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Supreme Court Fortifies First Amendment, Religious Accommodation Protections

By Nicole Ezeh  |  July 18, 2023

In two cases from Colorado, the U.S. Supreme Court has ruled in favor of strengthening First Amendment protections in situations some might consider polarizing.

In Counterman v. Colorado, Billy Counterman was found guilty of stalking and sentenced to 54 months in prison after sending thousands of increasingly threatening social media messages to a musician. Counterman was convicted under a Colorado law that criminalizes repetitive communications with another person in a manner that would cause a reasonable person to suffer emotional distress. The law did not require the perpetrator to have intent to cause, or reckless disregard for the possibility of causing, emotional distress.

Counterman appealed his case to the Supreme Court, alleging that the conviction was a violation of First Amendment rights and invoking the so-called true threats argument. True threats are statements that are objectively threatening and are unprotected speech. Counterman also argued the court should change the standard for First Amendment threat cases to require the statement to be subjectively intended as a threat by the speaker.

The court sided with Counterman but did not accept his argument to create a new subjective intent standard for First Amendment threat cases. The court recognized the chilling effect that a law with no subjective intent requirement can have on protected speech but balanced it with the concern that a subjective element will make prosecution of unprotected threatening speech more difficult. To square these interests, the court chose to use a recklessness mens rea, or state of mind, standard instead, likening threat cases to defamation cases, which require the speaker to have either actual knowledge of or reckless disregard for the substantial risk the statement will cause harm to another. In the opinion, the court said it sees “no reason to offer greater insulation to threats than to defamation.”

Though the court rejected Counterman’s subjective intent argument, the decision still vacated his conviction because Colorado prosecuted him in accordance with an objective standard and didn’t show whether Counterman had any awareness or reckless disregard that his statements were threatening. States with statutes criminalizing threatening language will have to examine whether the laws rely on a recklessness standard for conviction.

Anti-discrimination law violates free speech

The second case, 303 Creative LLC v. Elenis, centers on the Colorado Anti-Discrimination Act, or CADA, which prohibits all public accommodations, including private businesses that serve the public, from denying full and equal enjoyment of its goods or services based on race, disability, creed, sexual orientation or other protected classes. CADA also contains a clause prohibiting public accommodations from communicating that a potential customer’s patronage is unwelcome due to sexual orientation.

Lorie Smith, owner of 303 Creative LLC, intended to begin creating wedding websites but did not want to create websites celebrating same-sex marriages. Smith challenged CADA, claiming it violated her First Amendment right to free speech. She argued that the law would compel her to create wedding websites for gay couples, effectively forcing her to speak positively about same-sex marriage, which is against her religious beliefs.

The Supreme Court held that CADA did violate Smith’s First Amendment rights to free speech. Justice Neil Gorsuch, writing for the majority said that Colorado cannot “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” He explained that Smith was faced with an irreconcilable choice: to violate Colorado law and design websites only for heterosexual couples, or follow Colorado law and violate her deeply held religious beliefs. He further said that the decision in this case would provide protections to other business owners offering expressive speech-related services such as movie directors, artists and speechwriters.

Justice Sonia Sotomayor’s dissent called the decision “a sad day in the American constitutional law and in the lives of LGBTQ people.” She further stressed that the majority’s opinion in this case “declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class.”

The court’s ruling could now allow businesses to deny services to individuals based on a protective class if they can argue the service is expressive.

Religious protections for workers

The court ruled in favor of a Christian mail carrier who requested a religious accommodation to avoid work on Sundays.

Groff v. DeJoy relates to the U.S. Postal Service’s agreement with Amazon to deliver rural packages during peak season. Gerald Groff, who was exempted from Sunday work, was required to deliver mail on Sundays and received disciplinary notices when he failed to report to work. Due to the lack of accommodation, Groff resigned. (Check out our previous coverage of the case for more information.)

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion, which includes religious beliefs, unless the employer can show the accommodation would cause an undue hardship “on the conduct of the employer’s business.” In a 1977 case, Trans World Airlines v. Hardison, the undue hardship standard is met when the accommodation would require more than a negligible cost to the employer. Groff argued the employer should have to prove a significant difficulty or expense when denying a religious accommodation.

In a unanimous decision, the court agreed with Groff’s argument, overturning Hardison after 45 years. In its opinion, the court set a new standard, stating that employers who deny religious accommodation are required by Title VII to show that the burden of granting the accommodation would result in substantial increased costs of conducting business. Turning to the text of Title VII, the court noted the phrase “undue hardship” inherently means a burden that is much more than negligible. The Postal Service could have overcome the burden of accommodating Groff’s request without incurring significant costs, such as by returning to the voluntary shift swapping the agency allowed Groff to do before the contract.

The case is now remanded to the lower court, which will determine whether the Postal Service can prevail under the new standard. The new standard will make it more difficult for companies to win cases when denying religious accommodations, but accommodation requests can still be denied by an employer if the employer can show the accommodation would result in a substantial cost increase.

Nicole Ezeh is an associate legislative director in NCSL’s State-Federal Relations Division.

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