By:  Ken Jensen

In her dissent to the majority opinion upholding Trump’s travel ban, Justice Sotomayor identifies a compelling contradiction with the Court’s previous opinion regarding gay wedding cakes.  In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, the Court decided whether a baker could refuse to design or bake a cake for a same-sex couple.  In its holding, the Court held the commissioners’ statements indicating hostility to religion while adjudicating the case violated the constitution.  But in the same term, the Court seemingly applies a different standard to presidential executive orders, finding anti-Muslim statements from Trump and his senior advisers irrelevant to the constitutional analysis.

Why is it that expressions of hostility to religion by commissions toward a suspect and statements of animus toward religion by the President of the United States are irrelevant to the analysis?  Indeed, the president repeatedly stated that his ultimate purpose was a Muslim ban – his statements are well documented.  Is there really any question as to what the president’s intent was in drafting his executive order?  But, Justice Roberts states: “the issue before us is not whether to denounce [Trump’s] statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency…”  The Proclamation is facially neutral toward religion.  End of story.

Contrast that analysis with the analysis made in the Masterpiece case: “[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.”  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1730 (2018).  As Justice Kennedy recognized, there has been a disagreement on whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion.  But is there a distinction between statements made in adjudicatory setting and statements by President justifying his executive order? 

Setting aside legal analysis, there seems to be such a disconnect between the conduct allowed by the highest authority in our country and the conduct expected by lower ranking officials.  Why shouldn’t the standards be the same?