第19回：資格～外国人及び弁護士資格（その１）～（2023年1月2日）

The Fourteenth Amendment to the United States Constitution, Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added)

【参考訳】
米国憲法第14修正第1項
米国で出生し又は米国へ帰化し及び米国法の支配に属する者は、全員、米国民であり、及び、その者が居住する州の州民である。州は、米国民の特権又は免責特権を縮減する法を制定し又は施行してはならない。また、州は、法の適正手続を経ることなく、人間の生命、自由又は財産を剥奪してはならない。さらに、州は、自州の管轄内の人間に対して、法の平等保護を否定してはならない。（強調は筆者）

（注1） 米国最高裁判所は、Slaughter-House事件において、その趣旨を次のとおり説明する。

The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873)
"[I]t had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.

To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed."

（注2） 米国最高裁判所には、Dred Scott事件の概要を説明するパネルが展示されている。筆者がそこで撮影したパネルの写真を以下に示す。

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)
"[T]he right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. ... Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident."

"Scott and his family upon their return were not free, but were, by the laws of Missouri, the property of the defendant[.]"

"[T]he Circuit Court of the United States had no jurisdiction, when, by the laws of the State, the plaintiff was a slave, and not a citizen."

"Its judgment for the defendant must, consequently, be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction." (emphasis added)

The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873)
"[]Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all[] be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community.’ This is called the police power; and []it is much easier to perceive and realize the existence and sources of it than to mark its boundaries, or prescribe limits to its exercise. ...

It can readily be seen that the interested vigilance of the corporation created by the Louisiana legislature will be more efficient in enforcing the limitation prescribed for the stock-landing and slaughtering business for the good of the city than the ordinary efforts of the officers of the law. ...

It may[] be considered as established, that the authority of the legislature of Louisiana to pass the present statute is ample, unless some restraint in the exercise of that power be found in the constitution of that State or in the amendments to the Constitution of the United States[.]" (emphasis added)

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10th Amendment to the United States Constitution
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

【参考訳】
米国憲法第10修正
本憲法が米国に委任しない権限、及び、本憲法が州に禁止しない権限は、各州又は国民に留保される。
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田中英夫（編）「英米法辞典」東京大学出版会（1991年）
police power
福祉権能；ポリス・パワー；規制権限
「州が州民の健康 (health)、安全 (safety)、道徳 (morals) その他一般の福祉 (general welfare) を保護・向上させるために各種の立法を制定・執行する権限。コロンビア特別区等連邦直轄地については, 連邦政府にこの権限がある。アメリカの連邦制度のもとでは、連邦政府は合衆国憲法によって明示的・黙示的に与えられた権限のみを有し、残りの政府権限は州に留保されている（合衆国憲法第10修正（Tenth Amendment））。Police power は、州がその領域内で有するこの主権の作用の一つである。Police power の行使は、統治機構上は連邦政府の権限との関係において、基本的人権については州憲法・連邦憲法の定める各種の個別的制限のほか一般条項である due process clause （適正過程条項）この条項を根拠に目的の正当性・手段の合理性全体が司法審査の対象とされる  との関係で, その限界が問題となる。課税権・収用権等の権限との関係では、これらの権限の基礎にある権限という意味で用いられる場合と, これらの権限を除いたこれらとは区別される権限という意味で用いられる場合とがある。

▲「警察権能」 という訳については, 日本語の 「警察」 が, 公共の福祉全般を示す police と比べるとその意味がかなりの程度において限定されていることに注意。」

The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873)
"It is quite clear[] that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. ...

Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.

If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the State as such the latter must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the amendment. ...

"[W]e are of opinion that the rights claimed by these plaintiffs in error, if they have any existence, are not privileges and immunities of citizens of the United States within the meaning of the clause of the fourteenth amendment under consideration." (emphasis added)

（注4） 米国最高裁判所が、Slaughter-House事件において、傍論（obiter dictum）として、特権又は免責特権条項が適用されると判示した場面を以下に紹介する。

The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873)
"[L]est it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which own their existence to the Federal government, its National character, its Constitution, or its laws.

One of these is [] the right of the citizen of this great country, protected by implied guarantees of its Constitution, ‘to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.’ ...

Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conferred by the very article under consideration." (emphasis added)

Bradwell v. Illinois, 83 U.S. 130 (1873)
"... That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth. ... In view of these facts, we are certainly warranted in saying that when the legislature gave to this Court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women. The court having thus denied the application, Mrs. Bradwell brought the case here as within the twenty-fifth section of the Judiciary Act, or the recent act of February 5, 1867, amendatory thereto; the exact language of which may be seen in the Appendix."

"We agree with [counsel for Bradwell] that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these and these alone which a state is forbidden to abridge. But the right to admission to practice in the courts of a state is not one of them. This right in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any state, or in any case, to depend on citizenship at all. Certainly many prominent and distinguished lawyers have been admitted to practice, both in the state and federal courts, who were not citizens of the United States or of any state. ...

The opinion just delivered in the Slaughter-House Cases[] renders elaborate argument in the present case unnecessary, for, unless we are wholly and radically mistaken in the principles on which those cases are decided, the right to control and regulate the granting of license to practice law in the courts of a state is one of those powers which are not transferred for its protection to the federal government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license.

It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is sufficient to say they are conclusive of the present case." (emphasis added)

（注5）米国最高裁判所は、適正手続条項を通じて、本来は米国政府が遵守義務負う権利章典の順守を州政府に求めている。たとえば、米国憲法第5修正の収用条項（Taking Clause）（[private property shall not] be taken for public use, without just compensation.）は、本来は、米国政府が遵守義務負う権利章典であるが、米国最高裁判所は、適正手続条項を通じて、その遵守を州政府にも求めた。

Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897)
"In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the fourteenth amendment of the constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by that state of a right secured to the owner by that instrument."

Obergefell v. Hodges, 576 U.S. 644 (2015)
pp. 665-669
"The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. ... A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. ... A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. ... A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. ... As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. ... Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order."

pp. 675-676
"These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." (emphasis added)

（注6）Baker v. Nelson, 409 U.S. 810 (1972) ("Appeal from Sup. Ct. Minn, dismissed for want of substantial federal question.")

（注7） Plessy事件に関係する鉄道の車両の一例を、Maryland州Baltimoreに所在するBaltimore & Ohio (B&O) Railroad Museumにて見ることができる。筆者がそこで撮影した展示物の写真を以下に示す。

また、Dred Scott事件と同様、米国最高裁判所には、Plessy事件の概要を説明するパネルが展示されている。筆者がそこで撮影したパネルの写真を以下に示す。

（注8）田中英夫（編）「英米法辞典」東京大学出版会（1991年）
禁止令状（writ of prohibition）
「裁判所または司法的機能を行使する機関がその管轄を超えて行為することを禁止するため、superior court （上位裁判所）が発給する令状」

（注9）田中英夫（編）「英米法辞典」東京大学出版会（1991年）
誤審令状（writ of error）
「中世以来、コモン・ロー訴訟については、pleading（訴答）やその他判決に至る手続における瑕疵の是正を求める申立てが writ of error の形式で認められていた。このうち、訴状の相手方を違えた場合のように、その事実が裁判所に知られていれば判決が出されなかったであろうような重大な事実に関する誤り（error in fact） は、判決を下した当の裁判所に（writ of error） coram novis（自己誤審令状）または（writ of error） coram vobis（他裁判所宛誤審令状）という令状を得て申立てがなされ、それ以外の記録上明らかな法的判断の誤り（error in law） については別の裁判所に申立てがなされた。単に writ of error という場合は、後者についてのものをさすことが多い。…」

Plessy v. Ferguson, 163 U.S. 537 (1896)
"The object of the [fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power."

"We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." (emphasis added)

（注10）法廷意見の中では「分離すれども平等の（separate but equal）」という用語は用いられていない。一方、Harlan判事の反対意見は、争点となったLouisiana州法における"equal but separate accommodations for the white, and colored races"との規定を"separate but equal accommodations for white and colored persons"と言い換えて引用した。現在、Plessy事件を引用する際に一般的に使用されている「分離すれども平等の（separate but equal）」は、このHarlan判事の反対意見の一節に由来すると筆者は推察する。

（注11） Brown事件の原告であったLinda Brown氏は2018年3月に死去した。その直後、この事実をBrown事件と関連付けて伝える記事が多数発信された。事件当時は一私人に過ぎなかった故Brown氏は、Brown事件により、米国憲法史のみならず、米国史にその名を刻むこととなったと考えられる。

https://www.cnn.com/2018/03/26/us/linda-brown-dies/index.html

https://www.nytimes.com/2018/03/26/obituaries/linda-brown-symbol-of-landmark-desegregation-case-dies.html

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
"[]Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial(ly) integrated school system.[]

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.[] Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment." (emphasis added)

The Fifth Amendment to the United States Constitution
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (emphasis added)
【参考訳】
米国憲法第5修正
何人も、大陪審の告発又は起訴によらなければ、死刑又は他の重罪の責任を負うことはない。ただし、戦争又は公共の危機の際しての現実の公務中に陸海軍内又は民兵内で発生した事件についてはこの限りではない。何人も、同一の犯罪について、生命又は身体の危険に二度さらされることはない。何人も、刑事事件において自己に不利な証言を強制されることはない。何人も、法の適正手続を経ることなく、生命、自由又は財産を剥奪されることはない。正当な補償なしに、私有財産を公共のために収用されることはない。（強調は筆者）

Bolling v. Sharpe, 347 U.S. 497, 498-499 (1954)
"We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. [] The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and therefore we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process." (emphasis added)

Plessy v. Ferguson, 163 U.S. 537 (1896)
"In the Civil Rights Cases, 109 U.S. 3, 3 Sup.Ct. 18, it was held that an act of congress entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, on land or water, theaters, and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void, upon the ground that the fourteenth amendment was prohibitory upon the states only, and the legislation authorized to be adopted by congress for enforcing it was not direct legislation on matters respecting which the states were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation, such as might be necessary or proper for counter-acting and redressing the effect of such laws or acts." (emphasis added)

U.S. Constitution, Article 1, Section 8, Clause 3
The Congress shall have power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; ... . (emphasis added)

【参考訳】
米国憲法第1章第8条第3項
米国議会は、…外国との通商、州際の通商、及び、インディアン部族との通商を規制する権限を有する；…（強調は筆者）

Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964)
"While the Act as adopted carried no congressional findings the record of its passage through each house is replete with evidence of the burdens that discrimination by race or color places upon interstate commerce. ... This testimony indicated a qualitative as well as quantitative effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler’s pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community.[] This was the conclusion not only of the Under Secretary of Commerce but also of the Administrator of the Federal Aviation Agency who wrote the Chairman of the Senate Commerce Committee that it was his ‘belief that air commerce is adversely affected by the denial to a substantial segment of the traveling public of adequate and desegregated public accommodations.’[] We shall not burden this opinion with further details since the voluminous testimony presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel.

"[T]he power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce."

"We[] conclude that the action of the Congress in the adoption of the Act as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution, as interpreted by this Court for 140 years. It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress not with the courts. How obstructions in commerce may be removed—what means are to be employed—is within the sound and exclusive discretion of the Congress. It is subject only to one caveat—that the means chosen by it must be reasonably adapted to the end permitted by the Constitution. We cannot say that its choice here was not so adapted. The Constitution requires no more." (emphasis added)

（注12）真摯な信条に基づく私人間の差別については、米国憲法第1修正の自由な宗教活動条項（Free Exercise Clause）が関わるため、話しが複雑になる。

The First Amendment to the United States Constitution
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. (emphasis added)

【参考訳】
米国憲法第1修正
米国議会は、国教を樹立する法律、又は、自由な宗教活動を禁止する法律；言論の自由若しくは出版の自由を制限する法律；若しくは、人々が平穏に集会を開く権利及び苦痛の救済を求めて米国政府に対して請願する権利を制限する法律を制定してはならない。（強調は筆者）

たとえば、Masterpiece Cakeshop事件（2018年）では、敬けんなクリスチャンであるPhillips氏が、性的指向を理由に、同氏の信条に反するメッセージを添えた、同性婚を行うカップルのためのケーキの製作を拒否したことが、性的指向及び信条を含む特徴に基づく、特定個人に対する商品又は役務の提供の拒否を禁止するColorado Anti-Discrimination Act (CADA)に違反するかどうかが争点となった。なお、この出来事が起きた当時、Colorado州は同性婚を認めていなかった。Colorado州内の行政及び裁判手続では、Phillips氏はCADAに違反すると判断された。これに対して、米国最高裁判所は、Colorado州の判断は、（米国憲法第14修正の適正手続条項を介して州政府に適用される）米国憲法第1修正の自由な宗教活動条項に違反すると判示した。本事件では、結果として、Colorado州の行為が自由な宗教活動条項に違反することを根拠に、私人間の差別が認められたことになる。

Masterpiece Cakeshop v. Co. Civil Rights Comm’n, 584 U.S. ____ (2018)
"The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.

The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning. ...

Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside." (emphasis added)

Masterpiece Cakeshop v. Co. Civil Rights Comm’n, 584 U.S. ____ (2018) , concurring opinion by Justice Gorsuch.
"As the Court explains, the Colorado Civil Rights Commission failed to act neutrally toward Jack Phillips’s religious faith. Maybe most notably, the Commission allowed three other bakers to refuse a customer’s request that would have required them to violate their secular commitments. Yet it denied the same accommodation to Mr. Phillips when he refused a customer’s request that would have required him to violate his religious beliefs. ... As the Court also explains, the only reason the Commission seemed to supply for its discrimination was that it found Mr. Phillips’s religious beliefs “offensive.” ... That kind of judgmental dismissal of a sincerely held religious belief is, of course, antithetical to the First Amendment and cannot begin to satisfy strict scrutiny. The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all. Because the Court documents each of these points carefully and thoroughly, I am pleased to join its opinion in full." (emphasis added)

Masterpiece Cakeshop v. Co. Civil Rights Comm’n, 584 U.S. ____ (2018) , concurring-in-part-and-concurring-in-the-judgment opinion by Justice Thomas.
"[T]he Commission treated Phillips’ case differently from a similar case involving three other bakers, for reasons that can only be explained by hostility toward Phillips’ religion. ... The Court agrees that the Commission treated Phillips differently, and it points out that some of the Commissioners made comments disparaging Phillips’ religion. ... Although the Commissioners’ comments are certainly disturbing, the discriminatory application of Colorado's public-accommodations law is enough on its own to violate Phillips’ rights. To the extent the Court agrees, I join its opinion." (emphasis added)