April 23, 2018

Trump’s Muslim Ban: Religious Animus “All Out in the Open”

Supreme Court building in Washington DC. Equal Justice Under Law.

by Eric Rothschild, Senior Litigation Counsel, Americans United for Separation of Church and State and Andrew Nellis, Constitutional Litigation Fellow, Americans United for Separation of Church and State

On December 7, 2015, then-candidate for President Donald Trump issued a statement “calling for a total and complete shutdown of Muslims entering the United States.” It was met with condemnation from leaders across the political spectrum, including then-Governor of Indiana Mike Pence, who wrote that “[c]alls to ban Muslims from entering the U.S. are offensive and unconstitutional.”

Trump, however, never backed away from his position. Instead, he consciously and expressly changed his rhetoric, so that he was, in his words, “talking territory instead of Muslim.” But the underlying policy, he explained, remained the same. And one week into his presidency, he followed through on his plan, rushing out an executive order—without consulting any of the government’s national-security experts—that immediately barred nationals of seven overwhelmingly Muslim countries from entering the United States. Public officials and ordinary citizens protested in horror against the prejudicial policy, and the courts quickly stepped in to block it.

Fast-forward 451 days. The Supreme Court is, finally, about to hear argument on whether to affirm preliminary injunctions of the current version of Trump’s Muslim ban—only a slight modification of the original—either under the First Amendment’s Establishment Clause (as the Fourth Circuit has ruled) or under the Immigration and Nationality Act (as the Ninth Circuit has ruled). These two courts of appeals have repeatedly held that the various versions of the President’s ban should be enjoined—as has almost every other court that has considered them. This shouldn’t be a hard case—yet the Supreme Court’s decision is far from certain. Why?

Two reasons come to mind.

First, this case is unprecedented. Although parallels have rightly been drawn—both by opponents of the ban and by Trump himself—to the internment of Japanese Americansduring World War II, that reprehensible internment did not involve religious animosity—which so clearly drives the Muslim ban. In a country founded as a beacon of freedom for religious minorities fleeing persecution, the idea that the federal government would institute a policy that denigrates and excludes members of a particular faith is—as political leaders of both parties recognized in December 2015—shocking. It’s fundamentally un-American.

Before President Trump’s Muslim Ban, the federal government had never engaged in conduct so plainly hostile to one religious faith, and to the core values expressed in the First Amendment’s Religion Clauses. And thus, no court had previously said—because no court had previously had to say—that the government cannot vilify and ban from our country members of an entire faith. As Judge Harris of the Fourth Circuit wrote in her concurring opinion in International Refugee Assistance Project v. Trump, “[t]he principle that government decision-making should not be informed by religious animus is so well and deeply understood in this country that there are few violations recorded in the case law.”

Hence, as we argue in our amicus brief, filed on behalf of the plaintiffs in Iranian Alliances Across Borders v. Trump, the strict prohibition against official religious preferences is, as the Supreme Court said in Larson v. Valente, the “clearest command of the Establishment Clause.” In deciding Trump v. Hawaii, the Court need not concern itself with the detailed Establishment Clause tests that have developed over decades for determining the legality of religious displays or aid to religious schools. Rather, the Court need only see the Muslim ban for what it is: a violation of the core First Amendment principle that no one religion may be treated better or worse than all the others.

The second reason why this case may seem closer than it should is that the targeting of Muslims that was explicit on the campaign trail has been obscured by reference in the President’s Orders to countries, not the Muslim faith. But that was by design: As then-candidate Trump explained on live television, “People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.” “[C]all it whatever you want,” he said. “We’ll call it territories.” And so Trump recruited Rudy Giuliani to figure out how to enact a “Muslim ban” without using the word “Muslim,” in the hope that the subterfuge might pass legal muster.

Although the President’s first attempt at a Muslim ban failed—as did his second—the administration has now tried further to obfuscate the religious animus that is the ban’s raison d’ȇtre. Whereas the previous attempts to ban Muslims involved the President’s hand-picking of countries for exclusion, this third time around, Trump enlisted his subordinates to engage in what he described as a “worldwide review” of foreign countries’ abilities to screen and vet their travelers.

To no one’s surprise, the list of countries banned after the worldwide review is virtually identical to the list of countries banned before the review—though the Trump administration threw in a ban on North Koreans and a narrowly targeted ban on visits by certain Venezuelan government officials for good measure. As we explain in our brief, though the government insists that the existence of the worldwide review disconnects the current iteration of the ban from the religious animus that motivated its precursors, the government has steadfastly refused to reveal—even in camera—any part of the process or the results of that review, thus offering the judiciary nothing more in the way of assurance than its own say-so.

That should not be enough. When the evidence of religious animus, as Judge Harris put it, “is all out in the open,” the government should not be able to whitewash a clear constitutional violation by simply asserting a secret national-security justification. The Supreme Court warned just last year that national security “must not become a talisman used to ward off inconvenient claims.” Trump v. Hawaii offers the Court the opportunity to prove that it meant what it said.

Eric Rothschild is Senior Litigation Counsel and Andrew Nellis is a Constitutional Litigation Fellow at Americans United for Separation of Church and State, a national litigation and advocacy organization dedicated to protecting religious freedom for all. Americans United, along with Muslim Advocates and Covington & Burling LLP, represent the plaintiffs in Iranian Alliances Across Borders v. Trump, a challenge to the Muslim ban that is currently awaiting certiorari in the Supreme Court.

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