Christopher J. Hajec is the director of litigation for the Immigration Reform Law Institute. He filed an amicus brief in support of the government’s cert petition in Trump v. IRAP.
In their clever way, the plaintiffs in the travel cases (now the respondents before the U.S. Supreme Court) have put before the courts a very interesting question: whether considering religion in the admission or exclusion of aliens violates the establishment clause of the First Amendment, which forbids “law[s] respecting an establishment of religion.” Of course, not even these plaintiffs contend that aliens with no connection to this country have rights under that clause that directly shield their religious affiliation from consideration. Rather, the plaintiffs contend that their own rights, as Americans who are Muslim, are violated by President Donald Trump’s order suspending entry into the country by nationals of six majority-Muslim countries. This order, they claim, is based on religious animus and causes them to feel excluded from the American community because of their religion.
The U.S. Court of Appeals for the 4th Circuit agreed with these plaintiffs. It held that the national-security justification the president gave for his order was but a pretext meant to hide what the order truly was: a version of the “Muslim ban” (actually, a pause in Muslim immigration) Trump had called for during the campaign. As a de facto Muslim ban, the court of appeals held, the order was based on religious animus, and (likely) violated the establishment clause.
The plaintiffs’ and the 4th Circuit’s position certainly has a superficial appeal. After all, America is a nation of many religions, and most Americans are uncomfortable criticizing the religions of others. And, in general, the idea of treating people differently based on religion is abhorrent to us.
But along with these neighborly and nonjudgmental attitudes goes another, unexamined assumption that, religion in general being something good, all religions are forces for good in the world. This assumption, as a little reflection shows, is wildly false.
One need only look at history. Think of the religious ceremonies of the Aztecs, who sacrificed human beings by the thousands atop their pyramids and then cooked and ate their flesh. Or those of the early Britons, who burned a man in a wicker cage at the festival of the solstice, in the heyday of Stonehenge. Or the ancient fire god Moloch, in sacrifice to whom infants were thrown into flames. This list could go on and on. All religions are forces for good? History resoundingly says otherwise.
It is not as though all religions the vast majority of Americans would consider bad or unpleasant are relegated to a colorful past, either. As reported by CNN, a sect of Hindus who eat human flesh and feces exists in India today (where, not unexpectedly, they are unpopular with other Hindus). America boasts a Church of Satan, and (perhaps quite separately from it) court records contain grisly proof of mutilation murders committed by individual self-proclaimed Satanists in the service of their deity. And, of course, there is the fiercely militant and intolerant “Islamic State” (aka ISIS or ISIL), a religious group that seeks to convert the world, by force, to its distinctive beliefs. Its leader even calls himself a caliph, or successor to the prophet Muhammad as spiritual and temporal head of Islam. To be sure, mainstream Islam condemns the Islamic State as heretical and not truly Islamic. But, heretical or not, it is as much a religious group as it is a military force or aspiring state, and easily meets the broad definition of “religion” used by the federal courts in First Amendment cases.
Can Americans, then, acting through their elected representatives, block what they would view as such bad or unpleasant religions at the border? Can they block any religion they wish to block at the border? Or can they block no religion at all (at least no religion with U.S. members who might sue) at the border?
Significantly here, it is a given that federal courts cannot be in the business of deciding which religions are good and which bad, and only refusing to enforce the establishment clause in favor of the latter. If they did so, they would be practicing the very religious discrimination that clause forbids. Indeed, this limitation has a striking consequence. Because the establishment clause commands neutrality among religions, there is an all-or-nothing quality to the constitutionality of looking at religion in the admission or exclusion of aliens (at least, aliens who belong to religions with U.S. members who might sue). The constitutionality of such consideration – that is, whether the establishment clause, in a given case, even applies at the border – does not and cannot vary by religion. For example, it cannot be constitutional to block the admission of Satanists, but unconstitutional to block the admission of Episcopalians – or vice versa.
Thus, the 4th Circuit’s holding, that Trump’s order, as a de facto Muslim ban, is based on animus and therefore violates the establishment clause, implies that no religion (with U.S. members who might sue) may be blocked at the border. This implication, however, has disastrous legal consequences. For example, if some Americans are members of the Islamic State and bear allegiance to its caliph, they could sue to enjoin any order barring entry to the country by foreign members of their religion. And they could sue successfully, according to the 4th Circuit’s reasoning – an outright ban on entry by members of this particular religion, singling it out by name, surely would make its U.S. members feel excluded from the community because of their religion, and would be based on animus. Indeed, the president provided evidence of that animus in spades when, before a joint session of Congress, he announced a war of extermination on the Islamic State, vowing “to extinguish this vile enemy from our planet.”
Yet it would be absurd to believe (and no one does) that federal courts could enjoin an order barring members of the Islamic State from the country – or, for that matter, enjoin Trump’s very war on the Islamic State – in the name of the establishment clause.
It follows that whether to look at religion in the admission or exclusion of aliens, and what religions (if any) are to be barred or limited, is a matter entrusted by the Constitution not to the courts, but to the people, acting through their elected representatives. This makes sense independently of the above reductio ad absurdum. As the Supreme Court has repeatedly recognized, the power to admit or exclude aliens, like the power to make war, with which it is inextricably intertwined, is a fundamental attribute of sovereignty. And in America, sovereignty is possessed by the people. There is no indication, let alone a clear indication, that the people intended to surrender any of this power when they ratified the First Amendment. As the Supreme Court has famously said, “the Constitution … is not a suicide pact.”
Of course, blocking or limiting some – or most, or almost all – religious groups at the border may be immoral. But, as shown above, whether such steps are moral or immoral is a question to which the Constitution does not provide an answer. The question of whether and how much to admit or exclude aliens based on their religion, with all of its moral implications and the immense impact its answer may have on the future of this country, is to be decided through the political process, not by the courts.
Also published at: Chris Hajec, Symposium: When (if Ever) May we Consider Religion at the Border?, SCOTUSblog, July 13, 2017