Does the Supreme Court have a Religious Double Standard? Factors to Consider.

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Carolyn Kaster/Courtesy The Associated Press

Over the past year, particularly after the Supreme Court’s ruling last summer in Trump v. Hawaii (the travel ban case), many Americans have been asking, “Does religious freedom apply equally to all religious communities in America?” The matter again came to the fore with February and March cases involving death row inmates. Underlying the differential treatment of Muslim claimants versus other claimants are a multitude of factors: effective lawyering, public perception, and yes, judicial bias, too.

Trump v. Hawaii provoked concerns about unfairness on the court in large part because it was decided a mere three weeks after Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that involved a Christian baker who refused on religious grounds to bake a wedding cake for a gay couple. In that case, the court ruled against the commission because it had made several hostile statements about the baker’s religion and this hostility, the court said, invalidated the commission’s actions. But in the travel ban case, a majority of the court said the president’s overt hostility toward Muslims was not relevant to the constitutionality of the travel ban, because the president deserved near-total deference in matters of national security and foreign policy.

Lawyers and legal scholars have debated whether or not the conservative majority of the court was correct about the law in the travel ban case and there are good arguments on both sides — for example, the dissent said presidential deference does not extend to every president, regardless of his past behavior (in other words, President Trump’s overt anti-Muslim animus disqualified him from receiving broad deference when it came to his banning travel from mostly majority-Muslim states). But the more relevant point is the public perception it created about favoritism toward conservative Christians and hostility toward minorities, Muslims in particular. This is a slice of the much broader credibility issue the court faces — coupled with the partisan battle over, first Justice Gorsuch’s confirmation to the court and then, in even starker terms, Justice Brett Kavanaugh’s confirmation, the court’s credibility in the eyes of the people has become murkier, as even Justice John Roberts recognizes.

Concerns about a religious double standard, stoked by the travel ban decision, came to the fore again in February 2019, when the court decided Dunn v. Ray. Just days before Muslim death row inmate Domineque Ray was scheduled for execution, he learned from prison officials that he was not permitted to have his imam in the room with him at the time of execution. He filed an emergency motion for stay of execution, arguing that this denial violated his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and that the denial of an imam to him but the availability of a Christian cleric to Christian prisoners violated the First Amendment’s Establishment Clause, which prohibits the government from making any law “respecting an establishment of religion.” The appellate court issued a stay on his execution, pending resolution of the complaint, but a day before the execution, Alabama appealed the ruling and the Supreme Court ruled against Ray. The execution moved forward as planned, without Ray’s imam permitted to be by his side.

The decision “triggered bipartisan, ecumenical condemnation” about its patent unfairness. Voices from across the political spectrum were shocked at the court’s approval of Alabama’s obviously differential treatment of Muslim versus Christian prisoners (even as they disagreed on whether the Court ruled based on anti-Muslim bias).

Then three weeks ago, in another case with near-identical facts, the Supreme Court heard a case involving Patrick Murphy, a Buddhist death row inmate in Texas. Texas permitted Christian and Muslim chaplains into the execution chamber, but any other religious advisers were not so permitted. This time, the court took a different tack, ruling against Texas. Justice Kavanaugh, in his concurring opinion, wrote: “In my view, the Constitution prohibits such denominational discrimination” — though Kavanaugh ruled against the prisoner in Dunn v. Ray.

Near-identical facts, but opposite results. What accounts for the difference?

Commentators had a range of answers to that question. One focused on timing. Murphy’s lawyer took longer than Ray’s to file for a stay, but as Kavanaugh noted in a footnote, the request was made in a “sufficiently timely manner” whereas Ray’s was filed closer to the execution date. Timeliness came up again last week, in another matter (Bucklew v. Precythe) before the Court, in which Justice Gorsuch said courts need to “curtail suits that are pursued in a ‘dilatory’ fashion.”

Another response, by Eric Rassbach, vice president and senior counsel for the Becket law firm, received perhaps the most attention. Becket had filed an amicus brief in Murphy, arguing that while it can be hard for the Court to separate the important religious liberty concerns in death penalty cases because of dilatory tactics and “gamesmanship” often exhibited by counsel, it is important the court do so. Murphy’s request to have a Buddhist cleric with him at the time of death was not a delay tactic; he genuinely thought it necessary for his well-being in the afterlife, just as believers of diverse religions (Muslims included) have strong beliefs about this moment in their lives: “The guidance of the soul at the moment of execution — the moment at which the knife falls — has for centuries been well recognized as a crucial moment of religious exercise calling for a minister’s guidance. This court should recognize that our Constitution and civil rights laws support a right to that guidance.”

The court appeared to do exactly as Becket had requested and halted Murphy’s execution — in Becket’s view, it had helped the court not only focus on the religious liberty point, but it had also framed the argument using the correct Religion Clause: The Free Exercise Clause. Ray relied on the Establishment Clause but, Becket argued, the Free Exercise Clause is the better (and broader) avenue for understanding what’s at stake because it not only “protects religious observers against unequal treatment” but was also designed to “provide exemptions and accommodations to, above all, religious minorities. According to Becket, the difference in lawyering widens the frame for the court and gives it the “full picture.”

Kavanaugh’s reliance in his concurring opinion on several free exercise cases suggests that Becket’s brief was influential. But credit is also due to the public outcry over the Ray holding. As law professor Ilya Somin rightly pointed out, the Murphy case gave justices the chance to correct their obvious mistake in Ray: they “saw the extremely negative reaction against their decision in Ray and belatedly realized they had made a mistake — and not just any mistake, but one that inflicted real damage on their and the court’s reputations.” University of California Los Angeles law professor Eugene Volokh agreed. Criticism of Ray “from scholars whose views the justices respect” was, in Volokh’s view, probably the reason the court decided differently in Murphy.

Still others insisted that bias is the root of the problem. Commenting on Ray specifically, Frederick Gedicks, Brigham Young University professor, wrote: “The various puzzling efforts to both criticize the court’s decision and absolve the justices of anti-Muslim bias miss the point of the Establishment Clause. Imagine that what reached the court was a lower court decision staying an execution with the roles … reversed, a condemned Christian whose only option is a Muslim imam. Does anyone really think that the court’s suspicion of the death-penalty bar [Will Baude, Volokh], or the value it places on finality in death-penalty litigation [Luke Goodrich, The Wall Street Journal], would have caused it to reach out and reverse the lower court decision so the Christian could be executed with an imam by his side?”

In other words, the crux of the matter is not disentangling the death-penalty gamesmanship from the religious liberty concerns at stake.

All of these commentators are correct because they all point to a piece of the problem. Lawyering matters, and when it comes to the conservative majority on the court, arguments under the Free Exercise Clause fare better than do arguments under the Establishment Clause. Assessing Supreme Court trends over the past few decades, Jeffrey Toobin notes that conservative justices are essentially “reading the Establishment Clause out of the Constitution and turning almost every issue into a free-exercise case.”

Public opinion, especially the opinions of people the court respects, also matter. Justice Roberts has always fought to keep the court relatively non-partisan, but in the aftermath of the contentious Kavanaugh confirmation hearings, several commentators have noted Roberts’s understanding that the court’s “legitimacy depends on the public perception that it is not a partisan institution.”

Bias also plays a role and it’s important not to downplay this fact. Those who argue bias doesn’t exist point to the court’s recent rulings in favor of Muslims in, for example, the Muslim prisoner case, Holt v. Hobbs (2015) and the Muslim religious garb case, EEOC v. Abercrombie & Fitch Stores (2015). But the makeup of the court in 2015 was significantly different than it is now, as is our country’s political landscape — particularly as it relates to Christian and Muslim religious liberty — so we should rely on those past cases with caution. In fact, the contrast between the Masterpiece and travel ban rulings might give us better insight into where the court is heading. The range of cases also suggest that the court’s approach toward Muslim claimants might depend on the political stakes.

There is also ample empirical evidence that many lower federal courts are plagued with anti-Muslim bias. Gregory Sisk and Michael Heise assessed a range of religious liberty cases (cases brought under the Free Exercise and Free Speech Clauses (for restrictions on religious speech), federal statutes that specifically protect religious actions and speech, and laws that protect against religious discrimination by the government, including government employers). They found that, compared to non-Muslims, Muslims are half as likely to win religious liberty cases in federal court. The number shrinks further when it’s a Muslim prisoner bringing the case, with Muslim prisoners succeeding only a third as often as non-Muslim prisoners. Based on their separate study, John Wybraniec and Roger Finke also found that Muslim religious liberty claimants are at a disadvantage.

According to Sisk and Heise, Muslims are “at a pronounced disadvantage … because they are Muslim.” Wybraniec and Finke agreed: “those religions in tension with society are significantly less likely to receive a favorable decision” and “those in higher levels of tension have higher odds of an unfavorable ruling.” Widespread negative stereotypes about Muslims infects judges and affects their decision-making, whether they realize it or not.

To my knowledge, there is currently no study extending this analysis to the Supreme Court, but the studies we do have establish that judicial bias does exist. We can’t always tell from analyzing the content of rulings, as they many times cloak bias in jurisprudential rationales.

Moving forward, the scope of public conversations about Supreme Court religious double standards must widen. Discussions may bear fruit for a number of reasons, not the least of which is its impact on the justices. If in fact, as many people think, the court is paying attention to public conversations about unfairness and selectiveness at the court, broader, more robust conversations on bias in courts can affect how justices grapple with future cases brought by Muslims and other minorities.

Asma T. Uddin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. Her email address is: auddin@freedomforum.org.

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