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Trump's Travel Ban Is an Attack on Religious Liberty

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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President Donald Trump’s executive order barring the U.S. entry of refugees from seven majority-Muslim countries -- while prioritizing refugees who are religious minorities, namely Christians -- is a shameful display of discrimination against people who are by legal definition innocent and in danger of their lives. It also violates the constitutional value of equal religious liberty.

Whether the constitutional violation could be used by a court to strike down the order is a more difficult question. Classically, the courts haven’t interpreted the Constitution to protect the rights of noncitizens living outside the U.S. To get into court to challenge the order, its opponents will need to argue that it violates the rights of people physically in the U.S. That will take some ingenuity, but it’s a hurdle that could be overcome. The trick will be to claim that visa holders from the seven countries who are lawfully in the U.S. -- for example, people on student visas -- can sue because the order blocks them from leaving and returning as they would otherwise be able to do.

As for the Constitution, the 14th Amendment prohibits the government  from denying anyone the equal protection of the laws. It was designed to combat racial discrimination. But it also extends to unjust discrimination based on religion.

The First Amendment contains two separate guarantees, both of which the order also violates. The free exercise clause has been interpreted to bar the government from preventing a group’s religious practice out of religious animus.

And the establishment clause prohibits government action that endorses one religion over others. It also bars the government from disfavoring one religion over others.

The executive order invidiously treats Muslims differently from non-Muslims. That burdens Muslims’ expression of their religion, violating both the equal protection and free exercise clauses.

It does so in the first instance by singling out majority-Muslim countries for targeting -- without a basis in national security as it claims. And it also singles out Muslims by prioritizing Christians.

As written, the order doesn’t reach all majority-Muslim countries or all countries that produce terrorists. It conspicuously omits Saudi Arabia, from which 15 of the 19 Sept. 11 attackers hailed.

It also doesn’t use the word “Muslim” or “Christian,” instead referring to religious minorities in the seven countries.

But the president himself has clarified to the Christian Broadcast Network and on Twitter that he intends the order to give preference to Christians. The government therefore can’t hide behind the order’s text, as seemingly neutral as it is.

Trump’s explanation also shows why the order endorses Christianity over Islam. It would be all right in theory to prioritize persecuted religious minorities for protection. But Trump’s explanations reflect a symbolic preference for Christian refugees.

This is analogous to declaring the U.S. a Christian country. Indeed, the other countries that overtly prefer Christian to Muslim refugees -- Poland, Bulgaria and Slovakia, for example -- make no bones about saying they are Christian countries with a preference for their co-religionists.

Trump will certainly assert that Congress has full authority over immigration under the Constitution and that it has authorized the president to bar immigrants whose entry he considers to be “against the interests of the United States.” That’s the basis for his whole order.

But this authority can’t override the Constitution or the rights of people who are protected by it.

For these constitutional problems to get before a judge, there must a plaintiff who is within the reach of the U.S. Constitution. And the plaintiff must have standing to sue because he or should would be harmed by the law.

A Muslim visa applicant from Iraq who has been denied access to the U.S. while a Christian Iraqi has been allowed to enter can certainly say he’s been injured by the order. The problem is that because he is a non-U.S. citizen outside the country, he doesn’t (according to the courts) fall under the protection of the Constitution.

The solution is to find someone already in the U.S. who is injured by the order. Even noncitizens have religious liberty and equal protection rights when they are inside the borders.

The best bet would then be for the order’s opponents to bring suit on behalf of a plaintiff who is in the country lawfully but is hurt by the ban. The injury could be the lack of opportunity to leave the country and return. Provided the plaintiff has bought a plane ticket and really plans to travel home and back, not being able to return would count as an injury.

There’s a subtle twist. The order’s ban on immigration from the seven countries is separate from its prioritization of Christian refugees. The latter is supposed to happen only “upon the resumption” of refugee admissions, which the order currently bans for 120 days.

The plaintiff in the U.S. could almost certainly challenge the first part. But the second part is harder to challenge, because the person in this country would be on a lawful visa, not someone being denied refugee status.

One possibility would be to have a plaintiff who was here in the U.S. on a lawful visa who was then also denied refugee status. Another would be for a plaintiff to try to challenge the whole order even though only part of it affects him by saying the whole thing is cut from one anti-Muslim cloth.

Regardless, the legal goal for opponents will be to find a way to get a court to rule on the religious liberty dimensions of the order. It’s not an open-and-shut case by any means. But vindication of the American tradition of religious liberty is a high-stakes proposition -- and courts should be prepared to consider the rights of any valid plaintiff to make that happen.

  1. Technically only the states, but since a case called Bolling v. Sharpe decided along with Brown v. Board of Education, the courts also apply this to the federal government via the Fifth Amendment guarantee of due process. If this footnote makes no sense to you, don’t worry about it, and be glad you skipped law school.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net