Few would dispute that government actions motivated wholly by religion violate the Constitution’s Establishment Clause. The question becomes more complicated if the motives are mixed because the challenged government action also furthers a secular interest, such as national security. The answer to this tricky question, according to longstanding Establishment Clause doctrine, is that constitutionality depends on the government’s primary motive. The mere existence of a potential security benefit will not necessarily save a government security measure such as the laptop ban, extreme vetting at the border, or the travel ban. More specifically, if the primary purpose is religious, it need not be the exclusive purpose in order for the government’s action to be unconstitutional. Although it might be difficult in some cases to decide whether the religious or secular motive predominates, the White House’s travel ban is not one of them. And while the Establishment Clause is in a state of flux, even under the narrowest interpretation the travel ban likely violates it.
The lower federal courts that have stayed the travel ban executive orders have applied what is known as the “Lemon test,” after the 1971 Supreme Court case, Lemon v. Kurtzman. Under the Lemon test, government action that has either the primary purpose or the primary effect of advancing religion violates the Establishment Clause. As originally stated, the Lemon test provides that, in order to be constitutional, “[f]irst, the [government action] must have a secular legislative purpose [and] second, its principal or primary effect must be one that neither advances nor inhibits religion.”
Although the literal language seems to require only “a” secular motive, the Supreme Court has regularly interpreted the first prohibition as requiring that the secular purpose be the primary purpose. Indeed, when a plurality of the Supreme Court once argued that any secular motive would suffice, they were rebuffed by Justice Sandra Day O’Connor’s controlling concurrence: “The purpose prong of the Lemon test requires that a government activity have a secular purpose. That requirement is not satisfied, however, by the mere existence of some secular purpose, however dominated by religious purposes.”
Moreover, while the Court will generally accord some level of deference to the government’s avowed purpose, that deference has a limit. The proffered secular purpose cannot be a sham. For example, the Supreme Court categorically rejected Kentucky’s purported secular reasons for posting the Ten Commandments in public school classrooms on the grounds that the Ten Commandments were undeniably religious “and no legislative recitation of a supposed secular purpose can blind us to that fact.”
As the Supreme Court summarized in 2005, “Lemon said that government action must have ‘a secular … purpose,’ and after a host of cases it is fair to add that although a legislature’s stated reasons will generally get deference, the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.”
Most lower federal courts applying this standard to the travel ban have had little difficulty finding that its primary purpose was not secular but religious, namely to target a particular religious group. As a litany of comments by Donald Trump and those closest to him demonstrate, the executive orders are the realization of candidate Trump’s promised religious “Muslim ban.” Thus, in concluding that “significant and unrebutted evidence of religious animus dr[ove] the promulgation of the Executive Order and its related predecessor,” the District of Hawaii cited, among many other things, a Trump interview where he said “I think Islam hates us” and a Trump press release that stated “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the US.”
Furthermore, while mindful of the deference due to the executive, especially in national security matters, the lower courts (with the exception of one evaluating the revised travel ban) have concluded that the Trump administration’s alleged national security purpose was, at best, secondary, and at worst, a pretext for the discriminatory religious purpose. Thus, for example, the District of Maryland held that “[t]he fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale.” The Court also noted that a Department of Homeland Security report concluded “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity” and that the revised travel ban did not identify any foreign nationals from the excluded countries who had engaged in terrorist activity in the United States. Thus, while mixed motive cases can be difficult, the courts did not think this was one of them.
Of course, this analysis assumes that the Lemon test still applies. And it does, for now, as the Supreme Court has never explicitly overruled it. But it has long been unpopular among several justices. In a concurrence joined by Justice Clarence Thomas, Justice Antonin Scalia once described the Lemon test as a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”
In fact, the Supreme Court’s most recent Establishment Clause case, Town of Greece v. Galloway, ignored the Lemon test. In that case, the Supreme Court upheld a town’s practice of opening its official meetings with prayers even though almost all of the invited prayer-givers were Christian and almost all of the prayers given were Christian. According to the Court, the overwhelming Christianity of the enterprise “reflected only the predominately Christian identity of the town’s congregations, rather than an official policy or practice of discriminating against minority faiths.” The absence of any Lemon analysis may be due to its subject—legislative prayers—arguably a historical practice that dates to the founding of the nation. Then again, Lemon’s absence may indicate that the Supreme Court is moving the Establishment Clause in a new, less protective, direction.
Even if signaling a decline of Establishment Clause protection, Town of Greece v. Galloway nonetheless made clear that “an official policy or practice of discriminating against minority faiths” would violate the Establishment Clause. As a result, regardless of the continuing vitality of Lemon, Town of Greece suggests that the travel ban is unconstitutional. Assuming Lemon continues to apply, Town of Greece’s prohibition on religious animus may translate into the mixed-motive analysis in one or two ways. First, it may suggest that the presence of an intent to discriminate against a religious minority always makes the primary purpose religious. Thus, although the Town of Greece Court accepted that the purpose of the prayer practice was secular—to “lend gravity to the occasion” and “to unite lawmakers in their common effort,”—it would revise that conclusion if evidence of discriminatory motive surfaced. Alternately, Town of Greece may suggest that the intent to discriminate against religious minorities violates the Establishment Clause even if it is not the primary purpose. After all, it is not just a religious purpose, but a discriminatory religious purpose. In most Lemon decisions, the religious purpose was to promote religion. Given that “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another,” perhaps the rules differ when the religious purpose is to discriminate against a minority religion. Again, this assumes Lemon applies. Regardless, Town of Greece’s bottom line applies: the intentional exclusion of non-Christians is unconstitutional. Consequently, whether or not Lemon controls, the travel ban runs afoul of the Establishment Clause.