by Sirine Shebaya and Johnathan Smith
Yesterday, the U.S. Supreme Court affirmed the legality of President Trump’s “Muslim Ban.” In so doing, the Court has made clear that the Constitution’s guarantees of religious liberty do not apply equally to all people.
In a 5-4 decision, a majority of the justices sided with the Trump Administration, concluding that the President’s third attempt at banning nationals from several Muslim-majority countries did not violate either the Immigration and Nationality Act (“INA”) or the Constitution’s Establishment Clause. Chief Justice Roberts, writing for the Court, acknowledged that President Trump has a long history of anti-Muslim comments and statements. But he quickly brushed those aside, observing that the issue before the Court was to evaluate “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 went on to conclude that the challengers failed to provide sufficient evidence that the Muslim Ban is infected with impermissible religious bias, noting, among other things, that the President’s Proclamation does not mention religion and does not cover the entire global Muslim population.
Chief Justice Roberts’ prosaic description fails to account for the realities of the way in which the Muslim Ban was developed and implemented. Donald Trump ran on a platform that centered on anti-Muslim bigotry and discrimination. He has repeatedly called for a “total and complete shutdown of Muslims entering the United States,” proclaimed on a nationally televised program that “Islam hates us,” and has gone out of his way to support false, unsubstantiated, and stereotypical accounts of Muslims. It is true that after courts struck down the first two versions of the policy, the Administration attempted to mask their true intentions by developing an interagency “worldwide review” process. But that thin veneer of pretext does little to obscure the real intention, particularly given that the list of banned countries has remained remarkably consistent and focused most heavily on countries where a majority of the population is Muslim.
And as Justice Sotomayor makes clear in her powerful dissent, it is obvious to anyone who has been paying attention that the primary motivation behind this policy is—and always has been—anti-Muslim animus.
The Court’s decision is even more disappointing when considered in light of the justices’ handling of Masterpiece Cakeshop v. Colorado Civil Rights Commission just a few weeks ago. There, the Court concluded that members of the Colorado Civil Rights Commission denied a Christian baker a fair hearing when they ruled that he discriminated against a same-sex couple by failing to bake them a wedding cake. Specifically, the Court honed in on a few statements made by Commission members that it interpreted as expressing hostility towards the baker’s Christian faith. Even though there was no evidence that the statements had any impact on the Commission’s overall handling of the matter, the Court nevertheless made clear that government officials have no business placing their thumbs on the scale in favor (or opposition) to religious beliefs.
Now we know that standard does not apply to all religions. Even though the record of religious animus in Hawaii is overwhelming—and President Trump continues, with disturbing frequency, to demonize and vilify the faith of Islam—a majority of the justices failed to hold him accountable for his actions. The message is as clear as it is depressing: religious minorities cannot assume that they fall under the ambit of the protections enshrined in the First Amendment’s religion clauses.
In his concurring opinion, Justice Kennedy remarked: “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.” Sadly, the Supreme Court failed to convey that message yesterday. Rather, the majority opinion serves as yet another painful reminder that our Constitution’s most sacred and important protections remain out of reach from those who need them the most.
Sirine Shebaya is a senior staff attorney at Muslim Advocates. Johnathan Smith is the legal director at Muslim Advocates.