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Muslim refugees, Christian cake bakers have more in common than you think


What do Muslim refugees and a cake for a same-sex wedding have in common? They are both cultural flashpoints that are at the center of what will likely be the most-watched cases of the United States Supreme Court’s next term: Trump v. International Refugee Assistance Project and Masterpiece Cakes v. Colorado Human Rights Commission. These two cases follow on the heels the court’s landmark decision in Trinity Lutheran v. Comer, in which seven justices decisively ruled that a church couldn’t be prevented from equal access to a government program just because it is religious.

The two cases in the court’s next term will be equally impactful, and have more in common than you might think.

{mosads}Both cases rest on arguments that the government has imposed an unconstitutional religious litmus test. Both involve groups who have fierce support in influential segments of our society but are unpopular with the broader public. Both have failed to have their claims endorsed by the political branches of our government. Both will challenge our commitment to the First Amendment and our willingness to support its protections for those with whom we deeply disagree.

Trump v. International Refugee Assistance Project should remind progressives why the First Amendment’s protections for religious freedom should not be abandoned just because they sometimes yield “conservative” results.

The controversy arises from a lawsuit challenging President Trump’s executive order placing restrictions on travel to the United States from nations said to be sources of violent extremism. The refugees’ formidable legal team charges that the order was designed to keep Muslims out of the country, and that statements to that effect by Trump and the policy’s legal architects like Rudy Giuliani render the policy unconstitutional. It is black letter constitutional law that government may not intentionally disfavor a particular religion, even if the policy itself is set forth in neutral policy language.

The executive order challenge will turn on how far courts are willing to look into the rhetoric surrounding a policy to tease out unconstitutional motivations. Would an anti-Muslim statement a Trump campaign official during the 2016 Iowa caucuses suffice? What if Trump himself made troubling statements about Muslims, but did not do so once he began formulating the policy? Given that our political rhetoric is now spit out in 140 character tweets, the court will have to decide where to draw the line in determining when (if ever) fiery campaign rhetoric creates irreversible smoke damage to future policies.

Remarkably, in Masterpiece Cakes, Denver-based cake artist Jack Phillips relies on an argument similar to that employed by travelers from Muslim-majority nations. Phillips was fined by the Colorado Human Rights Commission for his refusal to create what he calls an “edible monument” to a gay marriage that he morally opposes.

When other Colorado artists refused to create cakes inscribed with Bible verses opposing homosexuality, the Commission did not punish them. Phillips contends that the government is choosing to accept the refusal to create art with one religious message while punishing a refusal to create art based on a competing religious viewpoint. And if you doubt whether high-end cake bakers are “artists,” just ask the millions of viewers who tune in to Cake Boss and Cupcake Wars.

When considering cases that carry so much culture war baggage, it’s helpful to test our tribal rooting interests against an altered factual scenario: Would Republicans who think that the travel ban is constitutional think the same if a President Hillary Clinton placed new restrictions on pro-life crisis pregnancy centers after referring to people like them as “deplorables?” Similarly, would progressives who despise the moral decision behind Jack Phillips’ legal claim feel the same way if a gay baker refused to customize a cake celebrating a gay man’s completion of a religious course in “sexual orientation conversion therapy?”

We should expect both cases to be blanketed with heavy news coverage and have dueling rallies outside the Supreme Court. Amidst the culture clash, the legal nuances that will decide these cases can get lost. That Jack Phillips and Muslim refugees can both come before the Supreme Court with weighty constitutional claims shows that the First Amendment works. We would do well to ignore the atmospherics and think more deeply about the First Amendment values that they teach.

Tim Schultz is the president of the 1st Amendment Partnership, an organization dedicated to protecting the religious freedom of Americans of all faiths, primarily through advocacy in state legislatures.

The views expressed by contributors are their own and are not the views of The Hill.

Tags Business Donald Trump Donald Trump litigation first amendment First Amendment to the United States Constitution Hillary Clinton religious liberty SCOTUS
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