Columns Law & Court Mark Silk: Spiritual Politics Opinion

Another court finds Trump guilty of religious animus

Mark Hetfield from HIAS, left, with CWS Interfaith Advocacy Minister the Rev. Reuben Eckels protesting the travel and refugee ban at the White House in Washington on Jan. 27, 2018. RNS photo by Jack Jenkins

Does anyone think that, if it had been a troubled Muslim youth who was arrested for killing 17 students at Marjory Stoneman Douglas High School, President Trump would be tweeting out concerns about mental health?

Of course not. You and I and everyone know that he’d be denouncing radical Islamic terrorism. And that knowledge lies at the heart of the latest judicial decision on his travel ban, issued Thursday.

Writing for a 9-4 majority of the 4th Circuit Court of Appeals in International Refugee Assistance Project v. Trump, Chief Judge Roger Gregory put it this way: “Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President.”

As in, for example, an August 17, 2017, tweet in which he endorsed an apocryphal story involving General Pershing and a purported massacre of Muslims with bullets dipped in a pig’s blood, advising people to “[s]tudy what General Pershing…did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!”

The majority, wrote Gregory, could therefore not agree with the government’s position that the ban reflects “the compelling secular goal of protecting national security from an amply-documented present threat,” as opposed to “religious animus.”

Rather, an objective observer could conclude that the President’s repeated statements convey the primary purpose of the Proclamation—to exclude Muslims from the United States. In fact, it is hard to imagine how an objective observer could come to any other conclusion when the President’s own deputy press secretary made this connection express: he explained that President Trump tweets extremist anti-Muslim videos as part of his broader concerns about “security,” which he has “addressed…with…the proclamation.”

For that reason, the travel ban (now in its third iteration) violates the First Amendment’s Establishment Clause, which the Supreme Court has interpreted as preventing the government from sending a message to adherents of any particular religious tradition “that they are outsiders, not full members of the political community.”

In dissent, Judge Paul Niemeyer did not dispute the evidence of Trump’s anti-Muslim bias. He simply contended that the only evidence of such bias the court was entitled to consider had to be in the text of the proclamation itself (and there was none).

“This case involves an Article III court’s bold effort to second-guess U.S. foreign policy and, in particular, the President’s discretionary decisions on immigration, implicating matters of national security,” Niemeyer wrote. “Our constitutional structure forbids such intrusion by the judiciary.”

In other words, an executive order relating to immigration and/or national security cannot be judged a violation of the Establishment Clause so long as it does not actually say that it is discriminating on the basis of religion.

The Supreme Court has scheduled oral argument for the case in April. One can hope that the justices will insist that the judiciary does indeed have the power to prevent religious discrimination by a president, regardless of where he emits his discriminatory intent.

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

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  • Why Trump is correct on this: (note: I did not vote for him or Hillary and would never vote for him because of arrogance and abuse of women)

    Islamic terror and aggression via a Partial and Recent and Not So Recent Body Count

    As the koranic/mosque driven acts of terror and horror continue:

    The Muslim Conquest of India – 11th to 18th century

    ■”The likely death toll is somewhere between 2 million and 80 million. The geometric
    mean of those two limits is 12.7 million. ”

    and the 19 million killed in the Mideast
    Slave Trade 7C-19C by Muslims.

    and more recently

    1a) 179 killed in Mumbai/Bombay, 290 injured

    1b)
    Assassination of Benazir Bhutto and Theo Van Gogh

    2)9/11, 3000 mostly US citizens, 1000’s injured

    3)
    The 24/7 Sunni-Shiite centuries-old blood feud currently being carried out in
    Iraq, US troops killed in action, 3,480 and 928 in non combat roles. Iraqi
    civilians killed as of 05/10/2013/, 113,249-123,978 mostly due to suicide bombers,
    land mines and bombs of various types, http://www.iraqbodycount.org/ and http://www.defenselink.mil/news/casualty.pdf

    4) Kenya- In Nairobi, about 212 people were killed and an estimated 4000 injured;
    in Dar es Salaam, the attack killed at least 11 and wounded 85.[2]

    5) Bali-in 2002-killing 202 people, 164 of whomwere foreign nationals, and 38 Indonesian citizens. A further 209 people were injured.

    6)
    Bali in 2005- Twenty people were killed, and 129 people were injured by three
    bombers who killed themselves in the attacks.

    7)
    Spain in 2004- killing 191 people and wounding 2,050.

    8. UK in 2005- The bombings killed 52 commuters
    and the four radical Islamic suicide bombers, injured 700.

    9)
    The execution of an eloping couple in Afghanistan on 04/15/2009 by the Taliban.

    10)
    – Afghanistan: US troops 1,385
    killed in action, 273 killed in non-combat situations as of 09/15/2011. Over 40,000 Afghan civilians killed due to the dark-age, koranic-driven Taliban acts of horror

    11)
    The killing of 13 citizen soldiers at Ft. Hood by a follower of the koran.

    12) 38 Russian citizens killed on March 29, 2010
    by Muslim women suicide bombers.

    13) The May 28, 2010 attack on a Islamic
    religious minority in Pakistan, which have left 98 dead,

    14) Lockerbie is known internationally as the site
    where, on 21 December 1988, the wreckage of Pan Am Flight 103 crashed as a
    result of a terrorist bomb. In the United Kingdom the event is referred to as
    the Lockerbie disaster, the Lockerbie bombing, or simply Lockerbie. Eleven
    townspeople were killed in Sherwood Crescent, where the plane’s wings and fuel
    tanks plummeted in a fiery explosion, destroying several houses and leaving a
    huge crater, with debris causing damage to a number of buildings nearby. The
    270 fatalities (259 on the plane, 11 in Lockerbie) were citizens of 21 nations.

    15
    The daily suicide and/or roadside and/or mosque bombings in the terror world of
    Islam.

    16)
    Bombs sent from Yemen by followers of the koran which fortunately were
    discovered before the bombs were detonated.

    17)
    The killing of 58 Christians in a Catholic church in one of the latest acts of
    horror and terror in Iraq.

    18)
    Moscow airport suicide bombing: 35 dead, 130 injured. January 25, 2011.

    19)
    A Pakistani minister, who had said he was getting death threats because of his
    stance against the country’s controversial blasphemy law, was shot and killed
    Wednesday, 3/2/2011

    20)
    two American troops killed in Germany by a recently radicalized Muslim,
    3/3/2011

    21) the kidnapping and apparent killing of a
    follower of Zoraster in the dark world of Islamic Pakistan.

    22) Shariatpur, Bangladesh (CNN 3/30/2011) — Hena Akhter’s last words to her mother
    proclaimed her innocence. But it was too late to save the 14-year-old girl. Her fellow villagers in Bangladesh’s Shariatpur district had already passed harsh judgment on her. Guilty, they
    said, of having an affair with a married man. The imam from the local mosque
    ordered the fatwa, or religious ruling, and the punishment: 101 lashes
    delivered swiftly, deliberately in public. Hena dropped after 70 and died a
    week later.

    23)
    “October 4, 2011, 100 die as a truck loaded with drums of fuel exploded
    Tuesday at the gate of compound housing several government ministries on a busy
    Mogadishu street. It was the deadliest single bombing carried out by the al
    Qaeda-linked al-Shabab group in Somalia since their insurgency began. ”

    24) Mon Jun 4, 2012 10:18am
    EDT

    BAGHDAD (Reuters) – A
    suicide bomber detonated an explosive-packed car outside a Shi’ite Muslim
    office in central Baghdad on Monday, killing at least 26 people and wounding
    more than 190 in an attack bearing the hallmarks of Iraq’s al Qaeda affiliate.

    The bombing on a
    Shi’ite religious office comes at a sensitive time, with the country’s
    fractious Shi’ite, Sunni and Kurdish blocs locked in a crisis that threatens to
    unravel their power-sharing deal and spill into sectarian tensions.”

    25)
    BURGAS, Bulgaria | Thu Jul 19,
    2012 11:27am EDT

    BURGAS, Bulgaria (Reuters) – A
    suicide bomber carried out an attack that killed seven people in a bus
    transporting Israeli tourists in Bulgaria, the interior minister said on
    Thursday, and Israel said Iranian-backed Hezbollah militants were to blame.

    26 ) September 12, 2012

    U.S. AMBASSADOR
    KILLED

    Envoy
    to Libya dies in rocket blast

    27)
    Boston Marathon horror – April 2013, four dead, hundreds injured and maimed for
    life.

    28) San Bernardino massacre, December 2015, 14 dead, 22 seriously hurt,

    29) Orlando Massacre- June 2016, 49 killed,
    hundreds injured by radical, koranic Muslim.

    30) ISIS

  • We actually agree on something.

    One might also add the Muslim conquest of Greece, Bulgaria, Serbia, Romania, Albania.

  • Then we can add a side order of the conquest of Muslim countries in the 19th/Early 20th Century by European powers and the massacres of European Muslims in 1990’s Bosnia.

    Once you start going into “Islam is Evil” arguments, you prove the Court’s decision was entirely correct.

  • The odds the Supreme Court will rule that appointed Federal judges can override policy decisions of the elected Executive because – in its opinion – that Executive exhibits a bad attitude approximates zero.

    Since this was not a criminal trial, nor was any crime alleged, that the “court finds Trump guilty” indicates some bias on the part of Mr. Silk against reality.

  • It would be difficult to try to balance the amount of evil done historically by Muslims to that done by Christians. It might be more relevant to look at the dangers to the future of humanity that believers in these creeds present.

    The dangers from each differ according to individual beliefs of the members of these two faiths.

    In current discussions there are three categories of Muslim believers. Many are liberal believers that don’t believe in violence and are tolerant of other faiths. There are what are often called Islamists who differ in that they are intolerant of other faiths and advocate politically for Islamic states. The third group are extreme Islamists that strive for world domination with any means necessary.

    There are now many flavors of Christianity. For the present purpose they can be divided in a manner similarly to the Muslims:

    Both Protestants, Catholics and others that respect our secular culture.

    Protestants and Catholics who will try to use the political system to force their values on the entire population.

    Christian Nationals and Dominionists who intend world domination with any means necessary.

    Due to increasing resource depletion, global warming, unfair distribution of human needs, overpopulation, genocidal wars, preventable disease, hunger, etc we can’t be certain of the survival of many more human generations.

    Faith in both of these religions can result in world views that ignore the above problems which are immanent. If we are not able to overcome these delusions and cooperate for the future survival of humanity, the centuries of past evils will be irrelevant. Both faiths are detrimental to the future of humanity in these times.

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