Does the Supreme Court have a double standard on religion?
"THE SUPREME COURT USED TO OPPOSE DISCRIMINATION. WHAT HAPPENED?"
Analysis by Daniel Burke, CNN Religion Editor
Updated 0200 GMT (1000 HKT) June 27, 2018
VIDEO - 1:23 Listen as lawyers argue travel ban case
(CNN) Less than a month ago, the Supreme Court ruled in favor of a Christian baker who refused to make a cake for a gay couple's wedding, saying a state commission's ruling against him was rooted in anti-religious hostility.
On Tuesday, in upholding President Donald Trump's travel ban, five Supreme Court justices ruled that his critical statements about Islam and Muslims, both as a candidate and as chief executive, don't matter.
Outside the Supreme Court on Tuesday, protesters and members of Congress accused the justices of adopting a double standard: one set of rules for white Christians and another for Muslims and other religious minorities.
"It's an obvious contradiction," said Rep. André Carson of Indiana, a Democrat who's one of two Muslims in Congress. "It's absolutely apparent that there is a double standard."
In a sharply worded dissent, Justice Sonia Sotomayor said the high court's decision on Trump's travel ban sends precisely that message.
"Unlike in Masterpiece, where the majority considered the state commissioners' statements about religion to be persuasive evidence of unconstitutional government action," Sotomayor wrote, referring to the Christian baker's shop, Masterpiece Cakeshop, "the majority here completely sets aside the President's charged statements about Muslims as irrelevant."
"That holding erodes the foundational principles of religious tolerance that the court elsewhere has so emphatically protected, and it tells members of minority religions in our country that they are outsiders, 'not full members of the political community,' " Sotomayor added.
In the Masterpiece case, Justice Anthony Kennedy, who wrote the majority decision, said members of the Colorado Civil Rights Commission "showed elements of a clear and impermissible hostility" toward the religious beliefs of Jack Phillips, the baker.
At public hearings, some commissioners "endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain," "disparaged Phillips' faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust," Kennedy wrote.
What Trump has said about Islam is arguably worse, said several Muslim groups and legal experts.
"In the Masterpiece Cakeshop case, the court actually went out of its way to rest its decision on the anti-religious comments of a local official, when that issue wasn't even presented before the judges at the briefing," said Farhana Khera, executive director of Muslim Advocates.
"Here, in contrast, the court went out of its way to ignore the copious amounts of anti-Muslim bigotry from the President as he was developing and then enacting the policy. It's a total double standard," Khera added.
Trump's remarks on Islam demonstrate the travel ban's true intent, Sotomayor wrote. He has said "Islam hates us," has told apocryphal stories about generals who shoot Muslims with bullets dipped in pigs' blood and has called for a "complete and total shutdown of Muslims entering the United States."
That policy, Sotomayor said, morphed into an executive order "putatively based on national-security concerns."
"But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers."
But there are important differences between the Masterpiece Cakeshop case and the legal dispute over Trump's travel ban, said Ira C. Lupu, an expert on religion and constitutional law at George Washington University in the nation's capital.
"It is a double standard," Lupu said, "and it is justified to a point."
The travel ban case was primarily about the separation of powers, Lupu said. That is, whether one branch of the federal government, the Supreme Court, could constrain or even overrule another branch, the executive.
The case is also about national security and how our country relates to foreign ones. In a footnote, Chief Justice John Roberts suggests it may not be appropriate to apply the Constitution's establishment clause, which prohibits the government from favoring a particular religion, to national security issues and foreign affairs.
"The issue ... is not whether to denounce the President's statements, but the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility," Roberts wrote.
The text of the executive order itself, the chief justice said, exhibits no evidence of anti-Muslim animus. "The text says nothing about religion," he said.
Justice Clarence Thomas, who concurred with the majority on Tuesday, wrote a separate opinion flatly stating that "the plaintiffs' proffered evidence of anti-Muslim discrimination is unpersuasive."
Notably, Roberts mentions but doesn't defend Trump's comments on Islam, or explain why they were not considered as evidence that the travel ban was motivated by anti-Muslim hostility.
"He doesn't have to," Lupu said. "He got his five votes, and he would only get into a mess if he started dealing with those comments."
'An anxious world'
Kennedy sided with the majority in upholding Trump's travel ban. But he also wrote a concurring opinion urging politicians to be careful when they talk about religion and religious freedom.
"There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention," Kennedy wrote. "That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects."
"The First Amendment prohibits the establishment of religion and promises the free exercise of religion," Kennedy continued. "An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts."
During oral arguments, Kennedy demonstrated a keen concern about whether anti-religious animus lurked behind the travel ban.
"Suppose you have a local mayor, and as a candidate he makes hateful statements. He's elected, and on day two he takes acts that are consistent with those hateful statements. That's -- whatever he said in the campaign is irrelevant?" Kennedy asked at the time.
Sotomayor argued that there's more to the case than Trump's campaign rhetoric. He has also made numerous statements about the travel ban since his election
"The President's statements, which the majority utterly fails to address in its legal analysis, strongly support the conclusion that the Proclamation was issued to express hostility toward Muslims and exclude them from the country," Sotomayor said.
"Given the overwhelming record evidence of anti-Muslim animus, it simply cannot be said that the Proclamation has a legitimate basis."
Sonia Sotomayor Delivers Sharp Dissent in Travel Ban Case
One of Justice Sonia Sotomayor’s most striking decisions in her dissent was to repeat the words of the president himself. Jonathan Ernst/Reuters
By Catie Edmondson
June 26, 2018
WASHINGTON — Chief Justice John G. Roberts Jr., reading for the majority on Tuesday morning, spoke clinically. Justice Stephen G. Breyer followed, working his way through his dissent mildly and analytically.
Then it was Justice Sonia Sotomayor’s turn.
Steely and unwavering, she began: “The United States of America is a nation built upon the promise of religious liberty. Our founders honored that core promise by embedding the principle of religious neutrality in the First Amendment.”
June 20 is World Refugee Day, and my thirty-third birthday. For the world’s 22 million refugees .. http://time.com/finding-home/ , their “special day” is an arbitrary holiday, but so is my birthday. Somalis don’t generally keep track of birthdays—you are born, you die, and in between is herding animals—although my mother knows she was born on the same day as her favorite camel, Daraanle. I know I was born in Mogadishu .. http://time.com/somalis-try-to-hold-on-to-hope-in-mogadishu/ .. in 1985, six years before the start of the terrible civil wars. Seven years before my father disappeared. Eight years before digging the grave for my own baby sister, dead of starvation.
When I escaped Somalia in 2011, I was being recruited by the radical Islamist group al-Shabaab .. http://time.com/3771409/al-shabab-kenyan-cities-run-red-with-blood/ , who wanted to train me to kill infidels and enforce Sharia law. I had no qualifications for this career other than being a young man—by then I was too old to dig graves which was children’s work—but it was the only employment available at the time.
When I won the U.S. Diversity Visa Lottery and got my green card, American officials said I needed a date of birth. So I picked a day in the middle of the year that was easy to remember. I was so lucky to win that lottery, and to choose my own birthday.
But the luckiest people are those who get to be born in free and peaceful countries. And it is definitely luck, since even people who can choose their birthday can’t choose where to be born. To escape the lottery of my birth and a one-way ticket to jihadi martyrdom, I fled to Nairobi, where I lived illegally in a tiny room with my brother. Every day the police would march through our neighborhood, rounding up Somalis and trucking them off to the UN refugee camps in the Kenyan desert. There nearly a quarter million Somalis live in makeshift slums with meager food rations, no work and constant violence from terrorists and gangs. Several generations have been born and raised there.
My brother and I swore we would never go to those camps; we would take our chances on the streets of Nairobi, while studying at a local college and applying for every type of visa we could find. We sold socks on the street to buy food, and risked police roundups and bombs every time we boarded a bus to school.
What kept us going was America.
America was the place I dreamed about—quite literally, every night. I learned English from Arnold Schwarzenegger, himself an American immigrant, watching his movies in a video shack in Mogadishu. Until al-Shabaab blew up that shack and imprisoned its owner, movies like The Terminator were my escape from the real-life bloody chaos of my childhood on the streets.
I understand that every oppressed and starving person in the world cannot move to North America or Europe, nor do they want to; virtually every Somali I know would rather live in a safe and peaceful Somalia than in the wealthy nations of the West.
But they are all inspired by the great free and tolerant nations of the West. It often begins with pop culture—a rap song, a movie, a clothing style—but those are just gateways to deeper appreciation of democracy. After watching every American movie that existed in Mogadishu, I started reading American books. I memorized names of states and dreamed about which ones I would live in. I was proud of every single American president, I did not care about parties or ideologies. On YouTube I watched speeches by Reagan, Clinton, both Bushes and Obama; all made me smile. When George W. Bush invaded Iraq, I was proudly defending America on the streets of Mogadishu when everyone else chanted “Down With America!”
Then came Trump.
Specifically, he came to my city, Portland, Maine, during the presidential campaign, and falsely accused Maine’s large Somali population of increasing crime. (Crime rates are down in Maine cities where Somalis live.) Then he won, and immediately issued his travel ban. A lawyer told me not to leave the U.S. even though I had legal residency; they might not let me back in. This reminded me of being a fugitive on the streets of Nairobi, where the possession of legal documents meant nothing to corrupt police. Then Trump said he wanted to accept fewer refugees from “shithole countries,” .. http://time.com/5101057/donald-trump-shithole-countries-tps-daca/ .. meaning poor black countries like mine. He disparaged the visa lottery .. https://www.whitehouse.gov/articles/national-security-threats-chain-migration-visa-lottery-system/ .. as a terrorist pipeline when in reality it is an escape hatch from terrorism.
I felt personally betrayed, but worse was the feeling that Trump had betrayed my dream of America. If this country settled by immigrants could close its doors to the most desperate people in the world, then who would help? Who would set the example of unflinching compassion to other nations? Who would inspire the world’s children of war, like me, to reject violence and strive to raise their own children in peace and security?
An aspiring American with no “real” birthday has no answer to these questions. But on June 20 I will make a wish for the world’s refugees as I blow out the candles on my cake. Because like the rest of us who share this planet, they were born, too.
Iftin lives in Portland, Maine, where he works as an interpreter for Somalis who have immigrated to the state; this fall, he will begin classes at the University of Southern Maine, studying political science.
A New Clash Between Faith and Gay Rights Arrives at a Changed Supreme Court
"THE SUPREME COURT USED TO OPPOSE DISCRIMINATION. WHAT HAPPENED?"
A Colorado graphic designer says she has a First Amendment right to refuse to create websites for same-sex weddings despite a state anti-discrimination law.
“When I chose to start my own business as an artist to create custom expression, I did not surrender my First Amendment rights,” Lorie Smith said. Rachel Woolf for The New York Times
By Adam Liptak Dec. 4, 2022Updated 2:11 p.m. ET
LITTLETON, Colo. — Ten years ago, a Colorado baker named Jack Phillips turned away a gay couple who had asked him for a wedding cake, saying that a state law forbidding discrimination based on sexual orientation must yield to his faith.
The dispute, a white-hot flash point in the culture wars, made it to the Supreme Court. But Justice Anthony M. Kennedy’s narrow majority opinion .. https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf .. in 2018 did not settle the question of whether the First Amendment permits discrimination by businesses open to the public based on their owners’ religious convictions. Indeed, the opinion acknowledged that the court had merely kicked the can down the road and would have to decide “some future controversy involving facts similar to these.”
That controversy has now arrived, and the facts are indeed similar. A graphic designer named Lorie Smith, who works just a few miles from Mr. Phillips’s bakery, Masterpiece Cakeshop, has challenged the same Colorado law on the same grounds.
“He’s an artist,” Ms. Smith said of Mr. Phillips. “I’m also an artist. We shouldn’t be punished for creating consistently with our convictions.”
The basic arguments in the case, which will be argued before the Supreme Court on Monday, are as familiar as they are polarizing.
On one side are people who say the government should not force them to violate their principles to make a living. On the other are same-sex couples and others who say they are entitled to equal treatment from businesses open to the public.
Both sides say that the consequences of the court’s ruling could be enormous, though for different reasons. Ms. Smith’s supporters say a ruling for the state would allow the government to force all sorts of artists to state things at odds with their beliefs. Her opponents say a ruling in her favor would blow a hole through anti-discrimination laws and allow businesses engaged in expression to refuse service to, say, Black people or Muslims based on odious but sincerely held convictions.
[Insert: While ignoring intricacies of the law, in the spirit of it all, i mean--To Mrs. Smith's supporters one could say: How about rental accommodation. I'm an artist and i own an apartment block. I don't want anything but white living in my apartments as their color clashes with the gently shaded decors of each apartment. I am so committed to color it's a religion for me. Just the thought of the inevitable color clashes gives me headaches. And i believe with a religions fervor having non Christians living there would downgrade the quality of the place to the extent it could threaten my financial future. I have rights too.]
------ Understand the U.S. Supreme Court’s New Term Cards[6] of 6 .. [more links inside]
A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returns to the bench — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the new term:
Legitimacy concerns swirl. The court’s aggressive approach has led its approval ratings to plummet. In a recent Gallup poll, 58 percent of Americans said they disapproved of the job the Supreme Court was doing. Such findings seem to have prompted several justices to discuss whether the court’s legitimacy was in peril in recent public appearances.
Affirmative action. The marquee cases of the new term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedents at risk.
Discrimination against gay couples. The justices will hear an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling. ------
Ms. Smith, in an interview in her modest but cheerful studio in an office building in a suburb of Denver, sat near a plaque that echoed a Bible verse: “I am God’s masterpiece.” She said she was happy to create graphics and websites for anyone, including L.G.B.T.Q. people. But her Christian faith, she said, did not allow her to create messages celebrating same-sex marriages.
[No doubt, a claim to religion has always opened doors to abuse.]
“When I chose to start my own business as an artist to create custom expression,” she said, “I did not surrender my First Amendment rights.”
Phil Weiser .. https://coag.gov/, Colorado’s attorney general, countered that there is no constitutional right to discriminate. “Once you open up your doors to the public, you have to serve everybody,” he said. “You can’t turn people away based on who they are.”
The court decided Masterpiece Cakeshop on an idiosyncratic ground that is not at issue in the new case, 303 Creative v. Elenis, No. 21-476. Justice Kennedy, writing for the majority in 2018, said Mr. Phillips had been treated unfairly by members of a civil rights commission who had made comments hostile to religion.
Jack Phillips turned away a gay couple who had asked him for a wedding cake 10 years ago, resulting in a lawsuit that made it to the Supreme Court. Nick Cote for The New York Times
Charlie Craig, left, and David Mullins, the couple who requested a wedding cake by Mr. Phillips, outside the Supreme Court in 2017. Zach Gibson for The New York Times
In the Supreme Court, Mr. Phillips had pursued claims based on his rights to the free exercise of religion and the freedom of speech. Ms. Smith also asked the Supreme Court to consider both of those grounds, but the justices agreed to decide only “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
Mr. Weiser, Colorado’s attorney general, said there was an important difference between the Masterpiece Cakeshop case and the new one. Mr. Phillips refused to serve an actual couple, David Mullins and Charlie Craig, who filed civil rights charges, saying they had been demeaned and humiliated. The details of the encounter, he said, mattered in assessing the legal issues.
Ms. Smith, by contrast, sued before facing any punishment.
“This is a made-up case,” Mr. Weiser said. “There haven’t been any websites that have been made for a wedding. There hasn’t been anyone turned away. We’re in a world of pure hypotheticals.”
Ms. Smith countered that she should not have to have to risk fines for exercising her rights.
“If I continue creating for weddings consistent with my beliefs, the State of Colorado intends to fully come after me,” she said. “Rather than wait to be punished, I decided to take a stand to protect my First Amendment rights. I shouldn’t have to be punished before I challenge an unjust law.”
* Student Loan Forgiveness: The Supreme Court agreed to decide whether the Biden administration had overstepped its authority with its plan to wipe out billions of dollars in student debt.
* A Secret Influence Campaign: An anti-abortion activist led a secretive, yearslong effort to influence the justices of the Supreme Court. This is the story of the Rev. Rob Schenck.
* Another Breach: Years before the leaked draft opinion overturning Roe v. Wade, Mr. Schenck said he had been tipped off to the outcome of a landmark contraception case.
* Trump’s Tax Returns: The justices cleared the way for a House committee to obtain former President Donald J. Trump’s tax returns, refusing his request to block their release.
“It seems to me that the freedom of speech has been essential to the cause of L.G.B.T. rights,” he said. “It could not have advanced without the freedoms that are secured by the First Amendment. I take these things to go hand in hand.”
Mr. Phillips’s cakes did not deserve First Amendment protection, Professor Carpenter added, but Ms. Smith’s graphics and websites do.
[Aha. So now as well as corporations, graphics and websites are humans too. Why not cakes. Hmm... ]
“Cake making is neither an inherently expressive nor a traditionally expressive medium,” Professor Carpenter said. “People make cakes for taste or nutrition.”
[Ouch. All those hours spent by bakeries makes cakes of every size shape and adornment. Millions of artistic hours all to waste. Only taste counts. Just make 'em all brown.]
Ms. Smith’s design work was different, he said. It involved, he said, “activities that are inherently expressive, including through the usual mediums of communication like writing or speaking.”
“This is an easier case than Masterpiece,” she said. “Here we have pure speech.”
A cross is displayed in Ms. Smith’s studio. Her supporters say a ruling for the state would allow the government to force all sorts of artists to state things at odds with their beliefs. Rachel Woolf for The New York Times
David D. Cole .. https://www.aclu.org/bio/david-cole , the legal director of the American Civil Liberties Union, who represented the couple in Masterpiece Cakeshop, said that was not the point. So long as Ms. Smith’s company was open to the public and selling a given service, he said, it must abide by state anti-discrimination laws.
[Yay]
A ruling in favor of Ms. Smith and her company, 303 Creative, would have devastating consequences, Mr. Cole said.
“If 303 Creative wins here, we will live in a world in which any business that has an expressive service can put up a sign that says ‘Women Not Served, Jews Not Served, Black People Not Served,’ and claim a First Amendment right to do so,” he said. “I don’t think any of us want to live in that world, and I don’t think the First Amendment requires us to live in that world.”
“Creation of wedding websites is pure speech,” Judge Mary Beck Briscoe .. https://www.fjc.gov/history/judges/briscoe-mary-beck .. wrote for the majority, and the Colorado anti-discrimination law compels Ms. Smith and her company “to create custom websites they otherwise would not.”
That meant, Judge Briscoe wrote, that the anti-discrimination law had to survive the most demanding form of judicial scrutiny, one requiring the state to demonstrate a compelling interest and to show that the law was narrowly tailored to address that interest. Judge Briscoe said Colorado had proved both.
“Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace,” Judge Briscoe wrote.
In dissent, Chief Judge Timothy M. Tymkovich .. https://www.fjc.gov/history/judges/tymkovich-timothy-m .. said “the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience.”
“It seems we have moved from ‘live and let live,’” he wrote, “to ‘you can’t say that.’”
[To Timothy some on might say: , My conscience says, anything non-white and Christian is an abomination. My religion says that. My registered religion. Look at the certification i got from the state.]
The Supreme Court, Gay Rights and Claims of Conscience
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. @adamliptak • Facebook
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