Does the Supreme Court have a religious double standard? Factors to consider

Over the past year, particularly after the Supreme Court’s ruling last summer in Trump v. Hawaii (the travel ban case), many Americans have been asking, “Does religious freedom apply equally to all religious communities in America?” The matter again came to the fore with February and March cases involving death row inmates. Underlying the differential treatment of Muslim claimants versus other claimants are a multitude of factors: effective lawyering, public perception, and yes, judicial bias, too.

Trump v. Hawaii provoked concerns about unfairness on the court in large part because it was decided a mere three weeks after Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that involved a Christian baker who refused on religious grounds to bake a wedding cake for a gay couple. In that case, the court ruled against the commission because it had made several hostile statements about the baker’s religion and this hostility, the court said, invalidated the commission’s actions. But in the travel ban case, a majority of the court said the president’s overt hostility toward Muslims was not relevant to the constitutionality of the travel ban, because the president deserved near-total deference in matters of national security and foreign policy.

Lawyers and legal scholars have debated whether or not the conservative majority of the court was correct about the law in the travel ban case and there are good arguments on both sides — for example, the dissent said presidential deference does not extend to every president, regardless of his past behavior (in other words, President Trump’s overt anti-Muslim animus disqualified him from receiving broad deference when it came to his banning travel from mostly majority-Muslim states). But the more relevant point is the public perception it created about favoritism toward conservative Christians and hostility toward minorities, Muslims in particular. This is a slice of the much broader credibility issue the court faces — coupled with the partisan battle over, first Justice Gorsuch’s confirmation to the court and then, in even starker terms, Justice Brett Kavanaugh’s confirmation, the court’s credibility in the eyes of the people has become murkier, as even Justice John Roberts recognizes.

Read more at the Freedom Forum Institute. Follow the conversation at #whenislamisnotareligion

Asma Uddin is the founding editor of altM and the author of When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom, available on Amazon, at Barnes & Noble, and IndieBound.

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