying with the law conflicts with their religious beliefs. As of November, our monthly compilation of such cases exceeded twenty pages; a decade ago, it was around seven. Just last week, in an echo of Masterpiece Cakeshop v. Colorado, the Supreme Court heard arguments in 303 Creative LLC v. Elenis, which concerns a Colorado business whose Christian owner seeks the right to refuse to produce wedding websites for same-sex couples.
The increasing bid to discriminate in the name of religion takes a range of forms. Employers argue that they have a right to refuse to hire people who are transgender. Teachers, professors, and health care providers assert a right to misgender students or patients. Retail stores maintain that they must be allowed to deny service to same-sex couples seeking items for their weddings or wedding receptions. Religiously affiliated schools argue for a right to fire staff if they become pregnant while unmarried or if they marry someone of the same sex. Employers seek to disregard laws that require employee insurance plans to cover gender-affirming care, contraception, abortion, and medication to prevent the transmission of HIV. Anti-abortion health care entities contest requirements that they must tell patients about their treatment options and provide referrals. Perhaps most audacious, institutions argue for a right to government contracts and dollars even as they insist on discriminating against same-sex couples or Catholic and Jewish families.
Claims of this kind are not new, of course: in the past they were advanced to resist antidiscrimination laws designed to protect Black people and women. But those claims were ultimately roundly rejected by courts and legislatures alike. Today similar claims—often described as posing interesting and difficult contests of rights—are being indulged and risk being normalized throughout law and society. In arguments before the Court last week, 303 Creative cast itself as the victim, and antidiscrimination laws were painted as cruel, authoritarian mandates of “orthodoxy.” The justices spun out hypotheticals of Black Santas wanting to turn away children dressed in Klan outfits and photographers refusing to shoot portraits for use on Ashley Madison—as if it is appropriate to analogize LGBTQ people to racists or adulterers.
Indeed, in every Supreme Court case in the last decade involving religious resistance to an equality norm, equality has lost. The implications, for our civil rights laws and those they aim to protect, are grave. These cases are about nothing less than whether the Constitution protects the right to discriminate—the right of a business to post a sign in the window that reads, “Wedding cakes for heterosexuals only,” or “Help wanted. Transgender people need not apply.”
The recent challenge to antidiscrimination laws is not without precedent. As I have documented before, in the nineteenth century and even well into the twentieth, courts explicitly and repeatedly invoked religion in upholding racial segregation. In 1867, addressing segregation in trains, the Pennsylvania Supreme Court emphasized that “the order of Divine Providence” dictates that the races should not mix. In 1877 the Alabama Supreme Court, upholding a conviction for interracial marriage, reasoned that God “has made the two races distinct”—a sentiment echoed in 1955 when members of the Florida Supreme Court invoked religion to justify resistance to integration in schools, noting that “when God created man, he allotted each race to his own continent according to color, Europe to the white man, Asia to the yellow man, Africa to the black man, and America to the red man,” and again in 1959 when a trial judge sentenced Mildred Jeter and Richard Loving for violating Virginia’s ban on interracial marriage. As to gender, the Supreme Court held in 1872 that the state of Illinois could prohibit women from practicing law, with the concurring justice noting, “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”
Faith-based defenses of segregation and patriarchal gender roles endured even after passage of civil rights laws in the 1960s, but in these contexts, courts held steadfast to the nation’s commitment to equality. In Newman v. Piggie Park Enterprises (1968), for example, a barbecue franchise argued that requiring it to comply with the Civil Rights Act of 1964 would violate its religious rights, as the owner believed that integration “contravene[d] the will of God.” The court rejected the argument; in no uncertain terms, it emphasized that, while Piggie Park’s owner “has a constitutional right to espouse the religious beliefs of his own choosing . . . he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens.”
Similarly, in the 1970s, Bob Jones University and Goldsboro Christian Schools challenged their loss of tax-exempt status following a determination by the Internal Revenue Service (IRS) that educational institutions that “practice[d] racial discrimination” were not charitable. The schools argued that the IRS action violated their free exercise rights under the First Amendment, as they were following God’s command. In 1983 the Supreme Court rejected their claim, concluding that “the interests asserted by petitioners cannot be accommodated with [the] compelling state interest” in “eradicating racial discrimination in education—discrimination that prevailed, with official approval, for the first 165 years of this Nation’s history.” And in 1986 and 1990, two federal appeals courts rejected religious schools’ arguments that it would violate their religious rights to require them to pay men and women equally, since the “Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family.” In its opinion, one of the courts emphasized a state interest of the “highest order” in remedying the outmoded belief that men should be paid more than women because of their role in society.
These outcomes are consistent with a longstanding legal principle that religious freedom does not confer the right to require others to “conform their conduct to his own religious necessities” or, as with some many other fundamental rights, to hurt others. The story is different today when it comes to reproductive rights and civil rights protections for LGBTQ people. Courts and public discourse alike are representing these battles as nuanced conflicts of legal entitlements, not as infringements of vital equality norms.
The question is, why are these contexts being treated differently? What’s not in doubt is that they are.
Today’s advocates of a religious right to refuse to comply with civil rights protections haven’t yet secured the big win they seek: a clear pronouncement that they have a constitutional right to discriminate any time they are motivated by faith. But they have scored, and the strong conservative majority on the current Court is poised to continue delivering them victories.
In 2014 the Supreme Court ruled for Hobby Lobby, the for-profit chain of arts and crafts supply stores, when it argued that requiring it to provide insurance coverage for contraception violated its rights under 1993’s Religious Freedom Restoration Act. In Masterpiece Cakeshop (2018), the Court ruled in favor of the bakery that refused service to a same-sex couple who asked about a cake for their wedding reception, even though Colorado law bars discrimination based on sexual orientation in places of public accommodation. In Our Lady of Guadalupe School v. Morrissey-Berru (2020), the Court held that the ministerial exception—a doctrine grounded in the First Amendment that precludes application of antidiscrimination laws to “claims concerning the employment relationship between a religious institution and its ministers”—barred teachers at religiously affiliated schools from making disability and age discrimination claims. And in Fulton v. City of Philadelphia (2021), the Court ruled that the free exercise rights of a foster care agency run by Catholic Social Services (CSS) were violated when the city refused to renew the agency’s contract on the basis of its refusal to screen or place children with same-sex couples.
In each of these cases, the Court’s decision rested on particular facts that might seem to limit the scope of the rulings. But along the way the Court laid the groundwork, as a matter of law and discourse, to erode our civil rights laws. Six key features of these cases threaten civil rights protections, often in ways that do not command widespread attention but are nonetheless ominous signals for what is to come.
First, and perhaps most significant, is the basis on which the Court has concluded that the government’s interest in enforcing antidiscrimination laws is not sufficiently compelling to outweigh any burden on free exercise. In Fulton, for example, the Court held that Philadelphia’s interest in equal treatment of prospective foster parents and foster children could not justify denying CSS “an exception for its religious exercise.” The Court reasoned that the existence of a provision in the contract that allowed the city to exempt a contractor from the contract requirements created a system of “entirely discretionary exceptions” that “undermines the City’s contention that its nondiscrimination policies can brook no departures. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.” The Court did not care that no such exemption had ever in fact been granted.
The decision raises the specter that any existing statutory exception to an antidiscrimination law—including all those adopted as an essential compromise to secure passage of the law—jeopardizes that law’s enforcement against an institution that objects on religious grounds. At least two district courts have already embraced this logic. Looking to Fulton, one court has ruled that, under the Religious Freedom Restoration Act, businesses whose owners wish to operate “in accordance with their sincerely held religious belief that homosexual behavior is immoral” cannot be required to comply with the federal law barring discrimination against LGBTQ people in employment. In the second case, a court held that a business must be exempted from the federal requirement that employer insurance plans cover PrEP—prophylactic drugs used to prevent the transmission of HIV—siding with the business’s objection that complying with the law required it to facilitate and encourage “homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.”
In both cases, the courts’ reasoning in ruling in favor of a religious exception turned on the fact that the laws had existing exceptions. In reality, those “exceptions” were simply statutory definitions indicating that the laws applied to businesses with a certain number of employees. If smaller businesses are permitted to discriminate, the courts asked, how can the government say its interest in requiring larger businesses that object on religious grounds is sufficiently compelling?
In other words, if an antidiscrimination law has any limits on its reach—because it applies only to employers or landlords of a certain size, or exempts houses of worship and private clubs, or makes whatever compromise was required to secure passage of the law—how can we limit any discrimination? It is a curious standard. In Piggie Park, the courts didn’t say the barbecue franchise could discriminate because the statute at issue covers restaurants but not retail bakeries. The courts in the pay equity cases didn’t say that because smaller employers weren’t covered by Title VII, the schools could discriminate. They implicitly rejected the idea that if the law can’t fix everything, it can’t fix anything.
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Second, the Court has deployed the principle of narrow tailoring so as to diminish and deprioritize the antidiscrimination interest itself. In Hobby Lobby the Court said that, even assuming the contraceptive coverage mandate serves an interest in women’s equality, “the most straightforward way” to serve the interest would be for the government itself to pay for the contraceptives women couldn’t obtain. The Court seemed not to care if this was in fact possible or what practical effect this arrangement would have on those seeking contraception. And in October, a California court ruled that a narrower way to advance the government’s interest in antidiscrimination in places of public accommodation is to allow a business to refer people elsewhere in lieu of requiring it to provide the service on equal terms itself. This approach ignores the dignitary harm that results from discriminatory treatment. It also ignores the fact that court dockets are littered with cases in which health care businesses refuse to make referrals, on the ground that the business would be complicit in sin.
Third, in several recent cases, the Court has upended longstanding doctrines relating to state funding. Government funds have long been used as a carrot to demand nondiscrimination, driving integration in hospitals through Medicare and in education through Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and through the Rehabilitation Act, for example. Government subsidy of discrimination has also long been seen as a quintessential wrong: a sign the state implicitly approves and indeed supports the discrimination. But in Fulton, the Court failed to note that it is precisely a government contract to perform a government function—in other words, government-supported discrimination—that was at stake. And in Carson v. Makin (2022), the recent case involving Maine’s program of tuition assistance to private schools, the majority held that denying government funding to religiously affiliated schools is “discrimination against religion.” The question remains whether the courts will see it as anti-religious discrimination if a state requires nondiscrimination as a condition of funding and then denies funding to a religiously affiliated school that discriminates because of its faith beliefs.
Fourth, Our Lady of Guadeloupe School casts doubt on what protections remain for employees of religiously affiliated schools. Bryce Covert has noted how courts are denying employees at these institutions all manner of protections by characterizing them as ministers. In fact, Our Lady goes so far as to rule that a teacher was a minister—and thus her claims of discrimination could not be considered—even though being of the faith was not a requirement for the job. As Justice Sotomayor noted, “Pause, for a moment, on the Court’s conclusion: Even if the teachers were not Catholic, and even if they were forbidden to participate in the church’s sacramental worship, they would nonetheless be ‘ministers’ of the Catholic faith simply because of their supervisory role over students in a religious school.” Whether this doctrine will be applied beyond the school context remains to be seen, but at least one case has already been filed to test this boundary.
Fifth, in 303 Creative, the Court seems poised to grant religious objectors another win, this time in the name of speech. Like Masterpiece Cakeshop, 303 Creative raised claims under both the free exercise and speech clauses of the First Amendment. This time the Court agreed to hear only the speech claim, perhaps thinking that the claim and the context—sale of a custom product that uses words—gives it an opportunity to grant the business a doctrinal win that looks narrow. Come June, it may be that businesses will have a constitutional right to violate civil rights laws if the product they are selling is expressive.
Sixth, the Court’s sympathies currently run more to parties who discriminate than to those who are subject to discrimination. In Masterpiece, the Court let the bakery off the hook because it concluded that Colorado Civil Rights Commission members exhibited hostility to the bakery’s religious claims during a hearing. David Mullins and Charlie Craig, the couple denied service in violation of the law, got nothing, not even a second hearing In Fulton, the Court stated that the Catholic foster agency only “seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs.” The couples turned away because they are gay, and the harms they suffer, are invisible. Those seeking to use religion as a shield for discrimination recognize this and have been emboldened.
In every respect, these recent cases deviate from the approach in Piggie Park and the pay equity cases. The courts did not say restaurants could just refer Black customers to other establishments that complied with civil rights laws. The courts did not say the schools could pay women less because small employers are not covered by Title VII of the Civil Rights Act—the same statute at issue when employers now object to hiring people who are transgender. And the courts certainly did not say it would be discriminatory to enforce antidiscrimination law. As Justice Sotomayor emphasized last week in 303 Creative arguments, should the Court rule for the business it “would be the first time in the Court’s history . . . that it would say that a commercial business open to the public . . . could refuse to serve a customer based on race, sex, religion, or sexual orientation.”
These developments are far from idle disputes over legal doctrine: they have dire implications for people long denied equal participation in what the Court once referred to as the “almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.” The call for religious exemptions is a challenge to the integrity and existence of civil rights protections for LGBTQ people and reproductive rights as they further sex equality.
The goal of the most prominent anti-equality groups such as the Alliance Defending Freedom and the U.S. Conference of Catholic Bishops is not to win modest exceptions for pockets of society to live according to ways of old, as the Court said when exempting the Amish—whom it portrayed as living “apart from the world and worldly influence,” in ways that “interfere[] with no rights or interests of others”—from compulsory education beyond eighth grade. The exceptions sought today undeniably interfere with the rights and interests of others, and the goal of these advocates is to embed their religious beliefs in law and society and roll back decades of progress in extending civil rights to all.
The current push for exemptions advances that goal in several ways. For one thing, as Douglas NeJaime and Reva Siegel emphasize, it fuels never-ending debate over the underlying rights, portraying them as illegitimate or immoral and keeping them from being settled. In oral argument before the Court last week, for example, advocates for 303 Creative called marriages for same-sex couples “false.” Exemptions also weaken the antidiscrimination laws by creating a patchwork of enforcement and a climate of uncertainty. Every win for religious refusal, however narrow it seems, chips away at the basis of equality and equal treatment.
The consequences are serious and sometimes life-threatening. Aimee Stephens, fired by the funeral home where she had worked for years because of its religious objection to her living openly as a woman, suffered financially and had no insurance when her kidneys failed. Tamesha Means, denied care and information when miscarrying, developed an infection that could have become life-threatening. When a funeral home refused to take the body of Jack Zawadski’s husband after his death, Jack had to travel ninety miles for a home willing to cremate the body and to grieve the dishonor as well as the death. Andrea Anderson traveled more than a hundred miles to fill a prescription for emergency contraception after being denied by a pharmacist because of his religious beliefs.
In every case, the person denied the protections of antidiscrimination law is sent the message: we object to your kind. As the Senate Commerce Committee stated in 1964 regarding the Civil Rights Act,
The primary purpose of . . . [the law] . . . is to solve this problem, the deprivation of personal dignity that surely accompanies denials of equal access to public establishments. Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public.
Like Mullins and Craig when shown the door at Masterpiece Cakeshop, the promise of equality is shattered. They face the “stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” And the rejection is all the worse when it comes with the approval of the courts and after passage of a law promising an end to a second-class status.
Our rights aren’t settled. Our nation’s antidiscrimination statutes are under assault. They are not tools of authoritarianism; they are tools of liberation. We must demand that they not be eroded and that all the people those laws protect enjoy the rights and promise of those laws. Religious liberty is not a license to discriminate.
