The Supreme Court resolved the first of the two major church-state cases that it will decide this term — Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission — by exonerating a bakery that turned away customers for their sexual orientation, because the court found that some of the Colorado Civil Rights Commissioners that decided their dispute demeaned the bakery owner’s Christian faith.
If our nation’s fundamental promise of equal justice under law truly extends to members of all religious faiths, including our clients in Iranian Alliances Across Borders (IAAB) v. Trump, then the reasoning that absolved the bakery must surely dictate that in the second major religion case, Hawaii v. Trump, President Donald J. Trump’s Muslim ban will be struck down — a conclusion that we are not alone in reaching, as pieces in Politico and the “Take Care” blog testify.
The president’s statements are far more pervasive and demeaning of Islam than anything that the commissioners said about the Christian bakery owner. And whereas in Masterpiece, the court acknowledged its difficulty reconciling the customers’ right not to be discriminated against with the bakery owner’s right not to have his religious beliefs demeaned, in the case of the Muslim ban, the victims of discrimination and the people having their religion denigrated are one and the same — American Muslims.
The Masterpiece dispute arose from a bakery’s refusal to sell a cake to Charlie Craig and David Mullins for their wedding reception. The Colorado Civil Rights Commission decided that this refusal violated Colorado’s Anti-Discrimination Act. The Colorado courts rejected the bakery’s constitutional challenge to the commission’s decision.
The Supreme Court reversed. In doing so, however, the court did not rule that the bakery had a constitutional right to use religion to justify violating Colorado anti-discrimination law. Nor did the court hold that the bakery had a free-speech right to refuse service because there is artistry in making wedding cakes. Rather, the court narrowly held that the state commission’s decision must be reversed because, in its view, some of the commissioners exhibited bias and did not accord the bakery “the neutral and respectful consideration of [its] claims.”
The evidence that primarily drove that conclusion was a statement by one commissioner, who said, “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be — I mean we — we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me, it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
The court observed that “[t]his sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.” Largely on the basis of this statement — which was never objected to by other commissioners or disavowed—the Supreme Court reversed the lower courts’ decisions in favor of the commission.
In resolving the dispute between the bakery and the commission this way, the court can fairly be admonished for having lost sight of the parties (newlyweds Craig and Mullins) whose injury gave rise to the dispute in the first place. But if there is a silver lining in the opinion, it’s that the court attaches grave legal consequences in religious-freedom cases to statements by government actors that are hostile to anyone’s faith — an approach that must be applied in equal measure to the Muslim ban case.
As a candidate, Trump pledged to ban Muslims from entering the country, because “Islam hates us … [a]nd we can’t allow people coming into this country who have this hatred.” While the actual ban excludes nationals of Muslim-majority countries without using the term “Muslims,” the president had already explained that “talking territory instead of Muslim” makes no difference to him. Nor does the linguistic backflip matter to American Muslims cut off from family members or other members of their community, or for that matter, to the people who want to exclude Muslims from the country. As Maya Angelou said, “When people show you who they are, believe them.” When Trump says that he wants to ban Muslims from entering the United States, people believe him.
Though the government has sought to distance the ban from Trump’s statements on the campaign trail, the president has said again and again in office that the current ban is just a weaker or “watered down” version of the ban that he called for during the campaign. He has persisted in his anti-Muslim animus during his presidency, including retweeting anti-Muslim propaganda. Just as the Colorado commissioners never disavowed their statements, Trump has never disavowed his call for a Muslim ban or any of his many statements denigrating Islam. Indeed, Trump’s Justice Department had to engage in an embarrassing and unpersuasive correction of the record after incorrectly telling the court that the president had disavowed a Muslim Ban in September of 2017.
In Masterpiece, the Supreme Court based its decision on one of the core principles of religious freedom: The government cannot act based on hostility to religion. There’s no clearer example of this than Trump’s Muslim ban. The high court surely understands that history will not look kindly on the ban’s flagrant discrimination against one religious group. Nor will it look favorably, if the court gave religious freedom protections to some (in Masterpiece, a Christian) and not to all.