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Tag Archive: Religion

Unconstitutional Motives: When US Policies Are Motivated Only in Part by Religious Discrimination


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.…   continue »

Hawai’i District Court Grants TRO of the “New” Immigration Executive Order


The 43-page ruling is here. In a nutshell, the court held that, at least at the temporary restraining order stage, a balance of the relevant factors weighed in favor of the plaintiffs (especially the private plaintiff, Dr. Elshikh), based largely on the court’s assessment of the strength of the Establishment Clause challenge, which was predicated on “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” Thus, the court entered a nationwide TRO:

Defendants and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation.

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The “Travel Ban” Executive Order as Separation-of-Powers Test Case

The White House’s March 6 executive order “Protecting the Nation From Foreign Terrorist Entry Into The United States” (the March EO or the new EO) is a telling blend of change from and continuity with its January 27 precursor. Its changes signal the (current) strength of traditional institutional resistance from courts and bureaucrats to an insurgent, populist presidency.…   continue »

Does Trump’s New Travel Ban Violate the Establishment Clause?


President Trump has signed a new travel ban. In some respects, the new executive order on immigration looks like the old one, which was held to be unconstitutional. So does the new version avoid constitutional difficulties? Perhaps not. Here, we will focus on the Establishment Clause, putting aside other constitutional issues as well as standing concerns.…   continue »

Explainer on Officials in Contempt of Court Orders on #MuslimBan–Tracking All the Cases

In recent days, much of the focus has been on Washington State’s challenge to Trump’s Muslim Ban, which resulted in a nationwide stay upheld by the Ninth Circuit (see here for Marty Lederman’s analysis). DHS and the State Department have stated that they are complying with the judge’s order, even though there remains considerable confusion as to what it actually means for people whose visas were already revoked.  continue »