Now that Brett Kavanaugh has been nominated by President Trump to succeed Anthony Kennedy on the U.S. Supreme Court, a host of individuals and groups are eager to know the judge’s views on particular issues about which they are most concerned. I, for one, would like to know his views on the meaning of religious freedom as guaranteed by the First Amendment. I would hope other Christians, especially Baptists, would also like to know that. More specifically, as a teacher of political theory and constitutional law for 42 years – and as a Baptist – I would like to know if Kavanaugh believes it is legitimate for our government to favor Christians over adherents of other religions.
This last question is now very much on my mind because of two recent Court decisions in Masterpiece Cakeshop v. Colorado Civil Rights Commission and Trump v. Hawaii. The first case involved a cake maker, Jack Phillips, who refused, for reasons based on his Christian faith, to make and sell a cake to a gay couple who planned to serve it at their wedding reception. As a result, he was convicted of violating a Colorado law prohibiting public businesses from discriminating against persons on the basis of their sexual orientation. Phillips did not deny violating the law or argue that it was unconstitutional; rather, he claimed that the free exercise of religion guaranteed in the First Amendment gave him a right to be excused from having to obey the law.
The second case involved Muslim refugees from six primarily Muslim countries who were or might be seeking asylum in the United States. They were challenging an executive order issued by President Trump that banned most refugees from those countries, as well as North Korea and Venezuela, from entering this country, mainly on the grounds that persons from those countries could not be adequately vetted to determine if they were terrorists. The Muslims challenged the constitutionality of the ban on the grounds that it discriminated against Muslims and, thus, violated the First Amendment’s requirement that laws be religiously neutral. The basis of their argument was the fact that during his campaign for the presidency, Donald Trump had repeatedly disparaged Muslims and called for a ban on their coming into the United States and he had issued two earlier bans that lower federal courts said violated the First Amendment. One such court said that because of Trump’s remarks, the ban “drips with religious intolerance, animus, and discrimination.”
What is most interesting, however, is how and on what basis the Supreme Court decided the two cases. In Trump v. Hawaii, the Court upheld the ban. It did so after reviewing the factual and legal basis for the ban and applying a “rational basis” test, which it said should be used in cases that deal with the admission and exclusion of foreign nationals and that raise concerns about national security. Thus, the basic issue was simply “whether the entry policy [ban] is plausibly related to the Government’s stated objective to protect the country and improve vetting processes.” The Court concluded that it is.
The Court’s two decisions in Masterpiece Cakeshop and Trump v Hawaii are difficult to reconcile. Does the Court have a bias toward Christianity?
What about Trump’s animus toward Muslims and the alleged violation of their religious liberty? For all practical purposes, the Court said that if the ban passes the rational basis test, those concerns are irrelevant. The crucial sentence in Chief Justice Roberts’ opinion is as follows: “. . . [W]e may consider plaintiffs’ extrinsic evidence [of animus], but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” No wonder that the dissent accused the Court of throwing the First Amendment “out the window.”
In contrast, in Masterpiece Cakeshop the Court overturned the conviction of the cake maker. It did so, however, not on the grounds that Colorado’s anti-discrimination law is unconstitutional or that the cake maker had a right based on the free exercise clause to be excused from having to obey that law. In fact, the Court avoided deciding the all-important constitutional issue raised by the case – whether the free exercise clause gives persons/groups a right to be exempt from having to obey valid civil laws to which they have religious objections.
Then, on what grounds did the Court overturn the cake maker’s conviction? Justice Kennedy said that the Colorado Civil Rights Commission’s treatment of his case had “some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.” He cited the fact that two of its seven members had made disparaging comments about Phillips’ beliefs. The remark to which Kennedy objected the most, however, was not about Phillips’ personal beliefs, but was a statement of fact: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history . . . .”
Leaving aside the question of whether the commissioners’ remarks reflected hostility toward Phillips’ beliefs and the fact that there is no evidence that the views of just two members of the Commission contributed to Colorado’s finding that Phillips had violated its law (after all, three other judicial bodies reached the same conclusion), what is noteworthy is the standard that Kennedy said should have been adhered to by Colorado. “The Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion . . . ‘and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.’” Kennedy then added, “Factors relevant to the assessment of governmental neutrality include ‘the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history . . . .’”
This stringent standard was not applied in Trump v. Hawaii, and, thus, the two decisions are difficult to reconcile. In Masterpiece, the Court strained to discover animus against the Christian cake maker, which it then condemned in no uncertain terms, but in Trump it expressed no concern about the animus directed against Muslims. It was irrelevant.
Why the difference? Was it because when national security is given as the justification for a law, the Court just tosses religious freedom out the window? Or was it because the Court has a bias in favor of Christians and against Muslims? Either explanation, of course, is unacceptable – a conclusion with which I hope Brett Kavanaugh would agree.