Written by Don Byrd
As readers of this blog know well, the U.S. Supreme Court issued rulings in two cases with religious liberty concerns near the end of their most recent term. In both cases, a central issue was the impact of statements made by government officials arguably indicating that a policy decision may have been motivated by religious bias.
In Masterpiece Cakeshop, the statements in question were made by state commissioners deciding whether a business owner who refused to provide a cake for a same-sex wedding celebration was entitled to a religious accommodation from Colorado nondiscrimination laws. The Court there ruled in favor of the cakeshop owner. In Trump v. Hawaii, the President’s proposal to halt all Muslims from entering the U.S. was at the heart of an religious discrimination claim against an immigration policy order. In that case, the Court took the side of the administration.
Obviously, the facts of each case are hugely different. Still, is there inconsistency between the two cases’ legal analysis? A new column by Eliot Mincburg, a senior fellow at People For the American Way, argues that there is.
Here is an excerpt:
[T]he Court’s decision in Masterpiece just a few weeks ago used broad language about the importance of avoiding government “hostility to a religion.” The Constitution bars even “subtle departures from neutrality” on religion by government, the Court stated, quoting a previous decision (Church of Lukumi Babalu Aye v. City of Hialeah) that warned against “even slight suspicion that proposals for state intervention stem from animosity to religion.”
Justice Sotomayor’s dissent in Hawaii raised the obvious question: If a few statements by a few members of a state commission were enough to show improper hostility and lack of neutrality towards religion, why doesn’t the same principle apply “equally” to President Trump’s many “charged statements about Muslims” as applied to the Muslim immigration ban? As Sotomayor explained, the Court’s failure in Hawaii to apply the principles recognized in Masterpiece “erodes” those “foundational principles.” Perhaps more importantly, it sends a message to “members of minority religions in our country” like Islam “that they are outsiders, not full members of the political community.”
Read the whole thing.