With Justice Anthony Kennedy announcing his retirement this past week and with Donald Trump getting to nominate another Justice it is important to look at how religious bias and discrimination should matter more in the context of the high court’s decisions. And how taking certain things in context ultimately impacts (or doesn’t impact) the laws in America. Take the court’s vote to uphold Trump’s travel ban. It was important to note past things Trump said, but in the end it didn’t really matter to the court’s decision and many argue that is wrong.

The following is a guest post from law professor Kerri L. Stone: 

Tuesday, the Supreme Court upheld the constitutionality of President Trump’s so-called “travel ban,” rejecting the argument that the President violated the Establishment Clause of the Constitution, which forbids the government from, among other things, acting to favor or disfavor any one religion. The Establishment Clause analysis asks whether a reasonable observer would perceive the government as having crossed beyond religious neutrality to endorse or disfavor a religion. The President’s past statements and tweets, the plaintiffs had argued, characterized Muslims as hateful and dangerous, and, they argued, evidenced that the travel ban was an express attempt to exclude Muslims from entering the United States. However, although candidate Trump had spoken in this manner, President Trump and those who speak for him were emphatic that the objective of the ban was not to keep Muslims out of the country, but rather to promote and maintain national security. Tuesday, the Supreme Court agreed that candidate Trump’s words were simply too attenuated from President Trump’s intent when he crafted the ban to run afoul of the Constitution.

This result, though upsetting to many, is not surprising to the employment discrimination law community, many of whom have long been lamenting the so-called “stray comment doctrine.” Under this doctrine, a court may dispose of a Title VII employment discrimination case while refusing to consider hateful or other discriminatory comments made by a decision maker about a protected class simply because the comments were not about the plaintiff, not made in the context of what gave rise to the suit, or not made contemporaneously with the challenged action (like a firing). The thinking behind courts’ refusal to entertain such evidence is something akin to not turning into the thought police or drawing negative inferences from things said or joked about in a decision maker’s private life—the comments are “stray,” and thus not enough to legally sustain a case to get it to trial.

One problem with this doctrine and its rationale is that many “stray comments” are not uttered in employers’ private lives, but in their professional lives. And even the comments that are uttered privately ought not necessarily be categorically dismissed as irrelevant when 1) they can yield potentially valuable insight into someone’s untoward or unlawful motivations; 2) their consideration does not mean that they will necessarily persuade a judge or jury that a specific decision was reached unlawfully; and 3) in a world in which polite society and legal savvy have pushed a good deal of invidious intent underground, any comments that evince bias are rare and potentially probative. This leaves discriminatory intent increasingly unvoiced and discrimination increasingly subtle.

Chief Justice Roberts, writing for the Majority, wrote that while the plaintiffs contended that the “President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition,” this was beside the point, with the crucial issue being “the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.” The Court expressed some concern at having been asked to “probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office,” just as lower courts throughout the country refuse to even consider an employment decision maker’s past statements when attempting to gain insight into his or her state of mind and motivations when firing someone who later claims discrimination.

Chief Justice Roberts wrote that the Court would (and did) “uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” This justification, Chief Justice Roberts said, was rooted in “national security concerns, quite apart from any religious hostility.” Interestingly, in the separate context of employment discrimination law, Congress has been clear that even where multiple rationales exist for an adverse employment action, to the extent that unlawful discrimination is a “substantial motivating factor,” liability will inhere, even where another lawful and independent reason is demonstrable. This is the law because the broad remedial objective of Title VII is to eradicate all employment discrimination, across the board.  But as Chief Justice Roberts wrote, here, in the context of the President’s acts, “we must accept that independent justification [of national security].” It is resonant that in employment discrimination law, where a motivation independent of an unlawful motivation will not insulate the decision maker, the stray comment doctrine nevertheless thrives.

But some of the Justices were not in accord that national security concerns could displace what they felt was the President’s true motive. Justice Sotomayor, dissenting, reminded us that despite the Majority’s recitation of some of the more troublesome statements made by Candidate Trump, “…the full record paints a far more harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.” This, she emphasized should have moved the needle on the constitutionality question, rather than wholesale deference to the President that resulted in the application of “a watered-down legal standard.”

This is a time when many in America feel excluded, discriminated against, and hindered from participation in various aspects of public life. It would benefit us to look at all of the opinions in this decision with reference to other contexts in which courts devalue words that might yield invaluable insight. Judges do this because they feel that the benefit of a little time or removal of comments from a challenged act enables them to do so, but the result may be to further obscure motivations that are worthy of at least probing. Words matter, and sometimes past, or slightly out of context, comments are the only evidence of or window into a discriminatory mindset that would otherwise remain undisclosed.

*Kerri Stone is Professor of Law at the Florida International University College of Law, where she received a University Top Scholar Award. She is also a Research Fellow of NYU’s Center for Labor and Employment Law and a Fellow of the U.S. Academy on Workplace Bullying, Mobbing, and Abuse. She writes for several publications including HuffPost.