Flavors Of The Travel Ban In Masterpiece Cakeshop Decision

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Kevin Daley Supreme Court correspondent
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The U.S. Supreme Court’s Monday decision in the Masterpiece Cakeshop case engaged an important dimension of the ongoing challenge to President Donald Trump’s travel ban, and may offer useful insight to a marquee case the justices will release before month’s end.

Though conjecture is often a fraught endeavor where the Court is concerned, the Masterpiece case and the travel ban directly implicate the extent to which anti-religious animus unlawfully infests policymaking. As such, the outcome of one may tell observers something about the outcome of the other.

In Masterpiece, a seven-justice majority led by Justice Anthony Kennedy concluded that state courts and the Colorado Civil Rights Commission failed to apply public accommodations law in a general and neutral way because they displayed hostility to Phillips’ religious convictions as his case was adjudicated, while treating his complaint differently than similarly situated matters.

The justice noted that two members of the seven-seat commission made denigrating comments about Phillips’ views during the course of an administrative hearing, infecting the process with impermissible animus. One commissioner said the baker could not make commercial decisions on the basis of his beliefs if he wanted to do business in the state of Colorado, while another said his sincerely-held religious views were simply a pretext for bigotry.

“The neutral and respectful consideration to which Phillips was entitled was compromised here, however,” Kennedy wrote. “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.”

It’s just the sort of finding opponents of the travel sanctions are asking the high court to make. By their telling, Trump has contaminated the policy-making process by making denigrating statements about Islam, leaving most observers with the impression that the actual purpose of the restrictions is to express negative value judgments about Muslims. That Kennedy appears open to this position in a related context could be significant. (RELATED: Ginsburg And Gorsuch Are Trolling Each Other In An Epic Way)

Critically, as UC Irvine School of Law professor Leah Litman explained in the National Law Journal, Kennedy does not say that those comments need to drive the outcome. The fact they were uttered is enough.

The administration replies that Trump’s campaign statements should not bear on the Court’s decision, since the inauguration was a constitutionally-significant event, a baptism of sorts, that transforms a candidate into a responsible institutional actor. What’s more, they stress the current iteration of the sanctions were the result of an impartial inter-agency process that made extensive findings of fact.

Justice Ruth Bader Ginsburg engages with this view in dissent, arguing any anti-religious feeling was safely contained by a layered adjudication process.

“I see no reason why the comments of one or two commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins,” she wrote. “The proceedings involved several layers of independent decision-making, of which the commission was but one.”

Still, the justice preemptively distinguishes this fact posture from the travel ban, as South Texas College of Law professor Josh Blackman told to The Daily Caller News Foundation. Emphasizing that the commissioners were not the sole decision-makers in the Phillips case leaves open the possibility that she can find against the president on the basis that he was the primary actor in enacting the sanctions.

For his part, Kennedy draws a distinction between lawmakers and adjudicators. Though the justice does not say that the statements of legislators and policymakers should be ignored, he explained that the Phillips matter were tainted because the biased comments were made in the context of an official proceeding respecting a specific case.

“Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion,” he wrote. “In this case, however, the remarks were made in a very different context — by an adjudicatory body deciding a particular case.”

In this vein, location may be decisive to the analysis, to the extent that an animus-laced statement would have to be made in some official forum in order for a court to properly give attention to it.

However the justices will resolve the travel ban case, Monday’s Masterpiece decision revealed interesting contours of their deliberations.

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