In the dueling majority and dissenting opinions in the Supreme Court’s recent decision upholding President Trump’s immigration ban in Trump v. Hawaii, the justices carefully tried to answer just about all the arguments made by the disagreeing justices.
Chief Justice Roberts even took the occasion not only to respond to Justice Sotomayor’s arguments in dissent about the troubling similarity of the majority opinion to the infamous ruling in the Korematsu case, but also to formally overrule that shameful holding that sustained imprisonment of Japanese-Americans during World War II. But Roberts did not even try to answer one of Sotomayor’s most powerful arguments: the blatant inconsistency between the 5-4 majority’s ruling in Hawaii and the recent decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n concerning government hostility towards religion.
This issue is particularly important as we consider a nominee to replace Justice Kennedy.
{mosads}In Masterpiece, a Colorado baker appealed a state ruling that he improperly refused to bake a wedding cake for a gay couple, in violation of a state civil rights law that guarantees non-discrimination against LGBTQ individuals and racial and other minorities by businesses providing goods and services to the public. But the Court did not rule that the baker had a valid religious or free speech objection to complying with the law, and explained that such laws can properly be applied to protect LGBTQ individuals. Instead, the 7-2 majority found for the baker on the narrow ground that in processing the case, statements by several members of the state commission had shown “hostility” and “disrespect” for the baker’s Christian religious views.
In fact, the Court’s decision in Masterpiece just a few weeks ago used broad language about the importance of avoiding government “hostility to a religion.” The Constitution bars even “subtle departures from neutrality” on religion by government, the Court stated, quoting a previous decision (Church of Lukumi Babalu Aye v. City of Hialeah) that warned against “even slight suspicion that proposals for state intervention stem from animosity to religion.”
To determine whether the government has violated its constitutional duty to be neutral toward religion, the Court explained, it is important to review “the historical background of the decision under challenge, the specific series of events leading to” the policy, and “the legislative or administrative history, including contemporaneous statements made by” decision makers.
Justice Sotomayor’s dissent in Hawaii raised the obvious question: If a few statements by a few members of a state commission were enough to show improper hostility and lack of neutrality towards religion, why doesn’t the same principle apply “equally” to President Trump’s many “charged statements about Muslims” as applied to the Muslim immigration ban? As Sotomayor explained, the Court’s failure in Hawaii to apply the principles recognized in Masterpiece “erodes” those “foundational principles.” Perhaps more importantly, it sends a message to “members of minority religions in our country” like Islam “that they are outsiders, not full members of the political community.”
Even before the Court’s rulings in these two cases, serious concerns were raised about the inconsistency in conservative justices’ views about government hostility towards religion in the two cases. Just about any explanation for the inconsistency has dangerous implications. As the Sotomayor dissent suggests, do these decisions mean that conservative justices will find improper government hostility towards religion only when the hostility is towards a majority Christian faith? As Chief Justice Roberts’ opinion appears to suggest, is clear evidence of religious hostility irrelevant when a decision by the president on immigration or foreign policy issues is being challenged? If the answer to either question is yes, the result could well be to give virtually a free pass to President Trump to engage in conduct hostile and harmful to members of minority faiths in this country.
Given this president, Americans have every reason to fear future conduct along these lines. If the Supreme Court is asked to review such actions in the future, as it almost certainly will be, it must be both conservative and moderate members of the Court that faithfully and consistently apply accepted principles of religious neutrality.
And perhaps most importantly, when a nomination is made to replace Justice Kennedy and that nominees comes before the Senate, that nominee must be asked carefully about their views on these important principles, and the Senate must carefully consider the answers.
Elliot Mincberg is a senior fellow at People For the American Way and a former chief oversight counsel for the House Judiciary Committee.