The Supreme Court only sees religious bigotry when it wants to
By Daniel Mach
In a pair of religious freedom rulings this month, the Supreme Court took dramatically different approaches to a basic constitutional question: When does anti-religious hostility by government officials violate the religious liberty guarantees of the First Amendment?
The wildly divergent results in those two high-profile cases — Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Trump v. Hawaii, the travel ban case — send troubling mixed messages, which threaten to undermine religious freedom, fairness, and equality for all.
In a deeply divided 5-4 decision handed down June 26, the court upheld President Trump’s travel ban. In the face of Trump’s repeated, unambiguous statements condemning Islam and Muslims, the Supreme Court essentially gave the president a free pass to vilify an entire faith and enshrine that bigotry into national immigration policy.
The travel ban decision comes only weeks after the Supreme Court, in the Masterpiece Cakeshop case, bent over backwards to find religious hostility, despite a much weaker factual record. In Masterpiece, the court ruled in favor of a Christian-owned bakery in Colorado that had refused to sell a wedding cake to a gay couple on the same terms as all other customers.
In that case, the court found religious animus based on three pieces of flimsy evidence: First, it noted that one of the seven Colorado civil rights commissioners said that “it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.” The court also cited another commissioner’s statement that the bakery’s owner can believe “what he wants to believe,” but he can’t act on that belief “if he decides to do business in the state.” Finally, the court saw evidence of religious hostility in the state commission’s refusals to pursue complaints against three other bakeries that had declined to make cakes with anti-gay messages.
Taken together, those three examples amount to very little. The use of the term “despicable” was unfortunate, but it’s well-settled constitutional law that religion can’t be invoked to harm others and that businesses can’t use religion to avoid complying with neutral anti-discrimination rules.
In contrast to Masterpiece Cakeshop, the evidence of anti-religious animus in the travel ban case is unambiguous and consistent. And it all flows from President Trump, the person singularly responsible for the policy. He formally called for a “shutdown of Muslims entering the United States” in a statement that remained on his campaign website well into his presidency.
Just one week after his inauguration, the president put that call into action with an executive order that targeted Muslim-majority countries and included thinly veiled attacks on Muslim communities at home and abroad. Trump confirmed that countries were simply used as a stand-in for religion in the ban, explaining that he had moved to “talking territory instead of Muslim” because “[p]eople were so upset when I used the word Muslim.” Lest there was any doubt about his intent, he proudly proclaimed on a national Christian broadcast network that the order was crafted to favor Christian over Muslim immigrants.
Later versions followed the same basic blueprint, and the president has continued to demean Muslims and their faith throughout the process. Throughout the entire process, whether discussing the ban or Islam in tweets or in the press or defending it in court, Trump has never retreated from or apologized for any of his blatantly anti-Muslim rhetoric.
In Masterpiece Cakeshop, the Supreme Court relied on meager evidence of bias to hold that government disparagement of religion is “inappropriate for [an official] charged with the solemn responsibility of fair and neutral enforcement” of the law. If the thin record in Masterpiece supports a finding of impermissible hostility, then the mountain of unapologetic, cruel statements from the president in the Muslim ban case surely do, too.
Remarkably, in upholding the travel ban, the court didn’t even try to reconcile the two cases.
In Masterpiece Cakeshop, the Supreme Court emphasized that fundamental religious freedom “bars even subtle departures from neutrality on matters of religion.” The First Amendment, the court explained, “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.”
If only the Supreme Court had applied that standard a few weeks later to the president and his travel ban.
Dan Mach is the director of the ACLU Program on Freedom of Religion and Belief.
