AU’s Top Ten of 2023: Supreme Court continues to weaponize religious freedom

Editor’s Note: For the next two weeks, “The Wall of Separation” blog will recount the top 10 church-state stories from 2023. Today we recap the year’s Supreme Court decisions that impacted religious freedom.

The U.S. Supreme Court may not have delivered the repeated devastating blows to church-state separation in the past year that the court’s ultra-conservative justices landed the previous term, but those justices still did damage to freedom and equality in 2023.

303 Creative ruling drags law & society backward

Among the court’s most harmful rulings this year was the 303 Creative v. Elenis decision. The 6-3 conservative majority ruled that a Colorado website design company was involved in “expressive” conduct and that requiring the business to serve those who didn’t live according to the owner’s religious tenets – namely, LGBTQ+ people – would amount to “compelled” speech.

Americans United denounced the opinion and warned that it would open the door to more discrimination. “Today, [the court] allows religiously motivated discrimination against our LGBTQ family and friends; tomorrow, the license to discriminate could extend to other vulnerable communities too.”

AU President and CEO Rachel Laser appeared on MSNBC’s “Deadline: White House with Nicolle Wallace” to explain the ruling’s magnitude. The decision “is dragging us backwards,” Laser warned. “A year ago when this court abolished the nationwide right to an abortion, we at Americans United said they’re coming for all other marginalized communities next, and that includes LGBTQ people. And here we are today, heartbreakingly on the last day of Pride, and the court, historically in a terrible way, has said for the first time ever, businesses that are open to the public have a constitutional right to discriminate, have a constitutional right to refuse to serve protected classes.”

Supreme Court cases with better outcomes

The rest of the Supreme Court’s actions involving church-state separation this year weren’t nearly as harmful as the 303 Creative decision.

• In Groff v. DeJoy, the court declined to give religious extremists the full win they were seeking and instead simply clarified the standard for granting religious accommodations in the workplace without overturning precedent. The court’s ‘clarified’ standard correctly allows employers to continue to consider the burdens an employee’s requested accommodation could impose on co-workers. “We’re facing an aggressive movement working to weaponize religious freedom, but religious freedom must never be a license to harm others, and that remains true in the workplace,” AU’s Laser said in a press statement about the June 29 decision.
• Earlier in June, AU celebrated when the court announced it would not hear Synod of Bishops v. Belya, an AU case that deals with employment discrimination by religious employers. “Religious freedom is not a license to harm others or prevent people from seeking justice in courts of law. This case is far from over, but Father Alexander Belya now has a chance to vindicate his rights,” AU Laser’s said. “AU believes religious freedom should be a shield, not a sword. Today, the Court let that principle stand.” The case continues to be litigated in the lower courts.
• In March, AU also celebrated the court’s refusal to hear City of Ocala, Florida v. Rojas, a case involving the city and its police department organizing and promoting a Christian prayer vigil in conjunction with a local church in 2014. However, in response to the court’s denial, Justices Neil Gorsuch and Clarence Thomas wrote worrisome statements that citizens should have no legal right to challenge violations like Ocala’s and that people who are offended by them should just look away. “Justices Gorsuch and Thomas’ statements suggest a willingness to silence voices who speak out against these clear constitutional violations – violations that trample the religious freedom of us all. We must not be silenced,” Laser said.

So far this term, church-state separation advocates are getting a small reprieve from the Supreme Court. But AU is prepared to respond when new cases that impact religious freedom inevitably land on the court’s docket.

“With no religion cases on the court’s docket so far for the upcoming term, we welcome a reprieve from these attacks,” Laser told UPI in October. “But we’re monitoring cases that could be granted in the future, including those that urge the court to weaponize religious freedom and further limit reproductive freedom, curtail LGBTQ+ rights and harm public health.”