In a brilliant piece in Politico today, Professor Richard Primus argues that the Baking for Gay Marriage Opinion, by rejecting broad First Amendment protections for discrimination, sets up the travel ban case for a similarly positive outcome, not only because of the general principle, but because of the use of in focus statements to show animus by a legal decision maker.
What may ultimately be more important even than this is the potential for the Opinion to show the importance of neutral process by authorized decision makers;
Justice Kennedy also took a capacious view of what sorts of statements by decisionmakers would suffice to show unconstitutional prejudice. Rather than saying the seven-member Colorado Civil Rights Commission had acted solely or even predominantly on a prejudiced basis, Justice Kennedy wrote that the Commission’s process had “some elements of a clear and impermissible hostility” toward the baker’s religious beliefs. One commissioner in the proceeding described religion as having contributed to some of history’s greatest evils, including slavery and the Holocaust. Another commissioner said that “if a businessman wants to do business in the state and…the law’s impacting his personal belief system, he needs to look at being able to compromise.” On its face, the proposition that someone “needs to look at being able to compromise” doesn’t seem like anti-religious intolerance. But Justice Kennedy regarded the statements of these two commissioners, taken together, as exhibiting a prejudiced attitude that the First Amendment prohibits. In Kennedy’s formulation, the First Amendment prohibits “even subtle departures from neutrality on matters of religion.”
I had been thinking a lot recently about the relationship between public understanding of the importance of procedural fairness as compared to at least the Trumpsters’ apparent contempt for the importance of governmental process neutrality.
In the end, we have to persuade such folks that regardless of their own political opinion, they have a deep interest in the neutrality of governmental decision-making. This case is an ideal example. By making the case about process fairness, Kennedy showed that such fairness is important to all, regardless of their beliefs. Its one thing to cheer someone getting shafted. It another to have it happen to you, with no redress.
Indeed, as the writer explains, Kennedy went out of his way to emphasize the breadth of potential consideration of non-neutral statements to cast the neutrality of an ultimate decision into question:
To be sure, Monday’s case and Hawaii v. Trump are not exactly the same. The prejudice question in the entry-ban case is about prejudice in the process of lawmaking, and Monday’s bakery decision was about prejudice in the application of the law to a specific person. Sometimes that distinction makes a difference. So it seems noteworthy that Justice Kennedy went out of his way in Masterpiece Cakeshop to signal that he does not believe that distinction to be significant. “Members of the Court have disagreed on the question whether statements made by lawmakers [as opposed to adjudicators] may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion,” he wrote. To illustrate that disagreement, Justice Kennedy cited a 1993 decision in which he had disagreed with the late Justice Antonin Scalia on that very point—with Kennedy taking the view that the statements of lawmakers do matter.
So this case could be the bridge to broadening the importance of neutrality in all governmental decision-making. If it is true that Kennedy understands the general importance of this, then the Solicitor General is going to have a bad few weeks, and hopefully, years.