Government Discrimination Against Religion

Ilya Somin has a post over at The Volokh Conspiracy arguing for a consistent approach to restricting the government’s discrimination against religion. He notes that both the Left and the Right take different sides of the argument when their pet projects are on the  line. For example, the Left support government discrimination against funding private religious schools by allowing students to use vouchers for tuition but opposes the Trump travel ban because it discriminates on the basis of religion. OTOH, the Right generally takes the opposite positions for the opposite reasons.

Many claim that the government should get a pass on otherwise impermissible discrimination in particular types of cases. For example, defenders of the travel ban often argued that special deference is appropriate because aliens have no constitutional right to enter the country. Nothing in the text or original meaning of the Constitution justifies such exceptions to the First Amendment’s ban on religious discrimination. If they were allowed, the exceptions would quickly swallow up the role. While there is no constitutional right to enter the United States, there is also – under current Supreme Court precedent – no constitutional right to government funding of religious schools (the Blaine Amendment cases), and no meaningful constitutional right to be a baker (Masterpiece Cakeshop). The whole point of constitutional restrictions on discriminatory policies is to forbid certain types of discrimination even when it comes to things that are not otherwise constitutional rights. In cases where the activity in question is protected by some other constitutional right, we don’t need anti-discrimination rules, because the government’s restrictions would be struck down regardless.

In a diverse and politically polarized society, government officials on both right and left will sometimes target religious minorities for discrimination, especially ones disliked by their side of the political spectrum. Courts should strike down such discrimination regardless of whether it targets Muslims, Catholics, or socially conservative Protestants, and regardless of whether the policy involves immigration, education, or some other issue.

Read the whole thing.

Oregon’s Two-Pronged Attack on the First Amendment

Oregon Labor Commissioner Brad Avakian ruled this week that Aaron and Melissa Klein, the bakers who refused to make a cake for a same-sex wedding, must pay $135,000 in emotional damages to the lesbian couple they denied service. The ruling is also an effective gag order on the Kleins, ordering them to “cease and desist” from speaking publicly about not wanting to bake cakes for same-sex weddings based on their Christian beliefs. More here.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Perhaps Oregon has not yet heard the the Fourteenth Amendment binds the First on the states.