Supreme Court 2023: Implications for Churches, Higher Ed

The United States Supreme Court ("Court") concluded its 2023 summer term with three significant cases:

  1. 303 Creative LLC v. Elenisi
  2. Groff v. Dejoyii
  3. Students for Fair Admissions, Inc. v. President and Fellows of Harvard Collegeiii

The Court’s rulings are poised to impact the operating environment for religious organizations on a wide range of issues, from sincerely held beliefs and workers' rights to affirmative action in higher education.

Case 1: 303 Creative v. Elenis

Christian Businessowner’s Religious Freedom of Expression Rights Upheld

Background: Lorie Smith, a Christian business owner and graphic designer, wanted to use her skills to develop websites for couples getting married. However, she was concerned that Colorado's Anti-Discrimination Act would compel her to create websites for marriages that didn’t align with her beliefs about marriage. 

Like the recent Masterpiece Cakeshop v. Colo. Civil Rights Comm'niv case, Lorie proactively challenged Colorado's law to protect her religious beliefs and artistic freedoms. The central issue presented to the Court was whether it is constitutional to compel an artist to convey a specific message or remain silent. 

Decision: In a 6-3 decision, the U.S. Supreme Court ruled that the First Amendment’s free speech clause protects the rights of a Colorado web designer with genuine concerns about potential legal consequences under the state’s anti-discrimination law. The decision recognizes the importance of safeguarding individuals’ freedom of expression and acknowledges that compelled speech can violate constitutionally protected liberties.

Implications: Most ministries want to avoid being considered a public accommodation. Public accommodations laws have long mandated equal access to goods and services regardless of protected attributes, even when providing such access might run contrary to the individual or organization’s sincerely held beliefs. 303 Creative asserts the importance of balancing these competing rights and interests. 

For those entities subject to public accommodation laws, the Court’s opinion underscores the significance of protecting individuals' freedom of expression, especially those providing creative or expressive services. The ruling clarifies that public accommodation laws, although based on compelling state interests, must not infringe upon the constitutional rights of business owners. The First Amendment prohibits creative individuals or expressive businesses from being compelled to create messages that contradict their personal beliefs. 

On the other hand, the Court’s opinion doesn’t provide a license for organizations to unlawfully discriminate against customers based on their protected status. The opinion is about protecting freedom of thought and speech. Employers must remain mindful of their obligations under relevant employment non-discrimination laws. 

Case 2: Groff v. Dejoy

Employee’s Right to Receive Reasonable Religious Accommodation is Recognized

Background: Gerald Groff, a postal carrier, faced the dilemma of resigning from his job due to his religious convictions. As a devout believer in the Sabbath, he sought a religious accommodation from the USPS to abstain from working on Sundays. Although his request was initially granted, the USPS later denied it. 

Groff claimed his employer violated Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees or job applicants based on race, color, religion, sex, or national origin. It also requires employers to provide reasonable accommodations for employees' religious practices and beliefs as long as these accommodations do not cause undue hardship to the employer. Groff's lawsuit alleged that his employer failed to adhere to these legal requirements.

Decision: In a unanimous decision, the Court ruled in favor of Groff. The Court's verdict emphasized that when an employer denies a religious accommodation, they must demonstrate that such accommodation's burden would significantly increase costs. This ruling overturned the "Hardison Standard," established in the 1977 Trans World Airlines, Inc. v. Hardisonv case; it had relieved employers from accommodating religious requests that involved more than a minimal expense.

In his opinion, Justice Alito stressed the importance of adhering to the actual text of Title VII of the Civil Rights Act. He concluded that "undue hardship" should be evaluated in a practical manner relevant to the employer's business context. The court clarified that the impact on co-workers would only be relevant if it significantly affected the organization's operations. 

Implications: Employers may consider proactively adopting a new approach to religious accommodation requests based on the Court’s new interpretation of the law instead of waiting for lower courts to establish the new standard. 
This proactive approach could involve:

  • Documenting religious accommodation requests

  • Assessing whether these requests result in “substantially increased costs” for the organization

  • Exploring alternative accommodations

  • If necessary, demonstrating that other options have been considered, even if the employee’s preferred accommodation meets the substantially increased costs standard

The Groff opinion underscores the importance for employers to diligently navigate religious accommodation requests and ensure compliance with the evolving legal framework, including accommodation laws specific to each state.

Case 3: Students for Fair Admissions (“SFFA”) v. Harvard

Race-based Admissions Programs in Higher Education are Declared to be Unconstitutional

Background: The SFFA, a non-profit organization, filed a lawsuit against Harvard and other universities in separate cases, alleging that the universities’ race-based admissions programs violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause. SFFA argued that Harvard College and other private institutions receiving federal financial assistance had been granted broad discretion to pursue diversity under the precedent set by Grutter v. Bollinger (2003)vi.

With Harvard and many other institutions of higher education considering race in conjunction with grades, recommendation letters, and extracurricular activities in their admissions process, the question before the Court was whether Harvard’s admissions systems complied with the Equal Protection Clause of the Fourteenth Amendment.

Decision: In a significant 6-3 ruling, the Supreme Court held that Harvard's race-based affirmative action admission policies were unconstitutional. The Court reaffirmed that race-conscious decisions made by government actors, including public universities or private universities subject to the same standards as qualifying federal contractors, must undergo strict scrutiny (the most rigorous examination in constitutional law). The Court found that Harvard’s race-conscious admissions policies violated strict scrutiny.

Implications: The Court's decision may require institutions of higher education to revise their admissions procedures to comply with the ruling. Institutions currently employing race as a factor in admissions should promptly review and adjust their processes to ensure adherence to the Court's decision – especially if they are receiving federal financial assistance. 

Moreover, these organizations should review their affirmative action plans for hiring and promotion to ensure alignment with the Court's ruling. This landmark decision will likely have far-reaching consequences on how such institutions approach admissions and diversity, affecting the practices and policies of religious organizations and other educational institutions nationwide.

Key Takeaways and Proactive Steps

Given the significance of these rulings, religious organizations need to understand the implications and adapt their policies and practices accordingly. This may entail a comprehensive re-evaluation of governing documents, procedures for accommodation requests, and hiring and admission practices. While religious organizations, like business owners, should be mindful of the constitutional protections granted to them, they must also ensure compliance with state and federal non-discrimination laws. 

As the legal landscape continues to evolve, it's vital for most religious organizations to re-evaluate the documents that contain their governing and operational guidelines and document their sincerely held religious beliefs. This written documentation can serve as a crucial layer of protection and simplify the task of aligning faith-based decisions with organizational beliefs when challenged. Also, religious educational institutions receiving federal financial assistance should review their admissions and hiring procedures to harmonize with the Court's decisions and remain compliant with legal requirements. 

We encourage ministries to utilize Brotherhood Mutual’s Religious Freedom Protection page and Working Together, an online employment guidebook for ministries. Each resource includes sample policy language, summaries of case law and state laws, as well as guidance for onboarding and offboarding employees. A local attorney can ensure that any document or policy you draft complies with all applicable laws in your area and protects your organization's interests.

i 303 Creative v. Elenis, 600 U.S. ___ (2023), available at (last accessed on July 3, 2023).
ii Groff v. Dejoy, 600 U.S. ___ (2023), available at (last accessed on July 3, 2023).
iii Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ___ (2023), available at (last accessed on July 3, 2023).
iv Masterpiece Cakeshop v. Colo. Civil Rights Comm'n, 584 U. S. ____ (2018), available at (last accessed on July 3, 2023).
v Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
vi Grutter v. Bollinger, 539 U. S. 306 (2003).

Posted July 2023

The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.