Aziz Huq on What the Supreme Court’s Masterpiece Cakeshop Ruling Could Mean for Trump’s Travel Ban
What the Supreme Court’s Masterpiece Cakeshop Ruling Could Mean for Trump’s Travel Ban
The justices, of course, are hardly naïfs. If they deliberately went out of their way to base their ruling on the behavior of an irrelevant state actor, they did so knowingly. I think there are two reasons why.
The first reason is that the baker’s two primary constitutional arguments would have sweeping, destabilizing effect. Inflating the Commission’s remarks to the level of religious animus provided the Court a way to resolve the case while avoiding what it might have perceived to be hard questions.
As I explained in an earlier piece, the baker made first a religion-based right to an exception from anti-discrimination law, and second a free speech right in the form of a right to decline to create the cake sought by the same-sex couple. Sensibly, no justice showed interest in the first of these. If the First Amendment gave people a right to opt out of any general law on religious grounds—say, laws criminalizing narcotics use, child marriage, and even physical harm—it would create havoc.
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