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How Trump’s Executive Order on Immigration Violates Religious Freedom Laws

The ACLU and other lawyers are filing complaints across the country against Trump’s executive order on immigration. Yet these lawsuits do not always bring the strongest—or any—religious freedom claims. That’s true even though a federal court has already found a “strong likelihood” of an Establishment Clause violation in Trump’s order. There are good reasons to support such a ruling: Trump initially advertised his immigration policy as a “shutdown of Muslims,” even though he now asserts that it is a simple security measure, and he recently characterized its religion accommodation as a protection for Christians. Four theories under constitutional and statutory religious freedom provisions are available to lawyers and judges who are assessing the immigration order. (We bracket here questions of whether these rights apply to individuals in various immigration statuses, and questions of whether such people, or anyone else, has standing to bring these claims.)

First, there is an argument that the order violates the Establishment Clause by differentiating among faiths. In Larson v. Valente, the Court held that the “clearest command” of the Establishment Clause is that the government may not engage in “denominational preferentialism.” Kiyras Joel v. Grumet reinforces that rule. In that case, Justice Kennedy wrote that “[w]hether or not the purpose is accommodation and whether or not the government provides similar gerrymanders to people of all religious faiths, the Establishment Clause forbids the government to use religion as a line drawing criterion. In this respect, the Establishment Clause mirrors the Equal Protection Clause. Just as the government may not segregate people on account of their race, so too it may not segregate on the basis of religion.”

Trump’s executive order involves a prohibited form of religious line-drawing. As David Cole has argued, the order’s suspension of immigration from seven particular countries violates the Establishment Clause prohibition on preferentialism among faiths. We can see this from the order’s history, which shows that it was fashioned to effectuate Trump’s wish to ban Muslims from the country, where the nations in question were chosen as an obvious proxy for a barely veiled religious criterion.

Moreover, the order directs the secretary of state “to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” That language expressly singles out minority faiths for favorable treatment.

It could be objected that the government is simply creating presumptions that certain religious groups are especially likely to be subject to discrimination. And such presumptions, the argument goes, are permissible in order to promote administrability. The problem with this argument is that there is no reason to believe that religious minorities are more likely to be subject to discrimination than religious majorities in any particular country. This is a known phenomenon. We have several examples of religious majorities being oppressed—and being oppressed on the basis of religion—by minority sects who happen to control the government. Moreover, even with respect to a nation in which it is the case that minority religions are more frequently subject to discrimination, that is hardly a reason to deny the same treatment to those refugees from majority religions who can show that they were subject to religious persecution. Given the history of the order, including numerous statements by President Trump and officials within his administration, it is clear that the order’s prioritization of religious minorities for refugee status privileges Christians over other groups, especially Muslims, without a reason to think they are disproportionately subject to religious discrimination—a quintessential Establishment Clause violation.

Second, the Establishment Clause is violated when the purpose of a law is to disfavor or favor religion, even when it is written in neutral terms that do not appear to target a particular faith. In McCreary County v. ACLU, the Court struck down a Ten Commandments display in a Kentucky courthouse. The display was unconstitutional because of its history, which revealed an impermissible purpose—the government had begun with a display that was blatantly unconstitutional, and had adjusted it several times in response to complaints from civil rights lawyers. The Court ruled that even if the same display might be constitutional in other contexts, its history in McCreary County betrayed a government purpose to favor Christianity.

Similarly, Trump’s order betrays an unconstitutional purpose, given its context and history, of disfavoring Muslims (in the seven-nation suspension) and favoring Christians (in the prioritization of “minority” faiths). Trump has objected that the Obama Administration used the same seven-country set in crafting restrictions to the visa waiver program. That is true. But McCreary shows that even the very same government action can be rendered unconstitutional by a history and purpose that contravenes the Establishment Clause’s prohibition on favoring or disfavoring religion. As the Supreme Court put it in that case, “The [government’s] position just bucks common sense: reasonable observers have reasonable memories, and our precedents sensibly forbid an observer ‘to turn a blind eye to the context in which [the] policy arose.’” As Abner Greene has pointed out, the Court has said much the same thing in other cases.

Third is the claim that the order violates the Free Exercise Clause. In Church of the Lukumi Babalu Aye v. City of Hialeah, the Court invalidated an animal cruelty statute that, though ostensibly neutral among faiths, was gerrymandered to single out and burden a particular faith that engaged in ritual slaughter. In an opinion by Justice Kennedy, the Court said that the city’s intent could be determined from direct and circumstantial evidence, including the historical background of the decision, the events leading up to the decision, and “contemporaneous statements” made by lawmakers. Here, those circumstances—including statements made by Trump indicating that the intent was to prioritize protection of Christians and to ban Muslims—indicate that the order discriminates on the basis of faith.

Someone could object that under the equal protection analysis imported by the Court into Lukumi, the government must have a chance to show that it enacted the policy “not because of, but merely in spite of” its discriminatory impact, and that it would have taken the same action even absent any bias. But there is a strong argument that the government has many other, existing tools to protect national security interests, and that the poor fit between a desire to protect national security and this particular order—in both its seven-country suspension and its minority faith preference—can only be understood as religious targeting.

Fourth, the order may violate the Religious Freedom Restoration Act or RFRA. That provision disallows any government action that substantially burdens religious exercise, unless the government can show that the challenged law is narrowly tailored to a compelling government interest. That law applies broadly to any “person,” and if business corporations like Hobby Lobby qualify, then living individuals whose ability to travel from and to this country is hampered surely do too. Moreover, at least people holding valid visas are substantially burdened when they are denied entry because of the executive order, especially if they face deportation to a country where practicing their faith is dangerous.

An advantage of the RFRA argument here is that it does not depend on a showing of impermissible government intent. And RFRA requires narrow tailoring—Trump would have to show that the seven-country ban, for instance, is necessary to pursue valid security interests. He would have to show, in other words, that there is no way to protect the country without burdening the faith of Muslims from all over the world who are seeking the peace, safety, and constitutional protections of the United States.

In sum, the executive order should trigger heightened judicial review under at least four distinct theories related to religious discrimination: (1) The order has the effect of disfavoring Muslims and favoring Christians in violation of the Establishment Clause. (2) It has the purpose of privileging some religions over others, also in violation of the Establishment Clause. (3) It targets Muslims for special burdens in violation of the Free Exercise Clause. (4) Finally, it violates RFRA by imposing substantial burdens on religious exercise.

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About the Authors

Professor of Law at Brooklyn Law School, Visiting Professor of Law at Cornell Law School Follow him on Twitter (@NelsonTebbe).

Perre Bowen Professor and Barron F. Black Research Professor of Law at the University of Virginia School of Law

Professor of Law at the University of Virginia School of Law Follow him on Twitter (@mjschwartzman).