The Supreme Court may have the opportunity to reverse two rulings that have proved nettlesome to conservatives for decades if it grants certiorari to two religious liberty complainants in its fall session. Both petitions for cert were filed within the past few weeks.

One is a wedding-vendor case from Oregon that asks the court to overturn Employment Division v. Smith, a 1990 case that radically changed free-exercise law by stipulating that general laws that do not target religious practice (which none do) are not in violation of the First Amendment. Smith has pretty much governed free-exercise jurisprudence for the past three decades.

The other is an employment case from Pennsylvania that seeks overturning of Trans World Airlines, Inc. v. Hardison, which in 1977 set the standard for employment accommodation for workers with religious concerns.

The lineaments of the former are familiar. Aaron and Melissa Klein ran a bakery in Gresham, Oregon, that they called Sweet Cakes by Melissa. They crafted custom-made specialty cakes for various celebrations but declined to make cakes that conflicted with their faith, such as cakes promoting violence toward others, cakes that celebrated divorces, and cakes scribed with profanity.

In 2013, a lesbian couple ordered a wedding cake. Being devout Christians who believe marriage is a sacred union between one man and one woman, the Kleins declined the request. The same-sex couple filed a complaint with the state, which fined the Kleins $135,000. That fine, when coupled with what First Liberty Institute, the Kleins’ counsel, called “an internet-orchestrated boycott campaign against the bakery,” forced the couple to shut down their bakery. The state commission, the Oregon Bureau of Labor and Industries (BOLI), also imposed a gag order on the bakers.

Exacerbating the issue, the commissioner handing down the punishment disparaged the couple’s Christian faith, accusing them of using religion as “an excuse” for refusing the same-sex couple’s request, and said that “they needed to ‘learn from [the] experience’ and be ‘rehabilitate[d].’”

When the Oregon Court of Appeals in 2016 upheld the tribunal’s decision but lifted the gag order, the Kleins took their case to the U.S. Supreme Court. The Supreme Court vacated the appeals court decision and, in the wake of the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission ruling, sent the case back to Oregon for reconsideration. That Colorado decision was decided in favor of Jack Phillips and Masterpiece Cakeshop because, much like the BOLI in the Kleins’ case, the Colorado Civil Rights Commission had made deprecatory comments about Phillips’ Christian faith in considering his case. (READ MORE from Tom Raabe: Wedding Vendor Cases Are About Religious Liberty, Not Free Speech)

In January 2022, the Oregon appeals court ruled that the BOLI had violated the Kleins’ religious rights but that the Kleins had still violated the law, and the court sent the case back to the BOLI for a “do-over.” That body, with no further hearings, simply reduced the fine from $135,000 to $30,000 in July.

So, for the second time, the Kleins find themselves requesting cert from the land’s highest court. In addition to asking the court to enter judgment in their favor, the Kleins are requesting that the court return to the jurisprudence in force prior to Employment Division v. Smith, to a time when the government had to show a “compelling interest” before it could place a burden on the free exercise of religion, and any burden it imposed had to be done “in the least restrictive means possible.”

The court has already agreed to hear one wedding-vendor case this upcoming term: 303 Creative v. Elenis. Lorie Smith, a Colorado woman who designs custom wedding websites, was told by the state that if she wanted to create such websites for traditional weddings, she also, to avoid violating anti-discrimination laws, had to create them for same-sex weddings. To do so, Smith asserted, would violate her religious belief that a marriage consisted of one man and one woman. In addition to their religious liberty claims, both Smith and the Kleins contend that compelling an artist to create custom art for a wedding ceremony violates their right of free speech. In hearing 303 Creative, however, the court has decided not to rule on the religious-liberty angle but to restrict its purview to whether Smith’s free-speech rights were violated. Granting cert to the Kleins’ case would give the high court another chance to clarify the contentious wedding-vendor aspect of religious liberty law.

The other case, Groff v. DeJoy, involves a Christian postal worker in rural Pennsylvania, Gerald Groff, who, as an observer of a Sunday Sabbath, was disciplined for refusing to work on Sundays.

The problem began for Groff in 2013 when the U.S. Postal Service signed an agreement with Amazon to deliver on Sundays. Groff was initially able to swap shifts with co-workers in order to sufficiently avoid working on his Sabbath, but eventually an increase in the volume of deliveries stressed this accommodation and led to numerous disciplinary actions against Groff for not showing up for work.

Rather than being fired, Groff resigned and sued USPS for refusing to accommodate his religious beliefs under Title VII of the 1964 Civil Rights Act. Under that legislation, employers must offer a reasonable adjustment to oblige the employee’s religious tenets, as long as such amelioration does not incur an undue burden on the employer. “Undue burden” was more or less set in stone in 1977 when, in Trans World Airlines v. Hardison, the court defined it as anything that required “more than a de minimis cost” to the employer; Oxford defines such as “too trivial or minor to merit consideration.” Many business accommodations would meet these criteria.

A trial court ruled for the Postal Service, under Hardison, and an appeals court backed it up, contending that exempting Groff from work on Sundays exceeded that de minimis standard. Allowing him that exemption, the appeals court maintained, forced his colleagues to pick up more than their share of Sunday shifts and also damaged morale.

Groff, represented by First Liberty Institute, is asking the Supreme Court to do away with the Hardison de minimis standard. The cert request asks the court to determine “[w]hether an employer may demonstrate ‘undue hardship on the conduct of the employer’s business’ under Title VII merely by showing that the requested accommodation burdens the employee’s co-workers rather than the business itself.” In other words, the law pertains to hardships to the employer, not the employees. Groff also contends that “undue hardship” connotes a significant burden, for which his case does not qualify.

Groff v. DeJoy might be what the court is waiting for to overturn Hardison. Justice Samuel Alito, along with Justices Clarence Thomas and Neil Gorsuch, suggested in 2020 that light “undue burden” standards were inadequate and that the court was looking for an apposite legal vehicle to overturn the case. Wrote Alito: “Hardison’s reading does not represent the most likely interpretation of the statutory term ‘undue hardship’…. [W]e should grant review in an appropriate case to consider whether Hardison’s interpretation should be overruled.”

A decision on Groff v. Dejoy is expected toward the end of October, and Klein v. Oregon Bureau of Labor and Industries is expected in early November.