Since the passing of the 14th Amendment in 1868, the Supreme Court has used the Equal Protection Clause to prevent discrimination and segregation on the basis of race, sex, and more tentatively, sexual orientation. After the court’s most recent decisions, religion has more closely aligned with such protected classes.
Discussions centered on two decisions in particular: 303 Creative LLC v. Elenis and Groff v. DeJoy. In the first, the plaintiff upheld their refusal to create same-sex wedding websites. In the second, the plaintiff sued his employer, the U.S. Postal Service, for declining to accommodate his belief in the reservation of Sundays for rest and worship.
The Supreme Court sided with the plaintiffs, both of whom are evangelical Christians, in both decisions, strengthening defenses for religious exceptions in the face of precedent. Alan Pomerantz, a Berkeley Law lecturer, noted the decisions are a significant deviation from the court’s historic stance.
“What the court has held (historically) is that we will look at your religion as long as it doesn’t breach someone else’s rights,” Pomerantz said. “That’s kind of gone.”
‘As contrary to Christian teaching as you can get’
Reverend Kelly Colwell, an associate minister at First Church Berkeley UCC, emphasized this church feels content with existing “as part of a secular society.”
Further, Colwell noted her support for subjecting religious organizations to the same laws regarding employment and accessibility as other organizations.
“There are difficult cases involving children or people who can’t consent—in these cases, I believe even a religious practice should be curtailed by government in order to protect the health and safety of vulnerable people,” Colwell said in an email. “I’d hope for thoughtful, nonpartisan judges who could decide in tricky situations.”
While she doesn’t think judges can completely put religious convictions aside on the job, Colwell said she objects to the use of religious tenets for decision-making on the federal level; she pointed to 2022’s Dobbs v. Jackson Women’s Health Organization decision as an example of a verdict shaped by a “particular” and “warped” view of Christianity.
According to Colwell, First Church Berkeley affirms and celebrates queer and transgender people. Cases like 303 Creative LLC v. Elenis are concerning to her and fellow “progressive Christians,” Colwell said, as she pointed out what she considers the “duplicitous” nature of recent business discrimination lawsuits.
“As a queer minister, I’ve certainly been in situations where I’ve suspected that someone’s discriminating because of my sexuality,” Colwell said in an email. “But this is next level. It’s saying ‘My religion won’t let me serve you, and I want public accolades for that.’ It’s about as contrary to Christian teaching as you can get.”
‘It’s going to continue’
To Pomerantz, the central conflict in most of these cases lies between free exercise of religion and laws banning discrimination. According to him, due to the former receiving explicit Constitutional protection, it will always have the potential to overcome the latter.
However, unlike protected classes like race, Pomerantz asserted that religion is a choice.
“There’s a difference between immutable characteristics and choices,” Pomerantz said. “You’re born a race, but it’s who you are, not what you do. I think that to discriminate against someone for who they are is inappropriate.”
Pomerantz made the argument that the court’s latest stance in favor of protecting religious interests provides a roadmap for people to opt out of laws that go against their convictions, even in the case of anti-discrimination laws.
Although, since the Supreme Court has not stated what it means to freely exercise a religion, it will be up to individuals to determine what beliefs are sincerely and faithfully held — something that will always be open to interpretation, Pomerantz noted. To avoid falling down a slippery slope, he added, everyone must agree on the problem at hand.
“These things change incrementally. The next case is going to push it a little further and then a little further,” Pomerantz said. “We’re at the beginning of this, but it’s going to continue.”
