This post briefly describes the religion aspects of three recent rulings by federal judges regarding President Trump’s revised executive-order on immigration (aka the revised travel-ban).

In all three cases, opponents of the ban argued that it intended to disfavor Muslims and thus violates the U.S. Constitution’s prohibition of any “law respecting an establishment of religion,” i.e., the First Amendment’s “Establishment Clause.”

The opponents also argued that the ban violates the Constitution’s guarantee of equal protection of the laws, i.e., the “Equal Protection Clause.”

On March 15, 2017, a federal judge in Hawaii found that the revised travel-ban likely violates the Establishment Clause.  The judge reasoned that the statements of Trump and his advisors showed the ban’s purpose is to temporarily suspend the entry of Muslims into the United States.

The next day, a federal judge in Maryland reached the same conclusion, finding the revised travel-ban clearly resembles the action Trump described at one point as a “Muslim ban.”

Eight days later, in a third case, a federal judge in Virginia concluded that the revised travel ban likely does not violate the Establishment Clause, reasoning that the statements of Trump and his advisors related more to the original travel-ban and were not sufficiently connected to the revised travel-ban to convince the judge that the predominate purpose of the revised travel-ban is to discriminate against Muslims based on their religion.

The Virginia judge also rejected the plaintiffs’ argument that the revised travel-ban violates the Equal Protection Clause, rejecting the argument in light of binding precedent establishing that courts must give the President a very high degree of deference in national-security and immigration matters.

In Hawaii—Considering the Statements of the President and His Men

Judge Derrick K. Watson, a federal district court judge in Hawaii, explained in his ruling that Supreme Court precedent provides that in order for an action by the government not to violate the Establishment Clause, the action “(1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion.”  He further explained that if the government action fails any one of these prongs, the action is unconstitutional and may be prohibited by the courts.

The government argued that the revised travel-ban is religiously neutral because the ban applies to every individual in six high-risk countries, including millions of non-Muslims.  Judge Watson pointed out that each of these countries are 90.7% to 99.8% Muslim and that it can be inferred that targeting these countries targets Islam.  The court did not rule based on this inference alone, though.

In making his decision, Judge Watson closely considered evidence besides the text of the travel ban (such as the President’s statements), rejecting the government’s argument that courts cannot consider such evidence when evaluating executive orders.  This rejection will likely be a major issue before the appeals court and the Supreme Court, too.

Judge Watson’s decision was primarily based on what he described as “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.”  The evidence cited by the court included:

  • In December 2015, the Trump campaign issued a press release which said, “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”
  • In March 2016, Mr. Trump said, during an interview, “I think Islam hates us.” Mr. Trump was asked, “Is there a war between the West and radical Islam, or between the West and Islam itself?” He replied: “It’s very hard to separate. Because you don’t know who’s who.”
  • Trump was asked: “The Muslim ban. I think you’ve pulled back from it, but you tell me.” Mr. Trump responded: “I don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”
  • Trump: “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.”
  • Rudy Giuliani explained on television how the executive order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”

Reviewing these facts, Judge Watson found that “any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.”

Judge Watson said that there was a dearth of evidence suggesting a national-security purpose for the travel ban.  The court explained, though, that President Trump’s past conduct does not “forever taint any effort by it to address the security concerns of the nation.  Based upon the current record available, however, the Court cannot find the actions taken” between the prior travel ban and the revised one “to be ‘genuine changes in constitutionally significant conditions.’”

In view of these factors, Judge Watson found that the plaintiffs were likely to succeed in showing that the travel ban violated the Establishment Clause.  Accordingly, after confirming the presence of the remaining necessary factors, Judge Watson ordered the government not to enforce or implement the revised travel ban.

In Maryland—A Second Judge Finds the Revised Travel-Ban Unconstitutional

The next day, March 16, Judge Theodore D. Chuang, a federal district court judge in Maryland, issued an order reaching the same conclusion as Judge Watson.  Judge Chuang explained that while the revised travel ban does not resemble a response to any recent national-security risk, “it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban.  Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban.  Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.”

In Virginia—The Opposite Conclusion

Eight days later, Judge Anthony J. Trenga, a federal district court judge in Virginia, concluded differently than Judge Watson and Judge Chuang.  Judge Trenga found that the plaintiffs in the case before him were not likely to succeed in showing that the travel ban violated the Establishment Clause.

Judge Trenga’s description of the law governing the decision was very similar to Judge Watson’s analysis, but Judge Trenga found that the changes made in the revised travel-ban made President Trump’s pre-revision statements about a Muslim ban less probative:  “[T]he substantive revisions reflected in [the revised travel-ban] have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of [the revised travel-ban] is to discriminate against Muslims based on their religion and that [the revised travel-ban] is a pretext or a sham for that purpose.”

In other words, Judge Trenga saw the connection between President Trump’s statements and the original travel ban, but found the connection between Trump’s statements and the revised travel ban much more tenuous—sufficiently dis-connected that he found that the plaintiffs are unlikely to prove that the revised ban is intended to discriminate against Muslims because of their religion.

Judge Trenga explained that a different finding would have him “looking behind” President Trump’s judgments regarding national security, which would result in “’psychoanalysis of a drafter’s heart of hearts,’ all within the context of extending Establishment Clause jurisprudence to national security judgments in an unprecedented way.”

Judge Trenga also found that the plaintiffs are unlikely to succeed on their argument that the revised travel ban violates the Constitution’s guarantee of equal protection of the laws (the Equal Protection Clause) because it targets Muslims for differentiated treatment.

Precedent binding Judge Trenga’s decision-making from the U.S. Court of Appeals for the Fourth Circuit provided that “where a particular immigration measure is facially neutral and has a rational national security basis that is ‘facially legitimate and bona fide,’ such a measure will survive an Equal Protection Clause challenge. ‘Distinctions on the basis of nationality may be drawn in the immigration field by Congress or the Executive . . . [and must be upheld] [s]o long as [they] are not wholly irrational.’”

In light of this highly deferential standard, Judge Trenga found that the revised travel ban does not violate the Equal Protection Clause.

As a result of these findings, Judge Trenga denied the plaintiffs’ motion to enjoin the revised travel ban.

Conclusion:  Probably at the Supreme Court Late This Year or Early Next

Since Judge Watson’s order was a national order and the decision of one federal district court judge does not overturn the decision of another federal district court judge, the revised travel-ban stands as enjoined under Judge Watson’s order.

In analyzing the question of whether the revised travel ban violates the Establishment Clause, all three judges largely agreed on the standards applicable to determining the answer.

Judge Trenga simply did not find the statements of the President and his advisors sufficiently related to the revised travel-ban to convince him that the ban was probably for the purpose of religious discrimination.  The other two judges, however, were sufficiently convinced by those statements to find the ban likely unconstitutional.

The Maryland and Virginia rulings will both be appealed to the U.S. Court of Appeals for the Fourth Circuit in Richmond.  The Hawaii ruling will be appealed to the U.S. Court of Appeals for the Ninth Circuit in San Francisco, the court that upheld a finding that the original ban is unconstitutional.  The decisions of those appeals courts will likely be appealed to the U.S. Supreme Court.

The Supreme Court’s current term ends in June, so it will likely be at least late this year, after the Court begins its new term in October, before a final decision will be rendered.

 


 

Sources

Full opinion of Judge Watson (Hawaii)

Full opinion of Judge Chuang (Maryland)

Full opinion of Judge Trenga (Virginia)