- - Monday, June 26, 2017


The U.S. Supreme Court didn’t quite hit a home run Monday, but the justices hit a sharp double and a couple of singles that showed that there’s life yet in the lineup. The president got a little help to protect the nation from terrorists, schoolyard safety was held to be as important for children in private schools as in public schools, and the court hinted that help might be on the way for a Colorado wedding-cake baker who doesn’t want to join the celebration of same-sex weddings.

The court’s unanimous decision upholding crucial parts of President Trump’s temporary ban on admitting visitors from six nations with a history of exporting terrorism, invites further litigation, and it rebuked the judges of two lower appeals courts.

A concurring opinion by three justices, including the most recent addition to the court, Neil Gorsuch, was an implied rebuke to the other six justices of the high court for chipping away at the president’s responsibility for keeping the nation safe.

The court faulted the 4th U.S. Circuit Court of Appeals in Richmond for blocking the travel ban, and its determination that the ban was “rooted in religious animus toward Muslims, as revealed in President Trump’s tweets and sharp remarks. The decision further rebuked the 9th U.S. Circuit Court in San Francisco, which had put a similar hold on the executive order.

The president’s reaction Monday, that the Supreme Court’s decision was “a clear victory for our national security,” may be premature. Relatively few migrants will be affected by the parts of the president’s order that were left to stand. The high court postponed for the October term a decision on the major point of whether the president, and not the courts, are ultimately responsible for keeping the nation safe.

Justice Clarence Thomas, joined by Justice Samuel Alito as well as Mr. Gorsuch, wrote that the government had shown that it is likely to win on the merits of its argument, and that interference with the president’s responsibility is likely to inflict “irreparable harm.” Justice Thomas made the commonsensical point, which only yesterday would never have needed saying, that the president’s preserving of national security outweighs any hardship for those denied entry into the United States. Americans have rights, too.

The decision supports the 90-day ban on immigration from the six suspicious nations — Iran, Libya, Somalia, Sudan, Syria and Yemen, first identified as high-risk by the Obama administration — and the president’s contention that further time is needed for further screening of visa applicants. The argument that this discriminates against Muslims is specious; the president’s order did not mention religious faith and the order would apply as well to Jews, Christians, Whirling Dervishes, atheists and others.

The day’s work at the Supreme Court promises an interesting fall term, putting off until then a final decision on the president’s order and by taking an appeal from a Colorado baker that a lower court said violated the rights of two men who wanted him to bake a cake for their same-sex wedding. The baker argued that his own rights were violated by being required to write on the cake his support for the marriage, which he opposed on religious grounds.

The baker, Jack Phillips, said he would “be happy to create other items for gay and lesbian clients,” but his faith requires him “to use his artistic talents to promote only messages that align with his religious beliefs.”

In another case with church-state implications, the court said a lower-court exclusion of a religious school in Missouri from a program of state grants to use recycled tires to resurface a playground, “cannot stand.” That vote was 7 to 2, with Justices Sonia Sotomayor and Ruth Bader Ginsburg dissenting.

Mrs. Sotomayor summarized her dissent from the bench, arguing that the decision “profoundly changes the relationship [between church and state] by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.”

Preventing a child’s skinned knees on a playground is a good thing, almost all could agree, but Justice Sotomayor’s point is well taken. What similar exclusions will now follow? To ask the question is not skepticism of the good that a religious institution might do, but fear of abridging the First Amendment guarantee to keeping church and state separate. The court will deal with this issue again — and no doubt again.

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