The following column by Sirine Shebaya, senior staff attorney at Muslim Advocates, Jonathan Smith, legal director at Muslim Advocates, and guest writers ran in the Huffington Post on June 26, 2018.
The Supreme Court has issued disturbingly contradictory rulings this term in two significant cases dealing with the right of minority groups to be protected from discrimination. Taken together, they turn the purpose of the First Amendment’s establishment clause on its head.
A few weeks ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court found that statements by the commission’s members invalidated the commission’s finding in favor of a same-sex couple who were denied a wedding cake by a Christian baker. The remarks at issue were extremely attenuated and general, and the Supreme Court majority acknowledged that they were subject to multiple interpretations.
Nonetheless, and because of those remarks alone, the court tossed aside the Colorado commission’s ruling that the baker, Jack Phillips, discriminated against David Mullin and Charlie Craig in refusing to bake them a wedding cake. In Justice Anthony Kennedy’s words, constitutional protection for the freedom of religion prohibits even “subtle departures from neutrality.”
Yet, on Monday, in its ruling in Trump v. Hawaii, the court found that the president’s long record of undisputed anti-Muslim animus was insufficient to invalidate a policy banning millions of Muslims from traveling to the United States.
Unlike in the Masterpiece Cakeshop case, there is no ambiguity about President Donald Trump’s anti-Muslim history. His statements are not subject to multiple interpretations and their hostility toward religion is so well-documented that it was not even being disputed by the government. As Justice Stephen Breyer wrote in dissent, the “evidence of anti-religious bias” should be “a sufficient basis to set the Proclamation aside,” particularly because — as a bipartisan group of dozens of national security experts concluded — the national security justification for the ban is so thin.
Although the court’s decision focused on the powers of the president under the immigration laws, this case at its core was always about whether politicians can demonize and vilify a religious group and still be allowed to implement policies that specifically target that group. The record of religious animus before the Supreme Court was undeniable. Yet, contrary to its statements in Masterpiece Cakeshop, the conservative majority put all that history to the side and allowed Trump’s Muslim ban to remain fully in effect.
In her own dissent, Justice Sonia Sotomayor scathingly called out this contradiction. The court in Masterpiece Cakeshop had “found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant,” she wrote, yet now the majority allowed “a policy first advertised openly and unequivocally as a ‘total and complete shutdown on Muslims entering the United States’” to go forward.
At the end of the day, the only meaningful difference between Masterpiece Cakeshop and Trump v. Hawaii is that Jack Phillips is Christian and the millions of people targeted by the ban are Muslim. The slightest hint of hostility toward religion is intolerable to the Supreme Court when directed at mainstream Christian beliefs. But years of well-documented, unambiguous animus toward Islam does not hold enough weight to invalidate a policy that has no viable alternative justification. Rather than shielding religious minorities who are at risk of persecution against discrimination, the religion clauses in the Constitution are being used by the court to provide exclusive protection for the religious beliefs of one particular religious group — even when those beliefs harm minorities who need protection, as in Masterpiece Cakeshop.
The establishment clause was, in both its origins and early interpretations, fundamentally about protecting religious minorities and allowing religious pluralism to flourish. It was a commitment to the principle that America would be an open and tolerant place for all.
With its recent rulings in these twin cases, the Supreme Court has turned that principle upside down.
Sirine Shebaya is a senior staff attorney at Muslim Advocates. Johnathan Smith is the legal director at Muslim Advocates.