Government & Politics Mark Silk: Spiritual Politics Opinion

Trump’s second travel ban also runs afoul of Establishment Clause

On Wednesday, a federal judge again stopped the government from instituting a travel ban, on the grounds that President Trump’s revised executive order appears to violate the First Amendment’s Establishment Clause.

How can that be, given that the new order says nothing about religion, removing references to “minority religions” as the basis for admitting refugees from other countries?

“It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion,” conceded Judge Derrick K. Watson of Hawaii.

But in issuing a temporary restraining order, Watson nevertheless concluded that Hawaii was likely to prevail in its claim that the ban was intended to discriminate against Muslims.

He rejected out of hand the government’s claim that because the ban was restricted to only a few majority-Muslim countries, it was not intended to disfavor Muslims: “The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise,” he wrote.

And, citing the decision of the Ninth Circuit that upheld the previous restraining order (as well as various Supreme Court precedents), he dismissed the government’s claim that only the text of the executive order can be used to evaluate its purpose — as opposed to “circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers.”

In other words, those pesky statements by Trump and sometime advisor Rudy Giuliani apply as much to the new order as to the old.

“The record before this Court is unique,” wrote the judge. “It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.”

Does this effectively preclude any effort by the Trump Administration to ban travel to the United States for the sake of national security? No, said the judge, “it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation.”

But if more evidence is needed that the President’s intent in issuing the revised order was exactly the same as the first time around, just look at his response to Judge Watson’s ruling.

Describing his second order as a “watered down version” of the first, Trump declares, “Let me tell you something. I think we ought to go back to the first one and take it all the way up [to the Supreme Court], which is what I wanted to do in the first place.”

Next stop, the Ninth Circuit. Again.

Update: Thursday morning, a federal judge in Maryland concurred, concluding that “there is a likelihood that the travel ban violates the Establishment Clause,” and that “the Plaintiffs are likely to succeed on the merits of their Establishment Clause claim.”

About the author

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a Contributing Editor of the Religion News Service

21 Comments

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  • Its a pretty shaky cause to stop up this travel ban, as it does not involve people who have crossed the border or were granted visas like the last one.

    One has to bear in mind in those 6 countries one cannot simply come here on their own accord, even as a tourist. They need visa clearance first. The government has near absolute discretion not to grant visas to people abroad. However, the Immigration and Naturalization Act prohibits religious tests for consideration. So if the government isn’t completely run by incompetent stooges (an assumption that is difficult to make these days), someone of moderate skills can cough up a reasonable/plausible explanation for the ban that doesn’t involve reference to a Muslim ban.

  • George Mason was a delegate (from Virginia) to the Constitutional Convention in 1787. He had written the Bill of Rights of the 1776 Virginia Constitution, and he proposed that a similar bill of rights be added to the Constitution. His idea was rejected, even by James Madison. However, when the Constitution was completed, Mason sprang into action, sending to each of the states a copy of a newly proposed bill of rights.

    When the ratifying conventions of the various states convened, some of them demanded a promise that this new bill of rights be debated before the new Congress. James Madison was selected by Virginia to present this demand for rights to the First Congress, First Session.

    On June 8, 1789, Madison made this presentation to the House of Representatives, including a call for the securing the right of religious freedom of American citizens in the following form: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner manner, or on any pretext, infringed.”

    https://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=227

    On August 15, 1789, The House of Representatives debated this religious freedom amendment. Madison explained this amendment: “He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform.” However, this form of the amendment contained the word “national” which was despised by the antifederalists, so the exact form Madison desired was rejected.

    https://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=380

    Eventually, this amendment was written in a condensed version that took the form of two clauses, the Establishment clause and the Free Exercise clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

    Since President Trump’s order did not come from Congress nor did it establish a national religion, the Constitution does not prohibit it. The judges are wrong.

  • Your long winded cut and paste was an irrelevancy. Especially when followed by such a boneheaded conclusion

    “Since President Trump’s order did not come from Congress nor did it establish a national religion, the Constitution does not prohibit it. The judges are wrong.”

    The establishment clause is far more expansive than simply a national religion. It is the separation of church and state you were very poorly trying to pretend was not its intention. The avoidance of entangling government apparatus with religion. Showing favoritism to no given faith.

    As for “Congress shall..” it has always been commonly interpreted as all government branches. BTW the 14th Amendment means it also applies to State and local governments.

    That being said, the Establishment Clause has zero to do with people outside our borders. So the author is incorrect here. But not for reasons you said.

  • Madison originally did not even want to include a bill of rights in the Constitution. To him it was perfectly obvious that if the Constitution did not specifically delegate to the federal government a power to legislate wrt religion, then ipso facto religious freedom could not be impaired by the federal government.

    But of course, exactly what he feared would happen is what has happened: people with no idea of what federalism means now believe that whatever is not specifically prohibited to the feds (and sometimes even what is) is fair game for them. The truth is exactly the opposite — whatever isn’t specifically allowed is prohibited.

    We have for so long taken for granted the freedom to not have to attend and support a national church (which was certainly no small thing to the founders and framers) that we tend to assume that the 1st Amendment must mean more than what was intended to be there — but that is a factor of our own sheltered privilege and our distance from the times and purposes of the bill of rights, not the bill of rights itself. Jefferson’s letter to the Danbury Baptists that people like to refer to when discussing “separation of church and state” was actually a prime example of this — he was telling them that he sympathized with their complaints about established state religion but could do nothing to help them since the federal government’s hands were tied wrt religion snd he had no power to act either for or against it..

    None of this, however, has anything to do with Trump’s travel ban, which is not religious in nature and will in all likelihood be upheld if it reaches the Supreme Court. The 9th Circuit is determinedly and obliviously playing right into the Republicans’ hands.

  • My post relied on original documents from the Library of Congress which demonstrate that the unsupported opinions your propound are nothing but myths. The original documents are the only factual basis for the meaning of the Constitution.

    And, as Chief Justice John Marshall (appointed in 1801), a contemporary of the formation of the Bill of rights said, correctly, “To say that the INTENTION of the instrument must prevail; that this intention must be collected from its WORDS; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was INTENDED; that its provisions are neither to be restricted into insignificance NOR EXTENDED TO OBJECTS NOT COMPREHENDED IN THEM, nor contemplated by its framers is to repeat what has been already said more at large and is all that can be necessary.”

  • Your post was largely a cut and paste with a ridiculously reductive conclusion having nothing to do with the stuff you cited.

    John Marshall’s court is not the one we look to when discussing power of the Judiciary. The Marshal Court is the one which really established judicial power. Nor does alleged “Founder intent” hold any special exhalations when it comes to Constitutional interpretation. We do not discuss law using clairvoyance and conjecture as to the minds of its progenitors. We look to the letter of the law and usable applications to the conditions presented before the courts at the time. So your ahistorical interpretations and quote mining really isn’t useful here.

    Let me put it to you this way, without the separation of church and
    state that the Establishment Clause represents, free exercise of
    religion is impossible. So any reading of that clause which is reductive
    to something so much as a “national church” opens the door for
    government to attack religious expression as guaranteed in the other
    part of the first amendment religious clause.

    Even our founders recognized that entanglement of religion with the apparatus of state always led to sectarian discrimination. At no point can a government show favoritism to one faith or sect without attacking the rights of other faiths and sects. To attack the separation of church and state is to come out and oppose religious freedom. To attack the free exercise of religion for faiths and sects other than your own. Something I have no doubt was your intention.

    That being said, the Establishment Clause is an irrelevance to this issue as constitutional protections do not extend beyond national borders.

  • Isn’t it fun trying to explain classical principles of constitutional construction to an ignoramus only to get “nuh-uh” in response?

  • We have to make a decision. Do we accept the explicit words of James Madison as to what the Establishment Clause means, or do we accept a mythical construction with no objective foundation? I’ll go with James Madison!

  • Same! Unfortunately, pose that choice to the average American citizen today and in response you’re likely to get::
    (A) It doesn’t matter what James Madison thought; and/or
    (B) Who was James Madison?; and/or
    (C) What is the Establishment Clause?

    Sigh…

  • Your reading of the establishment clause is neither honest nor workable. It’s why nobody who actually interprets the clause for purposes of legal conflicts uses such a reductive reading. What you call fiction the entire judicial system has called the normal interpretation.

    The founders were well aware that entangling religion with government leads directly to sectarian discrimination. If you really wanted to know legislative intent, quote the Federalist Papers. The document meant to explain the constitution to the masses.

    Save me the quote mining efforts. Too many professional revisionist liars either misinterpret founders quotes or fabricate them to support positions like yours (ex. David Barton, Eric Metaxas).

    Most importantly is the obvious. Free exercise of religion cannot be protected without separation of church and state. A government entangled with and showing favor to a given faith by it’s nature attacks religious beliefs outside of that group.

    You are really telling me you don’t like the idea of religious freedom.

  • I wonder if Mark Silk would leave his front door open and allow anyone to come in and raid his refrigerator, use his toilets and sleep on his beds.

  • We of course do not know how the Supreme Court will ultimately resolve this issue. But the challenge to the Establishment Clause in this case comes by way of assertions of the rights of persons and institutions (state higher education) within the national borders.

  • The thing is, most people from those six countries require visas just to get here. We do not have particularly much diplomatic presence there. Which I suspect is why they were chosen. A travel ban won’t cause a major diplomatic incident or sour useful relations as it would for more obvious sponsors of terrorism like Saudi Arabia or Pakistan.

    For those six countries visas would be issued in the country prior to traveling here, outside our borders. The new travel ban simply stops issuing those visas. So it avoids harming rights of those already here. Even if it is entirely motivated by religious discrimination, the establishment clause does not apply. But the immigration and naturalization act would, because it controls conduct of offices issuing the visas. When it comes to immigration, the executive branch has wide discretion. They only really need a bare bones justification.

    If the White House was not doing so much of this ad hoc and the president had bothered discussing the matter with experts in the state department beforehand, they could have easily defeated the current restraining order. They would have evidence from consular sources to back up claims of insufficient vetting or dangerous people using visas to get here. But also more likely than not those experts would have tried to talk the president out of trying such a thing. Instead we have a situation where the president acted first and then looked for information to justify it. The state department is not really cooperating here. The evidence is just not there.

    Lawfare blog has been a very good source on the legal issues surrounding this.

  • At least in this instance re: Spuddie’s 2nd post above of 3 days ago, he admits the basis for an injunction on the latest travel ban is “a pretty shaky cause…”

  • Mr. Barton and Mr. Metaxas are at least as credible and informed as you on the question of constitutional interpretation.

  • Now they aren’t.

    They are notorious for OUTRIGHT LYING on the subject. I may be wrong on a few parts of it, but I am not going out of my way to misrepresent facts on the subject. Nor do I try to defend positions where I am shown to be factually wrong. Time and again Barton and Metaxas are proven to be full of it, but simply repeat their nonsense.

    Barton was such a liar his last major book was dropped by the publisher because they could not classify it in good faith as non fiction. Barton had no academic credentials despite his numerous claims of expertise on the subject. He even lied about having a doctorate. Something anyone can look up.

  • There are a lot of instances of refugees stealing people’s food and toilet paper? Do they know how easy it is to find here?

    All kidding aside, you got your crappy nativist analogies crossed. The subject is legal aliens coming in on visas. Adjust your silly fact free prejudicial arguments accordingly.

  • True. But I still have little patience with Constitution-haters pulling nonsense claims from their posteriors that framers’ (actually the people’s) intent doesn’t matter, or that “we don’t look” to this court or that court or whatever-the-heck doesn”t render the desired result when ALL of these things are critically important elements of constitutional jurisprudence. It’s this kind of popular ignorance, some of it willful but most of it not, that has allowed our federal government to run off the rails, for the usurpers in government know quite well what they’re doing but also know that the people are largely unable to hold them accountable for it.

  • I do not dispute you in this, but I note that in a few of your recent posts you have expressed your frustration in terms slightly less moderate than your norm. It has been your well reasoned arguments and mild tone which is so rare on these pages that I have admired greatly. As a fellow biblically minded soul I wish you well.

  • But in your case it happens so rarely, and I would ask for the same measure of admonition, if that is not too harsh a word, from you.

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