In a much-anticipated decision Monday morning, the Supreme Court ruled – by a vote of 7 to 2 – in favor of a Colorado baker who claimed his refusal to sell a wedding cake to a same-sex couple was protected under the First Amendment. Some conservatives are exultant. Radio host Hugh Hewitt, for example, called the decision “An enormous, milestone victory for religious belief and First Amendment.”
But from a culture-war perspective, the baker’s victory was considerably less than opponents of same-sex marriage might have been hoping for. Rather than saying that the First Amendment entitles people with religious objections to same-sex marriage to be exempted from laws prohibiting discrimination against same-sex couples, the Court ruled only that the specific administrative proceeding that ruled against this particular baker had been tainted by a disrespectful attitude toward his religious beliefs. As a concurring opinion from Justice Elena Kagan pointed out, under Monday’s decision the exact same Colorado law could be applied against a different baker (or even this baker) in a future case presenting the same facts, so long as the adjudicative process is free of anti-religious bias.
But by framing the case as it did, the Court made its limited decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission a warm-up act for another decision expected later this month—one at least as anticipated as Monday’s wedding-cake decision. That other case is Hawaii v. Trump, the case about the executive order banning entry into the United States by nationals of several countries, most of them majority-Muslim. That case, like the wedding-cake case, is about the First Amendment’s Free Exercise Clause. The author of Monday’s decision, Justice Anthony Kennedy, is generally assumed to be the swing vote in the entry-ban case. And over and over in Monday’s decision, Justice Kennedy articulated positions directly relevant to the entry ban—all of them running against the Trump administration’s position.
At issue in Hawaii v. Trump is whether the entry ban order results from anti-Muslim animus—that is, a kind of religious prejudice. Much of the fight is about whether courts should ignore President Trump’s Islamophobic statements when reasoning about the purpose of the entry ban. In Monday’s decision, Justice Kennedy made plain that it is appropriate to consider the prejudice in things government officials say when analyzing claims that those officials’ actions are unconstitutionally discriminatory: The key to the Masterpiece Cakeshop decision, for Kennedy, was a series of statements by two members of the Colorado Civil Rights Commission that displayed, or might have suggested, a prejudicial attitude toward the baker’s religious beliefs.
To be sure, Monday’s case and Hawaii v. Trump are not exactly the same. The prejudice question in the entry-ban case is about prejudice in the process of lawmaking, and Monday’s bakery decision was about prejudice in the application of the law to a specific person. Sometimes that distinction makes a difference. So it seems noteworthy that Justice Kennedy went out of his way in Masterpiece Cakeshop to signal that he does not believe that distinction to be significant. “Members of the Court have disagreed on the question whether statements made by lawmakers [as opposed to adjudicators] may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion,” he wrote. To illustrate that disagreement, Justice Kennedy cited a 1993 decision in which he had disagreed with the late Justice Antonin Scalia on that very point—with Kennedy taking the view that the statements of lawmakers do matter. With a draft of Hawaii v. Trumpprobably sitting in another folder on his hard drive, it’s hard to imagine that Justice Kennedy didn’t have the entry-ban controversy in mind as he wrote that passage.
Justice Kennedy also took a capacious view of what sorts of statements by decisionmakers would suffice to show unconstitutional prejudice. Rather than saying the seven-member Colorado Civil Rights Commission had acted solely or even predominantly on a prejudiced basis, Justice Kennedy wrote that the Commission’s process had “some elements of a clear and impermissible hostility” toward the baker’s religious beliefs. One commissioner in the proceeding described religion as having contributed to some of history’s greatest evils, including slavery and the Holocaust. Another commissioner said that “if a businessman wants to do business in the state and…the law’s impacting his personal belief system, he needs to look at being able to compromise.” On its face, the proposition that someone “needs to look at being able to compromise” doesn’t seem like anti-religious intolerance. But Justice Kennedy regarded the statements of these two commissioners, taken together, as exhibiting a prejudiced attitude that the First Amendment prohibits. In Kennedy’s formulation, the First Amendment prohibits “even subtle departures from neutrality on matters of religion.”
How would a “subtle departures from neutrality” standard bear on the entry-ban issue? The connection between the president’s Islamophobia and the entry ban is not plausibly described as “subtle.” The ban grew out of the president’s explicit promise to prevent Muslims from entering the United States and exists against a background of any number of other Trump statements displaying at least as much hostility toward Islam as anything that any of the Colorado Commissioners displayed toward the baker’s religious objections to same-sex marriage. If the statements of lawmakers can be considered, and if even subtle suggestions of prejudice violate the Free Exercise Clause, the entry ban is in serious trouble.
None of this means that we now know that Justice Kennedy is voting against the entry ban in Hawaii v. Trump. Even with everything that Justice Kennedy said in Monday’s majority opinion, he could distinguish the other case by saying that courts should not second-guess the executive branch in cases dealing with national security or that only statements made in the course of official proceedings (rather than statements made to the public in general) count as showing prejudice. But it’s also possible that the indicators in Monday’s decision are a straight line that points where it points: The First Amendment is violated when officials engage even in subtle religious prejudice, let alone obvious religious prejudice, and the statements of the relevant officials are plenty good evidence of that prejudice, whether in the adjudicatory context or that of lawmaking.
If Justice Kennedy votes against the Trump administration in Hawaii v. Trump, Monday’s decision will look like the dropping of the first Free Exercise shoe. On the other hand, if Justice Kennedy votes to uphold the entry ban, Masterpiece Cakeshop will look like Justice Kennedy’s bid to demonstrate how sensitive he is to religious prejudice just before he permits the government to engage in an enormously salient bit of religious discrimination. Justice Kennedy is not unaware that history will remember him, and he may have an inkling that history will see the entry-ban case in terms of anti-Muslim prejudice. If he plans to side with the government on the entry ban and wants to shield himself from posterity’s judgment that he failed to stand up against religious bigotry—or even if he just wants to reassure himself, as he sustains the entry ban, that he is not tolerant of such bigotry—then Monday’s opinion might have provided him a welcome outlet. That other case certainly seems to have been on his mind.
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