Written by Don Byrd

In a column published in today’s NYTimes, veteran Supreme Court reporter Linda Greenhouse discusses the two Supreme Court cases we are watching closely: the Masterpiece Cakeshop case (involving a business owner’s claim that the First Amendment protects his refusal to create cakes to celebrate a same-sex marriage against state law barring such discrimination) and the “travel ban” case (challenging President Trump’s proclamation barring immigrants from certain majority-Muslim countries from entering the U.S.). Both cases are expected to be decided by June 30, the end of the current term.

As Greenhouse notes, both cases have little in common except, “at heart,” a claim of religious discrimination. The court’s handling of such claims, she emphasizes, demonstrates a shift in focus. Here is an excerpt from her piece.

Classically, the Supreme Court invoked the religion clauses of the First Amendment — the protection for free exercise and the prohibition against government “establishment” of religion — on behalf of minority religions. Rulings on behalf of Jehovah’s Witnesses who wouldn’t salute the flag, Amish parents who wouldn’t send their children to high school and non-Christians who objected to organized prayer in public school form the backbone of the First Amendment canon.

But in recent years, the court’s concern has flipped. Four years ago, in Town of Greece v. Galloway, the court gave its approval to the regular inclusion of Christian prayer at town meetings. Justice Anthony M. Kennedy’s majority opinion suggested that anyone who took offense was just being thin-skinned. The Hobby Lobby case that same year marked the court’s emerging view of Christians as victims of an overbearing government and, by extension, of an insensitively secular society. The Hobby Lobby decision, holding that the religious owner of a privately held for-profit corporation couldn’t be required to cover birth control in his employees’ health plan, was based on the court’s interpretation of a statute, the Religious Freedom Restoration Act, rather than on the Constitution itself. But the opinion by Justice Samuel A. Alito Jr., with its solicitude for the business owner’s far-fetched claim that he would be complicit in sin if his employees were to make use of their federally mandated benefit, clearly reflected the majority’s First Amendment sensitivities.

A group of 33 constitutional scholars, including the Baptist Joint Committee’s Holly Hollman, argue in a brief to the U.S. Supreme Court that President Donald Trump’s travel ban proclamation is unconstitutionally based in religious animus toward Muslims.

In the Masterpiece Cakeshop case, the BJC joined the United Church of Christ in filing a brief with the Supreme Court, arguing that the baker is not entitled to a religious exemption.

Importantly, both cases involve significant constitutional issues aside from the religious discrimination claims. The court may decide either or both without addressing those issues. But I will be watching for, and reading closely, both opinions when they are released. Stay tuned.