Jeffrey Portnoy, a partner with Cades Schutte joins producer/host Coralie Chun Matayoshi to discuss the evolution of U.S. Supreme Court cases on affirmative action leading up to the recent decision that bans race-based affirmative action in higher education admissions, other factors that can be considered to increase diversity, and the possible effect of the decision on other educational institutions and areas like employment.

There is no doubt that the present makeup of the U.S. Supreme Court is changing precedent in visceral areas like abortion, free speech and religion. 

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The Constitution states that all men are created equal and endowed with certain unalienable rights among them life, liberty, and the pursuit of happiness. The federal Civil Rights Act clarified that “all men” means everyone, not just men, and guarantees the right of all persons to full and equal enjoyment of goods, services, facilities in public accommodations without discrimination based on race, religion or national origin.

Q.  What are public accommodations?

Public accommodations are facilities that are used by the public, whether publicly or privately owned, including stores, restaurants, hotels, stadiums, movie theaters, buses, and private schools.  However, it does not apply to religious organizations or private clubs.  Most states also have laws against discrimination in public accommodations, and some may be broader than federal law.

Q.  Colorado has such a public accommodations law that does not allow businesses to discriminate or announce their intention to discriminate like those signs they used to put up in the South aimed at Black people or in California during the Japanese internment.  In a case recently decided by the Supreme Court, a Colorado web designer Lorie Smith wanted to provide custom wedding design services only for heterosexual couples because it was against her Christian faith to service same sex couples.  She argued that the law violated her rights to free speech and exercise of religion.  How did the Supreme Court rule in this case?

In a 6-3 decision, the court held that the Colorado website designer could not be forced by the state of Colorado’s public accommodations law to design a website supporting a same-sex marriage that she opposed for religious reasons.  Owners of businesses challenging accommodation laws argue that the government should not force them to choose between their religion tenets and their livelihoods. Justice Neil M. Gorsuch, writing for the conservative majority, sided with Ms. Smith’s argument that Colorado’s public accommodations law was unconstitutional because it required her to create a message that she opposed.  Such an approach, Gorsuch said, could lead to bizarre results like a Muslim movie director being forced to “make a film with a Zionist message,” or an atheist being forced to accept a commission to create a mural “celebrating evangelical zeal.” Taken seriously, that principle would allow the government to force all manner of artists, speechwriters and others whose services involve speech to speak what they do not believe on pain of penalty.” “Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so.”  He added that states could not use public accommodation laws to deny speakers the right to choose the content of their messages. Otherwise, he wrote, “the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages. That would not respect the First Amendment; more nearly, it would spell its demise.”

Q.  What did the dissent have to say about this?

Justice Sonia Sotomayor described public accommodation laws as designed to ensure “equal dignity in the common market” citing a landmark U.S. Supreme Court case, Heart of Atlanta Motel Inc. v. United States (1964) where the court held that hotels did not have the right to discriminate against Black guests.  Justice Sotomayor described Lorie Smith’s refusal to service same-sex couples discriminates against them because of who they are. “Time and again businesses and other commercial entities have claimed a constitutional right to discriminate and time and again this court has courageously stood up to those claims. Until today.”  “If you have ever taken advantage of a public business without being denied service because of who you are, then you have come to enjoy the dignity and freedom that this principle protects,” she wrote. “Lesbian, gay, bisexual, and transgender (L.G.B.T.) people, no less than anyone else, deserve that dignity and freedom.”

Q.  This decision to allow the web designer to discriminate against the same-sex couple hinged on freedom of expression – her artistry in creating websites for couples getting married.  How might this be applied to other goods and services that involve some artistry, like a baker creating a wedding cake, and will these “artists” be able to discriminate against other protected classes like gender or religion?

Just 3 years ago, Justice Gorsuch wrote a majority opinion for the court holding that the Civil Rights Act of 1964 protects members of the LGBTQ+ community against discrimination in employment based on race, religion, national origin or sex.  Gorsuch emphasized that the decision was narrowly based on freedom of speech and not the sale of ordinary goods and services that are required to be available equally under public accommodation laws.

Q.  Last year we talked about religious exemptions for Covid vaccinations and a high school football coach that was allowed to pray on the field after games. The U.S. Supreme Court just decided a case where a mail carrier who objected to working on Sundays for religious reasons.  What happened in that case?

In Groff v. Dejoy, Postmaster General (2023), the U.S. Supreme Court unanimously ruled in favor of an evangelical Christian postal worker who refused to work on Sundays for religious reasons arguing that the U.S. Postal Service discriminated against him and should accommodate his religious belief. The court greatly expanded how far employers must go to accommodate the religious views of their employees.

Excerpts from Supreme Court of the United States Syllabus:

Petitioner Gerald Groff is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest. In 2012, Groff took a mail delivery job with the United States Postal Service. Groff’s position generally did not involve Sunday work, but that changed after USPS agreed to begin facilitating Sunday deliveries for Amazon. To avoid the requirement to work Sundays on a rotating basis, Groff transferred to a rural USPS station that did not make Sunday deliveries. After Amazon deliveries began at that station as well, Groff remained unwilling to work Sundays, and USPS redistributed Groff’s Sunday deliveries to other USPS staff. Groff received “progressive discipline” for failing to work on Sundays, and he eventually resigned.

Groff sued under Title VII of the Civil Rights Act of 1964, asserting that USPS could have accommodated his Sunday Sabbath practice “without undue hardship on the conduct of [USPS’s] business.” 42 U. S. C. §2000e(j). The District Court granted summary judgment to USPS. The Third Circuit affirmed based on this Court’s decision in Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, which it construed to mean “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.” 35 F. 4th 162, 174, n. 18 (quoting 432 U. S., at 84). The Third Circuit found the de minimis cost standard met here, concluding that exempting Groff from Sunday work had “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.” 35 F. 4th, at 175.

While the U.S. Supreme Court had previously interpreted the statutory term “undue hardship” as saying that employers should not have to bear more than a “de minimis,” or trifling, cost, in this case, the Court held that the hardship had to be more than minimal. 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. Pp. 4–21.  What is most important is that “undue hardship” in Title VII means what it says, and courts should resolve whether a hardship would be substantial in the context of an employer’s business in the commonsense manner that it would use in applying any such test. Pp. 18–19.

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Disclaimer:  this material is intended for informational purposes only and does not constitute legal advice.  The law varies by jurisdiction and is constantly changing.  For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.