Travel Ban

How the Masterpiece Cakeshop Decision Strengthens the Case Against Trump's Travel Ban

The Supreme Court's ruling was based on state officials' apparent hostility to the bakers' religious beliefs. There is far stronger evidence of such hostility in the travel ban case.

|The Volokh Conspiracy |


Earlier today, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission, an important First Amendment freedom of religion case. In a 7-2 decision, the Court ruled in favor of a baker who refused to prepare a cake for a same-sex wedding, because he objects to same-sex marriage on religious grounds. The baker prevailed because the Colorado Civil Rights Commission, which had previously adjudicated his claim, showed "elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection." This hostility, the Court explained, "violated the State's duty under the First Amendment not to base laws or regulations on hos­tility to a religion or religious viewpoint." Thus, the Court ruled in favor of the baker, even though the state antidiscrimination law he violated is, at least on its face, neutral and does not restrict bakers with religious objections to same-sex marriage anymore than those with secular ones.

Masterpiece Cakeshop is not only an important ruling in and of itself; it also strengthens the case against President Donald Trump's travel ban policy barring nearly all citizens of several Muslim-majority nations from entering the US. The travel ban case is currently before the Supreme Court. The evidence of "clear and impermissible hostility" in the travel ban case is actually much stronger than in the Cakeshop litigation.

Both Masterpiece Cakeshop and the travel ban case tend to divide people along ideological lines. The baker's case is mostly supported by conservatives, while the case against the travel ban has far more support on the left. I am one of the relatively few people who believe that both the baker and the travel ban plaintiffs deserve to prevail. Be that as it may, today's ruling highlights important similarities between the two cases. The author of today's decision, Justice Anthony Kennedy, may well turn out to be a key swing voter in the travel ban case.

I. There is Stronger Evidence of "Impermissible Hostility" in the Travel Ban Case than In Masterpiece Cakeshop.

In Masterpiece Cakeshop, the baker's claim for a religious exemption from the state's antidiscrimination law protecting same-sex couples was considered by the seven member Colorado Civil Rights Commission. Two of the seven commissioners made hostile statements about baker Jack Phillips' religious beliefs during Commission hearings. For example, one of them said it was "despicable" for the baker to use "freedom of religion …. to justify discrimination." For the Supreme Court majority, this was sufficient evidence of "hostility" to invalidate the judgment against Phillips, even though—as Justice Ruth Bader Ginsburg pointed out in her dissenting opinion—"[t]he proceedings [in Phillips' case] involved several layers of independ­ent decisionmaking, of which the Commission was but one." She notes that the case was first considered by the Colorado Civil Rights Division (which found "probable cause" for a violation of state antidiscrimination law), then assessed by the Civil Rights Commission, then heard by an administrative law judge (who ruled against Phillips), and finally reviewed by the Colorado Court of Appeals. Only two of seven members of the Civil Rights Commission expressed any hostility towards Phillips' religious beliefs. And there was no evidence of hostility on the part of any of the other three bodies that considered the case.

In the travel ban case, by contrast, we have repeated statements by President Trump advocating a "Muslim ban" and equating the "territorial" policy embodied in his various travel ban orders with the earlier "Muslim ban" proposal. He even described the latter as an "expansion" of the former. Unlike Colorado's decision in the Cakeshop case, the travel ban policy was not the result of proceedings with "several layers of independ­ent decisionmaking." There was only one decision-maker: Trump. The lower-level officials involved were ultimately doing his bidding, and certainly not independent of him.

It is also worth noting that, in the Cakeshop case, the Supreme Court did not require proof that hostility towards' Phillips' religion was a decisive factor in the state's decision. Otherwise, the state might well have prevailed, given that the hostility infected only a minority of the Civil Rights Commission, and that Commission was not the only decision-maker involved. It was enough that one decision-making body involved in process showed "elements" of hostility. Such "elements" are clearly present in spades in the travel ban case.

The Masterpiece Cakeshop majority also partly based its decision on the fact that the Commission treated Phillips' case differently from those of three other bakers who refused to create cakes that convey messages they disapproved of. The Commission ruled in favor of the other bakers, but against Phillips, which—the Supreme Court concluded—suggests that the decision in the latter case was at least in part motivated by hostility towards' Phillips' beliefs.

There is at least equal inconsistency underlying the travel ban policy. The government has been extremely inconsistent in applying the information-sharing criteria that supposedly justify Trump's Travel Ban 3.0. Moreover, evidence strongly suggests that Travel Ban is not backed by an "extensive" analysis, as the Solicitor General claimed at the Supreme Court's oral argument. The inconsistencies in the travel ban policy are actually more blatant than those in the Colorado case, where there were significant potential differences between Phillips' case and those of the other three bakers. As Justice Elena Kagan notes in her concurring opinion, there was actually an "obvious" potential basis for distinguishing the other three cases from Phillips', because the former did not involve discrimination based on sexual orientation or other legally prohibited classification. Those bakers would have refused to create the messages in question for any customer. In Phillips' case, he refused to bake a cake for a same-sex couple of a sort that he would have been willing to prepare for an opposite-sex one that was otherwise identical.

Defenders of the travel ban often argue that it cannot be anti-Muslim because it does not exclude all the Muslims in the world (I respond to this argument more fully here). The Masterpiece Cakeshop decision undercuts this theory, as well. The Colorado decision against Phillips did not cover all the theologically conservative Christians in the state, and perhaps not even all conceivable objections to providing services for same-sex marriage. It was based, at least in substantial part, on the specifics of Phillips' situation. Nevertheless, the fact that anti-religious animus was involved turned out to be sufficient to strike it down.

II. Responses to Possible Rationales for Distinguishing the Two Cases.

The are a few possible justifications for distinguishing between Masterpiece Cakeshop and the travel ban case. But none of them make much sense.

One potential difference between Masterpiece Cakeshop and the travel ban case is that a large part of the evidence of animus in the latter case consists of statements made during a campaign, rather than after the official in question took office. But there is no good reason to distinguish between the two as evidence of decision-makers' motives. In Masterpiece Cakeshop, the Supreme Court reiterated the longstanding rule that, in assessing unconstitutional motivations for seemingly neutral policies, courts must consider "the historical background of the deci­sion under challenge, [and] the specific series of events leading to the enactment or official policy in question" (qutations omitted). Trump's campaign statements are pretty obviously part of the "historical background" of the travel ban decision and "the specific series of events leading [up to its] enactment."

In oral argument in the travel ban case, Justice Anthony Kennedy gave the example of "a candidate, [who] makes vituperative hate—hateful statements, he's elected, and on day two, he takes acts that are consistent with those hateful statements." Surely the campaign statements are relevant evidence of motive for the acts that candidate takes in office. Carving out an exception for campaign statements would create a dangerous precedent for future discriminatory policies. Officials could trumpet their bigoted motives on the campaign trail, and then speak with greater caution after taking office.

Another possible difference is that Masterpiece Cakeshop was litigated under the Free Exercise Clause of the First Amendment, while the travel ban case addresses the Establishment Clause. But Supreme Court precedent under both clauses indicates that the government may not act on the basis of hostility towards a particular religion, and permits judicial assessment of evidence of impermissible motives for supposedly neutral decisions.

Finally, the Court could potentially distinguish the two cases because the travel ban case involves immigration and national security policy, where the president supposedly deserves special deference. As outlined more fully in an an amicus brief I coauthored on behalf of several other legal scholars, the Bill of Rights constrains immigration policy (and other policies targeting noncitizens) no less than other types of federal power. But even if deference might otherwise be justified, it should be denied in a case where evidence shows that the supposed national security rationales are just a smokescreen for president's true purposes. The main justification for deference is that the executive branch has special expertise on national security and immigration policy. But that expertise is irrelevant in a situation where there is strong reason to conclude that national security is not the real objective of the policy in question.

While Masterpiece Cakeshop greatly strengthens the case against the travel ban as a matter of logic and precedent, that does not necessarily mean the Supreme Court will strike down the latter. If they fail to do so, it would not be the first time the justices acted inconsistently. Kennedy, in particular, is difficult to predict. And, as Cornell law professor Michael Dorf notes, "prudence" might prevent the justices from holding the president of the United States to the same standards as those imposed on mere members of the Colorado Civil Rights Commission. For these reasons, this post is about the logical implications of Masterpiece Cakeshop, not its predictive value. Within the next few weeks, we will see whether the Court is willing to rule that the First Amendment constrains discrimination by the President of the United States just as much as that by less prominent government officials.

UPDATE: legal scholar Leah Litman offers some additional reasons why Masterpiece Cakeshop strengthens the case against the travel ban here. I wrote most of this post before seeing hers.

UPDATE #2: Several people have pointed me to the following passage in Justice Kennedy's majority opinion and its possible significance for the travel ban 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. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case.

I don't think this does much to prove that Kennedy (or the Court as a whole) would view the travel ban case differently from Masterpiece Cakeshop. At least in the context of the travel ban, President Trump is not a "lawmaker" and the travel ban itself is not a law. Rather, Trump is acting (or at least claiming to act) as an executive implementing authority granted to him by laws enacted by Congress, and exercising powers supposedly granted by the Constitution. Moreover, for reasons already noted above, the travel ban and Trump's statements about it fit well within scope of the majority opinion's general approach for addressing cases where a seemingly neutral law or regulation may be unconstituitonal because of discriminatory motives behind it: the government may not "base laws or regulations on hos­tility to a religion or religious viewpoint" and the presence of such "hostility" must be determined by judicial examination of "the historical background of the deci­sion under challenge [and] the specific series of events leading to the enactment or official policy in question," among other relevant factors. The travel ban surely qualifes as a "regulation" (though not a law) and Trump's statements are a major part of the relevant "background" to it. It is also important to note that in case cited in this passage, Church of Lukumi Babalu Aye, Inc. v. Hialeah—Kennedy himself took the position that lawmakers' statements do matter. Barring an unlikely change of heart on this issue, Kennedy may only have noted this disagreement to appease one or more of the more conservative justices who joined the majority in Masterpiece Cakeshop, but agreed with Justice Scalia's concurring opinion in Lukumi. Kennedy is very difficult to predict, and he certainly could still end up voting to uphold the travel ban. But this passage provides little in the way of evidence that that is in fact his intention.

UPDATE #3: Legal scholar Richard Primus has an insightful Politico column about the significance of Masterpiece Cakeshop for the travel ban, making a number of points that reinforce those I made above. Among other things, he notes the significance of Justice Kennedy's position on the relevance of lawmaker statements in Lukumi.