Will SCOTUS’s New Zeal for “Neutrality” Affect its Decision on the “Muslim Ban”?

The Supreme Court’s decision on Masterpiece Cakeshop yesterday hinged on the Court’s apparent concern for religious neutrality—a word the opinion uses nearly a dozen times. Rather than decide the substantive question of whether or when the Free Speech Clause or the Free Exercise Clause of the First Amendment exempts a business from compliance with antidiscrimination law, the Court instead found only that the Colorado Civil Rights Commission had violated the Constitution by failing to consider the baker Jack Phillip’s claims “with the neutrality that the Free Exercise Clause requires.”

I’m thankful the Court didn’t rule more broadly by creating a religious exemption from antidiscrimination law, and pleased to see much language in the opinion that reaffirms the right of LGBTQ+ people to dignity and equality under the law, such as the statement that “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth…The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.” Justice Kennedy’s opinion seems to understand that equality and religious liberty are mutually reinforcing norms that must be harmonized, as my organization argued in our amicus brief, co-authored with Muslim Advocates on behalf of 15 religious minority and civil rights groups.

At the same time, I was surprised to see how much the Court’s opinion rested on its apparently rigorous commitment to religious neutrality, especially considering how the Court has dismissed such concerns in the past. In finding that Colorado had violated the requirement that the government be neutral towards religion, the Masterpiece opinion relied, as many have noted, on the statement of one member of Colorado’s Civil Rights Commission it deemed hostile to religion:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

Even if one agrees that this statement displays hostility to religion (I agree with RD’s Dan Schultz that it doesn’t), and even if it had been affirmed by any of the other Commissioners or the multiple judicial bodies that heard the case (it wasn’t), the Supreme Court hasn’t always been so sensitive to government activities that seem less than neutral toward religion.

For example, the Town of Greece v. Galloway decision­­­ in 2014—also written by Justice Kennedy—upheld a town’s practice of holding legislative prayer during public meetings, even though these prayers were uniformly Christian (at least until a lawsuit was filed), often invoked Jesus Christ, and sometimes included requests that the audience stand or bow their heads. In that case, the Court dismissed concerns about religious favoritism, referring to “neutrality” only briefly to state that prior case law “nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content.”

In Masterpiece, the Court also found that it was impermissible for Colorado to distinguish between Jack Phillip’s refusal to make a cake for a same-sex wedding and another baker’s refusal to make a cake disparaging same-sex marriage because the state held the latter refusal was based on “the offensive nature of the requested message.” Justice Kennedy chastised the lower court, stating “[t]he Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.” As Justice Kagan’s concurrence explains, however, there is a clear distinction between refusal to sell a particular product (a cake with an anti-gay message) and refusal to sell a product to a particular customer (a wedding cake to a same-sex couple).

Of course, the Court didn’t seem so concerned with clearly biased government religious expression in Town of Greece. As Justice Kagan’s powerful dissent outlines, in that case “the Town Board select[ed], month after month and year after year, prayergivers who will reliably speak in the voice of Christianity” and thereby “infuse[d] a participatory government body with one (and only one) faith, so that month in and month out, the citizens appearing before it become partly defined by their creed—as those who share, and those who do not, the community’s majority religious belief.”

Nevertheless, the majority of the Court chose to willfully ignore the overwhelmingly Christian nature of the prayer, deciding that the fact “[t]hat nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths.”

Of course the elephant in the courtroom is not how the Court’s repeated emphasis on religious neutrality squares with its past decisions, but how it will affect the other most important religion case this term—Trump v. Hawaii, the challenge to President Trump’s “Muslim ban.” In Masterpiece, the Court explained that “Factors relevant to the assessment of governmental neutrality include… the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.’” But it remains to be seen whether the Court will choose to engage in the same rigorous assessment of these factors in the travel ban case with regard to the president’s considerable history of disparaging statements about Muslims and his call for a “total and complete shutdown of Muslims entering the United States.”

The Court has prepared itself for a potential about-face in Trump v. Hawaii by distinguishing in its Masterpiece decision between the words of lawmakers and those of the decision making body: “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…In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case.”

It hardly seems correct, however, that statements indicating a violation of the First Amendment are relevant to the judicial but not the legislative or executive branches. It may also be worth noting that Masterpiece was decided on Free Exercise grounds while both Town of Greece and Hawaii involve Establishment Clause claims—though the neutrality requirement undoubtedly applies to both clauses.

Finally, it will be fascinating (or perhaps disheartening) to see whether the Court maintains its newfound zealous commitment to religious neutrality in future cases brought by religious minorities and progressives. In our recent comment to HHS on its proposed religious refusal regulation, the Public Rights/Private Conscience Project argued that by providing broad protections for medical providers opposed to abortion, but few protections to those who are religiously motivated to provide abortion care, the regulation fails the religious neutrality requirement of the First Amendment. Should such an argument come before the Court, its claim in Masterpiece that “[t]he Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion” will be put to the test.