Come, All Ye Faithful: Is the Supreme Court Playing Favorites?

Luis M. MeléndezWhere does religious freedom end and discrimination against marginalized groups begin? The Supreme Court is poised to examine the ever-changing line, and after the end of its most recent term, it appears that a win for advocates for an expanded view of religious freedom, at the expense of the LGBTQIA+ community, marginalized genders, religious minorities, and other disenfranchised groups, is on the horizon.

Earlier this year, the Supreme Court announced it will decide next Term whether to expand religious exemptions from civil rights laws. Specifically, in 303 Creative LLC v. Elenis, the Court will decide whether Lorie Smith, the owner of a Colorado-based graphic design firm, has the constitutional right to deny services to same-sex couples seeking graphic designers to create their wedding websites. In doing so, the court will determine whether the Colorado Anti-Discrimination Act, which prohibits businesses open to the public from discriminating against (or indicating their intent to discriminate against) LGBTQIA+ people violates the Free Speech Clause of the First Amendment by compelling an artist to speak or stay silent. This case will likely have significant consequences for employers, specifically businesses engaged in expressive conduct, and members of communities traditionally ostracized by religious groups.

In deciding 303 Creative, the Court will likely continue its trajectory of fortifying religious freedoms while softening other constitutional guarantees. In 2021, the Court in Fulton v. City of Philadelphia ruled in favor of a Catholic adoption agency that, on religious grounds, refused to work with same-sex couples pursuant to a contract with the City of Philadelphia. Further, in its most recent term, the Court issued opinions that continued to weaken the separation between church and state. For example, in Carson v. Makin, the Court found that a Maine tuition assistance program that covered public and private schools could not exclude religious schools, resulting in taxpayer funding of religious education. Further, in Shurtleff v. City of Boston, the Court ruled against the City of Boston for rejecting a Christian group’s application to raise what they described as the “Christian flag” outside City Hall. The Court found that the City’s rejection violated Free Speech.

Finally, Kennedy v. Bremerton School District presented a historic victory for advocates of an expanded view of religious freedom. In Kennedy, the Court found that a public high school football coach had a right to pray on the 50-yard line immediately after each game. The coach, Joseph Kennedy, argued that the school violated his First Amendment rights to free speech and the free exercise of religion when it placed him on paid administrative leave for conducting midfield prayers. The school argued that the prayers in the school stadium gave the appearance that the school was endorsing Kennedy’s religion, and it disciplined him when he refused an order to stop. The majority found that the school’s actions constituted an illegal hostility towards religion.

In reaching its decision, the Court gave substantial weight to the First Amendment’s Free Exercise Clause while stripping the Amendment’s Establishment Clause, which bars the government from “establishing” a religion or showing preference for one religion over another, of much of its weight, leaving questions as to how, and when, the Court will enforce it in future cases.

Significantly, the Court’s decision in Kennedy essentially overturned Lemon v. Kurtzman, a decision from the 1970s, which favored neutrality towards religion and provided a framework for determining whether a government’s action violated the Establishment Clause. The Court in Kennedy instead held that the Establishment Clause “must be interpreted by ‘reference to historical practices and understandings.’” That language is vague; what is clear, however, is the current Court’s favoring of Christianity as a protected faith. Compare, e.g., Dunn v. Ray (finding that an Alabama death row inmate did not have the right to have a Muslim imam present during his execution instead of the Christian chaplain provided for by the state’s execution protocol) with Gutierrez v. Saenz  (staying the execution of a Catholic Texas death-row inmate who requested a Christian chaplain to accompany him during his execution, calling the state’s ban on clergy from execution chambers as “governmental discrimination against religion” which violated the Constitution).

Kennedy forecasts future rulings on the issue of where religious liberties end, and discrimination begins. In his concurrent opinion, Justice Thomas emphasized that “the Court’s opinion does not resolve . . . whether or how public employees’ rights under the Free Exercise Clause may or may not be different from those enjoyed by the general public.” With this statement, Thomas casts uncertainty over the future of the Court’s treatment of whether public employees can deny providing services to others on religious grounds.

In its recent decisions, the Court has signaled it is prepared to give a heightened deference to religious liberties above other constitutional guarantees. The Court has made clear that when religious faith, especially that of Christians, conflicts with other constitutional rights, religion prevails. Taking these decisions and the ideological background of the Court into account, this deference is likely to continue.

For federal employees, this means that the wall of separation of church and state may be further weakened, possibly allowing more religious expression in the workplace than is currently permitted. For private employers, at a minimum those providing expressive services, discriminating against non-Christians could be deemed constitutionally protected activity.

Placing religious freedom over other rights can have serious consequences for non-Christians (including non-believers). For example, on July 14, 2022, a federal judge in Ohio ordered the Air Force to cease any efforts to fire employees who refused the COVID vaccine if they had applied for a religious exemption. In so doing, the judge ignored EEOC advice that the safety of the workforce could justify denying the exemption. However, how far the courts will limit the rights of non-Christians in the name of religious liberty remains to be seen. Do fundamentalist believers have the right – on religious grounds – not to work in the vicinity of members of the LGBTQIA+ community? Can others ask that their health insurance plans not cover abortion services? Without question, this shift in the Court poses a test for the First Amendment and our ability to function as a society.


Luis Miguel Meléndez is an associate attorney at KCNF. If you have any concerns or questions about employment discrimination protections or other employment law issues, you may contact us here.


This article also appeared in The Legal Intelligencer on July 11, 2022. An expanded version of this article appeared in the Washington Lawyer, November/December 2022 edition.