Category Archives: Congress

Because You’re Not Fooling Anyone: Why Trump Travel Ban 2.0 Still Unconstitutional

Cross-posted with Religion Dispatches, and on Medium, March 14, 2017

Trump’s second attempt at banning travel from certain Muslim-majority countries is clearly written to avoid being struck down under the Establishment Clause. Most notably, it no longer contains provisions that preference entry for religious minorities—language the President himself admitted was intended to prioritize entry for Christian rather than Muslim refugees.

So why isn’t the new EO constitutional, at least with regard to First Amendment claims? Because cutting its most obviously discriminatory provision doesn’t fix the fact that the new EO was passed with the same invalid purpose as the President’s first attempt—to reduce Muslim immigration into the U.S. When a candidate campaigns for nearly two years on the promise of banning, profiling, and even registering Muslims, that is context that a court can—and should—consider in evaluating whether his actions are motivated by religious animus or legitimate security concerns.

In 2005, the Supreme Court issued two decisions on the question of whether displaying the Ten Commandments in or near a courthouse violated the Establishment Clause of the First Amendment. The cases came out split, with one display upheld and the other held unconstitutional. The takeaway? Context and history matter.

These decisions serve as helpful background for why a quick fix to Trump’s Executive Order on Immigration doesn’t resolve all the EO’s constitutional problems.

In one of the cases, McCreary County v. ACLU, the displays at issue were the third in a series of exhibits that had been repeatedly challenged as unconstitutional. The first displays—installed in two Kentucky county courthouses—were large, gold-framed copies of the Ten Commandments, with a citation to the Book of Exodus. In response to a suit by the ACLU, the counties expanded the displays to include additional documents in smaller frames, each with a religious theme, including the “endowed by their Creator” passage from the Declaration of Independence and the national motto, “In God We Trust.”

When a District Court preliminarily enjoined both the original and the expanded displays, the counties installed a third version, this time consisting of nine framed documents including the Ten Commandments, Magna Carta, Declaration of Independence, and Bill of Rights. In explaining its decision to strike down even this seemingly acceptable display, the Supreme Court noted: “the purpose apparent from government action can have an impact more significant than the result expressly decreed” (emphasis added).

In other words, the counties weren’t fooling anyone.

In order to be upheld under the Establishment Clause, a government action must have a valid secular purpose. While courts typically give deference to the secular intent proffered by legislatures, the purpose has to be “genuine, not a sham.” In this case, it was obvious to the Court that the counties’ intent in creating the third round of displays was no different than their intent for the original display: they “were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.”

In contrast, the Court in Van Orden v. Perry held that it was permissible for Texas to accept and display a Ten Commandments statue donated by a civic organization on the state capitol grounds, alongside 17 other monuments and 22 historical markers. In this case, there was no history indicating a legislative intent to endorse or advance religion.

The history of Trump’s two Executive Orders recalls the counties’ efforts in McCreary to water down a religious display simply to meet legal approval, without changing its underlying intent. In the years leading up to the EO, President Trump repeatedly pledged to ban Muslims from entering the country. (He also made comments supporting Muslim profiling, the creation of a Muslim registry, and the closure of mosques.) Trump sometimes varied his language, calling his plan “extreme vetting” or emphasizing its application to “terror nations” rather than Muslim-majority nations.

After the issuance of the first order, however, Trump advisor Rudy Giuliani openly admitted that the President intended to craft a Muslim ban that would withstand judicial scrutiny. When the ban was enjoined, Trump stated in a press conference that the administration could “tailor the [new] order to that decision and get just about everything, in some ways more.” White House advisor, Stephen Miller, also stated that the new EO contained “mostly minor, technical differences,” and would “have the same, basic policy outcome for the country.”

Thus, despite the elimination of the explicit religious preference, there’s no indication that the new order should be treated any differently from the last one when it comes to determining whether the administration had a valid, secular, non-discriminatory purpose in issuing the EO.

This is certainly not to say that Trump can never pass a law on immigration or national security that won’t violate the Establishment Clause. The McCreary Court explained that it did not hold that the counties’ “past actions forever taint any effort on their part to deal with the subject matter.” However it does mean that Trump cannot avoid the ample and longstanding evidence that his EO is intended to be a Muslim ban simply by removing the language that most clearly identifies it as one.

What Muslim Ban? A Religious Liberty Hearing in the Trump Era

Re-blogged from Religion Dispatches
Originally post, February 16, 2017

Today the U.S. House Judiciary Committee held a hearing on the “State of Religious Liberty in America.” What was perhaps most striking about the hearing was how dated many of the speeches and arguments felt—as if an Obama-era hearing was being held nearly a month into the Trump administration.

Three of the witnesses and many of the congresspersons who spoke conjured a world in which a hostile federal government seeks out well-meaning and peaceful Christians for baseless persecution, and in which the Civil Rights Act of 1964 represents the greatest threat to religious liberty. Meanwhile, other legislators and a lone witness desperately tried to redirect the conversation to the fact that President Trump campaigned on a platform of Islamophobia and recently admitted that he intends to prioritize immigration by Christian refugees. No speaker brought up other salient religious liberty issues, such as a recently-filed Religious Freedom Restoration Act (RFRA) claim challenging the Dakota Access Pipeline and an increased interest in using RFRA to resist immigration law.

The witnesses at the hearing included Kim Colby of the Christian Legal Society, Casey Mattox of Alliance Defending Freedom, Hannah Smith of Becket, and Rabbi David Saperstein, who served as United States Ambassador-at-Large for International Religious Freedom under President Obama.

The first three of these, all from conservative organizations that advocate for broad religious exemptions, pushed a narrative of religious persecution fueled by several fundamental misrepresentations: first, that efforts to combat anti-LGBTQ discrimination, or to provide access to contraception, constitute malicious anti-Christian harassment rather than attempts to expand access to jobs, services, housing, and health care; second, that groups seeking anti-LGBTQ and anti-choice exemptions want merely to “live-and-let-live” when in fact many of these organizations have consistently sought to ban LGBTQ relationships and abortion; and third, that issues around sex, marriage, and reproduction constitute the primary site for religious liberty disputes in the current political climate.

Sticking to their anti-Obama talking points, the speakers seem not to have grasped that it may become increasingly difficult to claim the mantle of “religious liberty” without speaking out against the Islamophobic rhetoric adopted at the highest levels of government, and the dramatic rise in anti-Muslim hate groups across the country.

While Representative Louie Gohmert of Texas sought in his remarks to pit religious minorities against each other, claiming that the legacy of the Holocaust was preventing Germany from adequately screening out Muslims that “hate Jews,” Representative Steve Cohen—Tennessee’s first Jewish congressperson—called Islamophobia the “latest form of dog-whistle politics” and noted that he himself had received an increased number of “jabs” for his faith in recent months. Thus Trump’s EO on immigration has shed a clear spotlight on what many advocates and legislators mean when they use the phrase “religious freedom”—and what they don’t.

Furthermore, no one in the room seemed to have fully grappled with the fact that expanding a right to religious accommodations may come back to haunt conservatives, as progressive faith leaders and religious practitioners search for ways to employ RFRA for their own spiritual practice, including helping Syrian refugees, protecting the environment, or providing sanctuary to undocumented immigrants.

None of this is to understate the continued relevance of anti-LGBTQ and anti-choice religious exemptions. Legislators have promised to re-introduce—and the President has promised to sign—the First Amendment Defense Act (FADA), which would sanction religiously-motivated discrimination against same-sex couples and unmarried pregnant and parenting persons. Many states continue to propose similar exemptions. And the recently-leaked Executive Order on religion, if signed, would provide legal cover for even large companies to defy laws that conflict with certain religious beliefs about sex, marriage, and reproduction.

But as significant as those measures remain to LGBTQ families, unmarried parents, and women, what was left unsaid during the hearing is of equal import: the religious right may not have a monopoly on the “religious freedom” platform for long, especially if they continue to ignore the new free exercise and establishment clause battles being waged in the courts, legislatures, and streets.

Religious Discrimination Removed from National Defense Bill

In a briefing with reporters on Tuesday, a Congressional aide confirmed that the final version of the National Defense Authorization Act (NDAA) will not contain what has come to be known as the “Russell Amendment.” The Amendment would have required the Federal Government and all of its agencies to allow federally-contracted religious organizations and associations to discriminate against current and potential employees when those employees do not share their employers’ religious beliefs or adhere to the tenets of their employers’ religion. These exemptions already exist in private employment contexts, but the Amendment would have codified the requirement for all federally-contracted programs, which collectively employ approximately 28 million people, or more than 20 percent of the American workforce.

Although this is a positive development for those concerned with the potential consequences of the Amendment, the aide indicated that its removal is directly related to “new paths” that have opened up to address the Amendment’s intended purpose, indicating a related stand-alone bill may be introduced in the near future.  Steve Russell, a member of the U.S. House of Representatives from Oklahoma, attached the contentious amendment to the NDAA in May, and it passed narrowly in a late night House vote. Today, that Amendment seems to have been stripped from the bill’s current version, which will likely come up for a floor vote on Friday.

Opponents of the Amendment claim that, had it passed, it would have been a direct and intentional threat to a 2014 Executive Order signed by President Obama (EO 13672), which prohibits federal contractors and sub-contractors from engaging in employment discrimination on the basis of a worker’s sexual orientation or gender identity.  EO 13672 amended an earlier Executive Order signed by President Lyndon Johnson in 1965—which has been enforced by subsequent Administrations—prohibiting federal contractors from discriminating against their employees on the basis of religion, sex, race, and national origin.

Proponents of the Amendment argued that the measure would simply reinforce the current legal status quo, by incorporating exemptions for religious organizations found within Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), both of which do provide limited nondiscrimination exemptions to religious organizations—but neither of which clearly apply in the context of federal contractors.

As opponents of the Amendment rightly point out, had it passed, the law would have undermined existing federal nondiscrimination protections not only for lesbian, gay, bisexual, transgender and queer (LGBTQ) workers and communities, but also for communities of color, people living with disabilities, immigrant communities, women and gender non-conforming people, people of faith or no faith who hold different views than their employers, and others who would otherwise be protected under Title VII, the ADA, or other nondiscrimination regulations that federal agencies have already promulgated.

For example, under this Amendment, an organization, using federal funds, might refuse to hire a transgender person simply by claiming that their identity and non-conformity to certain sex stereotypes did not meet a tenet of that employer’s religion—namely, that if a person is assigned a particular sex at birth, they must have a particular gender identity or set of gender expressions. While the Supreme Court has ruled clearly that employment discrimination on the basis of sex stereotyping is a violation of Title VII—and the Equal Employment Opportunities Commission and federal courts have confirmed this applies to transgender and gender non-conforming people—the Amendment would have created a broad exemption for all federal contractors that fall under the exemption, without guidance on how existing nondiscrimination protections might be threatened or undermined.

Furthermore, proponents failed to address the unique constitutional concerns that arise under the Establishment Clause when government funds, as opposed to private funds, are used to promote and endorse religion and further discriminatory behavior against third parties. In this case, job applicants or current employees of religious organizations could have been directly harmed.

Although the removal of the Russell Amendment is welcome news to those concerned with its consequences, given the recent election outcome and the current list of proposed Presidential appointments, similar legislative and administrative efforts seem inevitable in the immediate future and over the next several years.