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.
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