Imagine, for a moment, a world very much like our own.
In this world, Donald Trump still campaigned for office on a promise to ban foreign nationals of a particular faith from entering the country. Trump still called for “a total and complete shutdown” of people from this faith “entering the United States until our representatives can figure out what is going on.” He still proclaimed that members of this faith hate us, and that “we can’t allow people coming into this country who have this hatred.”
Trump even stated openly that he would try to disguise his order banning members of this faith from entering the United States by having it appear to be a ban on people from certain countries where that faith predominates.
The only difference between this hypothetical world and our own is that, on Earth 2, Trump targeted Catholicism, a religion shared by a majority of the justices on the Supreme Court. There, Trump’s Catholic ban targeted foreign nationals from Italy, Spain, and a smattering of Latin American nations, all of which are predominantly Roman Catholic.
After handing down the most recent version of his Catholic ban, moreover, Trump retweeted three virulently anti-Catholic videos. When reporters asked the White House about these videos, Trump’s deputy press secretary explained that “the president has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” (The “travel order” is the analogue to our universe’s Muslim ban.)
Does anyone think that, in this alternative universe, Trump’s Catholic ban would survive even the most cursory review from the Supreme Court?
Meanwhile, here on Earth 1, Trump’s Muslim ban will be heard by the Supreme Court this Wednesday. By all outward signs, the plaintiffs in Trump v. Hawaii face a difficult uphill climb to find five justices willing to strike down this ban. A Supreme Court that appears determined to grant special rights to conservative Christians — all in the name of “religious liberty” — seems suspiciously unconcerned with Trump’s attacks on the religious liberty of Muslims.
Special rights for the Christian Right
In case you harbor any doubts about what would happen if Trump attempted to ban Catholics — or some other Christian sect — consider the other major religious liberty case pending before the Supreme Court this term.
Most civil rights cases seek equality for a disfavored group. In Brown v. Board of Education, the plaintiffs wanted to attend the same schools as white children. Employment discrimination cases demand that employers treat workers from some identity groups the same way they treat workers from a more favored identity group. Public accommodation cases insist that minorities be served alongside everyone else.
Masterpiece Cakeshop v. Civil Rights Commission is a very different case. Under Colorado law, all bakers are already treated equally. They are forbidden from opening up a shop, offering to sell their goods to the general public, and then discriminating against gay customers.
But Jack Phillips, the baker at the heart of Masterpiece Cakeshop, does not want to be treated the same as any other baker. He thinks that he the right to ignore a state civil rights law that applies to his competitors, and he thinks that he enjoys this special right because of his conservative Christian beliefs.
Masterpiece Cakeshop is much more akin to something conservatives ordinarily find quite vulgar — affirmative action — than it is to a case seeking formal equality. It is a case alleging that the law should give a particular advantage to people who hold certain beliefs.
Now, to be clear, the fact that Mr. Phillips asks for such protections does not necessarily mean that his cause is unjust. Affirmative action is sometimes justified, either to provide a counter-balance to the lingering disadvantages caused by discrimination, or to foster diversity.
But Masterpiece Cakeshop is not a typical civil rights case, seeking formal equality for people of various faiths. It is fundamentally a case claiming that the interests of conservative Christians should triumph over the right of gay people to enjoy equal justice under law.
Nevertheless, at oral arguments in Masterpiece Cakeshop last December, equal justice under law had a brutal day in the Supreme Court. There are almost certainly four votes in favor of Mr. Phillips’ right to discriminate, and Justice Anthony Kennedy appeared likely to give Phillips a majority.
When the “religious liberty” of conservative Christians is implicated, the Supreme Court is even willing to strip away rights from other people in order to bolster the rights of those religious conservatives. Yet they appear reluctant to give Muslims the most basic civil rights protections in the Hawaii case.
What do you do with a know-nothing president?
In fairness, there is one important distinction between Hawaii and most ordinary civil rights cases involving a minority group seeking equal treatment. Hawaii is, at least according to the Trump administration, a case about national security. As the Supreme Court said in 1999, when the executive branch determines that “nationals of a particular country [are] a special threat,” the courts are “ill equipped to determine” whether the executive’s purported reasons for this determination are legitimate, and “utterly unable to assess their adequacy.”
Presidents sit at the apex of the most sophisticated intelligence operation in the history of the planet. They simply know things that judges cannot possibly know. So judges who second guess the president on matters of national security better be very sure they are acting appropriately, lest they endanger the nation as a whole.
But let’s be honest here. We’re not talking about a president who consults with his intelligence chiefs and then makes carefully thought out decisions based on a rigorous inquiry. We’re talking about Donald Trump. (According to a recent New Yorker report from Patrick Radden Keefe, one of the many reasons Trump’s relationship with former national security adviser Gen. H.R. McMaster frayed was Trump’s inability to “absorb” the material presented in his daily national security briefings.)
That’s not just a flip dismissal of a uniquely unqualified president. Trump promised a Muslim ban early in his presidential campaign — long before he had access to the kind of intelligence that his predecessors relied upon to make national security decisions. And on the campaign trail, he was quite clear about how he intended to dress up this Muslim ban so that it looked like an ordinary national security directive.
“People were so upset when I used the word Muslim,” Trump told NBC’s Meet the Press in 2016, “and I’m okay with that, because I’m talking territory instead of Muslim.”
One of Trump’s close confidantes, former New York City Mayor Rudy Giuliani, was even more explicit about what Trump was up to.
OK. I’ll tell you the whole history of it. So when [Trump] first announced it he said, “Muslim ban.” He called me up and said, “Put a commission together, show me the right way to do it legally.” . . . And what we did was we focused on, instead of religion, danger. The areas of the world that create danger for us. Which is a factual basis. Not a religious basis. Perfectly legal, perfectly sensible, and that’s what the ban is based on.
Trump, in other words, said that he would try to make his Muslim ban look legitimate by having it target a handful of predominantly Muslim counties — at that’s exactly what he’s done. Though the mix of nations targeted by the ban has changed, it currently impacts foreign nationals from Iran, Libya, Syria, Yemen, Chad and Somalia — all of which are majority Muslim nations.
(The latest version of the ban also targets North Korean and Venezuela, which are not majority Muslim nations. Yet the decision to include these two nations also appears to be a pretext intended to hide the ban’s true intent. Only a small number of Venezuelan officials and their families are caught in the ban, and virtually no North Koreans travel to the United States to begin with.)
Whatever deference presidents ordinarily should enjoy in national security cases, the case for that deference dissolves when the president announces an unconstitutional goal long before they even have access to sensitive intelligence, and then openly brag about how their stated reason for achieving that goal will be a pretext.
Indeed, Justice Kennedy seemed to anticipate this very circumstance in a 2015 case called Kerry v. Din. Though Kennedy’s opinion concurring in the judgment in Din largely accepted the principle that courts should defer to the executive branch when a foreign national is excluded from the country, Justice Kennedy also wrote that there should be an exception to this rule. Courts may look into the executive branch’s true motives upon “an affirmative showing of bad faith” by the executive branch official who made the decision to exclude that foreign national.
Here, that executive branch official is Trump.
So Trump v. Hawaii should be an easy case. The key decision-maker at the heart of this case has been quite explicit about his unconstitutional animus against Muslims. He’s bragged about his plans to fabricate false premises for his Muslim ban. And individuals targeted by Trump’s Muslim ban are not asking for any kind of special treatment, they are simply asking for the right to be treated like people from any other nation.
Additionally, the Supreme Court does not need to worry that, by handing down a decision that blocks Trump’s actions today, they could set a precedent that blocks the legitimate action of a legitimate president at some time in the future. The facts of Hawaii — where a president literally travels around the country bragging about his plans to violate the Constitution for more than a year — are unlikely to repeat themselves ever again.
And yet, the Court has shown none of the outrage towards Trump’s Muslim ban that its conservative members showed in the Masterpiece Cakeshop case. Last June, when an early version of the ban reached the Supreme Court, six of the justices agreed to a compromise that temporarily halted parts of the ban, but only with respect to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
Less than six months later, the Court stayed a lower court decision halting the most recent form of the ban, effectively allowing the Muslim ban to take full effect. The Supreme Court, in other words, is perfectly content to let Trump step on the religious liberties of many Muslims while the justices take their time pondering this case.
Communion wine and peyote
Nearly three decades ago, conservative Justice Antonin Scalia warned of the potential dangers of exempting people from the law if they object to it on religious grounds. “The government’s ability to enforce generally applicable prohibitions of socially harmful conduct,” Scalia wrote in Employment Division v. Smith, “cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.”
Making “an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs” risks allowing each person to “become a law unto himself.” Such a regime, Scalia warned, “contradicts both constitutional tradition and common sense.”
Smith was, to say the least, not a beloved decision. It upheld Oregon’s ban on the psychoactive drug peyote, even when used by some Native Americans for sacramental purposes. At the time, many observers wondered whether Scalia, a devout Catholic, would have reached the same decision if Oregon sought to ban communion wine.
In her own separate opinion, Justice Sandra Day O’Connor gave voice to these concerns. “The Court today suggests that the disfavoring of minority religions is an ‘unavoidable consequence’ under our system of government,” O’Connor wrote in 1990, “in my view, however, the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility.”
A majority of Americans are not Muslims, and the Islamic faith is unquestionably viewed with hostility by many Americans — including by the President of the United States. The Supreme Court, however, now appears even less sympathetic to Justice O’Connor’s concerns than it was three decades ago. It appears poised to grant new, sweeping legal immunities to a political powerful religious group, even as it turns its back on Muslims.
It’s hard to imagine that the Court would behave the same way if Trump had issued a Catholic ban.