Trump v. Hawaii: Will the Establishment Clause Continue To Protect Religious Minorities From Discrimination?

On April 25, the Supreme Court heard oral argument in Trump v. Hawaii, a case challenging President Trump’s third and latest ban on travel for nationals of several predominantly Muslim countries. The Court’s decision will most immediately impact the individuals who are barred indefinitely from coming to the United States, as well as their family members and extended communities here in the United States. But more broadly, the outcome in this case will have important repercussions for the ongoing meaningfulness of the First Amendment’s most basic protection against religious discrimination.

Much of the briefing and oral argument before the Supreme Court revolved around statutory questions about the President’s authority to suspend entry into the United States and the Immigration and Nationality Act’s prohibition on nationality-based discrimination in the issuance of immigrant visas. But at its core, this case is really about whether the Supreme Court will hold the President accountable for demonizing and vilifying Muslims and Islam, or whether the justices will turn a blind eye to his blatantly discriminatory rhetoric and policies.  Regardless of the grounds for the decision, a ruling in favor of the government would send the distinct message that political leaders can gleefully denigrate a religion and its adherents—and then proceed to implement unjustified policies that target and disfavor that religion—without consequence. Such an outcome would have the practical impact of gutting the core of the Establishment Clause. It would send the message to plaintiffs in this litigation, and to religious minorities across the country, that the Constitution’s promise of religious freedom has lost its practical significance.

The record of religious animus before the Supreme Court is undeniable.  Throughout his campaign, Trump made a “total and complete shutdown” on Muslims entering the United States a signature promise. He vowed to enact such a ban within the first 100 days of his Presidency. He also put forward a steady stream of proposals to ban, surveil, and register Muslims, and regularly peddled misinformation and false claims about Muslims. Over the course of his campaign, hate incidents against Muslims and persons perceived to be Muslim increased dramatically, and many perpetrators claimed to be Trump supporters.

Within seven days of taking office, President Trump made good on his promise and enacted a Muslim ban—one that is now in its third iteration after multiple court challenges. Alongside the bans, Trump and his administration have put in place a web of policies that have systematically resulted in decreasing the number of Muslims entering the United States: a virtual ban on refugees; “extreme vetting” measures that include extensive social media collection and monitoring; tighter restrictions on immigration benefits; and a border environment where travelers feel hesitant to come to the United States because they worry about being harassed or denied entry.

It is only in this context that the full impact of the Muslim ban can be understood. Beyond its explicit prohibitions on entry into the United States for all immigrants and most non-immigrants from the named countries, the Muslim ban is the touchstone of the Trump Administration’s overall attack on Muslim communities, and its efforts to chip away at their ability to live freely and equally in the United States. The President’s words and actions have left no doubt that the ban is motivated by animus towards Muslims and Islam, and the Supreme Court decision—whichever way it comes out—will inescapably be understood in that context.

It is entirely fitting, against this backdrop, that the Solicitor General ended his Supreme Court argument by noting that President Trump has praised Islam as “one of the greatest countries of the world.” Islam, of course, is not a country. But the tone-deaf and inaccurate remark fits perfectly with this administration’s overall approach to Islam and Muslims: a complete lack of understanding coupled with a reflexive association—supported by no evidence—that writ-large, Islam and Muslims are to be treated as a monolith and a threat. The deep significance of this case therefore goes beyond the specific legal issues it raises, and presents the Court with this fundamental question: will it, as it did in Korematsu, allow the government to take draconian measures in the name of national security even when those measures are unsupported by evidence and clearly discriminate against a protected group? Or will it step in and ensure that constitutional protections continue to mean something for those most in need of its protection?

In a matter of weeks, we will know how the Supreme Court has answered these questions.  And all of us—whether we are directly impacted by the President’s policies or not—should hope that the Court gets it right and repudiates government-sanctioned religious bigotry and discrimination. After all, what is ultimately at stake here is the integrity of the Establishment Clause and of our Constitution’s guarantee of equality for all.

Sirine Shebaya (Twitter: @SirineShebaya) is a Senior Staff Attorney with Muslim Advocates. Muslim Advocates is a member organization of Alliance for Justice.