A Mild Corrective in a World Gone Mad
Groff v. DeJoy is a cause for celebration, but it is hardly an epochal victory for religious Americans.
The Supreme Court’s opinion in Groff v. DeJoy last week was one of several victories for religious liberty over the last two years. We should celebrate these Supreme Court victories, but we should do so aware of the modesty and the limitations of these wins.
Gerald Groff, a postman and an Evangelical Christian, was a sympathetic plaintiff with a simple request of his employer: allow an accommodation so this Christian man, who believes in the importance of the Commandment to “keep holy the sabbath,” does not have to work on Sundays. This set the stage for an important change in precedent.
Groff had worked as a mail delivery man with the U.S. Postal Service since 2012. At the time he was hired, there was no conflict for a Christian, as mail was not delivered on Sundays. As Amazon began Sunday delivery services (an evil that deserves its own essay), Groff moved to a rural station that did not make Sunday deliveries. As Amazon continued its march toward world domination, Groff was again forced to confront the Sunday deliveries, which he refused as a violation of his obligation to keep Sundays holy. He continued to be disciplined until he was forced to resign.
The legal heart of the matter is Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of religion. If an employee invokes Title VII and requests a religious accommodation for his beliefs, the employer must accommodate the employee unless it “demonstrates that [the employer] is unable to reasonably accommodate... an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business” (emphasis added).
The result in Groff was straightforward. In a case called Hardison, decided in 1977, the Supreme Court heard a similar but distinct religious accommodations case. The central holding of that case had to do with whether a 1972 amendment to Title VII violated the Establishment Clause. In issuing that decision, the Court made the now-infamous statement “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.”
This is the crux of the issue: Title VII itself states that a religious accommodation can be denied only if the employer can show it would create undue hardship, but since Hardison an “undue hardship” has been interpreted to mean “anything more than a de minimis cost.” In short, Hardison gave license for employers to deny religious accommodations for almost any reason, which led very easily to Gerald Groff being forced to work Sundays because it would be too much of a burden on the Postal Service to change his schedule.
The majority opinion in Groff explained that, while a reasonable reading of Hardison does not even lead to the legal requirement of this “anything more than a de minimis cost” standard, the decision has clearly been relied on in fact to institute this burdensome standard on religious exemptions. “Diverse religious groups tell the Court that the ‘de minimis’ standard has been used to deny even minor accommodations. The EEOC has also accepted Hardison as prescribing a ‘more than a de minimis cost’ test....” The Court in Groff corrects this error: to deny a religious accommodation, an employer must show “that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”
The Court clarifies that an undue hardship means a substantial burden on the cost of business, not any burden slightly inconvenient to the employer. This is a rather mild ruling by the Court—especially when one considers that the outcome does not actually protect Gerald Groff’s job but sends his case back to the lower court to be decided under the proper standard of what constitutes an undue burden.
The mild, moderate nature of this case ought to both showcase the outlandish and extreme reactions of the left to the current Supreme Court and serve to warn conservatives to remain realistic and vigilant.
Groff merely clarifies that religious accommodations under Title VII cannot be denied on a whim; none of the liberal justices even dissented, indicating that this was a particularly uncontroversial decision. But it is important to reflect here, not just on Groff, but on the many hot button cases that have been decided by the conservative-leaning Supreme Court in the last two years. How extreme were these conservative opinions, really? A couple examples will suffice.
Last year, the Supreme Court overturned Roe v. Wade with the Dobbs decision. Despite the ridiculous outbursts of the progressive media and even the Biden administration about this dangerous decision that erased 50 years of precedent and “undermined women’s autonomy, health, privacy, and safety,” Dobbs was a measured decision. Dobbs merely stated that Roe v. Wade was wrongly decided, that there is clearly no right to abortion found in the Constitution, and that abortion goes back to the legislatures to figure out how abortion policy should be crafted. While pro-life legal advocates argued that the Fourteenth Amendment should be read to protect the life of unborn persons and therefore make abortion unconstitutional, the Dobbs court took the moderate stance.
Last week, the Court also decided 303 Creative v. Elenis, giving a more decisive victory to a Christian business owner than poor Jack Phillips was able to get from the Supreme Court in Masterpiece Cakeshop. Again, a Christian party wins a newsworthy case, and the left goes wild. Justice Sotomayor inexplicably used her dissent in a free speech case about a website designer to remind us of the horrors of the Pulse nightclub shooting and the murder of Matthew Shepherd, hinting that allowing Christians the freedom to speak may take us back to “an environment in which LGBT people were unsafe.”
President Biden also weighed in, expressing his deep concern about the discrimination being unleashed by the 303 Creative decision. But what was decided? The holding was merely that, since creating a custom website is speech, it is protected by the First Amendment. That means a state nondiscrimination law cannot force someone in the business of speech to speak a certain message—in this case the celebration of a same-sex “wedding.”
The media has been pushing the narrative that the Court has been hijacked by conservatives and that the public is losing trust in its impartiality. While this is indeed the most conservative court the country has seen in decades, it is not producing extreme, activist legal rulings. Most of the Court’s supposedly controversial decisions over the past two years simply have not been extreme, activist, or overtly conservative. If anything, they have imposed mild restraints on liberal extremes. Roe v. Wade was a terrible, activist decision that needed to be corrected. Allowing coaches to pray after games, religious schools to participate in public tuition programs, and religious employees to be reasonably accommodated are not extreme.
These things are a part of our nation’s tradition, and they were not controversial just a few decades ago. As the nation’s laws, policies, and culture have sprinted to the left, the current Court has been well within the bounds of law, reason, and prudence in making the corrections it has. We need to take back the narrative and insist that the Court is not extremist, but is moderating extremism from the left.
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While we should celebrate these glimmers of sanity from the Court, we should remain cautious. Declan Leary summarized the proper demeanor we ought to have in this moment: “The breathing room afforded by the Court should not give Christians a false sense of security.” The attacks will not be settled by these new precedents. As the Court rules in favor of Christian individuals and businesses like Gerald Groff and 303 Creative, the fight will continue. Employers will continue to find ways to deny religious accommodations, even under the new standard. Non-discrimination laws will continue to try to squeeze people of faith out of the public square. The left will continue to cry that the Supreme Court has lost its impartiality and therefore its legitimacy.
As the 2024 presidential race heats up and the meltdowns over another conservative Supreme Court term continue, expect radical calls to ignore Supreme Court decisions. Expect continued persecutions of conservative justices. And expect the resumption of chatter about the legitimacy of the Court and the need to pack it with additional justices to somehow balance things out, as if it is “balanced” for the Supreme Court to be forcibly moved to the left when it seems every other institution is already quite slanted in that direction.
We should celebrate conservative victories, but we should do so knowing that the left will quickly find its next angle and attempt to subvert each victory. This is not cause for despair, but a reminder that these are not decisive victories. Each policy win, each corrective Supreme Court decision, is part of an extended (possibly lifelong) battle for the very soul of the nation and of the West.