Outside the Beltway

Could SCOTUS’s Ruling In Masterpiece Cakeshop Impact Trump’s Muslim Ban?

Some legal scholars are speculating that the Court's ruling in Masterpiece Cakeshop could impact the ruling on the President's Muslim Travel Ban. This seems unlikely.

Doug Mataconis · Wednesday, June 6, 2018 · 7 comments

Several legal scholars are speculating that the Supreme Court’s ruling in the Masterpiece Cakeshop case earlier this week, which relied heavily on statements that had been made by members of the Colorado Civil Rights Commission regarding the religious liberty claims made by the cakeshop, could have an impact on how the Justices rule on the validity of President Trump’s travel ban, which bans travel mostly from countries with a majority Muslim population:

[B]y 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.

On a related note, Ilya Somin at The Volokh Conspiracy notes that there is stronger evidence for the kind of “impermissible hostility” in the Travel Ban case than there was in the Masterpiece Cake decision:

In Masterpiece Cakeshop, the baker’s claim for a religious exemption from the state’s antidiscrimination law protecting same-sex couples was considered by the seven member Colorado Civil Rights Commission. Two of the seven commissioners made hostile statements about baker Jack Phillips’ religious beliefs during Commission hearings. For example, one of them said it was “despicable” for the baker to use “freedom of religion …. to justify discrimination.” For the Supreme Court majority, this was sufficient evidence of “hostility” to invalidate the judgment against Phillips, even though – as Justice Ruth Bader Ginsburg pointed out in her dissenting opinion – “[t]he proceedings [in Phillips’ case] involved several layers of independ­ent decisionmaking, of which the Commission was but one.” She notes that the case was first considered by the Colorado Civil Rights Division (which found “probable cause” for a violation of state antidiscrimination law), then assessed by the Civil Rights Commission, then heard by an administrative law judge (who ruled against Phillips), and finally reviewed by the Colorado Court of Appeals. Only two of seven members of the Civil Rights Commission expressed any hostility towards Phillips’ religious beliefs. And there was no evidence of hostility on the part any of the other three bodies that considered the case.

In the travel ban case, by contrast, we have repeated statements by President Trump advocating a “Muslim ban” and equating the “territorial” policy embodied in his various travel ban orders with the earlier “Muslim ban” proposal. He even described the latter as an “expansion” of the former. Unlike Colorado’s decision in the Cakeshop case, the travel ban policy was not the result of proceedings with “several layers of independ­ent decisionmaking.” There was only one decision-maker: Trump. The lower-level officials involved were ultimately doing his bidding, and certainly not independent of him.

It is also worth noting that, in the Cakeshop case, the Supreme Court did not require proof that hostility towards’ Phillips’ religion was a decisive factor in the state’s decision. Otherwise, the state might well have prevailed, given that the hostility infected only a minority of the Civil Rights Commission, and that Commission was not the only decision-maker involved. It was enough that one decision-making body involved in process showed “elements” of hostility. Such “elements” are clearly present in spades in the travel ban case.

The Masterpiece Cakeshop majority also partly based its decision on the fact that the Commission treated Phillips’ case differently from those of three other bakers who refused to create cakes that convey messages they disapproved of. The Commission ruled in favor of the other bakers, but against Phillips, which – the Supreme Court concluded – suggests that the decision in the latter case was at least in part motivated by hostility towards’ Phillips’ beliefs.

There is at least equal inconsistency underlying the travel ban policy. The government has been extremely inconsistent in applying the information-sharing criteria that supposedly justify Trump’s Travel Ban 3.0. Moreover, evidence strongly suggests that Travel Ban is not backed by an “extensive” analysis, as the Solicitor General claimed at the Supreme Court’s oral argument. The inconsistencies in the travel ban policy are actually more blatant than those in the Colorado case, where there were significant potential differences between Phillips’ case and those of the other three bakers. As Justice Elena Kagan notes in her concurring opinion, there was actually an “obvious” potential basis for distinguishing the other three cases from Phillips’, because the former did not involve discrimination based on sexual orientation or other legally prohibited classification. Those bakers would have refused to create the messages in question for any customer. In Phillips’ case, he refused to bake a cake for a same-sex couple of a sort that he would have been willing to prepare for an opposite-sex one that was otherwise identical.

Leah Litman at PrawsLawBlawg has a similar analysis, and Michael Dorf agrees but isn’t quite so optimistic that the Court will be influenced by the reasoning in Masterpiece Cakeshop in ruling on the Travel Ban:

[A]ssuming that the Court means what it says in Masterpiece, that should doom the Trump administration in the pending Travel Ban case. There the evidence of anti-religious bias is much stronger than in Masterpiece. Candidate and then President Trump repeatedly called for a Muslim ban and his spokespeople described the policy that became Travel Ban 1 as an attempt to dress it up to make it look legal. That Travel Ban 1 was, in turn, a but-for cause of Travel Ban 3, now before the Court. Meanwhile, despite being given multiple opportunities and invitations to do so, President Trump has never disavowed the anti-Muslim animus that underwrites the Travel Ban.

Do I expect the Court to invalidate the Travel Ban? Not necessarily. Wearing my legal realist hat, it becomes clear that Masterpiece was an act of prudence by the majority–everyone but Thomas on the right and Ginsburg and Sotomayor on the left–to avoid a difficult and divisive decision about how to reconcile the First Amendment with public accommodations laws. By contrast, in The Travel Ban case, prudence could lead the justices in a different direction. Concerned about politesse, they may fear to base their opinion on the fact that the president of the United States is a bigot–even though the evidence for that proposition is very much stronger than the evidence of bigotry on the part of one or two Colorado Civil Rights Commissioners.

Oh the whole, I tend to agree the most with Professor Dorf regarding the extent to which we can use the reasoning in Masterpiece Cakeshop to determine how the Court might rule on the Muslim Travel Ban. Most importantly, the two cases are fundamentally different so it’s difficult to say that the logic that propelled the Court to its decision in Masterpiece Cakeshop compels it to rule one way or the other on the travel ban.

In Masterpiece, the central issue revolved around the competing interests of the religious liberty of the baker and the government’s interest in enforcing its laws against discrimination in public accommodations and services. Instead of resolving that case with a general rule that can be applied in similar cases going forward, the Court found for the baker largely due to the fact that the tribunal which ruled on the complaint that had been brought against him, the Colorado Civil Rights Commission, did not give him a fair hearing. The majority based this ruling largely on the fact that several members of the Commission had expressed outright hostility toward the baker’s religious liberty claims that made it clear they were not going to give him a fair hearing.

The Travel Ban case, on the other hand, is primarily about the interpretation of Federal law and the question of the extent of Presidential authority in the area of border control that raises questions of national security, the amount of discretion granted to the Executive Branch to prevent entry into the country by persons deemed to be national security threats. It is true that in the Court’s below that have ruled on this issue, the comments that the President and several of his top advisers regarding the intent of the ban have been an issue. However, it’s not at all clear that the Supreme Court will give the same weight to these statements as the lower courts did, even though they probably should. This is especially true given the fact that, in its defense of the Travel Ban, the Administration is relying heavily on the argument that the ban falls within the President’s broad discretionary authority with regard to national security issues. This is one area when the Justices have tended to defer to the Executive Branch, which is one of the reasons why I’ve tended to doubt that they are going to strike the travel ban down.

I do agree with people like Shapiro and Litman that, at least on some theoretical level, the holding in Masterpiece Cakeshop does pose some interesting questions for the Travel Ban, but they only become questions if the Justices give the same weight to the comments that Trump made on the campaign trail that they did to the members of the Colorado Civil Rights Commission then the Travel Ban could be in trouble. If, for example, the Court’s majority decides that the President’s campaign rhetoric should not be a factor in judging the validity of the travel ban, then they will most likely vote to uphold the ban. If they rule that these statements are relevant in determining whether or not there is a discriminatory intent behind the ban, then it’s likely that they will end up ruling against the Administration.

That being said, I think there is plenty of room for the Court to distinguish its ruling in Masterpiece Cakeshop from the Travel Ban case to a sufficient degree that it would not be bound by the logic of the first case. The primary distinguishing factor, of course, is the fact that the Colorado Civil Rights Commission was, effectively, operating as a Court when it heard the claim that had been filed against the baker. As such, there are presumptions of neutrality that come into play that the members of the commission clearly didn’t follow. In the case of the Travel Ban, though, the President specifically and the Executive Branch is not operating as a court with respect to border control issues. Surely, it is true that they cannot act in a manner that is obviously discriminatory, but the fact that the Travel Ban only applies to a discrete group of nations rather than all Muslims is arguably sufficient to get around the objection that the “real intent” of the ban was to target Muslims. As one of the Justices pointed out during oral argument, the fact that the ban only impacts a handful of the fifty Muslim nations around the world calls into doubt the question of whether the primary motivation of the ban is discriminatory. Add into this the aforementioned deference that the Court typically gives to the President on national security matters, and I tend to doubt that the Masterpiece Cakeshop case really has any relevance to the Travel Ban.

As I noted when the Travel Ban case was argued back in April it appeared that the Administration had had a good day and that the challengers were facing an uphill battle. Not surprisingly, the questioning from the bench showed that the Court’s conservative wing (Roberts, Alito, Thomas, and Gorsuch) strongly inclined to give deference to the President’s national security authority in issuing the ban and discount the relevance of statements that the President made as a candidate for President in determining whether or not there is a discriminatory intent behind the ban. It also appeared from the tone of the argument that Justice Kennedy, who along with the Chief Justice was one of the Justices on the right that some challengers hoped might be persuadable, was more sympathetic to the arguments made by the Federal Government in defense of the ban than the arguments being made by the challengers. If this was meant to be an indication of the way in which he would ultimately vote in determining the case, then it seems clear that there would be five votes to uphold the ban.

As with every other case on the Court’s docket, we’ll have to wait until the Court rules to see how this turns out, but my guess is that the Masterpiece Cakeshop case isn’t even going to play a role in the Court’s ruling.