Two recent high-profile U.S. Supreme Court cases have seen Muslims lose and non-Muslims win in apparently similar circumstances. A Christian baker insulted by government officials won, Muslim refugees insulted by government officials lost. A Buddhist death row inmate seeking spiritual counsel won, a Muslim inmate seeking the same rights lost. This disparity should bother us, especially someone like me who writes about emerging threats to American Muslims’ religious rights. But it’s also important to look for the underlying factors for the disparity. In the case of religious liberty cases, one of those factors is a curious form of lawyering.
Last summer, the court decided Trump v. Hawaii (the travel ban case) only three weeks after it decided Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a Christian baker who refused on religious grounds to bake a wedding cake for a gay couple. In Masterpiece, the court ruled against the commission and in favor of the baker, because the commission had made hostile statements about the baker’s religion. But in the travel ban case, the conservative majority of the court said President Trump’s hostile statements against Muslims were not relevant. The stark contrast in the court’s approach to anti-religious hostility raised the question: Does religious freedom apply equally to Muslims and Christians? But in all the panic and punditry that ensued, Americans overlooked a critical factor: The lawyers challenging the ban left out legal arguments under the Free Exercise Clause that, if not omitted, might have changed the outcome.
More to the point, Masterpiece was argued using the Free Exercise Clause and the travel ban case was not. The lawyers may have just made objectively neutral legal judgments, or maybe the use of one argument and not another ties into America’s ongoing religious culture wars.
Jeffrey Toobin has noted in the New Yorker that, in recent years, the conservative justices are essentially “reading the establishment clause out of the Constitution, and turning almost every issue into a free-exercise case.” According to Toobin, conservative lawyers are arguing, and the court is accepting, a vast interpretation of the Free Exercise Clause. Under this interpretation, the Free Exercise Clause requires the government to provide benefits to churches if it is also providing them to secular organizations; it also requires that religious believers be exempt from obligations binding on all citizens — like the cake baker in Masterpiece being exempt from the Colorado non-discrimination law. In other words, the conservative majority wants an expansive religious liberty jurisprudence so that it can accommodate a wide range of religious exercise, including conservative interests in the culture wars.
But it’s not just the conservative justices who have the culture war implications in mind. It appears that some prominent lawyers and advocacy groups on the other end of the political spectrum do, too. For example, the ACLU challenged the travel ban in the lower courts without invoking the Free Exercise Clause, a move mirrored by attorney Neal Katyal in Trump v. Hawaii. Luke Goodrich of the religious liberty law firm, Becket, thinks it’s because these advocates want to avoid creating precedent that might benefit conservative Christians: “Unfortunately, in our polarized moment, groups like the ACLU have developed an allergic reaction to the Free Exercise Clause. They know strong free exercise protections will protect traditional Christian beliefs. … So they put all their eggs in an Establishment Clause basket — hoping that by winning under the Establishment Clause, they can prevent blatant discrimination against religious minorities without also protecting traditional Christian beliefs.”
The political explanation seems more than plausible. Progressive lawyers have, after all, plainly admitted to avoiding other religious freedom laws, such as the Religious Freedom Restoration Act, which provides broad free exercise protections. These lawyers fear that “bolstering (RFRA) runs the risk of emboldening the conservatives who use it to restrict LGBT rights.” The ACLU has publicly declared that it can no longer support RFRA, and is working alongside other progressive advocacy groups to pass the Do No Harm Act, which would block the use of RFRA in culture war matters.
They don’t have the same fix for the Free Exercise Clause, so the strategy appears to be to avoid it altogether. Liberal scholars and activists decry the “weaponization of the First Amendment,” including the Free Exercise Clause, and the best way to forestall broadening the jurisprudence is not to argue free exercise at all — even if it means perpetuating the devastating impact of the travel ban. In Trump v. Hawaii, the Court declined to assess the president’s motives because separation of powers, and the statute at issue, required deference to the executive on matters of immigration and national security. But the opposition thought the Establishment Clause was applicable — so why not the Free Exercise Clause, too? Given the current court’s preference for the Free Exercise Clause, why sidestep it entirely (the justices are, after all, the people lawyers need to persuade)?
In fact, experts have argued that, to the extent the travel ban could be challenged on religious liberty bases, the Free Exercise Clause was the ideal vehicle. The core of the legal theory used to challenge the travel ban is that it singled out “members of one particular religion — Muslims — 'for disfavored treatment.’ … That claim sounds in free exercise, not establishment, both historically and today.” The nation's leading authority on the law of religious liberty, Douglas Laycock, also said that the travel ban is a classic iteration of intentional discrimination, prohibited by a seminal free exercise (not establishment) case, Church of the Lukumi Babalu Aye, Inc. v. Hialeah. While Trump v. Hawaii cited Lukumi, it framed it as an establishment clause case when in fact it isn’t. Rutgers law professor, Earl Maltz argued the same point: “one might have expected the opponents of the travel ban to couch their First Amendment arguments in terms of the Free Exercise Clause.”
When advocates argue religious liberty selectively and leave strong arguments on the table, their clients bear the burden. This fact was again made evident in the recent cases involving death row inmates who asked for their clergymen to accompany them in the execution chamber. In the February case, Dunn v. Ray, a Muslim inmate, Domineque Ray, asked for his clergyman to be by his side at the time of death. His lawyer relied on the Establishment Clause and did not invoke the Free Exercise Clause — and Ray lost his case. Then, in March, a Buddhist inmate, Patrick Murphy, made the same request, but his lawyer used the Free Exercise Clause — and Murphy won.
Becket also stepped into Murphy’s case and filed an amicus brief that underscored how the Free Exercise Clause is the better (and broader) avenue for understanding what was at stake. And several commentators, for example Jon Healy of the Los Angeles Times, agreed that the free exercise argument made all the difference: “Specifically, Ray emphasized the part of the First Amendment that bars the government from making laws ‘respecting an establishment of religion’; Murphy stressed the next part, which bars the government from ‘prohibiting the free exercise thereof.’”
There were likely other factors at play in those cases, but lawyering was a key part of the puzzle. In today’s polarized climate where religious rights for minorities and Muslims in particular are at risk, we need to present the best arguments — and when lawyers fail to do so, we have to ask why.