During oral arguments in 303 Creative v. Elenis at the Supreme Court on Monday, Justice Neil Gorsuch cornered Colorado Solicitor General Eric Olson with an unforeseeable question. After noting that a state “can’t change” someone’s “religious beliefs,” Gorsuch brought up Jack Phillips, a Christian baker who was sanctioned for discriminating against same-sex couples.
“Mr. Phillips did go through a reeducation training program pursuant to Colorado law, did he not, Mr. Olson?” Gorsuch asked. Olson began to reply, but the justice cut him off, pressing him again: “It was a reeducation program, right?”
“It was not a reeducation program,” Olson said. Gorsuch asked him what he called it. Olson told him: “It was a process to make sure he was familiar with Colorado law.”
“Someone might be excused for calling that a reeducation program,” Gorsuch retorted. Olson stood his ground, responding: “I strongly disagree.”
In the moment, this exchange came out of nowhere: The justice was harking back to Masterpiece Cakeshop, a 2018 case in which the Supreme Court sided with Phillips (albeit narrowly). And it really wasn’t fair for Gorsuch to ambush Olson with a hostile left-field question about a previous case in which he wasn’t involved. But this grievance is not a new one. The justice has previously signaled his belief that mandatory training for businesses that engage in unlawful discrimination violates the First Amendment. It seems this conviction has only grown stronger. What’s most notable is that today, there may be four or five other justices who agree with him.
To hear Gorsuch tell it, Colorado put Jack Phillips through Soviet-style brainwashing, forcing him to abandon his deeply held beliefs at pain of punishment and embrace the state’s orthodoxy. (He appears to have lifted the “reeducation” language from a brief by Alliance Defending Freedom, the far-right organization representing the discriminatory business in 303 Creative.) The truth is far more banal. For about as long as the law has restricted employment discrimination, it has also provided various tools to ensure compliance with those rules. Among other things, civil rights laws often require employers to inform their workers about what conduct, exactly, crosses the line into illegal discrimination.
Consider, for instance, a department store in which employees rush to help white customers while blatantly ignoring Black customers. A state might order the store to train its employees in the importance of serving all customers equally, regardless of race. Or imagine a hotel whose receptionists falsely claim they have no vacancies when Muslims try to book a room. A state might order the hotel to train receptionists not to turn away customers because of religion. If the discrimination is especially blatant or severe, a state might order employers to provide periodic updates about these corrective measures.
And that’s pretty much what the Colorado Civil Rights Commission did after it found Phillips in violation of the state’s nondiscrimination law. As the Supreme Court itself explained in Masterpiece Cakeshop, the commission told Phillips to “cease and desist from discriminating against” same-sex couples. It ordered “comprehensive staff training” in Colorado’s civil rights law and told Phillips to update company policies “to comply with” its order. The commission also directed Phillips to file “quarterly compliance reports” for two years documenting “the number of patrons denied service,” the reasons why, and the business’ response.
This mandate perturbed Gorsuch so greatly that he brought it up during oral arguments with Olson’s predecessor, Colorado Solicitor General Frederick Yarger. “As I understand it, Colorado ordered Mr. Phillips to provide comprehensive training to his staff—and it didn’t order him to attend a class of the government’s own creation or anything like that, but to provide comprehensive staff training,” Gorsuch said. “Why isn’t that compelled speech and possibly in violation of his free-exercise rights? Because presumably he has to tell his staff, including his family members, that his Christian beliefs are discriminatory.”
When Yarger responded that “a training requirement is a common remedy that is used in many civil rights cases,” the justice was not placated. “But this isn’t attending your training, Mr. Yarger,” he said. “This order was ordering him to provide training and presumably compelling him to speak, therefore, and to speak in ways that maybe offend his religion and certainly compel him to speak.”
Gorsuch’s comment reflected a misunderstanding of how civil rights law actually works. The justice appears to believe that states force discriminatory employers to attend “a class of the government’s own creation.” Perhaps he envisions some kind of community college–type course (How to Interact With Gays for Beginners). In reality, though, states frequently outsource compliance training to private businesses; indeed, many law firms specialize in helping companies develop nondiscrimination training to stave off future lawsuits. Gorsuch seems to believe that when the state orders an employer to conduct this kind of training, it has violated the First Amendment.
The consequences of this theory would be vast and severe. As I wrote in 2018, a hotel supervisor who thinks interracial relationships are sinful could refuse to tell employees to let mixed-race couples book rooms. A restaurant manager with spiritual objections to interfaith marriage could decline to train employees in their duty to serve customers without regard to religion. Gorsuch’s theory would extend beyond public accommodations into the realm of employment. Right now, a supervisor can be held liable when they do not stop employees from discriminating. Under Gorsuch’s theory, supervisors could refuse to educate their workers about illegal discriminatory behaviors by claiming that such instruction would violate their beliefs. Imagine, for example, a manager who says he holds the religious view that women belong in the home. He could claim a First Amendment right not to tell workers they must treat their female colleagues equally, citing his faith-based convictions about women’s inferiority.
In truth, a vast amount of unlawful discrimination involves speech. Workplace harassment is speech. Passing over a qualified Black employee for promotion is speech. Firing a worker for becoming pregnant is speech. Giving a student an F because she’s Muslim is speech. Which is why an absolutist interpretation of the First Amendment would destroy broad swathes of modern civil rights law.
It might seem strange that Gorsuch would wish to be the author of this destruction. After all, he wrote the landmark decision in Bostock v. Clayton County recognizing that federal law bars employment discrimination against LGBTQ people. But the justice has a Dr. Jekyll and Mr. Hyde quality: His occasional progressive rulings are countered and undermined by his extremism on issues like religion. And now, unlike in 2018, there is a real chance that a majority of the court shares his belief that nondiscrimination training requirements amount to an unconstitutional “reeducation program.” The court can wreak a lot of havoc with 303 Creative, most obviously by freeing companies to turn away customers on the basis of their identity. As Gorsuch’s angry tangent indicated, however, the conservative bloc has even more options at its disposal—including an assault on the remedies necessary to make civil rights laws more than an empty promise.