The Washington Post plays “Gotcha!” for the benefit of its more cynical readers in Why many religious liberty groups are silent about the Supreme Court’s decision on Trump’s travel ban, the premise being that the travel ban and Masterpiece Cakeshop are so obviously analogous that it’s hypocritical not to oppose Trump on the travel ban as they opposed Colorado on Masterpiece Cakeshop.
Assuming the analogy for sake of argument (although I’m not certain what the common nexus is supposed to be), the Post nevertheless did an injustice to Becket Fund:
The religious liberty groups that did not initiate any statements on the travel ban ruling included Becket … Becket responded to the Post’s question about its silence by noting the brief it filed in the case, which was neutral on the allegation of discrimination and took no side as to whether Muslims were targeted. Becket’s brief focused on its criticism of the legal strategy of those challenging the travel ban.
“Neutral on the allegation of discrimination” is technically true, but what Becket’s brief argued was that:
each lower court that has held for the plaintiffs on the constitutional issue has used the wrong Religion Clause and the wrong legal test to root out claimed religious targeting. The courts have used the Establishment Clause (which aims to prevent government involvement in religion) rather than the Free Exercise Clause (which protects religious individuals and groups from burdens on their religious beliefs and exercise) … To date, none of the lower courts in cases challenging the Proclamation or its predecessor Executive Orders has been asked to analyze the question of religious targeting under the clause of the Constitution that most naturally prevents it: the Free Exercise Clause.
Becket then laid out in 7-point detail how to analyze the ban under the Free Exercise Clause, which is considerably more than just carping about the challengers’ legal strategy and lower courts taking the bait:
- Does the law facially target religion?
- Does the law, in its general operation, result in a religious gerrymander?
- Does the law fail to apply analogous secular conduct?
- Does the law give the government open-ended discretion to make individualized exemptions?
- Has the law been selectively enforced?
- Does the law’s historical background show that the lawmaker’s purpose was to discriminate based on religion?
- Does the law discriminate between religions?
I’m proud of Becket, which I support, and which as usual did a principled, high-quality job.
It even strikes me that the Free Exercise Clause argument was more favorable to the challengers than an Establishment Clause argument, as two of the dissenting justices noted suspiciously uneven enforcement.
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The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.
(Sir James Fitzjames Stephen)
Reality is that which, when you stop believing in it, doesn’t go away.
(Philip K. Dick)