Last Tuesday, the U.S. Supreme Court heard oral arguments in the case Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, et. al, 137 S.Ct. 2290 (June 26, 2017). The case involves a Colorado baker’s refusal to make a wedding cake for a same-sex couple, Charlie Craig and David Mullins. Although the baker stated he was willing to sell the gay couple any other kind of cake, he could not specifically sell them a wedding cake because it was against his personal, religious beliefs, and invaded his First Amendment rights to artistic expression. 
The couple filed a complaint with the Colorado Civil Rights Commission. Both the Civil Rights Commission and the Colorado Supreme Court found that the cakeshop had violated the state’s anti-discrimination law.
Some believe that the case represents an important intersection between right of expression under the First Amendment and equal rights for the LGBTQ community under discrimination laws enforced both at the Federal level, and by many states. However, this case raises the specter of employment rights being affected as well.
Only a couple short years ago, another high-profile case was being circulated in the media concerning the matter of religious liberty in the employment sphere. In 2015, after the Supreme Court had effectively legalized same-sex marriage, Kim Davis, a Rowan County Clerk in Kentucky, refused to issue marriage licenses to same-sex couples and was jailed as a result. Although it was Ms. Davis’ job duty to provide marriage licenses as county clerk to all those that apply, Ms. Davis asserted that she had religious liberty guaranteed under the First Amendment, and could not be forced as a person of faith to issue marriage licenses to same-sex couples. She has stated that being forced to do so would violate her conscience.
Although the current case before the Supreme Court concerns an issue of public accommodation versus artistic expression, these sorts of matters also raise questions pertaining to the ways in which religious rights and employment rights intersect. In the workforce, employees and employers alike often question:
- When can an employee refuse to perform certain job functions because of their religion?
- When must the employer accommodate them?
Title VII of the Civil Rights Act of 1964, requires employers to reasonably accommodate employees’ religious and moral beliefs and/or practices unless doing so would create more than a “minimal burden” for the employer. 
Many employees and employers have called for an exemption from Federal or state discrimination laws on the basis of their religion or religious practices. In 1993, then-President Bill Clinton passed the Religious Freedom Restoration Act, which was created to provide exemptions from laws that impinge upon an employee’s free exercise rights.  The Act was passed after the Supreme Court handed down controversial decision Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990).  In this case, two American Indian employees worked as private drug rehab counselors and were terminated after ingesting “peyote” while participating in a religious ceremony conducted by the Native American Church (Peyote is a small cactus plant that produces hallucegenic effects similar to that of LSD.). When the two employees applied for unemployment benefits, they were ultimately denied because they had been fired for “misconduct.”
Judge Antonin Scalia delivered the opinion of the Court, ruling that the firing of the two petitioners was permissible, and that judicial precedent has never provided a religious exemption for those practices or activities that otherwise contradicted a valid law.
“We have ever held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594-595, 60 S.Ct. 1010, 1012- 1013, 84 L.Ed. 1375 (1940): “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities (footnote omitted).” 
Congress passed the Religious Freedom Restoration Act because there was a wide-ranging sentiment that governments should not have the authority to substantially burden a person’s exercise of their religion without some compelling reason for doing so. This law was preempted and found unconstitutional but many states have passed their own legislation similar to the Religious Freedom Restoration Act. As of 2015, there were 22 states that have a version of the Religious Freedom Restoration Act. 
Although the Religious Freedom Restoration Act was passed to protect people from being discriminated against on the basis of their religion, it has had many unintended consequences. Religious freedom laws have been interpreted in many ways to interfere with or override federal laws and mandates prohibiting discrimination, even in the workforce. In Burwell v. Hobby Lobby, 134 S.Ct. 2751 (June 30, 2014), for instance, the Supreme Court ruled that companies are not required to comply with a federal mandate to provide birth control because of religious freedom laws. 
And in a very recent court case brought by the EEOC regarding the balancing of religious freedom versus anti-discrimination law, the Court upheld an employer’s right to enforce a gender-specific dress code on one of its transgendered employees because it interfered with the employer’s religious freedom. .
Determining whether Title VII prevails over a religious freedom exemption defense is a balancing act, weighing both the Employer/employee’s right and that of the government:
“RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §§ 2000bb–1(a), (b) (emphasis added).” 
It is not likely that cases arguing religious freedom in the workplace are going to go away. In fact, I suspect that they will continue to proliferate even more, particularly because of certain executive actions taken by the current President. In May 2017, the President issued an Executive Order “Promoting Free Speech and Religious Liberty,” that states the policy of the executive branch is to “vigorously enforce Federal law’s robust protections for religious freedom.”  Section 4 of the Order also directs Attorney General Jeff Session to issue guidance interpreting religious liberty protections in the Federal Law. 
Based on Mr. Session’s prior history, it is possible Session will interpret the government’s compelling reason requirement more stringently and the “substantial burden” requirement on behalf of the person claiming religious freedom more freely which could result in many employers and employees circumventing anti-discrimination laws more and more frequently.
 Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. § 2000bb-4 (also known as RFRA)
 Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990)
 Id. at 878-879.
 Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., Case No. 14-13710 (August 18, 2016)
 Burwell v. Hobby Lobby, 134 S.Ct. 2751, 2754 (June 30, 2014)