TRUMP’S TRAVEL BAN AN ATTACK ON RELIGIOUS LIBERTY
The order barring refugees from seven Muslim countries entry to the US is a shameful display of discrimination, writes
PRESIDENT Donald Trump’s executive order barring refugees from seven majority-Muslim countries entry to the US – while prioritising refugees who are members of religious minorities, namely Christians – is a shameful display of discrimination against people who are by legal definition innocent and in danger of their lives. It also violates the constitutional value of equal religious liberty.
Whether the constitutional violation could be used by a court to strike down the order is a more difficult question. Classically, the courts haven’t interpreted the Constitution to protect the rights of non-citizens living outside the US. To get into court to challenge the order, its opponents will need to argue that it violates the rights of people physically in the US. That will take some ingenuity, but it’s a hurdle that could be overcome. The trick will be to claim that visa holders from the seven countries who are lawfully in the US – for example, people on student visas – can sue, because the order blocks them from leaving and returning as they would otherwise be able to do.
As for the Constitution, the 14th amendment prohibits the government from denying anyone the equal protection of the law. It was designed to combat racial discrimination, but it also extends to unjust discrimination based on religion.
The first amendment contains two separate guarantees, both of which the order also violates. The free exercise clause has been interpreted to bar the government from preventing a group’s religious practice out of religious animus. And the establishment clause prohibits government action that endorses one religion over others. It also bars the government from disfavouring one religion over others.
The executive order invidiously treats Muslims differently from non-Muslims. That burdens Muslims’ expression of their religion, violating both the equal protection and free exercise clauses.
It does so in the first instance by singling out majority-Muslim countries for targeting – without a basis in national security as it claims. And it also singles out Muslims by prioritising Christians.
As written, the order doesn’t reach all majority-Muslim countries or all countries that produce terrorists. It conspicuously omits Saudi Arabia, from which 15 of the 19 September 11 attackers hailed.
It also doesn’t use the word “Muslim” or “Christian,” instead referring to religious minorities in the seven countries.
But the president himself has clarified to the Christian Broadcast Network and on Twitter that he intends the order to give preference to Christians. The government therefore can’t hide behind the order’s text, as seemingly neutral as it is.
Trump’s explanation also shows why the order endorses Christianity over Islam. It would be okay to prioritise persecuted religious minorities for protection. But Trump’s explanations reflect a symbolic preference for Christian refugees.
This is analogous to declaring the US a Christian country. Indeed, the other countries that overtly prefer Christian to Muslim refugees – Poland, Bulgaria and Slovakia, for example – make no bones about saying they are Christian countries with a preference for their co-religionists.
Trump will certainly assert that Congress has full authority over immigration under the Constitution and that it has authorised the president to bar immigrants whose entry he considers to be “against the interests of the US.” That’s the basis for his whole order.
But this authority can’t override the Constitution or the rights of people who are protected by it.
For these constitutional problems to get before a judge, there must be a plaintiff who is within the reach of the US Constitution. And the plaintiff must have standing to sue, because he or she would be harmed by the law.
A Muslim visa applicant from Iraq who has been denied access to the US while a Christian Iraqi has been allowed to enter can certainly say he’s been injured by the order. The problem is that because he is a non-US citizen outside the country, he doesn’t (according to the courts) fall under the protection of the Constitution.
The solution is to find someone already in the US who is injured by the order. Even non-citizens have religious liberty and equal protection rights when they are inside the borders.
The best bet would then be for the order’s opponents to bring suit on behalf of a plaintiff who is in the country lawfully, but is hurt by the ban. The injury could be the lack of opportunity to leave the country and return. Provided the plaintiff has bought a plane ticket and really plans to travel home and back, not being able to return would count as an injury.
There’s a subtle twist. The order’s ban on immigration from the seven countries is separate from its prioritisation of Christian refugees. The latter is supposed to happen only “upon the resumption” of refugee admissions, which the order currently bans for 120 days.
The plaintiff in the US could almost certainly challenge the first part. But the second part is harder to challenge, because the person in this country would be on a lawful visa, not someone being denied refugee status.
One possibility would be to have a plaintiff who was living in the US on a lawful visa who was then also denied refugee status. Another would be for a plaintiff to try to challenge the whole order, even though only part of it affects him, by saying the whole thing is cut from one anti-Muslim cloth.
Regardless, the legal goal for opponents will be to find a way to get a court to rule on the religious liberty dimensions of the order. It’s not an open-and-shut case by any means. But vindication of the American tradition of religious liberty is a highstakes proposition – and courts should be prepared to consider the rights of any valid plaintiff to make that happen. – The Washington Post