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The Court in Quandary

When the Fourth Circuit Court of Appeals affirmed the trial court’s preliminary injunction against President Trump’s executive order restricting immigration from certain countries, it cited Trump’s statements about Islam as its rationale. American Muslims challenging the ban had alleged injury of two types: First, the Muslim plaintiffs felt marginalized by the President’s characterizations; second, they missed their overseas family members, who cannot visit the United States for an indefinite time. “[T]he Proclamation is unconstitutionally tainted with animus toward Islam,” the court proclaimed in approving an injunction against a travel ban that the President had documented for the court as necessary to national security. In citing a religious-liberty case from 1993 by Justice Anthony Kennedy, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, in which the court found animosity against the Santeria religion in a law prohibiting animal sacrifice, the court of appeals applied the undeveloped—one is tempted to say ad hoc—but currently powerful doctrine of animus.

Another important case shows the complexities of the doctrine. During oral argument in the recent Craig v. Masterpiece Cakeshop, Inc., in which the state of Colorado asks the U.S. Supreme Court to uphold the constitutionality of requiring a baker unwillingly to perform a personal-service...

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