By:  Ridgeway Woulfe

Last week, we explored the double standard the Supreme Court created by its Masterpiece Cake and its decision to uphold Trump’s nation-based immigration ban (apparently not a Muslim ban, as he routinely stated).  In Masterpiece Cake, the Supreme Court held that a Commission’s animus toward a Christian baker was enough to find the Commission’s decision unconstitutional.  Separately, the Court ruled that the President’s repeated public displays of animus towards Muslims had no bearing on whether his executive order was Constitutional.  It was enough that the order’s language was not discriminatory. 

Ken questioned why the Commander in Chief was held to a lower standard than low-level state official.  Here, I attempt to provide an answer through a question.

Is the double standard the based on who said it or who the statement was about?

The First Amendment provides religious freedom.  “Congress shall make no law respecting an establishment of religion.”  There is no specification as to the type of religion.  Still, America’s history has demonstrated a general disposition toward Christianity, often shaping our law.  These cases cannot be viewed in a vacuum, ignoring the prejudice that has long existed.  It cannot be viewed without recognizing America and the Western world’s post-9/11 Islamophobia.  We cannot ignore that 5 of 9 Supreme Court Justices were appointed by conservative Republicans.

It’s not to say religious preference did affect the disparate holdings.  It’s not to say it didn’t.  It’s certainly not to say it was a conscious decision to choose one over the other; there are legally valid arguments for the holdings to result the way they did. 

But you can’t help but wonder.  The judicial system, for all of its pursuits toward blind justice is unfortunately incapable. 

Would animus toward Middle Eastern Muslim baker have been enough to allow them to withhold a cake from a gay couple?  Would a Muslim president be permitted to campaign on a Christian ban and then ban immigrants from seven predominately Christian countries?  As with all speculation, no one will be able to answer these questions.  That doesn’t mean they aren’t worth asking.