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Symposium: Navigating animus and accommodation

Kristen Waggoner serves as senior vice president of the U.S. legal division with Alliance Defending Freedom, which submitted an amicus brief in support of neither party in Trump v. Hawaii.

The travel ban case, Trump v. Hawaii, has been a bit of a law professor’s dream: complex issues, numerous rounds, high political stakes. From statutory interpretation and immigration to separation of powers and remedies, the case offers something for almost everyone. It will surely create test fodder for years to come. But however you land on most of these issues, and whether you think the ban should have been upheld or stuck down, the U.S. Supreme Court got one thing right with yesterday’s ruling:

It didn’t make a bad thing worse — at least when it comes to existing establishment clause jurisprudence.

To see this, let’s identify the establishment clause issue before the court. Although the U.S. Court of Appeals for the 9th Circuit did not reach the establishment clause claim, the U.S. Court of Appeals for the 4th Circuit did, invalidating the ban for lacking a predominant secular purpose as seen by the always pleasant reasonable observer — a test derived from Lemon v. Kurtzman and modified slightly by Lemon’s progeny. At the Supreme Court, Hawaii advanced the same basic argument, asking the court to extend the modified Lemon test to the immigration field and to invalidate the ban accordingly.

The court declined the offer. It expressly rejected the “reasonable observer” test and applied rational basis review because the foreign affairs context demands more deference to the executive. The court simply refused to assume “that courts should review immigration policies, diplomatic sanctions, and military actions under the de novo ‘reasonable observer’ inquiry applicable to cases involving holiday displays and graduation ceremonies. … The dissent can cite no authority for its proposition that the more free-ranging inquiry it proposes is appropriate in the national security and foreign affairs context.”

It’s not hard to understand the court’s reluctance to expand Lemon into foreign affairs. From Justice Anthony Kennedy to Justice Neil Gorsuch, the majority of current justices have already expressed reservations about Lemon in the domestic context. Hardly anyone pretends it fits history. The establishment clause originally forbade a narrow set of practices, such as compelling religious observance, controlling the selection of religious personnel and mandating forms of religious teaching and practice. And rightly so.

Besides flunking history, Lemon also fails to produce consistent results. As Justice Clarence Thomas described, current establishment clause jurisprudence is “in shambles.” Lower-court judges agree, lamenting our plunge into “Establishment Clause purgatory” and bemoaning how our establishment caselaw is “formless, unanchored, subjective and provide[s] no guidance.” Sounds lovely. Just the type of results worth extending.

But let’s go further. The Lemon test is not just unworkable, it frequently harms religious adherents. In most cases, Lemon is deployed not to stop religious discrimination but to stop the government from acknowledging, accommodating or protecting religion. Providing vouchers so that underprivileged children can attend schools of their choice, religious schools included. Granting tax exemptions to ministers. Accommodating magistrates who cannot solemnize same-sex marriages because of their religious beliefs. Allowing faith-based adoption agencies to place children in homes consistent with their beliefs. Protecting the sacred sites of Native Americans. Permitting Jewish groups to use telephone poles to create an eruv. Each has been challenged on establishment clause grounds, and if invalidated, the subsequent result would harm both religious adherents and the public served by them.

Hawaii’s travel-ban argument could have easily entrenched the problem or made it worse. Look no further than the primary establishment clause case the state cited: McCreary County v. American Civil Liberties Union of Kentucky, a 5-4 decision that invalidated a county’s effort to acknowledge religion with a Ten Commandments display. McCreary relied in part on government officials’ statements to uncover a predominant religious purpose behind the display. But McCreary is probably not long for this world. Since the McCreary decision in 2005, the Supreme Court has never cited it approvingly. Thomas and Kennedy dissented in it. And neither Chief Justice John Roberts nor Gorsuch nor Justice Samuel Alito appears to be a fan. That’s for good reason. Why should the establishment clause invalidate laws that acknowledge religion or accommodate religious adherents merely because an official’s comment suggests a religious motive? It shouldn’t. A few comments don’t wipe away an obvious secular purpose.

A foreign-affairs hypothetical illustrates the concern. Suppose the next administration disagrees with the travel ban and the new president revokes it, relying publicly on his or her Christian beliefs that foreigners and outcasts should be welcomed. Or let’s say the next president directs some type of aid to Muslim refugees abroad, again citing his or her religious beliefs as the basis. Should those actions be struck down simply based on those comments? We would hope not.

The point is that current establishment clause jurisprudence is both amorphous and too often wielded as a sword against the religious and not as a shield to protect them. So extending this doctrine is not a good recipe for stopping religious animus anywhere and certainly not in the context of foreign affairs.

That context also helps to reconcile the travel-ban decision with Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. To be sure, both cases involved allegations of religious animus based partly on officials’ statements, as Justice Sonia Sotomayor notes in her dissent in Trump. But those statements arose in completely different situations: an adjudicatory hearing to enforce a domestic law in Masterpiece; pre- and post-campaign presidential statements about a foreign-affairs regulation in Trump. Add in the inconsistent government treatment in Masterpiece — Colorado allowed some bakers to decline to create cakes criticizing same-sex marriage but forced the cake artist in Masterpiece to create cakes celebrating same-sex marriage — and it’s not difficult to see why one case triggered more scrutiny.

But setting aside those distinctions, another more fundamental difference also distinguishes the two cases. They involved different claims: establishment clause in Trump; free exercise in Masterpiece. But why didn’t the court scrutinize the travel ban under the free exercise clause? Would that claim have come out differently?

The answer to the first question is easy. The free exercise claim was not raised on appeal. This was probably no oversight. Hawaii likely wanted to take advantage of the fact that lower courts have created looser standing requirements for establishment clause claims — sometimes finding standing based on mere spiritual and dignitary injury. And then on the merits, Hawaii surely knew that domestic establishment clause violations are typically treated as per se improper. No strict scrutiny. No balancing of interests. That would have provided an easy way to circumvent the national-security interests asserted by the government.

The answer to the second question is unclear. Although the court did not directly address a free exercise claim, it repeatedly emphasized that the government should get more deference in the foreign-affairs context and even said that “a circumscribed inquiry applies to any constitutional claim concerning the entry of foreign nationals.” That language suggests that the court will treat all constitutional challenges to facially neutral laws in the foreign-affairs context with equal deference.

But there are good reasons to treat free exercise claims differently than their establishment clause cousins, whether in the foreign-affairs context or outside it. For one — as noted above — free exercise analysis can trigger strict scrutiny, which provides a compromise between the per se violations characteristic of the establishment clause and the excessive deference characteristic of rational basis. That would enable courts to give appropriate weight to national-security interests. They would neither discard them nor blindly defer to them. For another, free exercise analysis cannot be turned around to invalidate efforts to acknowledge or accommodate religion. That ensures the benefits of religious freedom without the costs to that freedom that often accompany establishment clause expansion.

It’s this last point that may offer the best path forward to build a consensus between those who disagree about the Masterpiece and travel-ban cases. Both cases involved litigants, commentators and numerous amici worried about the government treating people of faith unjustly. The government should never do that, whether an adherent follows Christ or Allah, holds popular or unpopular views, comes from a minority or majority religion or believes in marriage between a man and woman or between people of the same sex. That’s why the organization for which I work — Alliance Defending Freedom — has filed briefs in support of people of many different faiths, including Muslims.

The right tool to ensure that the government doesn’t discriminate against people of faith, no matter their religious affiliation, is the free exercise clause. If Masterpiece and the travel-ban decision push litigants that way — to advocate for broad free exercise protections — then these decisions may produce more good than any of their detractors expect.

Recommended Citation: Kristen Waggoner, Symposium: Navigating animus and accommodation, SCOTUSblog (Jun. 27, 2018, 11:08 AM),