Sotomayor’s Blistering Travel Ban Dissent Leans on Cakeshop

Justice Sonia Sotomayor’s dissent in the travel ban case railed against what she said was hypocrisy by the five justices who voted to uphold President Donald Trump’s executive order June 26.

The court’s conservative justices June 4 reversed a finding by the Colorado Civil Rights Commission because some of its members had shown hostility toward religion. But the same five justices turned a blind eye to Trump’s “hostility and animus toward the Muslim faith,” Sotomayor said, in an opinion joined by Justice Ruth Bader Ginsbrug.

There are some distinctions that give the majority some cover, Douglas Laycock, a religious liberty professor at the University of Virginia School of Law, Charlottsville, Va., told Bloomberg Law.

“But the bottom line is that the five conservatives who condemned Colorado for bigoted statements against conservative Christians were just fine with the President’s more numerous bigoted statements against Muslims,” Laycock said. “And Justice Sotomayor called them out on it.”

On the other hand, there’s a world of difference between anti-religious statements made by the president, acting with broad authority in the immigration and national security field, and what amounts to basically a local judge who was shown to treat individuals dissimilarly based on their beliefs regarding same-sex marriage, Kristen K. Waggoner, of Alliance Defending Freedom, who argued on behalf of the baker in Masterpiece Cakeshop, told Bloomberg Law.

Not Good for Gander

In Masterpiece Cakeshop, a 7-2 Supreme Court reversed a Colorado Civil Rights Commission’s holding that a baker who refused to make a cake for the wedding of a same-sex couple had violated the state’s anti-discrimination law. Sotomayor and Ginsburg were the court’s sole dissenters.

The court in Masterpiece Cakeshop “declared that even ‘subtle departures from neutrality’ on matters of religion are strictly forbidden,” Richard B. Katskee, of Americans United for Separation of Church and State, Washington, told Bloomberg Law. But nothing “about Trump’s Muslim Ban is subtle,” Katskee said.

Therefore, the majority in the travel ban case should have applied that same principle to the president’s immigration policy, Brianne Gorod, of the Constitutional Accountability Center, Washington, told Bloomberg Law.

“In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals’ fundamental religious freedom,” Sotomayor said.

But “apparently what’s good for the goose isn’t good for the gander,” Gorod said.

Though “the Court’s majority gave great weight to comments from the Colorado Civil Rights Commissioner in Masterpiece, the very same Justices assigned virtually no significance to President Trump’s repeated statements that made clear the anti-Muslim animus that underlies the ban,” Gorod said.

Possible Distinctions

There are some distinctions that the majority can point to to explain this apparent inconsistency, Laycock said.

The court has traditionally given the president “a lot of deference in the immigration context,” he said. So “that also makes the cases different.”

Specifically, the majority said that, “For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’”

The different roles the president and the commission played in their respective cases could also provide a viable distinction, Laycock said.

“Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion,” Justice Anthony M. Kennedy wrote for the court’s majority in Masterpiece Cakeshop. In Masterpiece Cakeshop, “however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case,” Kennedy said.

Finally, the travel ban case was an establishment clause challenge, whereas Masterpiece Cakeshop involved the free exercise clause, Waggoner said. The court has traditionally analyzed those clauses differently, she said.

No Mention

But though that reasoning might support a distinction, it’s not one that the court’s majority made in the travel ban case.

Despite engaging with Sotomayor’s criticisms regarding the similarities between the travel ban and the court’s notorious ruling allowing Japanese internment during World War II, the majority didn’t even cite to Masterpiece Cakeshop.

“What’s perhaps most stunning is not the hypocrisy, but the Court’s unwillingness to even acknowledge the tension between the opinion it issued today and the one it issued just weeks ago,” Gorod said.