Publication Date



This short symposium piece is a comment on two of the Supreme Court’s recent religion cases. The first is Trump v. Hawaii, the travel ban case, where the Court rejected the claim of unconstitutional religious discrimination against Muslims.1 The second is Masterpiece Cakeshop, the case about the baker who refused to make a cake for a gay wedding, where the Court accepted the claim of unconstitutional religious discrimination against a conservative Christian.2 One case finds discrimination, while the other rejects it. Yet more fundamentally, the pairing suggests differences in how we perceive or react to evidence of discrimination. Both on the Court and off it, conservatives seemed quicker to find actionable discrimination in Masterpiece, and liberals seemed quicker to find actionable discrimination in Trump v. Hawaii. This kind of statement should be qualified—we must be careful not to overstate things.3 But even so, anyone who reads these opinions will notice the trends.

This symposium piece considers the two cases individually (as I was asked to do). Ultimately, it will defend the claim of discrimination in each, probably not straying too far from the Kagan/Breyer position. But this piece tries to offer some novel points, and throughout, it ponders some larger questions about the law’s response to cultural polarization.

Perhaps Trump v. Hawaii and Masterpiece Cakeshop are interesting only in themselves. Or perhaps they signal a coming era where the Supreme Court differentiates sharply between discrimination claims of different kinds. This could happen in a variety of ways. The Court could begin superintending discrimination cases more closely—formally reducing the deference given to the discrimination findings of trial courts, or issuing more one-off decisions reversing lower courts failing to find discrimination (in preferred domains) or reversing lower courts finding discrimination (in others). Uniform trans-substantive rules about things like mixed motives, discriminatory taint, or judicial recusal might give way to domain-specific rules on each of these topics—with more protective rules in more protective domains. Finally, and most obviously, individual rights themselves might change. Weaker kinds of antidiscrimination rights might grow stronger, perhaps blossoming eventually into substantive rights— this could be what is about to happen with the Free Exercise Clause. For other rights, it might go the other way. But the past is always more certain than the future, so we start with Trump v. Hawaii and Masterpiece Cakeshop.