Discrimination, Trump v. Hawaii, and Masterpiece Cakeshop

• Jurisdiction: United States,Federal
• Citation: Vol. 56 No. 4
• Publication year: 2022

Discrimination, Trump v. Hawaii, and Masterpiece Cakeshop

Christopher C. Lund
Wayne State University Law School, lund@wayne.edu

Discrimination, Trump v. Hawaii, and Masterpiece Cakeshop

Cover Page Footnote

Professor of Law, Wayne State University Law School. Thanks to Chad Flanders, Nathan Chapman, and a group at Wayne State—John Corvino, Brad Roth, Mark Satta, and Jon Weinberg—for helpful comments.

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DISCRIMINATION, TRUMP V. HAWAII, AND MASTERPIECE CAKESHOP

Christopher C. Lund^*

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This short symposium piece is a comment on two of the Supreme Court's recent religion cases. The first is Trump v. Hawaii, the travel ban case, where the Court rejected the claim of unconstitutional religious discrimination against Muslims.¹ The second is Masterpiece Cakeshop, the case about the baker who refused to make a cake for a gay wedding, where the Court accepted the claim of unconstitutional religious discrimination against a conservative Christian.² One case finds discrimination, while the other rejects it. Yet more fundamentally, the pairing suggests differences in how we perceive or react to evidence of discrimination. Both on the Court and off it, conservatives seemed quicker to find actionable discrimination in Masterpiece, and liberals seemed quicker to find actionable discrimination in Trump v. Hawaii. This kind of statement should be qualified—we must be careful not to overstate things.³ But even so, anyone who reads these opinions will notice the trends.

This symposium piece considers the two cases individually (as I was asked to do). Ultimately, it will defend the claim of discrimination in each, probably not straying too far from the Kagan/Breyer position. But this piece tries to offer some novel points, and throughout, it ponders some larger questions about the law's response to cultural polarization.

Perhaps Trump v. Hawaii and Masterpiece Cakeshop are interesting only in themselves. Or perhaps they signal a coming era where the Supreme Court differentiates sharply between discrimination claims of different kinds. This could happen in a variety of ways. The Court could begin superintending

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discrimination cases more closely—formally reducing the deference given to the discrimination findings of trial courts, or issuing more one-off decisions reversing lower courts failing to find discrimination (in preferred domains) or reversing lower courts finding discrimination (in others). Uniform trans-substantive rules about things like mixed motives, discriminatory taint, or judicial recusal might give way to domain-specific rules on each of these topics—with more protective rules in more protective domains. Finally, and most obviously, individual rights themselves might change. Weaker kinds of antidiscrimination rights might grow stronger, perhaps blossoming eventually into substantive rights—this could be what is about to happen with the Free Exercise Clause. For other rights, it might go the other way. But the past is always more certain than the future, so we start with Trump v. Hawaii and Masterpiece Cakeshop.

***

Trump v. Hawaii was the Supreme Court's 2018 decision upholding President Trump's travel ban. As a presidential candidate, President Trump had made a call for a "total and complete shutdown of Muslims entering the" United States.⁴ Shortly after taking office, he signed an executive order suspending entry of foreign nationals from seven countries, all of whom had populations that were more than 90% Muslim.⁵ After the courts enjoined his first executive order and its replacement, the President issued a third version that covered four of the old countries and three new ones, claiming these countries had "systems for managing

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and sharing information about their nationals the President deemed inadequate."⁶

Trump v. Hawaii upheld this third version of the travel ban against the claim of intentional religious discrimination. Some might take the Court's decision as saying there was insufficient evidence of discriminatory intent. But this would not be exactly right. Chief Justice Roberts studiously avoided any firm conclusion about whether the President's travel ban was motivated by discriminatory animus.⁷ Instead, the Court looked at the issue with so much deference to the President that the Court ended up avoiding the whole question.⁸ This is not just some gestalt one gets from reading the case—it is the core of Trump v. Hawaii. After unpacking the Court's earlier cases establishing robust presidential authority over immigration, the Court announced it would look beyond the travel ban's facial neutrality only to see if there was some "rational basis" for it.⁹

The Court really could have ended the case there—and for all practical purposes, it did. After all, the hallmark of rational basis review is that it upholds actions on the basis of possible motives, whatever the actual motives.¹⁰ So by deciding on this standard of

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review, the Court simultaneously decided the rest of the case. The Court did not say the President lacked a discriminatory motive. Instead, it said that any discriminatory motive on the part of the President did not matter. It is always discouraging when the law does this—when it closes its eyes because it knows the ugly things it will see if it looks. It is reminiscent of the old deference to jury verdicts, where courts would ignore the most horrific defects in jury deliberation—like a jury deciding a case by drawing lots.¹¹ But four years ago, in Pena-Rodriguez v. Colorado, the Court took off the blinders and, for the very first time, allowed impeachment of a jury verdict—creating an exception to the no-impeachment rule for verdicts clearly the product of racial prejudice.¹² Trump v. Hawaii could have been decided that way.

As regards the President's actual remarks, even the President's defenders avoided defending them, which makes sense because the task borders on the impossible. One can try, of course. One could say President Trump's true concern was stopping terrorists rather than Muslims. But the President did not say he wanted to stop terrorists; he said he wanted to stop Muslims. And stopping terrorists by stopping Muslims is just a discriminatory stereotype. Sanctioning the President's statements requires an almost relentlessly forgiving attitude. If we were pondering the meaning of statements of a foreign leader or alien civilization, we would instead assume they meant what they said.

Rather than defending the President's actual remarks, the President's defenders attacked the causal connections between

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them and the travel ban.¹³ President Trump said improper things as a candidate, but the first Proclamation happened later and went through customary political channels. And even if the first Proclamation was tainted, the argument goes, the third one was not.¹⁴ General rules become surprisingly hard to discover here, but we can already see tensions with Masterpiece Cakeshop (which we will discuss in a bit). Masterpiece suggested sanitation could only come with repudiation—Masterpiece said the taint of previous bias could only be removed if the government openly acknowledges it and then explicitly disavows it.¹⁵ Yet that never happened in Trump v. Hawaii.

Let us now fully turn to Masterpiece Cakeshop. The two cases are connected both doctrinally and temporally. They both involve allegations of religious discrimination, and they both were decided by the Court in the same month.¹⁶ Masterpiece Cakeshop involved a gay couple seeking a wedding cake from a cakeshop owner, Jack Phillips, who refused on religious grounds.¹⁷ In the Colorado courts, the couple successfully sued Phillips for discrimination.¹⁸ But on appeal, the Supreme Court rejected the couple's suit. It was actually Phillips that had been unlawfully discriminated against, the...