What did today’s ruling by a federal appeals court regarding President Trump’s executive order on immigration (aka travel ban) say about whether the ban is unconstitutional for discrimination against Muslims?

Essentially, the appeals court described the religious-discrimination arguments but did not decide them.  Instead, the court reached its decision based on other grounds.

This post briefly discusses the religious-discrimination arguments described in today’s ruling.

On Friday, a federal trial-judge ruled that the federal government must not enforce the travel ban pending a full hearing on the ban’s lawfulness.  The government appealed the order.

Today, the federal appeals court upheld the trial judge’s preliminary injunction against the ban.  The court did so primarily on the grounds that the executive order likely did not provide procedural protections required by the Due Process Clause of the U.S. Constitution’s Fifth Amendment (“[n]o person shall … be deprived of life, liberty, or property, without due process of law”).

The opponents of the ban also argued that the ban intended to disfavor Muslims and thus violates the First Amendment’s prohibition of any “law respecting an establishment of religion.”  This prohibition is referred to as the “Establishment Clause.”

The appeals court explained that a law violates the Establishment Clause, and is thus unenforceable, if the law either:

1. “has a religious, not secular, purpose”; or

2. officially prefers one religious denomination over another.

(quoting and citing Supreme Court cases from 1971 and 1982)

The appeals court said that the reason behind this rule is that endorsement of a religion by the government “sends the ancillary message to . . . nonadherents ‘that they are outsiders, not full members of the political community.'”  (quoting a Supreme Court decision from 2000)

The opponents also argued that the ban’s disfavoring of Muslims violates the Constitution’s prohibition of any law that denies “equal protection of the laws.”  The requirement of equal protection is explicit in the Fourteenth Amendment (“No State shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.”) and implicit in the Fifth Amendment (applicable to the federal government), per the Supreme Court.

The appeals court stated that the Equal Protection Clause prohibits the government from “impermissibly discriminating among persons based on religion.”

To prove their case, the challengers showed the court “evidence of numerous statements by the President about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the Executive Order was intended to be that ban ….”

As to whether the appeals court could consider only the language of the executive order (and not evidence of the intent behind the order), the court found that it is “well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”

For this “well established” proposition, the appeals court quoted a 1993 Supreme Court opinion:   “The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”  The court also cited 1982 and 1977 Supreme Court opinions, including one that it characterized as “explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose.”

The appeals court stated that the merits of these religious-discrimination arguments “raise serious allegations and present significant constitutional questions.”

The appeals court, however, postponed a decision regarding the religious-discrimination arguments until later, when the appeal is fully heard.  The appeals court reasoned that it had already found  the immigration ban unconstitutional on other grounds (Fifth Amendment Due Process) and thus did not need to consider additional grounds now.

The full opinion of the appeals court is here.  The appeals court that issued the ruling is the U.S. Court of Appeals for the Ninth Circuit.


(Picture at the top:  A picture I took of a mosque in Israel that we visited in December 2016.)