It did not take long for liberal observers to argue that the Supreme Court’s Masterpiece Cakeshop decision points to a loss for President Donald Trump in the so-called travel ban case.
Justice Anthony Kennedy’s majority opinion in the 7-2 decision finding that a Colorado Christian baker’s right to free exercise of religion had been violated focused heavily on comments made by members of a commission that sanctioned him for not baking a wedding cake and creating custom decorations on it for a gay couple.
Baker Jack Phillips, the majority ruled, was entitled to a religiously neutral hearing but did not get one. As evidence, Kennedy pointed to comments made in public hearings of the Colorado Civil Rights Commission (CCRC) in 2014. Commissioners “endorsed the view that religious beliefs cannot be carried into the public sphere or commercial domain,” he wrote.
One commissioner said Phillips could believe what he wanted but cannot act on those beliefs if he wanted to do business in the state. Another member of the commission said religious freedom had been used to justify slavery and the Holocaust.
Those comments, Kennedy wrote, implied that “religious beliefs and persons are less than fully welcome in Colorado’s business community.”
Liberal commentators argued that if the justices can scrutinize statements by members of the Colorado Civil Rights Commission, they can and should scrutinize Trump’s campaign statements in considering whether to strike down his executive order imposing a temporary ban on people from certain terrorism-compromised countries from entering the United States.
Some lower courts have taken that very step, using a campaign promise to impose a “total and complete shutdown of Muslims entering the United States” — as well as other comments by Trump and his advisers — as evidence that the current order is a pretext for discrimination.
“In this post, I wanted to highlight several aspects of the court’s opinion in Masterpiece Cakeshop that, if taken seriously, would dispose of several of the government’s arguments in the entry ban litigation (Trump v. Hawaii),” University of California, Irvine law professor Leah Litman wrote on an anti-Trump blog.
“Of course the court is not always consistent in what it says or what it does. But if it is serious about the reasoning and principles it articulated in Masterpiece Cakeshop, and it should be, then it should reject several of the arguments that have been used to defend the entry ban,” Litman wrote.
Famed Harvard Law professor Laurence Tribe made the same point on Twitter.
“Justice Kennedy’s narrow 7-2 Court opinion for the baker invoked anti-Christian animus by a regulator who declined to apply the anti-discrimination statute,” he wrote. “Let’s see if Kennedy and the other six justices invoke Trump’s overt anti-Muslim animus to strike down his travel ban.”
Other legal experts, however, said it is far from clear that the travel ban and bakery cases should be treated on the same basis. Kim Colby, director of the Christian Legal Society’s Center for Law and Religious Freedom, noted during a conference call with reporters that Kennedy cited a precedent from 1993.
In that case, the high court upheld an ordinance in Hialeah, Florida, banning unnecessary killing of animals for purposes other than for food. The plaintiffs in that case practiced Santeria and introduced statements of city council members indicating bias toward their religious beliefs.
Some justices maintained that the statements should not be considered. But Kennedy argued this week that the bakery case was different because it was a judicial proceeding, not a legislative one.
Justice Kennedy’s narrow 7-2 Court opinion for the baker invoked anti-Christian animus by a regulator who declined to apply the antidiscrimination statute. Let’s see if Kennedy and the other six Justices invoke Trump’s overt anti-Muslim animus to strike down his travel ban.
— Laurence Tribe (@tribelaw) June 4, 2018
Colby said the travel ban likely will hinge on whether justices treat the executive branch like a judicial body or like a legislative body.
“It’s a good question, and I can’t read the tea leaves,” she said. “You could go either way with this decision.”
Other legal experts expressed more confidence that the justices will treat the cases differently.
“I think it’s apples and oranges,” said Andrew Arthur, senior fellow in law and policy at the Center for Immigration Studies (CIS).
Arthur said the CCRC members made their comments during the very proceedings in which they heard the allegations against Phillips.
By contrast, he said, Trump made his statements on the campaign trail — divorced from the process that produced the executive order and its revised successors.
“Basically, it allowed them to cherry-pick,” Arthur said.
He added that the executive order arose from a formal procedure that did not involve biased statements.
“There was a process that was followed,” he said. “It was incorporated within the executive order.”
Hans von Spakovsky, a legal scholar at the conservative nonprofit Heritage Foundation, agreed. He told LifeZette that the high court appropriately focused on the demonstrated biases of the CCRC members in the bakery case because that body was acting as a quasi-judicial body.
Trump has a far different role in creating policy, von Spakovsky said.
“Judges are supposed to be impartial,” he said. “They’re not supposed to be biased. Trump is acting in an executive capacity.”
Related: Who Knows What Bakery Ruling Means for Future Cases?
Von Spakovsky drew an analogy between a judge and prosecutor in a criminal case. He said a prosecutor is permitted — indeed, expected — to show bias against a defendant. But he added that a judge is supposed to remain impartial and that a failure to do so can be grounds for reversal.
What’s more, von Spakovsky added, Trump’s comments occurred far before the formal process that developed the policy. He was not even in government at the time, von Spakovsky said. The comments by the CCRC members took place during the proceedings themselves, he added.
“That is also a major, major, major difference,” he said.
PoliZette senior writer Brendan Kirby can be reached at [email protected]. Follow him on Twitter.
(photo credit, homepage and article images: Protest at JFK [1], [2], CC BY-SA 4.0, by Rhododendrites)
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