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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.

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.

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  • Brett Bellmore||

    Did you really have to make this about immigration?

  • Bob from Ohio||

    Of course. Real libertarians care most about open borders, not religious liberty.

  • Rev. Arthur L. Kirkland||

    Faux libertarians care only about which positions benefit the intolerant and backward. They'll go full-throated authoritarian if that's what it takes to protect a bigot.

  • Quixote||

    All of us, real or faux, do share a belief that certain individuals (in particular our highly distinguished colleagues at NYU, where so many of us would like to teach) deserve to be protected from objectionable "parody" and the like. See the documentation of our nation's leading criminal "satire" case at:

    https://raphaelgolbtrial.wordpress.com/

    Incidentally, the premise of this article is quite absurd. It's like extending the recognition that states have the right to criminalize "parody" emails involving academic department chairmen to other situations, or to offensive mockery in general. All of these so-called "First Amendment" issues (ha-ha-ha) clearly need to be dealt with on a case-by-case basis, depending on the precise identities of the particular individuals involved.

  • Al Sappwood||

    He has reached Ahab levels of monomania.

  • Sarcastr0||

    So have some of his commenters.

  • Al Sappwood||

    Log off, loser.

  • Sarcastr0||

    k

  • Martinned||

    Given how narrow the holding is, this seems like pretty much the only interesting thing to say about this case.

  • Al Sappwood||

    No, as demonstrated by the fact that his co-blogger Eugene has already penned several interesting (and relevant) pieces about the case.

  • Sarcastr0||

    To be fair, largely about concurrances.

  • Al Sappwood||

    Good quibble, loser.

  • Sarcastr0||

    Somin here is writing about the main opinion, so...it's a pretty good qibble, if I do say so myself.

  • Al Sappwood||

    We were clearly talking about the case as a whole, dummy. You're such as loser you even fail at pedantry.

  • Jerry B.||

    Prof. Somin could make the results of the Kentucky Derby about immigration.

  • FlameCCT||

    I don't doubt that Somin could write an entire article on why the "Hot Brown" actually refers to illegal foreign nationals that have entered the USA.

  • damikesc||

    They're on Reason now. They have no choice.

    Who needs rights when people aren't allowed to come here and live with no controls on it?

  • BambiB||

    Trump's opposition to "Muslims" isn't that. I think he's always referred to the "Muslim" travel ban in context of Muslim TERRORISTS. The ban doesn't seek to just ban muslims. It seeks to ban all from the Muslim-dominated countries that export terrorism. Finally, the travel ban does not apply to US citizens. Trump could as easily drop bombs on the people in those countries, and it would be legal. Who is to say denying them access to America requires greater authority?

    Maybe that's it. Maybe Trump should just nuke all those nasty "muslim" (terrorist) countries. No argument about the legality of that, right?

  • DavidTaylor||

    That must be very disappointing to Trump's supporters. As I've written here before, Trump promised a complete and total shutdown of Muslims entering the U.S. Not just "TERRORISTS", all Muslims. That's what his supporters voted for, and any less than that is a broken promise.

  • John||

    There is a big difference here. Namely that the "travel ban" is facially neutral and is being applied in a neutral manner. The law in Colorado was not applied in a neutral manner. When the someone complained about a shop that refused to put an anti-gay marriage slogan on a cake, the commission did nothing even though the shop violated the law. That was the problem here.

    Everyone from these countries, Muslim and non Muslim, is being subjected to the ban. It is a facially valid law applied in a neutral manner. The fact that Trump said things during the campaign cannot deprive him of otherwise lawful exercise of his power as President. Somin is just wrong here. So wrong that I honestly can't believe he is making an honest argument.

  • Brett Bellmore||

    I can believe it's an honest comment. Mainly because I think he's gone 'round the bend on the topic. So he likely does honestly think in these terms. He seems to genuinely view everything in terms of its implications for open borders these days.

  • Rev. Arthur L. Kirkland||

    I guess Somin would be blackballed by Libertarians For Bigoted, Authoritarian Immigration Policies.

  • KHB||

    You keep repeating this insult, as if you imagine you are making a point.

  • Benitacanova||

    It's a mantra, a bit wordy but equally meaningless.

  • Topher S||

    "There is a big difference here. Namely that the "travel ban" is facially neutral and is being applied in a neutral manner. The law in Colorado was not applied in a neutral manner. When the someone complained about a shop that refused to put an anti-gay marriage slogan on a cake, the commission did nothing even though the shop violated the law. That was the problem here."

    What law does refusing to put an anti-gay marriage slogan on a cake violate?

  • Bob from Ohio||

    Re-upping my comment from the earlier thread:

    One distinction is that the members of a Civil Rights Commission are exercising quasi-judicial powers and have a greater obligation of fairness and being un-biased.

    Whether that makes a sufficient distinction for Tony K., who knows.

  • Sarcastr0||

    Why does the President have a lesser obligation of fairness and not being biased?

  • Brett Bellmore||

    Well, because impartiality is actually supposed to be a traditional judicial virtue, while politicians are actually allowed to take sides.

    And, of course, they didn't make the remarks a couple years earlier, but actually during a hearing in this specific case.

  • Sarcastr0||

    Our President representing all the people is actually something we used to expect until quite recently.

    FWIW, I seem to recall a lot of people talking about Obama being biased.

  • Volucre||

    It's remarkable that you cite Masterpiece's reliance on "hostile statements" by government officials as the #1 reason it strengthens the case against Trump's travel ban, while leaving out this direct allusion to that issue that a 7-2 majority voted for:

    "[T]he Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission's adjudication of Phillips' 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. . . . In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case."

    I can't even tell if this sort of blindness to the pertinent but inconvenient is willful or wishful.

  • Ramer||

    I would argue the court's express distinction between the legislative and adjudicative arenas suggests the Court is leaning to uphold the ban -- the section you quote seems to be drafted so this case can be easily distinguished from the travel ban case. Why else call out this distinction? Their typical audience -- lawyers-- would already know the distinction and as 1000 articles prove the general public doesn't know the rule with regards to legislative interpretation anyway. But if the affirm the travel ban, everyone will immediately point this case and say Court is playing favorites, except for this nice, seemingly unnecessary explanation in in Masterpiece, which proves the distinction is well-established.

  • Volucre||

    I agree. The fact that seven justices are willing to sign onto an opinion that goes out of its way to distinguish an adjudicatory body's hostile statements from a political official's does not bode well for the aspect of the travel ban challenge based on Trump's and Giuliani's remarks.

    It's basically a judicial alley-oop -- creating new precedent one day, then citing it as dispositive of a much more controversial issue the next day.

  • M.L.||

    Ha. So much for that. I do hope Somin never posts on this issue again without addressing this, but I shouldn't be so optimistic.

  • MonitorsMost||

    Ilya,
    Masterpiece certainly doesn't hurt, but I'm not sure how much it helps. You seem to have skipped over the main distinguishing factor, which is not specific to immigration. The First Amendment argument in the travel ban case would be in regard to the violation of constitutional rights of non-citizens on non-U.S. soil.

  • Brett Bellmore||

    That's what basically makes the travel ban case utterly unlike this case, which had entirely to do with American citizens in America.

    It's questionable whether foreigners outside the jurisdiction of the US have any rights under the Constitution at all, let alone a judiciable interest in entering the US.

  • MonitorsMost||

    Well, no that's not right either. It's not questionable whether foreigners outside the jurisdiction have any rights. We know they have some rights, Boumediene v. Bush being the most recent example.

    Until SCOTUS says otherwise, Kleindienst vs Mandel says we don't care about the First Amendment rights of non-citizens on non-U.S. soil so long as the government gives a "facially legitimate" reason for its action. Even in the face of clear evidence of government animus towards otherwise First Amendment protected characteristics. That is Trump vs IRAP to the tee. If SCOTUS wants to affirm on the First Amendment claim but not overrule Mandel, I'm going to be really mad because that's crap. Be big boys and acknowledge when you have to overrule previous case law.

    On the statutory immigration claim, it's more complicated. I'm not an immigration attorney, but the "Congress has already told you how to deal with countries where the country of origin information for vetting sucks" argument seems pretty tenuous to me. The 8 USC 1152 non-discrimination requirement is where I would go if I wanted to affirm the blocking of the ban. Of course, the biggest problem there is that many administrations have enacted bans that would violate the "nationality" part of the non discrimination provision. So how should that provision be interpreted in the context of immigration? If we interpret it like any other statutory non-discrimination provision, Trump loses.

  • ||

    Boumediene is not a great example, as he was being held in Guantanamo, which is obviously under the jurisdiction of the U.S., even if not actually in the U.S.

  • KevinP||

    The 8 USC 1152 non-discrimination requirement is where I would go if I wanted to affirm the blocking of the ban.

    This only applies to immigrant visas and even then it is unclear if it supersedes the President's power to suspend entry under 8 USC 1182 (f).

    Non-immigrant visas are certainly not covered by the non-discrimination requirement.

  • FlameCCT||

    I would note that the USA has plenty of prior bans especially for Communist countries like USSR/Russia, China, etc. in particular for military age males. I would note that bans have been in place for decades for anyone associated with or members of a Communist Party that was not a US citizen. This was still in place back in 2002 as my soon to be brother-in-law could not get a visa to attend his sister's wedding. Although their mother was able to get a tourist visa, a couple of years later, her brother still couldn't get one.

  • Sarcastr0||

    McCarthyism was not the height of America making good choices re: liberty versus security.

    And despite what some like to argue about Islam, Soviet Communism isn't the same as Islam in it's goals, diversity of ideology, type of ideology, etc.

  • Brett Bellmore||

    As is famously said of the genders, they can be equal without being the same...

  • Sarcastr0||

    Sure, but then an argument by analogy is not going to be probative.

  • EscherEnigma||

    The first amendment argument in Masterpiece was ignored and irrelevant to the final ruling.

  • Porch||

    Confederate heritage groups have erected a very large Confederate flag on private property in Orange County NC. People have complained, and the county commissioners have proposed an ordinance limiting the size and location of flag displays. The ordinance is facially neutral, but the commissioners have made it clear that the ordinance is aimed at the Confederate flag display. Would these comments made in the discussion of the ordinance make it unconstitutional viewpoint discrimination?

  • MonitorsMost||

    That by itself would be content discrimination, not necessarily viewpoint discrimination. Either would be potentially problematic.

  • Rev. Arthur L. Kirkland||

    Let that flag fly.

    Southern conservatives and bigoted Republicans have rights, too!

    And they're big fans of compulsory stand-at-attention displays on NFL sidelines, because right-wingers respect the American flag whether or not they are waving Confederate flags..

  • Jon Light||

    Yes, we get that he's against the Trump travel ban; there've only been like 50 posts to that effect. Would like to see new content and not just recycling the same position. Feels like everything he writes is about the travel ban or *Kilo*.

  • JesseAz||

    I'd like him to merely address the fact that 2 countries have been taken off of the ban list despite not changing the percentage of muslims in those countries. If it is truly about being muslim, this seems to destroy his point.

  • Derp-o-Matic 6000||

    Isn't there a difference, though, between comments made on the campaign trail versus those made in an official government proceeding? I know Chevron and its progeny are tough to figure out, but I don't think the standard of deference to campaign tweets is all that high

  • Allutz||

    The real difference that is largely glossed over is that this wasn't only the words of the adjudicators, but their actions. The commissioners were presented with several analogous anti-Christian cases and they did not take action. The plaintiffs in the travel ban case have not presented anything analogous. In other words, the plaintiffs have not proposed any countries that the Trump administration should ADD to the list of banned countries, and been refused.

    This is an easy test case for the plaintiffs, they could propose that the Trump administration expand the travel ban to Christian Venezuela because of the high risk of people from that country for reasons X & Y. But they haven't proposed that amendment to the Trump admin, because they don't actually care about religious discrimination, rather they care about immigration maximization.

  • FlameCCT||

    IIRC the latest travel ban included Venezuela and North Korea.

  • Sarcastr0||

    So the question is whether it is a judicially useful question to ask whether those inclusions are pretextual given past evidence.

    I'm not optimistic about the SCOTUS's final take on the issue, but I don't think that's an open-and-shut question, either legally or policy-wise.

  • Brett Bellmore||

    Yeah, I suppose we could ask if there was anything about North Korea which would give the government pause about admitting immigrants from that country. I don't know, a history of sending out assassins disguised as tourists, a totally untrustworthy government that doesn't cooperate with vetting, anything thing like that...

    Right, it's just pretextual.

    Venezuela might be a tougher case, but North Korea?

  • Sarcastr0||

    Brett, do you know what pretextual means?
    Asking what's up with North Korea isn't material.

  • Allutz||

    The real problem with the claim of "pretextualism" in this context is that to make that claim you have to indicate at what point it would not be. He has added 2 unstable countries 1 Asian, 1 South American; 1 Buddhist, 1 Catholic. Must he find a European country to add to satisfy? Which European country do you propose?

    Thus we get back to the point of "Trump Law", because when you search for bad motives in anything you can find them. An antisemite could read an unrelated post and accuse the writer of using it to push Zionism and come up with dozens of "reasons" why publishing about takings is a dog whistle.

  • Sarcastr0||

    Wouldn't you just look at the totality of the circumstances and whatnot? It's a sincerity inquiry; courts have done that before.

  • Allutz||

    Yes, but they typically don't do it well.

    The only times courts do totality and sincerity tests well is if they aggressively demand the party accusing the other of insincerity for a multitude of scenarios (that are against that party's interest) where they would admit the party was sincere.

    So in this case, for the Court to do its job well, it needs to demand one or more scenarios from the Hawaii plaintiffs where additional countries were added to the ban such that they would admit it is not an insincere list. Of course, there were a few such inquiries during oral arguments, that were deflected by counsel rather than answered.

  • Sarcastr0||

    I disagree that courts don't do it well. When you're talking about witnesses, perhaps. But when you're talking about whether something is pretextual, they do a pretty good job of making sure anything that crosses that bar is pretty blatant.

    Like, say, this case.
    Wherein Trump continued to tweet about how a Muslim ban was good and should be stronger, and some on this thread still don't get the memo and argue a Muslim ban would be legal and good.

    Whether animus becomes the law is an open question. But if it does, many on here have acknowledged what Trump is trying to do, and are arguing the facts for legal formality purposes.

  • Allutz||

    That is an "answer" that doesn't address any of the questions. If we assume a Muslim ban based on Muslimness is bad, we need an objective way to determine whether something is a Muslim ban. But you have not addressed that point (which is the strawman scenario).

  • Allutz||

    That is an "answer" that doesn't address any of the questions. If we assume a Muslim ban based on Muslimness is bad, we need an objective way to determine whether something is a Muslim ban. But you have not addressed that point (which is the strawman scenario).

  • AmosArch||

    Maybe this is why Breyer and Kagan voted with the majority. It'd be interesting to see how the gay community would react to being 'thrown under the bus' if their leaders were forced to acknowledge the cynical horse trading.

  • retiredfire||

    IMHO, Breyer and Kagan voted with the majority because they saw that 0bergefell put the institution several steps closer to having the Supreme Court building overrun by pitchforks and tar-and-feathers.
    Despite the not-wanting-to-sound-"bigoted"-to-pollsters responses, the majority of people believe that letting homosexuals usurp the institution of marriage, and being ordered to accept it by five, out of nine, glorified lawyers, was a step too far and feels like tyranny.
    Funny how the Constitution is specific about how laws are made and yet the two branches, not included in the process get away with "making law" - The Pres, with, at least DACA and the SC, with 0bergefell, Roe, etc.

  • Mesoman||

    Once again, we see the "Muslim ban" as an attack on Islam. But, the implementation, from the first to the latest, was not religion specific, and in fact did not ban most Muslims. It was a ban on people from obviously dangerous cultures, and Islam is not the defining characteristic. That the President made political statements during his campaign is beside the point.

  • KevinP||

    Since Ilya never posts this, here is the text of the President's power to impose travel bans.

    8 U.S. Code § 1182 (f) Suspension of entry or imposition of restrictions by President

    Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

    http://www.law.cornell.edu/uscode/text/8/1182

  • Sarcastr0||

    Prof. Somin's animus argument is a Constitutional one, not a statutory one.

  • FlameCCT||

    It is interesting that Prof Somin keeps trying to apply Constitutional Rights to those not under the jurisdiction of the Constitution. Not to mention that he's failed to produce any evidence that the ban applied only to Muslims. Or the fact that he's using Minority Report pre-crime BS to avoid the facts.

  • Sarcastr0||

    I'm not sure about animus, and generally disagree with Prof. Somin on border policy, but he's posted about that issue and I find him persuasive on that question.

    The rights in the Constitution are not postured positively, but negatively, as forbiddances on government conduct. That's pretty clear from the text, even.

    Whether that's exclusively true or not (as a liberal I say not) the question of 'do these people get rights' is not how the Founders thought.

  • Brett Bellmore||

    The obvious question is whether not admitting somebody to the US on the basis of their country of origin actually interferes in some way with their free exercise of religion. Aren't they still perfectly free to exercise their religion, just not here?

  • Sarcastr0||

    The obvious question ignores what I wrote about how Constitutional rights work?

  • Topher S||

    "It is interesting that Prof Somin keeps trying to apply Constitutional Rights to those not under the jurisdiction of the Constitution. Not to mention that he's failed to produce any evidence that the ban applied only to Muslims."

    Literally all of this was addressed in the article.

  • Homple||

    Then he should argue that this law is unconstitutional.

  • ThePublius||

    Ilya never responds to comments. His post on his three topics, political ignorance, Kelo, and the travel bans, and like blogosphere Molotov cocktails - crude incendiary devices. I've decided to just ignore him, and not comment anymore, and I invite others to join me.

  • Rev. Arthur L. Kirkland||

    The Conspiracy's lone libertarian provokes the right-wingers bigly!

  • KHB||

    No, he is a perfectly orthodox Monomaniac. He posts on One Topic with three Hypostases: The Awfulness Of Trump and its manifestations.

  • Sarcastr0||

    The ability of some to turn every opinion they don't care for into being about Trump is at least equal to the TDS they manage to find in everyone they disagree with.

  • Sarcastr0||

    Welcome to how academia works, ThePublius.

    I remember when Prof. Bernstein would only post about this one Lochner book and Israel.

    I don't think such intense focus is the only way to get academic plaudits (witness Prof. Volokh's variety) but it does look like a skill that has it's benefits.

    Have cheer, I find the comment threads are always good fun!

  • SDN||

    As badly as Ilya Somin would like to pretend otherwise, a travel ban that applies to NON-CITIZENS is fundamentally different than laws taking away the rights of CITIZENS.

  • Benitacanova||

    Are gays from foreign countries planning terror attacks? Why would we want to discriminate, to prevent them from exercising their right to kill?

    Bad Trump bad.

  • gphx||

    The author should try reading the Immigration Act which places no such limitations. Guessing he faps himself to sleep every night with a Trump impeachment fantasy.

  • TxJack 112||

    Sorry but the author is way off. The case against the baker was overruled because the commission only looked at a single aspect of his religious objections and made their determination. The baker has also refused to make cakes for Halloween, celebrating divorce and other events he finds equally objectionable based on his religious beliefs. In this case, members of the commission clearly wanted to override his beliefs with their own and use the power of government to accomplish the task. The issue with the travel ban is much different because the "evidence" of bias being used by courts are statements made by CANDIDATE Trump, not President Trump. In addition, they have not looked at the actual document presented but rather made decisions based upon what they THINK is the intent behind the ban. Judges are supposed to make decisions based on the law, not their personal opinions or political ideology. Like the commission, judges overturning the ban are attempting to write the law not interpret it which is a serious overreach of their constitutional authority.

  • josh||

    This is why the courts need to stop acting like sheep and assert themselves as the co-equal branch of government they are.

    Don't punt.

  • Country John||

    Trump's travel bans, as I understand them, forbade entry by ALL visitors from seven Muslim majority countries that Trump found to be lax in security screenings. Even persecuted Christians and Jews (and whatever else) from those countries were denied entry. But Muslims could enter with visas from fifty or so Muslim majority countries, including the largest, Indonesia. So whose religion is being discriminated against?
    Further, Trump has a powerful and credible defense of his campaign remarks: "I was lying". The court would have to somehow resolve Epimenides' Paradox (Epimenides, a Cretan, declared "All Cretans are Liars").

  • Mark22||

    There is far stronger evidence of such hostility in the travel ban case.

    That's nice. But unlike Americans under US law, foreigners do not have a right to equal protection under US immigration law.

  • Stephen Seligman||

    I kinda feel like the author is digging a bit deep with this one, but I could very easily be wrong

  • LifeStrategies||

    There's a simple but long ignored solution to the the cake-baking /dress-designing /flower-arranging issue and that's to uphold BOTH the 1st Amendment AND public accommodation laws with a pragmatic approach which resolves the resultant tension.

    The issue only seems complex when you ignore the crucial distinction between the 1st Amendment rights of a person and a business. The 1st Amendment specifies that PEOPLE have the right to both free speech and not to speak, but does not specify businesses.

    So these laws can compel a business to comply but this does not mean an individual working or employed in that business should be forced to surrender his 1st Amendment rights.

    If someone in that business is willing, then the customer gets his cake/dress/photograph. But if no one there is willing, then 1st Amendment rights should trump public accommodation laws and the would-be customer goes elsewhere. In a freedom-supporting world, of course, there would be no such laws, but should the perfect be the enemy of the good?

    It seems to be domineering bigots like the gay couple objecting to Philips' refusal to celebrate their union that cause such difficulties. Such snowflakes should stop trying to arrogantly insist the 1st Amendment doesn't apply to people who disagree with them and simply get their cake baked elsewhere.

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