“303 Creative v. Elenis, Groff v. DeJoy and the Difference a Sentence Can Make” by Mark Satta

Picture by Todd van Hoosear (CC BY-SA 2.0 DEED).

In June 2023, the Supreme Court announced two significant First Amendment decisions: 303 Creative LLC v. Elenis and Groff v. DeJoy. In 303 Creative, both the majority and the dissent commented on what a difference time can make. But in both 303 Creative and Groff, I was struck by the difference a single sentence can make. This is because in each case, the decision relied heavily on a single sentence from a previous ruling. But the Court treated these sentences in very different ways in the two cases.

The key question in Groff concerned the proper interpretation of a single sentence from a previous Supreme Court ruling, TWA v. Hardison. In Hardison, the Court stated that requiring Trans World Airlines (TWA) “to bear more than a de minimis cost in order to give” an employee Saturdays off for religious reasons was “an undue hardship” for purposes of interpreting Title VII of the Civil Rights Act of 1964. In Groff, the Court held that this sentence from Hardison shouldn’t be interpreted literally but rather must be interpreted in the larger context of the Hardison decision and in the “overall context of an employer’s business.”

In contrast, in 303 Creative, the Court took a single sentence from a Tenth Circuit decision out of context and used it to saddle the Tenth Circuit and the state of Colorado with a highly uncharitable interpretation of Colorado’s Anti-Discrimination Act (CADA). On this uncharitable reading, the “very purpose” of CADA was to eliminate dissenting ideas. Such a purpose would be constitutionally impermissible under the First Amendment. But when viewing that sentence in the larger context of the Tenth Circuit’s opinion and of Colorado’s own enforcement practices, it is implausible that this is CADA’s actual purpose. 

The differing treatment that these two sentences received in 303 Creative and Groff respectively, which were decided only one day apart from one another, is troubling. In Groff, the Court showed that it was willing and able to recognize that sometimes the best approach to interpreting a court’s overall decision is to reject the “literal” interpretation of a single sentence that is out of step with the rest of an opinion, or which is made implausible by other factors. Yet in 303 Creative, the Court relied on the literal interpretation of a single sentence that was out of step with the rest of an opinion, even though that interpretation was made implausible by other contextual factors. The Court then used this implausible interpretation to argue that Colorado had violated the Constitution through the means by which it sought to protect against sexual orientation discrimination in public accommodations. 

This is especially troubling because the disparate treatment of these sentences allowed the Court’s conservative supermajority to issue both decisions in a manner that aligned with their own cultural and religious preferences. For this reason, it’s worth examining in more detail how the Court reasoned in both Groff and 303 Creative, and to think through the larger significance of these decisions and their differing lines of reasoning.

Groff v. DeJoy

Gerald Groff is a Christian who believes that Sundays should be devoted to rest and worship. As such, he had a sincere religious objection to working shifts in his job as a postal worker for the United States Postal Service (USPS) on Sundays. When he began working for the postal service, he was not required to work on Sundays. But after USPS started making Amazon deliveries on Sundays, he and the other postal workers in his area were required to do some Sunday work, which Groff refused to do. He was disciplined for his refusal and eventually resigned in expectation of being terminated.

Groff sued under Title VII of the Civil Rights Act of 1964, which protects against employment discrimination based on religion, among other things. He argued that accommodating his Sunday sabbath did not create “undue hardship” for the USPS under Title VII. A federal district court and the U.S. Court of Appeals for the Third Circuit both sided with USPS against Groff. 

In doing so, the Third Circuit relied on an interpretation of the Supreme Court’s 1977 decision in TWA v. Hardison. In Hardison, the Court determined that requiring TWA to provide a sabbath day off for an employee, Larry Hardison, constituted an undue hardship on TWA such that TWA was not required to accommodate Hardison’s sabbath in scheduling him for shifts under Title VII. 

As part of its reasoning, the Court stated that “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” Based on this sentence, several lower courts — including the Third Circuit — later determined that anything constituting more than a de minimis cost to an employer was an undue hardship for purposes of Title VII.

The key issue in Groff was whether this was the correct interpretation of Hardison. The Court concluded that it was not. Writing for a unanimous Court, Justice Samuel Alito acknowledged that the sentence about de minimis costs “if taken literally, suggested that even a pittance might be too much for an employer to be forced to endure.” But Alito rejected the view that this sentence should be read literally for a variety of reasons. Those reasons included the ordinary meaning of “undue hardship” and the larger context of the opinion in Hardison. 

Importantly, the Court did not overrule Hardison. Rather, the Court rejected the view that Hardison’s holding included the proposition that requiring an employer to bear more than a de minimis cost constituted an undue hardship on that employer. As Alito put the matter, “Hardison cannot be reduced to that one phrase.” With that clarification made, the Court sent the case back to the lower courts for a context-specific application of Title VII.

303 Creative LLC v. Elenis

Lorie Smith is the sole owner and member of 303 Creative LLC, a web design business. Smith sought to expand her web design business to include the creation of wedding websites for male-female couples but not for same-sex couples. She also sought to post a statement on her business webpage announcing that she would selectively provide wedding website services only to male-female couples and not same-sex couples. 

Because these actions appeared to violate the Colorado Anti-Discrimination Act (CADA), which prohibits public accommodations from discriminating based on sexual orientation and from announcing that one will do so, Smith proactively sued the state of Colorado. In her pre-enforcement suit, she alleged that Colorado would violate her First Amendment free speech and free exercise rights if it were to use CADA to require her business to make wedding websites for same-sex couples. Colorado maintained that doing this would not violate the First Amendment.

A district court and the Tenth Circuit Court of Appeals sided with Colorado, concluding that enforcement of CADA against Smith would not violate her free speech or religious free exercise rights. The Supreme Court agreed to hear only the free speech issue on appeal. 

Under a plausible reading of the facts, the issue presented in 303 Creative constituted a genuine instance of conflicting rights. On the one hand was Smith’s right to free speech. On the other hand were Colorado’s right to prevent discrimination on the basis of sexual orientation and the right of LGBTQ people not to be discriminated against in public accommodations. 

Smith couched her free speech right primarily as an issue of compelled speech. The Supreme Court has long recognized that the freedom of speech includes a right not to be compelled to speak messages one doesn’t want to speak. Perhaps the most famous case here is West Virginia State Board of Education v. Barnette, in which the Court held that the First Amendment protected the right of school children to refuse to say the pledge of allegiance. 

Importantly, the Court has recognized limits to the compelled speech doctrine. A notable example is Rumsfeld v. FAIR , which concerned whether application of the Solomon Amendment violated the First Amendment free speech rights of universities. The Solomon Amendment made federal funding for universities contingent on universities giving the military the same access to students for recruitment purposes as that given to other potential employers. A group of law schools — all of which objected to the military’s “don’t ask, don’t tell” policy regarding gays in the military that was in place at the time — argued that the Solomon Amendment violated their First Amendment rights. 

These law schools appealed to the compelled speech doctrine, noting that giving recruitment access to the military would require the law schools to speak in ways they did not want to, such as by sending email announcements concerning the times and places that the military would be recruiting on campus. The Court unanimously held in FAIR that such burdens on the law schools’ speech were merely “incidental” to the Solomon Amendment’s permissible regulation of conduct and thus that the Solomon Amendment did not violate the First Amendment. 

The Court could have reasoned similarly in 303 Creative. This is the position that Colorado, the Biden Administration, and the three dissenting justices took. Such a position is reasonable, given that CADA clearly aims at suppressing conduct and arguably any burden on Smith’s speech would be merely incidental to CADA’s otherwise permissible regulation of conduct. 

But rather than taking this plausible position, the six justices in the majority held that CADA violated the First Amendment, in part, because Colorado sought to use CADA for the purpose of eliminating “dissenting ideas about marriage.” This position may initially seem highly perplexing. As Justice Sonia Sotomayor noted in dissent, courts standardly hold that public accommodation laws, like CADA, serve the constitutionally legitimate purposes of (1) ensuring “equal access to publicly available goods and services” and (2) ensuring “equal dignity in the common market” regardless of one’s personal characteristics like race, gender, religion, or sexual orientation.

How did the Court’s majority manage to conclude that CADA served the unconstitutional purpose of seeking to eliminate dissenting ideas about marriage rather than the normal constitutional purposes courts ordinarily recognize that public accommodation laws aim to fulfill? The answer is that in writing for the majority Justice Neil Gorsuch latched onto a single unwise sentence from the Tenth Circuit’s decision, in which the court made the surprising claim that “[e]liminating [certain] ideas is CADA’s very purpose.” 

Justice Gorsuch appealed to this outlier claim at four different points in his opinion, in order to craft a narrative that CADA was aimed at the suppression of certain views from public dialogue. That may be what a “literal” interpretation of that particular sentence from the Tenth Circuit opinion most naturally suggests, but it is an implausible interpretation of the Tenth Circuit’s more general line of reasoning and of Colorado’s own position on the purposes of CADA.

Right at the outset of its decision, the Tenth Circuit stated that “CADA restricts a public accommodation’s ability to refuse to provide services based on a customer’s identity.” This description is solely about regulation of conduct, not speech. Later, the Tenth Circuit clearly appealed to the traditional rationale for public accommodations laws in identifying the compelling interests that CADA served, writing that “Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.” These purposes of CADA were the Tenth Circuit’s focus throughout its strict scrutiny analysis. Thus, it is implausible to conclude that the Tenth Circuit did not recognize that protecting material access and equal dignity in the market for members of marginalized groups were the purposes CADA served.

The Tenth Circuit also recognized that Colorado understood this, writing that “[a]s Colorado makes clear, CADA is intended to remedy a long and invidious history of discrimination based on sexual orientation.” But at this juncture, the Tenth Circuit stumbled. From this premise, the Tenth Circuit concluded that there was a “substantial risk” that CADA might excise “certain ideas or viewpoints from the public dialogue.” But the Tenth Circuit was not phased by this prospect, stating that “[e]liminating such ideas is CADA’s very purpose.” As I have argued elsewhere, this reasoning is doubly mistaken. 

First, seeking to eliminate discrimination in public accommodations’ commercial transactions does not require excising or seeking to excise any views from public dialogue. One can retain prejudiced ideas about people while refraining from discriminating in the commercial marketplace. One can also retain a narrow conception of marriage while refraining from discriminating in the commercial marketplace. 

As the continued existence and frequent pronouncement of racist ideas and religious bigotry shows, banning discrimination in public accommodations does not excise discriminatory views from the public dialogue. Thus, the Tenth Circuit erred in concluding that regulating acts of discrimination in the commercial marketplace posed a substantial risk of excising certain views from public dialogue.

Second, even if — contrary to fact — CADA did pose a risk of excising certain views from public dialogue, this clearly was not CADA’s purpose. Its purpose was to provide equal access to and equal dignity in the commercial marketplace, regardless of protected characteristics like race, religion, and sexual orientation. If such ideas were eliminated by such an action (and clearly they have not been), that would have been a byproduct, not a purpose of CADA.

Conclusion

The Supreme Court was not bound by the Tenth Circuit’s mistaken reasoning. It could have easily corrected the error, just as it corrected Hardison’s error in Groff. Why did the Court correct one error while choosing to double down on another? The explanation that seems most likely is that it served the interests of the majority to correct the one error and not the other. By treating CADA as aimed at suppressing ideas, Gorsuch was able to keep focus on the compelled speech issue and to rationalize his conclusion that Lorie Smith was not seeking to engage in sexual orientation discrimination. 

But this rhetorical move came at the cost of facing the facts in the case. Gorsuch made a similar move last year when he skewed the facts to fit his preferred narrative when writing for the majority in the First Amendment case Kennedy v. Bremerton School District. Thus, the Court’s decisions in 303 Creative and Groff provide additional evidence of a troubling pattern of decision-making by the Court’s conservative majority in which the facts and law are gerrymandered to allow the Court to continue to favor rights for religious conservatives at the cost of the rights of others.♦

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Recommended Citation

Satta, Mark. “303 Creative v. Elenis, Groff v. Dejoy and the Difference a Sentence Can Make.” Canopy Forum, October 26, 2023. https://canopyforum.org/2023/10/26/303-creative-v-elenis-groff-v-dejoy-and-the-difference-a-sentence-can-make/.