The Supreme Court’s decision today in 303 Creative, LLC, v. Elenis correctly applies First Amendment law to vindicate one of the most important dimensions of human liberty: the right not to speak. The Court reviewed a Colorado law that would compel Lorie Smith to create websites celebrating weddings of which she does not approve. The two sides stipulated that custom web design is an expressive service, and the Tenth Circuit agreed, even in ruling against her, that the law “compels [her] speech,” going on to declare that the law nonetheless passes the exacting strict scrutiny test. But as the Court confirmed today, it doesn’t. You may disagree with Lorie Smith’s views—I do—but we should applaud the Court today in making clear, to quote Justice Gorsuch’s majority opinion, that Colorado cannot compel her “to create speech she does not believe.”

Had Smith lost, the Court would have implicitly approved a string of even more obvious rights violations. From the majority opinion (citations omittted):

Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so. As our precedents recognize, the First Amendment tolerates none of that.

The Court cited earlier, related cases such as Hurley (Boston Irish parade as expressive association) and Dale (Boy Scouts as expressive association). And it makes the vital point that accepting compensation for an expressive service does not destroy First Amendment rights—if not, most publishing and art would be unprotected.

Note carefully that the Court recognized a First Amendment right to decline to participate only for expressive services, i.e., hired creation of speech, art, music, etc. Ordinary businesses get no such right. Some careless headline writers are already construing the decision as creating a general conscience discrimination exemption for all lines of business, which is plainly false.

Some are also imagining that any old business can escape a law like Colorado’s by asserting that it too is artistic or expressive. In practice, judges will proceed to examine such claims by one or another business and if experience is any indication they will often reject them, even for occupations in an arguably gray area such as photographers.

It is disappointing that three Justices who in other contexts have often taken robust positions in favor of free speech saw fit to abandon that cause here. Justice Sonia Sotomayor’s dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, spends much of its length on a paean to public accommodations laws that in no way contradicts the contentions of the majority opinion or of any parties. Mysteriously, it also floats a theory that only conduct, as opposed to speech, was at issue here, even though the state of Colorado had stipulated that Smith intended to engage in expressive speech (and had a reasonable apprehension that the law would be enforced against her).

The dissent also attempts to make much of the statute’s communication provision, governing whether accommodation owners can express a public intent to discriminate, even though Colorado itself acknowledged that the provision stands or falls with the principal part of the statute and thus made little use of the point. (Not that such communications provisions are free from First Amendment dangers themselves.) The dissent also attempts to hypothesize some way in which scriptwriters, visual artists, and so forth might escape the law’s compulsion by not “holding out” their services. This can hardly stand when Colorado itself forthrightly asserts that its law covers any creator who accepts any commissions from the public. Finally, and most confusingly, the dissent asserts that if the law is upheld a creator “remains free under state law to decide what messages to include or not to include.” Gorsuch’s response is devastating: “if that is true, what are we even debating?”

The majority opinion closes on another correct note, that of pluralism as a dimension of liberty. “Tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.”

Today the Supreme Court issued a decision striking down President Biden’s unprecedented student-loan forgiveness program.

Statement from Research Fellow in Constitutional Studies Thomas Berry:

“The Court’s decision today is a victory for the separation of powers and the rule of law. The Court correctly held that the power to ‘waive or modify’ a provision of law is not a power to draft an entirely new law. The Biden Administration attempted to use the ‘waive or modify’ authority in the HEROES Act to create a new $430 billion debt-cancellation program, but creating a program of such breadth and scope is a job for Congress, not the executive branch. The Court correctly held that when Congress gave the executive branch the power to ‘waive or modify’ certain provisions of law, it did not grant the power to make basic and fundamental changes that transform federal student-loan policy. The Framers designed our system so that such fundamental questions would be debated and decided in Congress, and that is where such decisions must be made.”

Statement from Director of the Center for Educational Freedom Neal McCluskey:

“This is great news for future students and taxpayers. For future students, because allowing sweeping, presidentially decreed student debt cancellation would have signaled to all future borrowers to take on more debt than they otherwise would have—much will just be cancelled. And that would enable colleges to raise tuition at even faster rates. It’s great news for taxpayers because much debt that was supposed to be repaid to the federal government actually will be. And remember, the average person with a bachelor’s degree will make roughly $1 million more over their lifetime than the average person with just a high school diploma. Graduate degree holders—who hold a disproportionate amount of student debt—will earn even more. Cancellation would have largely helped economic winners.” 

“Housing First” homeless policy is drawing new critical attention. A NYTimes article reports the predominant homeless policy philosophy is drawing criticism from Republican policymakers, conservative think tanks, as well as groups (like programs that require sobriety) that have been denied funding by the no-strings-attached permanent housing philosophy.

Meanwhile, a new Politico article details how red and blue state policymakers are desperate to avoid becoming another San Francisco, “with rents and home prices that are unaffordable for many residents and intractable waves of homelessness” and so are proposing or adopting zoning reforms to increase supply and reduce rents.

It is a good thing that Housing First is receiving a closer look by researchers and policymakers, because Housing First has sailed along for the last 20 years or so with minimal scrutiny. As we detail in a recent Housing First study, Housing First locations like California and Utah have been unsuccessful in reducing homeless counts under the policy. On the contrary, chronic homelessness in these states has grown substantially (93 percent and 95 percent) since policy adoption.

Moreover, the most recent reporting indicates that Housing First continues to fail at reducing homelessness in these places. Yesterday, a NYTimes article reported that the homeless population in Los Angeles had grown another 9 percent compared with a year ago, and a new report from Utah’s Department of Workforce Services found that chronic homelessness nearly doubled since 2019.

Comprehensive regulatory reform to increase housing supply is an important part of the answer to homelessness. But although many policymakers are considering pro-housing reforms, there is a long way to go. The Washington Post reports that “many ‘progressive cities’ have cracked down on unsheltered homeless adults…without ‘addressing structural issues, like lack of housing.’” Some policymakers, like Colorado Governor Polis, have proposed a variety of excellent regulatory reforms, so far without successful adoption.

Lack of affordable, available housing is an important factor driving homelessness. Though Housing First prioritizes permanent housing subsidies for the homeless, it doesn’t prioritize the policy reforms needed to keep housing accessible and affordable so that people stay in their homes to begin with. From this perspective, “Housing First” is a misnomer and policymakers would do well to rethink it.

Today was a watershed moment in Fourteenth Amendment jurisprudence. For all intents and purposes, racial preferences in higher education are no longer allowed. Over the course of 237 pages, the nine Supreme Court justices traded barbs over affirmative action with Chief Justice John Roberts writing the majority opinion. But Justice Thomas’s concurrence was the star.

As expected, the majority opinion in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina was written by Chief Justice Roberts, who has long authored vigorous defenses of race-neutrality in government policymaking. He coined the (depending on who you ask) much lauded or much mocked phrase, “the best way to get rid of discrimination on the basis of race is to get rid of discrimination on the basis of race.” He included a similar statement in this case, remarking that “Eliminating racial discrimination means eliminating all of it.”

In typical Justice Roberts fashion, the Chief never explicitly overruled Regents of the University of California v. Bakke or Grutter v. Bollinger, the two primary Supreme Court cases permitting race-based college admissions for the purpose of “obtaining the benefits that flow from a diverse student body.” Instead he concluded that the challenged admissions programs failed to satisfy those opinion’s safeguards. For instance, they amounted to quotas, relied on stereotyping, penalized some students based on race, and had no ending point in sight. Though Chief Justice Roberts never explicitly said so, the implication is that the diversity rationale is no longer permissible, since preferences will always act as a negative for some students (after all, admissions is a zero-sum game) and the diversity rationale is inherently stereotypical (because it assumes that students bring something to the table by virtue of their race alone).

Justice Thomas’s individualist concurrence, by contrast, was a strident show-stopper that beautifully defended the principles of equality before the law and individualism. His opinion began with a lengthy history of the Fourteenth Amendment and concluded with a whopper of a line accusing Justice Jackson of engaging in racial determinism.

The concurrence covers a lot of ground beginning with an Originalist analysis of the original public meaning of the Equal Protection Clause. Though the dissenting justices argue that the Clause does not require race-neutrality, Justice Thomas persuasively demonstrates that the Clause was passed to forbid “all legal distinctions based on race or color,” including purportedly benign ones.

He also wrote at length about the inherent arbitrariness of racial classifications (covered in David Bernstein’s new book, Classified), mismatch theory (which posits that affirmative action perpetuates stereotypes by placing recipients in classes where they are “less likely to succeed academically relative to their peers”), and the pernicious effect race-based admissions has had on Asian students, who are placed at a significant disadvantage by Harvard’s and UNC’s preference system. But he reserves the most powerful language for rebutting Justice Jackson’s assertion that racial preferences can be justified as a remedy for societal discrimination.

Justice Thomas begins his rebuttal by noting that there’s a difference between genuine remedial measures for racial discrimination (which are permissible under the Equal Protection Clause) and racial balancing for its own sake. To prevent the former from becoming the latter, proponents of government sponsored racial classifications must demonstrate a traceable link to government perpetuated discrimination. Justice Jackson has no such evidence and instead relies mainly on statistical disparities. Or, as Justice Thomas puts it:

As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today. The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to “level the playing field,” all as judged by racial metrics. I strongly disagree.

As Justice Thomas notes, not all disparities can be ascribed to race, let alone discrimination. Disparities can arise from socio-economic status, geography, and myriad other factors. And while Justice Jackson focuses on group outcomes, Justice Thomas focuses on individuals. Even where disparities exist, they don’t exist for everyone in the group. But “[e]ven if some whites have a lower household net worth than some blacks,” Justice Thomas says, “what matters to Justice Jackson is that the average white household has more wealth than the average black household.” He continues:

This lore is not and has never been true. Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race. Put simply, “the fate of abstract categories of wealth statistics is not the same as the fate of a given set of flesh-and-blood human beings.” T. Sowell, Wealth, Poverty and Politics 333 (2016). Worse still, Justice Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds.

To the extent individual Black Americans have fewer means, or poorer health, or any of the disparities Justice Jackson describes, universities can take those factors into account. What it can’t do, says Justice Thomas, “is use the applicant’s skin color as a heuristic, assuming that because the applicant checks the box for ‘black’ he therefore conforms to the university’s monolithic and reductionist view of an abstract, average black person.” In other words, individuals are more than the skin color they are born into.

He uses as an example Justice Jackson’s hypothetical regarding John and James, two applicants competing for admission to UNC. John is a white, seventh-generation legacy at the school and James is black applicant would be the first member of his family to go to UNC. Putting aside that the university could take into account James’s first-generation status rather than his race, Justice Thomas asks, “why is it that John should be judged based on the actions of his great great-great-grandparents? And what would Justice Jackson say to John when deeming him not as worthy of admission: Some statistically significant number of white people had advantages in college admissions seven generations ago, and you have inherited their incurable sin?” As Justice Scalia wrote elsewhere, “under our Constitution, there can be no debtor or creditor race.” Instead, “in the eyes of the government, we are just one race here. It is American.”

Contrary to the dissenters’ view of equality, which seeks equality based on group outcome, Justice Thomas emphasizes individual traits over group membership, noting that “All racial groups are heterogeneous, and blacks are no exception—encompassing northerners and southerners, rich and poor, and recent immigrants and descendants of slaves. Eschewing the complexity that comes with individuality may make for an uncomplicated narrative, but lumping people together and judging them based on assumed inherited or ancestral traits is nothing but stereotyping.”

Contrary to being mere products of their race, “Individuals are the sum of their unique experiences, challenges, and accomplishments.” Whereas the dissenters consider individuals passive actors in an inherently and inexorably racist scheme, Justice Thomas believes individuals have agency. “What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.”

Justice Thomas concludes that “the great failure of this country was slavery and its progeny. And, the tragic failure of this Court was its misinterpretation of the Reconstruction Amendments, as Justice Harlan predicted in Plessy.” He’s right. Some of the biggest injustices have occurred because of the Supreme Court’s narrowing of civil rights under the Fourteenth Amendment (looking at you, Slaughter-house and Cruikshank) and its upending of equality before the law. If we want all people to achieve the American Dream, the Court must protect individuals’ liberty and prevent government created barriers from getting in the way.

It’s true, of course, that society has never been colorblind, but as Justice Thomas says, the government must be—lest we start a vicious and self-perpetuating cycle of race-based balancing. So will it follow that command given today’s opinion?

There’s a very real possibility schools will just drive their discrimination further underground. It took a great deal of discovery to get to the bottom of Harvard’s and UNC’s systems, which though multi-factored on their face amounted to quotas in practice. There will likely be litigation over covert racial balancing or the use of “neutral” proxies in the future. But for now, the Court has affirmed its commitment to treating people without regard to race or other immutable characteristics, which is a win for our individualist Constitution.

In 2009, as the federal government was rolling out the $700 billion Troubled Asset Relief Program and preparing to spend another $787 billion in President Obama’s “stimulus” package — both with little serious examination by Congress — I wrote a blog post titled “How to Spend a Trillion Dollars without Waste and Fraud.”

The first line of my post was “You can’t.” And I noted that the federal government knew that, because both Neil Barofsky, the special inspector general for TARP, and Gene Dodaro, the acting comptroller general, had told a House subcommittee — after the passage of both bills — that the government’s experiences in the reconstruction of Iraq, hurricane‐​relief programs, and the 1990s savings‐​and‐​loan bailout, along with the lack of written policies in the new programs, did not bode well.

As Dodaro noted, it wasn’t the first such example. Nor would it be the last. Reports are now rolling in about massive waste and fraud in the government’s Covid-relief spending, begun in 2020 under President Trump and increased under President Biden.

“An Associated Press analysis found that fraudsters potentially stole more than $280 billion in COVID-19 relief funding; another $123 billion was wasted or misspent. Combined, the loss represents 10% of the $4.2 trillion the U.S. government has so far disbursed in COVID relief aid.” Now the Small Business Administration’s inspector general reports that more than $200 billion may have been stolen from the Paycheck Protection and COVID-19 Economic Injury Disaster Loan programs. 

Linda Bilmes, coauthor with Nobel laureate Joseph Stiglitz of The Three Trillion Dollar War: The True Cost of the Iraq Conflict, analyzed the massive problems in three somewhat smaller government projects — the Iraqi reconstruction effort, Hurricane Katrina reconstruction, and the Big Dig artery construction in Boston — and found that “in any organization that starts to increase spending very rapidly there are risks of waste, fraud and inefficiency.”


President Obama assured us in 2009 that Vice President Biden would be in charge of monitoring the spending in the stimulus bill and that “nobody messes with Joe.” But that is not in fact a solution to the inevitability of waste and fraud when an unaccountable bureaucracy is spending trillions of other people’s dollars. As the pickpocket says in the opening scene of Casablanca, “This place is full of vultures, vultures everywhere.” Vultures ye have with ye everywhere. And when you’re trying to shovel out trillions of dollars — money created by writing a number on a piece of paper and then writing checks on that sheet of paper — you can’t ask too many questions. The goal was to get money into people’s hands to ward off depression. And all the money did get into people’s hands. Just not necessarily into the intended hands. Some of it, for instance, went to SBA employee LaKeith Faulkner, who was sentenced to 62 months and ordered to pay $10,600,000 in restitution for his role in a scheme to obtain fraudulent PPP loans. And some of it to six Essex County, New Jersey, residents who were arrested for scheming to fraudulently obtain — you guessed it — Paycheck Protection Program (PPP) loans.

David Fahrenthold of the New York Times wrote,

In the midst of the pandemic, the government gave unemployment benefits to the incarcerated, the imaginary and the dead. It sent money to “farms” that turned out to be front yards. It paid people who were on the government’s “Do Not Pay List.” It gave loans to 342 people who said their name was “N/A.”

He calls it “one of the largest frauds in American history, with billions of dollars stolen by thousands of people, including at least one amateur who boasted of his criminal activity on YouTube.”

There are no doubt many more stories for other reporters to pursue. And continuing questions about the net costs and benefits of massive government spending programs, funded by debt and rife with, yes, waste, fraud, and abuse.

The Office of Management & Budget (OMB) has announced its approval of a proposed rule on so-called “short-term limited duration insurance” health plans (STLDI). The administration could release the proposed rule at any time.

Health reporters need to keep in mind when covering Biden’s proposed STLDI rule: just about anything the administration proposes would eliminate consumer protections and throw sick people out of their health plans. If the proposed rule shortens STLDI contract terms, limits the number or duration of renewals, and/​or prohibits renewal guarantees, it will gut consumer protections and throw sick patients out of the health insurance that is protecting them and their families.

Some background. Congress exempted STLDI plans from all ObamaCare regulations. Current STLDI rules, which the Trump administration put in place in 2018, allow the initial plan contract to last 12 months and allow consumers to renew the initial contract for up to 36 months. Longer contract terms and renewals protect patients. They shield patients both from losing their coverage and from reunderwriting (read: higher premiums) after they get sick. Current STLDI rules even extend those consumer protections beyond 36 months by recognizing that federal law imposes absolutely no restrictions on insurers selling standalone “renewal guarantees” that allow sick patients to enroll in a new STLDI plan without reunderwriting after 36 months.

The U.S. Court of Appeals for the District of Columbia rejected an attempt by ObamaCare insurers to strip these consumer protections from the STLDI plans with which they compete. (A cheeky move even by DC lobbyist standards.) The court wrote that, were the government to grant the ObamaCare insurers’ request, STLDI enrollees “could be ‘subject to re-underwriting’ every three months, could see a ‘greatly increased’ premium, [and] could be denied a new policy ‘based on preexisting medical conditions.’” The court further held, “Nothing in [federal law] prevents insurers from renewing expired STLDI policies.”

We don’t know the content of Biden’s proposal to change current STLDI rules, but OMB writes:

This rule would propose amendments to the definition of ‘short-term, limited-duration insurance’ under section 2791(b)(5) of the Public Health Service Act. The rule’s proposals would be designed to ensure this type of coverage does not undermine the Affordable Care Act, including its protections for people with pre-existing conditions, the Health Insurance Exchanges, or the individual, small group, or large group markets for health insurance in the United States.

That is the ideologically charged, smokescreen rhetoric that ObamaCare supporters use when they want to protect ObamaCare insurers from competition by stripping consumer protections from patients in STLDI plans.

First of all, ObamaCare is the junk coverage here. Economic research shows ObamaCare’s preexisting-conditions “protections” have eroded coverage at a cost to sick patients of thousands of dollars per year, and even “currently healthy consumers cannot be adequately insured.” ObamaCare has caused individual-market provider networks to narrow significantly since 2013, when network breadth reflected consumer preferences. ObamaCare premiums are skyrocketing to the point where Congress is offering subsidies to households earning $600,000 per year. STLDI plans offer more flexibility and choice, protect conscience rights, offer broader provider networks, cost up to 70 percent less than ObamaCare plans, and can even reduce ObamaCare premiums by improving ObamaCare’s risk pools. ObamaCare supporters criticize STLDI for charging actuarially fair premiums. But federal law allows STLDI plans to do so. Moreover, ObamaCare’s risk-adjustment program literally tries to emulate actuarially fair premiums because actuarially fair premiums minimize insurers’ incentives to avoid or shortchange the sick. If actuarially fair premiums are as bad as ObamaCare supporters say, why are ObamaCare supporters trying to emulate them?

The important thing for health reporters covering the proposed rule to know, however, is that just about any way Biden proposes to limit STLDI plans would in fact strip actual consumer protections from actual sick patients. That includes:

• Shortening STLDI contract terms
• Limiting the number or duration of renewals
• Prohibiting renewal guarantees

Any one of these steps would cause sick patients to lose their coverage and likely leave them unable to purchase an ObamaCare plan. (STLDI plan termination does not trigger an ObamaCare special enrollment period.) We know what happens when restrictions on STLDI plans eliminates these consumer protections, because it happened to Jeanne Balvin. It isn’t pretty.

If Biden tries to eliminate standalone renewal guarantees, he may trigger a lawsuit. The Public Health Service Act grants the federal government no authority at all to regulate those novel insurance products.

Additional resources:

• Michael F. Cannon, Comments on Short‐​Term, Limited Duration Insurance — CMS-9924‑P, April 2018 (cited in the 2018 final rule)
• Michael F. Cannon, “A Chance to Overcome ObamaCare: HHS may soon restore consumer protections for short-term plans,” Wall Street Journal, May 28, 2018
• Michael F. Cannon, Short‐​Term Plans Would Increase Coverage, Protect Conscience Rights & Improve ObamaCare Risk Pools, Cato at Liberty blog, July 2018 (cited in the final rule)
• Michael F. Cannon, “ObamaCare is now optional,” Washington Examiner, August 01, 2018
• Michael F. Cannon, “Californians deserve access to short‐​term health insurance,” San Gabriel Valley Tribune, September 2018
• Michael F. Cannon, “First, Do No Harm (to ObamaCare): Senate Democrats vote to take away insurance from people with pre-existing conditions,” Wall Street Journal, October 11, 2018
• Michael F. Cannon, “Callous Ideologues: Illinois Legislators Pass Law to Punish Patients with Preexisting Conditions,” Cato at Liberty blog, November 2018
• Amicus brief by Michael F. Cannon et al., in Association for Community Affiliated Plans v. U.S. Dept. of the Treasury, January 2020
• Michael F. Cannon, “In a Win for Consumers, a Court Ruling Affirms the Legality of Short‐​Term Health Insurance Plans,” The Hill, July 2020
• Michael F. Cannon, “In Which a Lobbyist for Private Insurance Companies Defends Taking Coverage away from the Sick,” Cato at Liberty blog, August 4, 2020
• Michael F. Cannon, “Obamacare Makes Discrimination against those with Preexisting Conditions Even Worse,” Washington Examiner, December 7, 2020
• Michael F. Cannon, “Regarding SB199 – Short‐​Term Limited Duration Plans,” Testimony before the Committee on Financial Institutions and Insurance, Kansas Senate, March 25, 2021
• Michael F. Cannon, “Remarks Regarding Kansas Senate Bill 199 — Short‐​Term Limited Duration Plans,” Testimony before the Committee on Insurance and Pensions, Kansas House of Representatives, February 7, 2022

The result of today’s Supreme Court opinion in Groff v. DeJoy is to load private, not just public, employers with new practical burdens in the name of accommodating employees’ religious beliefs. The Court does so by nimbly reinterpreting, as opposed to overturning, the longstanding standard set forth in TWA v. Hardison (1977), which interpreted Title VII as requiring accommodation of this sort by employers only when the costs were “de minimis.” Whatever the standard appropriate for government workplaces, there are high stakes in imposing a standard on private workplaces. Today’s decision leaves private employment relations in America less free.

As Justice Sonia Sotomayor points out in a concurrence joined by Justice Ketanji Brown Jackson, Congress has consistently passed up the opportunity to adopt a standard more burdensome to employers than Hardison, even though it has not hesitated to revisit and correct many other high court decisions on Title VII workplace discrimination that it saw as mistaken. We may hope that the Court’s newly announced standard, which shifts focus from the question of whether burdens are “de minimis” to that of whether they are “substantial,” will in practice not amount to a drastic change.

Sotomayor makes a further point worth noting in her concurrence. It has been known to happen that a private employer’s compelled acceptance of religious accommodation requests will adversely affect the interests of co-workers. While Title VII will not allow these interests to enter into the balance when based on mere animus or prejudice toward a religion, it is legitimate for an employer to weigh other sorts of harm to co-workers when they work to impair the management of the workplace. If a workplace divided by differential treatment based on religion or any other identity is a less efficient and unified workplace, it will often be legitimate for employers to say no to that differential treatment.