The Supreme Court will potentially weigh several faith-based cases involving free speech, sidewalk counseling outside of abortion clinics and workplace accommodations after handing down several religious freedom victories this past year, according to legal experts who spoke with the Daily Caller News Foundation.
The court handed down two highly-anticipated decisions in June, 303 Creative LLC v. Elenis and Groff v. DeJoy — the former dealing with the right of business owners to not be compelled to use certain types of speech and the latter regarding an employee’s right to a religious accommodation.
These cases have set the stage for several other cases to be brought before the Supreme Court next year, legal experts told the DCNF.
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“So far the court has only filled up around a third of its docket, maybe 20 out of 60 cases, or 20 out of 70 cases, and hasn’t really started filling in religious liberty cases yet,” Luke Goodrich, vice president and senior counsel at Becket Fund for Religious Liberty, told the DCNF. “So we’re more in a position of like, what are the big cases heading up to the Supreme Court in the near future?”
One such case that could be heard involves Christian baker Jack Phillips, who won a Supreme Court case in 2018 for refusing to make a cake for a gay couple. Despite his initial win, Phillips was sued again in 2021 for refusing to decorate a cake for a gender transition party and is currently awaiting a decision from the Colorado Supreme Court, according to John Bursch, senior counsel and vice president of appellate advocacy at Alliance Defending Freedom (ADF).
“What it will come down to in the Colorado Supreme Court is whether they think that cake artistry qualifies as speech,” Bursch said. “The US Supreme Court in 303 Creative cited an amicus brief … favorably, when it was talking about visual artists and that brief talks about cake artists. So if the Colorado Supreme Court just looks carefully at what the Supreme Court ruled in 303 Creative, that should control the outcome in Jack’s case, but if for any reason they disagree, then we’ll have to go back to the Supreme Court and ask for relief again.”
Another religious battle in the works is Hittle v. The City of Stockton, which is currently being fought in the Ninth Circuit Court regarding Fire Chief Ron Hittle, who was fired for attending a Christian leadership conference. Hittle’s case is about to get a lot of attention because of the Groff decision, according to Kelly Shackelford, president and CEO of First Liberty Institute (FLI).
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The Groff case involved a postal worker who was forced to leave his job after being unable to obtain a religious accommodation to not work on Sunday. The Supreme Court ruled in the case that an employer could only deny such a request if they could prove it would cause “substantially increased costs in relation to the conduct of [an employer’s] particular business,” which changed nearly 50 years of legal precedent that had required an employee’s request be “reasonable” to prevent an “undue hardship” for the company, according to Shackelford.
“[Groff] changed the protection for religious liberty in the workplace and actually restores religious freedom in the workplace,” Shackelford told the DCNF. “But [the Supreme Court] didn’t go into detail on exactly how that would look and by laying out the new standard, they threw out the old standard. So you’re gonna have all these future cases that are going to come up that are going to play out with this new standard.”
The Supreme Court could also take up a case involving Catholic pro-life activist Debra Vitagliano, who, under a Westchester County, New York, law that creates a bubble zone 100 feet around abortion clinics, would not be able to pray outside of or minister to women considering an abortion.
Becket sued on behalf of Vitagliano in 2022, arguing that the law violated her rights to express her faith and her concerns about abortion under the First Amendment. The Supreme Court upheld a similar law in Hill v. Colorado in 2000, in which the justices said that the First Amendment right to free speech was not infringed by limiting protestors or sidewalk evangelists from coming within eight feet of a woman or clinic worker.
The decision has been criticized by many judges over the years and Vitagliano’s case will go straight to the Supreme Court, if accepted, to challenge its earlier decision, according to Goodrich.
“[W]e challenged that under the free speech clause and the court said, there’s a lot of criticism of Hill, but only the Supreme Court can overrule its own decisions,” Goodrich said. “So we’re about to take on the Supreme Court and say, ‘Here’s the vehicle you’ve been waiting for to set your free speech jurisprudence straight.’”
All three attorneys expressed that while they could never predict how the court will rule in any given case, the justices’ record over the past decade has indicated a strong stance on protecting the rights of religious Americans.
“It’s really interesting, if you look at the last decade, or a little more, since 2011, the Supreme Court has heard 25 cases involving religious freedom issues and 24 out of 25 have been in favor of the religious freedom side,” Goodrich said.
“When religion flourishes, culture flourishes too,” Bursch told the DCNF. “The court has been [protecting] that because the language of this the US Constitution, is so plain and so broad in protecting those rights, and that going all the way back to our founding, the protection of religious liberty and free speech has been so strongly a tradition in our country, that the court is reluctant to curtail that in any way, even though government officials seem to be doing that with increasing frequency.”
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