Category Archives: Refugees

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.

Trump Attempts to Pit LGBTQ Communities, People of Color, and Women Against Muslim Refugees and Immigrants

Trump’s latest executive order highlights what is becoming standard practice within his administration: obscuring the destructive impact of an action on some marginalized communities by couching it in a feigned concern for “protecting” others.

Reblogged from Rewire News

At the tail end of a relentless first week of presidential action targeting the environment, immigrants, reproductive health care, Native communities, and the free speech rights and employment of federal workers, President Trump signed an executive order to halt refugee resettlement and travel from seven Muslim-majority countries.

The order suspends the entire U.S. refugee resettlement program and bans entry of persons from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

On the whole, the order is dangerous, misguided, and deeply rooted in this administration’s commitment to a xenophobic, racist, and Islamophobic agenda. However, two sections in particular highlight a manipulative tactic that is becoming standard practice within the Trump administration: obscuring the destructive impact of an action on some marginalized communities by couching it in a feigned concern for “protecting” others.

Section one of the order states that “the United States [will] not admit those who engage in acts of bigotry and hatred … or those who would oppress members of one race, one gender, or one sexual orientation.”

Trump’s attempt to couch this order in paternalistic, hollow concern for LGBTQ communities, communities of color, and women is both dangerous and insincere. It directly ignores the lived experiences of Muslims within those communities, falsely implies that Islam’s principles are inconsistent with equality and justice, and is in direct contrast with the hostility Trump, his administration, and his appointees have exhibited toward these communities domestically and abroad. It is also a clear attempt to exploit support for these communities in a way that obscures the order’s oppressive effect on Muslim immigrants and refugees.

Trump has made clear, through his campaign rhetoric, cabinet appointments, and vice presidential selection, that he has no interest in protecting the rights of women, communities of color, or LGBTQ people. Despite superficial statements claiming he strongly supports LGBTQ rights, Trump, Vice President Pence, and most of their cabinet appointees have a strong commitment to laws that would harm LGBTQ and reproductive rights, including the First Amendment Defense Act and similar state bills. Trump also campaigned heavily on a “law and order” platform, which has demonized undocumented immigrants and communities of color by pushing forward a false narrative about the problem of “inner-city” crime—a term that has long been coded as racist and intended to target Black communities in particular.

Secondly, the order’s alleged commitment to rejecting bigotry rings particularly false because it is apparently aimed at prioritizing the resettlement of Christians in Muslim-majority countries. While it does not name Christians explicitly, the order directs the secretary of the State Department, in consultation with the secretary of Homeland Security, “to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Absent from the order, of course, is any prioritization of the communities Trump claims he is invested in protecting from supposedly dangerous Muslim refugees and immigrants.

Last week, Trump told the Christian Broadcasting Network that he intended to help persecuted Christians with his new refugee policies, because, he claims, they have been “horribly treated” in the refugee resettlement process, despite evidence showing that Christian and Muslim refugees have been approved for resettlement at roughly the same rate in recent history.

As others have also pointed out, although Trump has claimed a strong support for “religious liberty,” the selective religious beliefs that he supports seem to be grounded more in a self-serving version of Christian nationalism than justice for communities directly harmed by his particular brand of white, cis-hetero Christian supremacy. Although there might be a vocal minority of Christian leaders speaking out in support of reducing or banning Muslims from entering the United States, “leaders of nearly every Christian denomination, along with those of other faiths” criticized the action, which they argued does “not reflect the teachings of the Bible, nor the traditions of the United States,” reported The Atlantic.

During the weekend, large-scale protests erupted across the country, prompting federal judges in New York, Massachusetts, Washington State, and Virginia to hold emergency hearings, which resulted in temporary orders halting enforcement of the order. Despite judicial intervention, there continues to be reports of people and families, even those with visas and green cards, being detained for hours without food or access to lawyers at airports across the country—and some have already been deported. Adding to the confusion, Trump has continued to defend the order and the Department of Homeland Security has issued a statement emphasizing that despite court orders, the ban will stay in effect.

The framing of this order should serve as a reminder to advocates, journalists, and others to remain vigilant in calling out and resisting Trump’s attempts to pit some of our important justice and equality interests against others—particularly when the communities in question are not inherently at odds, and the administration has no intent in furthering the substantive rights of those communities.

Trump’s Executive Order Barring Muslims is Unconstitutional

PRESS STATEMENT

FROM: 
Public Rights/Private Conscience Project

RE: Trump’s Executive Order Barring Muslims is Unconstitutional

DATE: January, 30 2017

MEDIA CONTACT: Elizabeth Reiner Platt, elizabeth.platt@law.columbia.edu, (212) 854-8079

Columbia Law School’s Public Rights/Private Conscience Project joins with thousands of lawyers, law professors, and legal organizations across the country in announcing that President Donald Trump’s recent Executive Order writing a religious preference into U.S. policy is unconstitutional. The Order—issued late Friday afternoon, hours after the administration recognized Holocaust Remembrance Day—suspends the entire U.S. Refugee Admissions Program, declares that “entry of nationals of Syria as refugees is detrimental to the interests of the United States,” and cuts off entry into the U.S. for certain nationals of majority-Muslim countries. Several provisions of the order are clearly intended to block immigration by Muslim refugees while providing a preference for some Christian refugees to escape violence and persecution by resettling in the U.S. The Executive Order amounts to both a form of state sponsored discrimination against persons of one particular faith and a religious preference for persons of another faith, in violation of the First Amendment of the Constitution.

While the Refugee Admissions program is suspended, Trump’s Executive Order nevertheless allows entry of refugees on a case-by-case basis if the administration deems their admission “in the national interest,” specifically mentioning members of minority religions abroad. When and if the program is reinstated, the Order directs the agencies to “prioritize” members of minority religions. The Order also directs agencies to recommend legislation to the President that would “assist with such prioritization.” There is no Constitutionally-legitimate reason why the U.S. should prioritize the entry particular religious groups, or determine that the entry of certain religious believers is or is not in the “national interest.” While written in ostensibly neutral language, it is apparent that the Order’s preference for refugees who are religious minorities in their country of origin is intended to shut out Muslim refugees.

Current federal law prohibits any preference, priority, or discrimination in the issuance of immigrant visas on account of the applicant’s race, sex, nationality, place of birth, or place of residence – religion is not on the list, 8 U.S.C. § 1152(a)(1)(A). Yet, under the Supreme Court’s interpretation of the Establishment Clause of the First Amendment, the new Trump immigration Executive Order is clearly unconstitutional. The state may not “act[] with the intent of promoting a particular point of view in religious matters,” nor may it “aid, foster, or promote one religion or religious theory against another.” Similarly, the state’s laws and policies must be neutral with respect to religion and between religions – that is, it may not favor adherents of one religion over another. The Court, and Justice Kennedy in particular, has taken the view that the Establishment Clause together with the Free Exercise Clause embrace an anti-persecution principle – expressly linking the religion clauses to the Equal Protection clause’s non-discrimination norm. In the words of Chief Justice Rehnquist, “we have sometimes characterized the Establishment Clause as prohibiting the State from ‘disapprov[ing] of a particular religion.’” Thus, there are many grounds on which to challenge the new anti-immigrant Executive Order, both for persons holding valid immigrant visas and for those seeking new visas or refugee status. One of those grounds is that this odious new policy violates the Establishment Clause of the First Amendment.

While the Order leaves open the confounding questions of what constitutes a religious “minority” considering the great diversity of beliefs and practices within major world religions, as well as how the State will identify religious adherents, it is clear from both the face of the Order and the context around its creation that Trump’s actions are intended to discriminate based on religious belief. President Trump has pledged to instate a Muslim ban throughout his campaign, and he has now taken a significant step to fulfill this promise. “At its core, the Establishment Clause of the First Amendment forbids the U.S. government from determining which religions or religious beliefs are or are not acceptable, desirable, or American,” said Elizabeth Reiner Platt, Director of PRPCP. “This Order violates that crucial limitation.”

“It is alarming that one of the Trump Administration’s first policies is to issue a religious litmus test for refugees and immigrants seeking entry to the U.S.,” observed Katherine Franke, Sulzbacher Professor of Law and Faculty Director of PRPCP. “If the First Amendment of the U.S. Constitution stands for anything it is that the state must neither prefer or discriminate members of any particular religious tradition when it issues policy.”

Report: Church, State & the Trump Administration

PRESS RELEASE

JANUARY 30, 2017 

Trump and Cabinet Nominees Seek to Restrict Muslim Rights, Break Down the Wall Between Church and State

MEDIA CONTACT: Ashe McGovern
amcgovern@law.columbia.edu

A new document issued by the Public Rights/Private Conscience Project (PRPCP) at Columbia Law School outlines the numerous areas in which the Trump administration will seek to advance particular conservative Christian tenets, restrict the rights of religious minorities, and break down the barrier between church and state. Enactment of the administration’s policy priorities would call into question the careful balance that currently exists between the First Amendment and other fundamental rights guaranteed under the Constitution. The report, entitled Church, State & the Trump Administration, highlights the ways in which the new administration’s early executive actions and cabinet nominations, as well as his campaign rhetoric and proposed policies, indicate hostility toward religious liberty guarantees of the First Amendment and an intentional disregard for other fundamental rights guaranteed by the Constitution. The report will continue to be updated in the coming weeks as the administration takes further action.

Despite his stated commitment to religious freedom, during his first week in office President Trump has issued an Executive Order that clearly expresses an official State preference for Christianity, and disapproval of Islam. Furthermore, Trump has consistently demonstrated that his policies will be grounded in the concerns of certain conservative Christian groups. His Executive Order reinstating a significantly expanded version of the anti-choice global gag rule, an expected Executive Order sanctioning anti-LGBTQ discrimination, and his selections for cabinet appointments all point to an administration that will seek to further particular religious ideals while breaking down the barrier between church and state.

President Trump and cabinet appointees appear to hold a deeply flawed understanding of the First Amendment, and particularly the Establishment Clause, which prohibits the government from favoring or disfavoring any religious group or belief. If confirmed, many of his appointees are likely to implement policies that will harm the rights of religious and other minorities, particularly Muslim communities, LGBTQ people, and communities seeking access to adequate healthcare and protection of their reproductive rights. A recently released report by PRPCP also highlights the ways in which communities of color are particularly harmed by the religious exemptions that President Trump, Vice President Pence, and others in his cabinet have championed.

“Despite his insistence that the protection of religious liberties is a top priority, Trump has made clear, through executive orders and cabinet appointments, that he seeks only to prioritize a version of white Christian nationalism and supremacy, that, if left unchecked, would create tangible harms to many marginalized communities—and violate fundamental liberty and equality guarantees under the Constitution,” said Ashe McGovern, Associate Director of PRPCP.

“Religious freedom is fundamentally inconstant with the State’s endorsement of particular religions or religious beliefs,” said Elizabeth Reiner Platt, PRPCP’s director. “Anyone committed to free exercise rights should be deeply concerned with Trump and his cabinet’s apparent distain for the separation of church and state.”

“The new administration has shown a disturbing commitment to write the First Amendment out of the U.S. Constitution,” said Katherine Franke, Sulzbacher Professor of Law and Faculty Director of PRPCP.   “In its first week in office the Trump White House has been remarkably aggressive in both embracing a particular religious agenda in violation of the Establishment Clause and discriminating against people whose faith it disfavors in violation of the Free Exercise Clause of the First Amendment,” Franke continued.

Read the full report here.

 

Clergy Members File RFRA Brief in Support of Syrian Refugees

In a brief that evokes the sanctuary movement of the 1980s, religious leaders in Texas recently filed an amicus brief in support of a nonprofit organization’s efforts to resettle Syrian refugees. The brief is part of a small but growing trend of using statutory and constitutional religious liberty protections—which have been used to great effect by the religious right— to advance progressive causes.

Since filing suit in early December, the state of Texas been embroiled in a complicated and politically charged legal battle with the U.S. government about the resettlement of refugees within its borders. In its original complaint, the Texas Health and Human Services Commission argued that the government had resettled refugees “without consulting with Texas or working in close cooperation with the Commission” in violation of the Refugee Act of 1980. The suit additionally claimed that the nonprofit International Rescue Committee (IRC), which provides aid to refugees, had broken contracts with the State. Among other relief, it requested an injunction preventing the resettlement of Syrian refugees until the court found that the government and IRC complied “with their statutory and contractual duties to consult with Texas in advance of placing refugees and to provide information to the Commission and work in close cooperation with the Commission.”

The amicus brief, signed by Christian, Jewish, and Unitarian clergy members, argues that Texas’ efforts to stymie the resettlement of refugees based on their national origin “threatens religious freedom in Texas.” Citing the religious liberty protections of the First Amendment, the federal Religious Freedom Restoration Act (RFRA), and Texas’ Religious Freedom Restoration Act (TRFRA), the brief argues that the “State’s actions against local resettlement agencies potentially affect the ability of many religious Texans to live out and enact [their] beliefs,” including their “sincere calling to provide charitable and humanitarian aid to refugees.”

It’s a somewhat strange argument, considering that the amici are not asking for an exemption from any state or federal law that currently restricts them. Rather, they are claiming that Texas is violating their religious rights by filing a lawsuit that does not involve them at all. Nevertheless, it’s worth taking a closer look at the brief, as similar arguments could be made in the future to request exemptions from federal immigration laws.

Under both RFRA and TRFRA, the government cannot substantially burden the free exercise of religion unless it is the least restrictive means of furthering a compelling government interest. Although the brief mentions both statutes, it challenges only state actions and therefore only the latter law should apply. Texas courts have historically looked to how RFRA has been interpreted, however, in interpreting TRFRA.[1]

Texas courts analyze TRFRA using a four-part test, asking: (1) whether the government’s regulations burden the plaintiff’s free exercise of religion; (2) whether the burden is substantial; (3) whether the regulations further a compelling governmental interest; and (4) whether the regulations are the least restrictive means of furthering that interest.[2]

Looking to the first question, the amicus brief states that it “cannot seriously be doubted that the sincere calling to provide charitable and humanitarian aid to refugees constitutes free exercise of religion.” This claim is supported by the Supreme Court’s recent opinion in Hobby Lobby, which deferred entirely—and problematically— to the Plaintiffs’ definition of what constitutes religious exercise. Federal courts have been extremely reticent to take a deeper look at the definition and scope of “religious exercise,” leading to a dearth of theory and guidance on this issue. And while a few Texas cases interpreting TRFRA have looked more deeply into the definition of religious exercise,[3] other cases have followed federal courts’ broad and deferential view.[4] On the other hand, while providing aid may constitute religious exercise, it’s not clear that the federal government’s statutory process for accepting or rejecting refugees implicates the amici’s exercise of religion at all.

The brief’s argument on the second TRFRA question— whether any burden placed on their religious exercise is substantial— is far less convincing. The amici argue that the State’s actions burden religious practice by hindering the ability of religious nonprofits to provide aid, and by requiring agencies to “discriminate against certain refugees solely because they were born in Syria,” which is “repugnant to the religious beliefs of many people of faith, including amici.”[5] While religious organizations may have a right to provide services to refugees in a nondiscriminatory manner, this right is not substantially burdened by Texas’ efforts to force the federal government to comply with its own immigration law, or to enforce contracts the state signed with IRC. The court may well find that neither the federal government nor the IRC breached any law or contract with Texas. However the amici’s religious practice is not curtailed, and there is no impact on their religious expression, by the state’s actions in alleging this misconduct. Amici may have a right to provide aid to Syrian refugees, but nonprofits don’t have a right to make the government deliver Syrian refugees to them.

The brief sums up its argument on the third TRFRA question in one sentence: “Texas’s amorphous claim of a security interest in excluding Syrian refugees from Texas does not approach the compelling government interest necessary to support impinging on the religious freedom of faith-based charities.” Arguing that there is no compelling interest, it does not address the fourth question regarding whether the state’s actions are the least restrictive means of furthering its interest.

It’s hard to extrapolate to future RFRA claims based on this case, as RFRA demands that courts ask whether or not there is a compelling interest in applying the challenged law to the petitioners specifically. In this case, Texas’ suit against IRC and the federal government does not involve the amici at all. Nevertheless it seems safe to say that the government will at least sometimes be able to demonstrate a compelling interest in enforcing its immigration laws on everyone, including religious persons and organizations.

Texas’ suit has been a long shot from the beginning, so the amicus brief is unlikely to be a deciding factor in the court’s ultimate decision. Nevertheless, the brief may spark the imagination of other pro-immigrant rights religious leaders to speak out when “[p]eople of faith feel trapped” between the “State’s [actions] and their religious calling to care for the needy and downtrodden.” While this is a noble goal, the amici’s argument could create risky precedent if successful. If RFRA requires the government to bring Syrian refugees to Texas, it could open the door to demands by groups across the political spectrum for government assistance in carrying out their own religious missions. This goes far beyond the intended and appropriate scope of RFRA.

[1] See, McFaul v. Valenzuela, 684 F.3d 564, 576 (5th Cir. 2012) (“Claims under TRFRA may be resolved by consideration of case law applying RLUIPA and its predecessor, the Religious Freedom Restoration Act of 1993.”); A.A. ex rel. Betenbaugh v. Needville Indep. School Dist.; 611 F.3d 248, 259 (5th Cir. 2010) (“Because TRFRA and its federal cousins—RFRA and RLUIPA—were all enacted in response to Smith and were animated in their common history, language and purpose by the same spirit of religious freedom, Texas courts consider decisions applying the federal statutes germane in applying the Texas statute”) (internal citations omitted).

[2] See, e.g., Merced v. Kasson, 577 F.3d 578, 588 (5th Cir. 2009).

[3] See, e.g., Emack. V. State, 354 S.W.3d 828, 839 (Tx. Ct. App. 2011) (Appellant does not point to evidence that would support a finding that the searches conducted … curtailed his ability to express adherence to his faith through a particular religiously motivated act…); McFaul v. Valenzuela, 684 F.3d at 576-77.

[4] For example, a 2011 opinion held that a jury could conclude that the religious exercise of church groups encompassed not just the right to feed the homeless at all, but to “spontaneously share food with homeless people or to actively seek them out in hard to reach, unpredictable, and ever-changing locations.” See, Big Hart Ministries Ass’n Inc. v. City of Dallas, 2011 WL 5346109 at *4 (N.D. Tex. 2011).

[5] Texas doctrine on what constitutes a “substantial” burden is somewhat muddled, but has been described as a burden that is “real vs. merely perceived, and significant vs. trivial,” with courts focusing on the “degree to which a person’s religious conduct is curtailed and the resulting impact on his religious expression.” See, Merced v. Kasson, 577 F.3d at 588-89.