No anti-Muslim bias at Supreme Court: Constitution, argued properly, protects all religions

Patrick Murphy, a Buddhist on death row in Texas, was about to be executed last week when the Supreme Court intervened. In a terse, last-minute order, the Court said Texas couldn’t execute Murphy unless it let his Buddhist spiritual advisor accompany him in the execution chamber.

The ruling came just seven weeks after the Court denied a nearly identical request from a Muslim inmate in Alabama. And it left many people asking the same question: Why did the Court rule against the Muslim but in favor of the Buddhist?

Some, including the ACLU, have suggested the Court harbors anti-Muslim bias. That’s weak. Just four years ago, my firm, Becket, won a unanimous Supreme Court victory for a Muslim prisoner, and a Muslim woman won a 8-1 Supreme Court victory against Abercrombie. The ACLU’s bias theory can’t explain these decisions.

Others have suggested the Court was cowed by widespread criticism of its Muslim ruling. Maybe. I criticized the ruling too. But the Court gets criticized all the time, and criticism of the Muslim ruling was quickly forgotten in the Trump news cycle.{mosads}

The better explanation is that there were crucial differences in how the two cases were litigated. The Muslim case was litigated mainly under the Establishment Clause — the part of the Constitution that prohibits “an establishment of religion.” That was the focus of the lower court’s decision, the Muslim prisoner’s legal arguments, and Justice Kagan’s dissent. But when the government refuses to let a Muslim or Buddhist have a spiritual advisor in the execution chamber, it is restricting religion, not establishing it.

The same problem arose in litigation over President Trump’s travel ban, which restricted entry into the United States from certain Muslim majority countries. The ACLU said the travel ban was motivated by President Trump’s anti-Muslim sentiment and therefore violated the Establishment Clause. But which religion was President Trump “establishing”? The religion of Anti-Islam?

Not really. When the government stops someone from meeting with his spiritual advisor, or bans someone from the country because of his religion, it’s restricting the free exercise of religion, not establishing religion. That’s a problem under the Constitution’s Free Exercise Clause.

So when my firm briefed the Buddhist prisoner’s case at the Supreme Court, we started with the Free Exercise Clause. We said, “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.” And we cited leading free exercise cases.

The Court agreed with us. In a concurring opinion explaining his vote, Justice Kavanaugh said “discrimination against religious persons… violates the Constitution” — and he cited the same free exercise cases.

Why does this distinction matter? In most cases, it shouldn’t. The Free Exercise and Establishment Clauses should work together to reduce government influence over religion.

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 — like when Hobby Lobby declines to pay for contraception, or a baker declines to participate in a same-sex wedding — and they don’t like that result. 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.

But that’s not how the Constitution is written, and it’s not how religious freedom works. All people are entitled to religious freedom. And the Constitution protects that freedom by prohibiting both an establishment of religion and restrictions on the free exercise of religion.

So we focused on the Free Exercise Clause and won. The ACLU focused on the Establishment Clause and lost.

The lesson is that we need to be committed to defending religious freedom for all people — even those with whom we disagree. Buddhist prisoners should have a spiritual advisor with them when they die. Muslims shouldn’t be banned from the country because of their religious beliefs. And Christians shouldn’t be forced to participate in abortion or same-sex marriage.

Everyone can win — if we’re committed to protecting religious liberty for all.

Luke Goodrich is Vice President and Senior Counsel at the Becket Fund for Religious Liberty and the author of Free to Believe: The Battle Over Religious Liberty in America.