The Legality of Muslim Exclusion, Part II: The Establishment Clause

December 10, 2015
Guest Post

by Ira C. Lupu, the F. Elwood & Eleanor Davis Professor of Law Emeritus, and Robert W. Tuttle, the David R. and Sherry Kirschner Berz Research Professor of Law and Religion, at George Washington University. They are the co-authors of Secular Government, Religious People (Eerdmans Publishing Co., 2014).

Constitutional lawyers and immigration experts have offered conflicting opinions on the constitutionality of Donald Trump’s proposal to prohibit Muslims from entering the United States. Some constitutional scholars have argued that the proposal violates the Constitution. Immigration experts, including Professor Gulasekaram and others, have expressed doubt that an American court would strike down such a plan, in light of the broad authority over immigration policy that the Supreme Court has recognized in the Congress and the President.

Prior decisions by the Supreme Court have indeed confirmed that immigration policy may rest on considerations of national origin and ancestry. But no decision by the courts has confronted an exclusion based on religion, and any such policy is constitutionally doomed.

The reason is probably not religious favoritism, which would be fatal to any domestic policy that preferred members of one faith to others. Instead, Trump’s policy certainly offends the Constitution because it would require the government to decide who belongs to the Muslim faith.

Imagine the process for obtaining a visa to enter the United States, as a tourist, student, or any other relevant status. The applicant completes a form. In addition to the current questions, the Trumpian form might ask “Are you a Muslim?” or it might have a broader question about faith, with boxes to check like “Muslim,” “Christian,” “Jewish,” or “Atheist.” Anyone who answers “Muslim” will be denied a visa. So far, the inquiry alone violates no constitutional norms, although the policy of denying entry to self-admitted Muslims is constitutionally questionable.

But what happens with an applicant who comes from a predominantly Muslim country, or has a name that suggests a Muslim heritage, yet checks a box other than “Muslim?” Will the system depend entirely on the applicant’s declaration? That system would collapse.  Any Muslim who wants to enter the U.S. and is willing to deceive will do so. Now what?  For the system to work, every applicant would have to be interrogated. And what would be the relevant questions? “Do you believe that there is only one God, and his name is Allah”?  “Do you believe that the Quran is a sacred text”? The government cannot exclude someone as a Muslim unless there are criteria for determining which beliefs characterize one as a follower of Islam.

At this point in the process, the First Amendment’s Establishment Clause kicks in with a vengeance. The Clause is in the Bill of Rights, but it does not function as an individual “right.” Instead, it imposes a limit on the character and jurisdiction of the government.  The people of the United States belong to many faiths or to none, but the government itself has no religious identity. It is secular. Congress has no power to contravene this principle, whether or not the matter involves immigration.

This principle has one crucial and undisputed corollary that dooms the Trump proposal. The government may not decide questions that are “purely and exclusively ecclesiastical.” The Supreme Court has repeatedly ruled that those questions, such as who is qualified for religious ministry within a particular faith, are entirely off-limits to the government. 

Similarly, the government lacks constitutional authority to decide who qualifies as a Christian, Jew, Buddhist – or a Muslim. So what will American immigration officials do with visa applicants who deny that they are Muslims? The only way to question this is to identify the qualities – beliefs, practices, or associations – that define a Muslim, and then to determine whether the applicant possesses those qualities. The Establishment Clause puts each of  these steps – declaring the criteria for belonging to a faith, and then applying the criteria to particular applicants – off limits to the government. Thus, the Trump policy may constitutionally exclude only self-declared Muslims. But that approach obviously invites deceit and entirely destroys the purported national security rationale for the proposal.

Would anyone have standing in American courts to raise these constitutional questions?  Even if non-U.S. citizens abroad lack standing, a number of persons lawfully in the U.S. would be injured by the policy, and could sue to have it declared unconstitutional. These include persons whose family members are excluded from the U.S.; visa holders currently in the U.S. who plan to travel abroad and face exclusion when they attempt to return; and members of Muslim communities in the U.S. who would be deprived of religious association with newcomers. Based on the Establishment Clause grounds we have described, these challengers are highly likely to prevail. Thankfully, this morally vile policy also turns out to be constitutionally infirm.