When confronted with many interesting and important questions about how to weigh religious freedom against the government’s place in fighting invidious discrimination in the Masterpiece Cakes case, the Supreme Court of the United States chose to sidestep all questions but one. They said they didn’t need to decide whether a creative designer of cakes should be forced to create a cake designed to celebrate a marriage unrecognized by their religious tradition. They insisted they don’t need to decide if this cake shop is depriving gay people of a public accommodation. All they needed to know was that the government agency that made the decision was overtly hostile to the religious views of the person they ruled against.
While some of us were disappointed that the Court elected to dodge other important questions for the time being, at least, we thought, this bodes well for their upcoming decision on the Trump travel ban, for Trump’s hostility to Muslims has been trumpeted even more loudly and clearly than theÂ Colorado Civil Rights Division’s antipathy to Christians. Oh, how naive we were! It turns out Justices Alito, Gorsuch, Kennedy, Roberts, and Thomas sing a different tune when the victims of overt hatred belong to a religion other than their own. Now, the public statements and tweets of the discriminating agency are suddenly irrelevant to the text of the administrative ruling. Instead they want to address whether the President has a right to fight terrorism by controlling immigration. (But not does the Colorado Civil Rights Division have a right to fight homophobia by regulating cake sales.) The President’s open hostility to Muslims is ruled irrelevant on the grounds that the means used to implement it are “ineffective,” banning a mere 8% of the world’s Muslim population.Â (This makes as much sense as saying the KKK can’t be accused of racially motivated terrorism because they killed less than 8% of the black population.)
The Court acknowledged that the wisdom of the ban as a means of fighting terrorism was debatable, but insisted that the Congress must address that issue. In America’s system of separation of powers, however, it is the judiciary that is supposed to protect the Constitution. This Congress, in particular, has shown no capability of standing up to an executive branch bent expanding its power. We are left, ironically, to rely on the people themselves to stand up to the threat of populism, as they did when they flocked to the airports to defend American values and the immigrants who came here in search of them during the first Muslim ban.
Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute