Forget the headlines about the Supreme Court’s ruling in the travel ban case. (More about that later.) The decision to take a case considering whether a baker discriminated against a gay couple is noteworthy. (More about that as well in a moment.) The religious discrimination case allowing a Missouri church to receive federal funds for resurfacing its playground is also noteworthy, given the lineup in the majority opinion. (Yes, we’ll get to that, too.) The biggest news far and away is what did not happen: Justice Anthony M. Kennedy did not announce his retirement.
Clearly — and inappropriately — the White House was rooting for the quintessential swing vote on the court to leave so as to fill the slot with a committed originalist justice. That was not to be, although Kennedy — like former justice Sandra Day O’Connor — could announce his retirement in the summer. Nevertheless, one has to acknowledge the thin reed by which non-originalists/liberals are holding on to the potential for favorable opinions on their issues (as in the same-sex marriage opinion authored by Kennedy).
While the 2018 midterms have been looked upon in terms of a referendum on President Trump or a referendum on impeachment, they are also, for the Senate, a referendum on whether this president should be allowed two more years to pick a possible replacement for Kennedy or one of the other justices. Right now, it does not appear the Senate is in play, although Sen. Dean Heller (R-Nev.) is vulnerable. But say, for the sake of argument, Senate Majority Leader Mitch McConnell (R-Ky.) jams through the hugely unpopular Medicaid-cuts-trade-for-tax-breaks-for-the-rich-disguised-as-health-care-reform bill. Heller and at least two other Republicans might be at risk and the red-state Democrats on the ballot may be safe.
As for the travel ban, the Supreme Court’s order provides ample intrigue. The Post reports:
The Supreme Court agreed Monday to allow a limited version of President Trump’s ban on travelers from six mostly Muslim countries to take effect and will consider in the fall the president’s broad powers in immigration matters in a case that raises fundamental issues of national security and religious discrimination.
The court made an important exception: it said the ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
… The court said it would hear the case when it reconvenes in October. But it also indicated in the ruling that things may change dramatically by then. It asked the parties to address whether the case would be moot by the time it hears it; the ban is supposed to be a temporary one while the government reviews its vetting procedures.
That might suggest the ban is in trouble when it comes to those who do have a connection to the United States (which can be a family tie, a job offer, a student accepted to study in the United States). On the other hand, it may be nothing more than a decision on the equities, a finding that those with ties here would suffer a particular hardship if barred from coming. David D. Cole, national legal director of the American Civil Liberties Union (which has brought the travel ban litigation) tells me, “The court left the injunction in place with respect to the plaintiffs who had brought these challenges, who are U.S.-based persons and institutions with connections to foreign nationals. It simply lifted the injunction with respect to foreign nationals who have no connection to the United States whatsoever.” He adds, “It reasoned that with respect to those individuals, who are not in fact plaintiffs in the case, the balance of equities comes out differently. But significantly, it left in place the injunction that protects our plaintiffs and plaintiffs in the Hawaii litigation, who are all U.S.-based individuals or entities with connections to foreigners abroad.”
A number of court watchers have also advised that the administration should not take Justice Neil M. Gorsuch’s vote for granted: He is a staunch defender against religious discrimination (as we saw in the schoolyard discrimination case). Even more intriguing is the direction to brief the order of mootness. The ban was set to expire on June 14, so what case is left to argue?
In any event, consider how farcical the administration’s position is. By the time the case is briefed, heard and decided, the administration would have had over a year to complete its review of vetting, which was the stated purpose of the ban. Frankly, it’s determination to see a ruling in favor of the ban — allowing religious discrimination — speaks volumes about its actual intent.
Moving on to the church playground case, there are two telling signs of the court’s division on the issue of religious discrimination, a legal quagmire for some time. First, one of the “liberals” — Justice Elena Kagan — joined the majority in protecting the church’s right to receive funds. However, the majority opinion includes a footnote: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” That qualifier was signed onto by Chief Justice G. Roberts Jr. and Justices Kennedy, Samuel A. Alito Jr. and Kagan. Justice Stephen G. Breyer wrote an entirely separate concurrence. In other words, only by limiting the case to “just playgrounds” could a majority of justices be gotten for the majority of five. Justices Clarence Thomas and Gorsuch did not join in the footnote, meaning they would have pushed for a more broadly worded opinion (my point about Gorsuch’s devotion to anti-religious discrimination has relevance here). Those trying to extract guidance as to where the court would come out in, say, a case involving funding for field trips or grass re-seeding at a religious school will be frustrated, no doubt.
Then we come to the order to review the case involving both gay rights and religion. The Post reports:
The Supreme Court on Monday said it will consider next term whether a Denver baker unlawfully discriminated against a gay couple by refusing to sell them a wedding cake.
Lower courts had ruled that Jack Phillips, the owner of Masterpiece Cakeshop, had violated Colorado’s public accommodations law, which prohibits refusing service to customers based on factors such as race, sex, marital status or sexual orientation.
There are similar lawsuits from florists, calligraphers and others who say their religious beliefs won’t allow them to provide services for same-sex weddings. But they have found little success in the courts, which have ruled that public businesses must comply with state anti-discrimination laws.
This is precisely the sort of case in which the litigants will vie for Kennedy’s vote. While one’s religion may prohibit same-sex marriage, does it actually prohibit anyone else from having something to do with it? The Uber driver who gives the couple a ride to the church? The tuxedo shop that suspects its rental will be used for a gay wedding? Recall that in the civil rights era segregationists also defended their discriminatory practices based on religion. Once the federal government passed anti-discrimination laws in housing and other accommodations those excuses fell by the wayside. (A baker who wouldn’t sell a cake to an interracial couple based on his religious views wouldn’t get very far in court, I suspect.) Those are the sorts of practical, slippery-slope argument that might sway Kennedy. The good news, for now, for gay-rights advocates is that he’ll likely still be on the court to hear them.