This morning, the Supreme Court handed down Masterpiece Cakeshop v. Colorado Civil Rights Commission. Justice Kennedy’s majority opinion held that the particular application of the Colorado Anti-Discrimination Act to the baker in that case violated the First Amendment’s Free Exercise Clause because “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.”

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).  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.

Claim Number One:  A law cannot violate the First Amendment if the law could have been enacted or applied without animus or religious hostility. 

Trump v. Hawaii:  In the entry ban, the government (and the administration’s defenders) are arguing that the entry ban would be lawful absent consideration of the President’s statements or intent and that an official action cannot be unconstitutional solely on the basis of an official’s statements or intent.  This argument has also sometimes appears under banner of  “the entry ban would be lawful if President Obama had enacted it” (since President Obama hasn’t said terrible things about Muslims and Islam and banning Muslims from the United States).

Here is what Justice Kennedy had to say about that in Masterpiece Cakeshop: Not true. 

Here are his longer excerpts making that point clear:

• “Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.”
• "[W]hile those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."  (And yet the Court invalidated this particular application of such a law.)

• "The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection."

• “In Church of Lukumi Babalu Aye, the Court made clear that the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion."

• "The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires."

• noting the separate question of whether "the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach"

In sum:  A law, or application of a law, might be valid if it does not rest on religious animus.  But it would be invalid if it does rest on religious animus.

***

Claim Number Two: Words do not matter.

Trump v. Hawaii:  In the entry ban, the government (and the administration’s defenders) are arguing that courts shouldn’t parse officials’ words in order to determine their intent and the constitutionality of their official actions.

Here is what Justice Kennedy had to say about that in Masterpiece Cakeshop:  Wrong. 

Here are his longer excerpts making that point clear:

• “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
• “The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires.”

In sum:  When determining if an official act rests on hostility or religious animus, courts assess government official’s words.

***

Claim Number Three: When assessing animus, courts should indulge fantasies and engage in interpretive jujitsu and bend over backward to conclude there is no animus.

Trump v. Hawaii:  In the entry ban, the administration’s defenders are arguing that the President’s words don’t really rise to the level of animus or religious hostility, and people are failing to give the “charitable interpretation” to the President’s words.  (The government didn’t really press this argument because it’s frankly absurd.)

Here is what Justice Kennedy had to say about that in Masterpiece Cakeshop:  Doubtful. 

More specifically, here is what Justice Kennedy said evidenced the Colorado Civil Rights Commission’s animus in the case before the Court:

• "One commissioner suggested that Phillips can believe 'what he wants to believe,' but cannot act on his religious beliefs 'if he decides to do business in the state.'  A few moments later, the commissioner restated the same position: '[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.'”

 And Justice Kennedy’s assessment of those statement:

Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.

Here is that other statement Justice Kennedy said revealed animus:

• “I would also like to reiterate what we said in the hearing or the last meeting. 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.”

And here is Justice Kennedy’s assessment of that statement:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law.

 For evidence of the President’s animus on the entry ban, I would encourage you to reach this amicus brief by the Macarthur Justice Center.  Some key highlights:

• “I think Islam hates us.”  
• “You’re going to have to watch and study the mosques, because a lot of talk is going on at the mosques.”
• “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”

In sum:  The evidence of animus in Masterpiece Cakeshop was not any stronger than evidence of animus in the entry ban.  If saying "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history," and using religion to justify discrimination is "despicable" qualifies as animus, I would think saying "I think Islam hates us" and "calling for a total and complete shutdown of Muslims entering the United States" would qualify too.

***

Claim Number Four:  It doesn’t matter if there hasn’t been a specific disavowal of particular animus-laden statements.

Trump v. Hawaii: In the entry ban, the government is arguing that somehow, somewhere the President disavowed the entry ban without mentioning the specific statements he made about Muslims, the proposal to ban all Muslims, or apologizing for any of it.

Here is what Justice Kennedy had to say about that in Masterpiece Cakeshop:  No.  More specifically, here is what Justice Kennedy said about Colorado’s failure to disavow the preceding statements:

 "The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court."

***

I could continue on.  For example, Justice Kennedy notes in Masterpiece Cakeshop that Colorado seemingly treated the baker’s case different than others.  Does anyone remember the first entry ban, and how that was announced with … no advance notice to any of the relevant department heads?

Instead, I will just say this:  Masterpiece Cakeshop reiterated a point basic to our constitutional system—the government cannot act on the basis of animus or hostility toward a particular religion.  To effectuate that principles, courts look to circumstantial evidence, including officials’ words, to determine whether the government acted with animus.  While there are ways to distinguish Masterpiece from the entry ban litigation (including some snippets in the opinion itself), those principles do a lot to resolve the merits of the First Amendment challenge in the entry ban.  Time will tell whether the Court will stick to them.

@LeahLitman

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