The Supreme Court resolved the case of a Christian baker who refused to make a wedding cake for a same-sex couple by ruling the government may not show “hostility” to religion.
As Justice Anthony M. Kennedy put it: “The Free Exercise Clause (of the 1st Amendment) bars even ‘subtle departures from neutrality’ on matters of religion.” He cited the comments of one member of the Colorado Civil Rights Commission who had lectured baker Jack Phillips about the role religion has played throughout history to justify bigotry, slavery and the Holocaust.
Such words suggested “that religious beliefs and persons are less than fully welcome in Colorado’s business community,” Kennedy wrote, adding the state had “violated its duty under the 1st Amendment not to base laws or regulations on hostility to a religion or a religious viewpoint.”
But the majority’s condemnation of what it saw as the commission’s lack of respect for Phillips’ Christian beliefs raises questions about another big pending case: Is President Trump’s travel ban based largely on hostility toward Muslims?
Lawyers who closely follow the court were quick to say that Kennedy’s insistence on strict “neutrality” toward religion should spell trouble for the president and his legal team in defending entry restrictions imposed on citizens of several Muslim-majority countries.
“If the court is serious about what it said, it should rule the entry ban violates the 1st Amendment because the process that resulted in the ban was infected by the president’s expressed animus and hostility toward Muslims,” said Leah Litman, a law professor at UC Irvine and a former law clerk for Justice Kennedy.
In recent years, two entirely separate claims of religious discrimination have moved through the courts. On the right, social conservatives have sued and sought religious exemptions from laws that call for equal treatment for gays and lesbians or require the dispensing of contraceptives. Their lawyers contended traditional beliefs were under attack, and those concerns have been echoed by some of the conservative justices.
When the court upheld same-sex marriages three years ago, Justice Samuel A. Alito Jr. said he feared the ruling “will be used to vilify Americans who are unwilling to assent to the new orthodoxy. ... They will risk being labeled as bigots and treated as such by governments, employers and schools.”
Meanwhile, on the left, liberals have voiced concern over bias against Muslims and other minorities. Those worries grew with the rise of Donald Trump’s presidential campaign. In December 2015, he called for a “total and complete shutdown of Muslims entering the United States” and said later, “I think Islam hates us.” In his first week in the White House, he issued the first of three proclamations to block visitors and travelers from several Muslim-majority nations.
The Supreme Court this term was asked to resolve religious bias claims from both sides. The case of the Christian cake maker was brought by the Alliance Defending Freedom, a social conservative group based in Arizona.
Meanwhile, the American Civil Liberties Union and immigrants’ rights advocates won rulings on the West Coast and the East Coast that declared Trump’s travel ban unconstitutional because it discriminated based on religion. The court heard the administration’s appeal in April and will rule by the end of this month on Trump vs. Hawaii.
Neal K. Katyal, the Washington lawyer who argued for those challenging the travel ban, told the court that the 1st Amendment “forbids the government from enacting policies that denigrate or exclude members of a particular faith. Yet any reasonable observer who heard the president’s campaign promises [or] read his thinly justified orders” would see they were targeted at Muslims.
Until Monday, it was expected that the baker’s case would be decided on free speech grounds, not religion. His lawyers had argued he was a “cake artist,” and as such, should not be forced to express a message to celebrate a same-sex marriage that conflicted with his religious beliefs.
By a 7-2 vote, the court opted for a narrow ruling that held the Colorado civil rights commissioners had displayed “hostility to religion” in some of their comments.
The ACLU’s legal director, David Cole, said the court’s opinion should lead to a ruling striking down the travel ban.
“If the justices express this level of concern about a few, offhand comments by a member of a low-level state commission, then they should have a much greater concern about a president who made much more explicitly anti-religious statements. And he put them into practice, precisely what he promised he would do,” Cole said. “I don’t how they could reconcile that the Masterpiece [cake maker] case is about religious intolerance, but the Muslim ban is not.”
But Stanford law professor Michael McConnell, an expert on religion and the 1st Amendment, applauded Monday’s ruling. “In these days of intense culture conflict, the 7-2 majority demonstrates that concern about hostility and intolerance toward religious views is not a right-wing distraction, as some people say, but a broadly held and fundamental part of our constitutional values.”
He added, however, that the cake maker’s case differed fundamentally from a dispute over “campaign statements” about Muslims. “Courts and commissions have a special obligation of neutrality to the parties,” he said.
During the oral argument in April, the court’s conservatives showed little interest in whether the travel ban reflected bias.
U.S. Solicitor Gen. Noel Francisco defended the president’s order and argued it could not be fairly described as a “Muslim ban.” It applied to only five Muslim nations — Iran, Yemen, Libya, Syria and Sudan — and they were targeted because of national security concerns, he said. He also urged the court to toss out the underlying suits on the grounds that “aliens abroad” have no legal right to seek entry to the United States.
Litman agreed “there are various ways the court or particular justices could try to wrangle out of it, including deference to the president with respect to immigration or national security. But the principle the court articulated [on Monday] and its mode of analysis should lead it to invalidate the entry ban on 1st Amendment grounds.”