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Thomas C. BergJune 28, 2018
Abuturab Hashi, a Somali native, at right, was among the protesters of the Supreme Court's decision to uphold the Trump administration's travel ban outside the Federal Courthouse in Minneapolis on June 26. (Richard Tsong-Taatarii/Star Tribune via AP)Abuturab Hashi, a Somali native, at right, was among the protesters of the Supreme Court's decision to uphold the Trump administration's travel ban outside the Federal Courthouse in Minneapolis on June 26. (Richard Tsong-Taatarii/Star Tribune via AP)

The Supreme Court, on the day before Justice Anthony Kennedy announced his retirement, upheld President Trump’s ban on travel to the United States from seven countries, five of them overwhelmingly Muslim. In Trump v. Hawaii, the court majority refused to consider the president’s statements of anti-Muslim hostility that led up to the ban—as a presidential candidate, he had said “I think Islam hates us” and called for “a total and complete shutdown” of Muslims entering the country.

But earlier this month, the court decided in the Masterpiece Cakeshop case that a civil rights commission’s order that a baker serve same-sex weddings was invalidated by the statements of two commissioners displaying hostility toward the baker’s religious belief in traditional marriage.

It is unfair to accuse the court majority of hypocrisy in these two cases, as some have done. But the majority did miss an important opportunity to give teeth to one of the nation’s most basic constitutional principles: the prohibition on official religious bigotry. I filed or joined briefs in support of the religious liberty claims in both cases, regarding the travel ban and the cakeshop, and wish the court had protected both.

The majority did miss an important opportunity to give teeth to one of the nation’s most basic constitutional principles: the prohibition on official religious bigotry.

The majority in the travel ban case held that Mr. Trump’s statements were irrelevant because under previous cases governing immigration policies, courts do not look behind the terms of a policy that is facially (or “on its face”) neutral (in this case, facially religion-neutral). And it is easy enough to distinguish Trump v. Hawaii from Masterpiece Cakeshop v. Colorado Civil Rights Commission on this ground: Courts give great deference to the executive branch in the context of immigration and national security. Moreover, the context of Masterpiece involved statements by commissioners acting as adjudicators; we have a special concern that judges deciding an individual’s case should not give even the appearance of partiality.

But as constitutional scholar Ira Lupu once said, every religious freedom case has a context. The travel ban was also distinguishable because Mr. Trump’s statements were even more clearly indicative of the decision-maker’s motivation than the statements in the Masterpiece case: He alone was the ultimate decision-maker. Moreover, his statements were especially unambiguous in their attack on all people of a religion merely for their membership in it. The Masterpiece statements were quite bad, but Mr. Trump’s were worse.

The court should not have focused solely on the travel ban’s terms, which it said did not show a clear pattern of anti-Muslim intent. (It affected only a few nations, all of which had been subject to restrictions—albeit less severe ones—in the past.) The court should have also considered Mr. Trump’s hostile statements, which post-dated as well as pre-dated his inauguration.

The court should have also considered Mr. Trump’s hostile statements, which post-dated as well as pre-dated his inauguration.

The statements are relevant because they create a strong inference that the United States would not have had this ban were it not for Mr. Trump’s hostility-based promises and his desire to be able to say he had fulfilled them. That reasoning governs in racial-discrimination cases: Even a facially race-neutral law that harms a racial minority is unconstitutional if the motivation for adopting the law was to harm that minority. The same rule should apply to claims of religious discrimination, like this one.

The majority said that this general rule of looking beyond the order’s terms, and considering the decision-maker’s statements, should be inapplicable to immigration policies. The justices disagreed over whether previous case law dictated that conclusion. But there was room in those precedents for the court to write a narrow opinion focusing on Mr. Trump’s uniquely blatant and irresponsible statements that suggested his intent as the sole decision-maker. True, such a ruling would have to have been narrow, to keep from setting a precedent for serious intrusions on executive authority in future cases.

Even a facially race-neutral law that harms a racial minority is unconstitutional if the motivation for adopting the law was to harm that minority. The same rule should apply to claims of religious discrimination.

But the risks from such an opinion would have been worth taking. The president’s statements were virtually unprecedented in modern times in explicitly labeling all members of a religion a danger to the nation. The consequences of the resulting ban are serious for those affected by it: many thousands of entirely innocent people restricted from visiting their family members, pursuing educational and other opportunities, etc.

And the consequences of the statements extend further, poisoning the culture in the country for Muslims already here. Reports of anti-Muslim vandalism and other crimes have spiked in the wake of Mr. Trump’s statements.

The consequences are also harmful for religious freedom as a general principle. Republican support of Mr. Trump’s hostility to Muslims from the beginning (one March 2016 poll showed that 71 percent of Republican voters backed a temporary “total and complete shutdown” of Muslims entering the United States) has helped accelerate the perception that religious freedom is nothing more than a tool for each side to use or discard according to what supports its preferred policy positions. Progressives are selective, too, in denigrating the religious freedom of social conservatives. To preserve religious freedom as a principle, not a tool, we must enforce it for all.

Our constitutional system has many strict rules against official actions that show blatant hostility to an ethnicity, religion or other vulnerable group. The court should have adopted a strict rule here too.

There are three sources of comfort. First, the ban had narrowed and softened in significant ways by the time of version 3.0, after lower-court decisions that struck down the two previous versions. Constitutional protections did not eliminate the harms to Muslims, but they reduced them. Second, plaintiffs whose religious practices are harmed by the ban—for example, mosques or other Muslim organizations seeking to welcome immigrants as members—may still have claims under the Religious Freedom Restoration Act, which has no exception for immigration cases.

Finally, given the court majority’s clear emphasis on the immigration context, we can have reasonable confidence that courts will still act decisively to forbid official animus against Muslims in domestic matters: hostile local resistance to mosques, officials’ attacks on copies of the Quran and so forth. The travel ban decision specifically endorses, and must not be read to undermine, that bedrock principle.

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
JR Cosgrove
5 years 11 months ago

If there is religious bigotry why are 85% of Muslims in the world not affected? This is just another Trump hit piece.

Jay Zamberlin
5 years 11 months ago


Tim O'Leary
5 years 11 months ago

J - Many leftist opponents of Trump are falling into a trap by failing to make distinctions and by trying to trade epithets with Trump, the king of insulters. In addition to your point, it is clear from Trump's visit to Saudi Arabia & his administration's excellent relationships with other "majority-Muslim" allies that he is in no way a bigot to Muslims per se. It is not as if he is lenient on Christian illegal immigrants either - or to lily white political opponents, male or female. He is against immigration that he perceives could increase the risk of crime or terrorism and that might disadvantage poorer US citizens. He is not careful about his wording and will insult any opponent who attacks him, irrespective of race, sex or religion. So, they really don't have a case that he is a specific bigot to anyone, and are undermining their opposition by not making distinctions.

JR Cosgrove
5 years 11 months ago


Trump is crude and often seems childish and lacks self control. But someone called what he is doing, the great unmasking. People are revealing more about themselves because they cannot stop their irrational attacks and suddenly are advocating bad policy just because it is counter Trump. This particular article is a case in point.

Mike Anderson
5 years 11 months ago

This is predominately an immigration issue; a matter of protecting the country. On that basis alone, the President's remarks are essentially irrelevant unless the sole purpose of the immigration restriction was to cause harm to American citizens. But if the President says, e.g., he hates Muslims (or any religion) and that too many of them immigrating here would be detrimental to survival of the country and he has a rational basis for that opinion, then he should be allowed to enact the immigration restriction.
The wedding cake case is distinguishable because it involves only US citizens.

Jay Zamberlin
5 years 11 months ago

Can't argue with that, just the fact of the matter. America is a SJW , leftist rag, parading as an essential "voice" of Catholicism. Catholicism does not change, but what constitutes "the left" certainly does, and they (America) are in lockstep with those prescriptions.

Nora Bolcon
5 years 11 months ago

Catholics need to care about the Supreme Court when they are voting for presidents. This was 100% predictable. Trump literally told us to our faces how he was going to treat Muslims, refugees, immigrants but all the bishops cared about was will he put a horror show, ultra-conservative, pro-life, woman-hating, supreme court judge in. Trump did just what our bishops wanted and he will doubtless be doing it again now that Kennedy is out. So he did what our leadership asked he do so stop complaining. It is not news that white, rich, male, Judges who hate women often also hate everyone else except rich, white, American Men. It was never complicated folks. Sorry - Nope! And now the Trumpster is taxing churches and non-profits. You had it coming Bishops! so I can't feel bad for you. This is what happens when you back a moronic snake for president.

George Obregon
5 years 11 months ago

The religious bigotry is in your mind.
Current events teaches that Islamo-terror sponsoring countries are unwelcome in the association of civilized nations. It's too bad their citizens suffer for their indiscriminate killing of non-military innocents.

Randal Agostini
5 years 11 months ago

A predictably biased viewpoint. I wonder if Professor Berg will apply the same zeal in having the Supreme Court look at the Blaine amendments that exist in 37 state constitutions.No greater religious bigotry exists in America.
Notwithstanding diplomacy, there is a great deal of truth in the President's statements. The Twin towers and several more mass shootings and bombings have been carried out in the name of Allah. Do we now regard this threat as something from the past?

E.Patrick Mosman
5 years 11 months ago

The Washington Examiner laid out the legal basis for the Supreme Court's decision upholding President Trump's travel ban.
"When Congress passed the Immigration and Nationality Act, it gave every president power that goes beyond what presidents can do on most mere domestic questions. The language in the law could not be any clearer than it is:

“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Pretty straightforward.

"Until Congress changes this language, Trump and every president who follows him will have this same authority. What’s more, no president can forfeit this or any other legitimate presidential power by virtue of statements he makes on the campaign trail. He retains the powers Congress gave over immigration, with all the consequences that follow."

rose-ellen caminer
5 years 11 months ago

It's an expression of 21st century racist anti Semitism; directed at Islam and Arabs, this time. The countries on the list are countries where there actually ARE refugees fleeing wars and persecutions and terrorist violence. The Muslim majority countries not listed have no or very few refugees needing asylum to stay alive. The day Saudi Arabia or any of these other Arab /Muslim majority countries not now on the list , have refugees too, they will also be banned. The court underscored that it was a racist policy by at the same overturning the decision to incarcerate Japanese- Americans ;these people we today recognize as bona fide human beings so we apologize for our past treatment of them. But these Muslim refugees who are fleeing bombings, torture, gassing of children, occupation by terrorists or brutal mass murdering tyrannical regimes , is of no concern to us. Stay there and die, you and your children!, is the hateful racist message of the ruling. The Court now, once again is on the wrong side of decency and humanity and this hateful inhumane bigotry expressed in the ruling is now again part of the courts record.

Stuart Meisenzahl
5 years 11 months ago

Rose -Ellen
You are mixing apples, oranges and bananas and calling them all proteins.
The Japanese American case by definition concerned Americans residing in this country....The Trump order concerns non resident/non American Citizens
The very reasoning underlying the Trump Order is the inability to get appropriate historical records from countries with an absence of responsible governments or so torn by war that records are inaccessible or unreliable. So yes, if War creates mayhem in other countries so that the "would be immigrants" cannot be vetted reliably those countries might well end up on an embargo list.
Finally you might recall that ISIS and other terror groups publically made a point of encouraging its members to disappear into the refuges and take the jihad to other countries.

rose-ellen caminer
5 years 11 months ago

The reason for refugees is often war. So this is a catch twenty two as these people are escaping their own government in the case of Syria , Yemen and other war torn countries. Because there may be some terrorists in a population , no one escaping terrorists themselves can be given refuge from them is unconscionable . That the interned Japanese were citizens is beside the point. The recognition that a wrong was done to people we once were bigoted towards is what is relevant. Collective guilt, punishment suspicion is now applied to another group .There are drug traffickers, human traffickers , violent gangs and other criminals coming here from countries not on the list. They are not being vetted either. Most Muslim refugees are not committing terror or crime. This vetting trope is bogus ; collective guilt, collective punishment , is what this ruling expresses; in other words animus towards Muslims; in this case those, men women and children who are in dire need of a safe haven from bombs, terrorists , torture, starvation, chemical weapons, etc., are the victims of this hateful racist policy

Stuart Meisenzahl
5 years 11 months ago

Do a little research ....you will find that both Chad and Sudan(both Muslim majority countries) were taken off the List after they demonstrated that they had reasonable records that could be relied on for vetting.
But I get your point and I am assured that no facts are going to affect your mindset.
If you are going to follow political actors/ characters around quoting their before and after positions you are going to be exhausted in the extreme...Viz Barack Obama "evolved" from his "marriage is by definition only between a man and a woman" to his gay marriage is a right position. Similarly Hillary utilizing the Clinton "Defense of Marriage Act" as a platform item in 2007-2008 to ultimately supporting the Obama Administration's refusal to defend that law in the Supreme Court.

rose-ellen caminer
5 years 11 months ago

The category "refugee" recognizes that there are people who flee their own governments who are killing them. Or are fleeing failed states where terrorists group are enslaving or killing them. So the argument about "proper vetting" of people by the very governments hell bent on killing them, or non functioning failed states, is inherently bogus.Everyone knows that refugees from war torn countries are escaping governments trying to kill them or terrorist groups trying to occupy them. To even make such a dishonest argument is therefore an expression of animus towards a refugee population, in this case Muslims. How many refugees are fleeing Chad or Sudan? The reality is there are probably more ms13 and other violent gangs and drug and human and child traffickers from non banned countries then there are ISIS cells among the banned refugee populations. There are probably more violent gangs and drug traffickers then there are ISIS members, period . The whole national security argument is as bogus as the proper vetting argument.Unless by national security you mean that the presence of Muslims among us is offensive. Which is exactly what is really going on in these bogus arguments and this decision .That men women and children escaping bombs, crucifixtions of children, beheadings, gassing, starvation etc., have the atrocities they are escaping being used used to keep them out, instead of helping them is really an obscene expression of hateful bigotry against people we would rather have die of such atrocities, then have them in our midst.

Its easy to maintain your animus towards Muslims when they are not in your midst. At heart that is the reason for the ban [imo].If these refugees fleeing terrorism and mass murdering regimes were your neighbors you would quickly know that they are no different then you; they are not terrorist fanatics any more then Central Americans are violent gangs members. Your ignorance would be exposed and you'd have no one to hate .Its easy to maintain ones ignorance when there are few Muslims in your midst. Talking about Islam rather then to Muslims. Anti Muslim bigots want to maintain the anti Muslim propaganda[ they have a great cause; a good vs. evil totalizing conflict where we are good and they are evil] and that is why they don't want refugees here debunking their glorious good vs evil narratives.

Stuart Meisenzahl
5 years 11 months ago

Rose Ellen
Interesting how you immediately determine that someone who finds your logic factually flawed must be anti Muslim. Again If you do some research you will find Darfur Crisis in Sudan led to hundreds of thousands of refugees still in Chad and more recently tens of thousands more in Chad from the Central African Republic; many of those trying to leave those Chad Refugee camps for Europe and the US.

Stuart Meisenzahl
5 years 11 months ago

Hell has no fury greater than that of a Law Professor whose Amicus Brief has been ignored by a Court!

Henry George
5 years 11 months ago

There seem to be two tensions present:

One is the belief that God created the World and thus there should not be any
national boundaries and if people wish to migrate or emigrate from one part of the
world to the other - they should be allowed to.

The other is that the rules of Law should be followed.

The standard PC/SJW belief is that there is no such thing as a race.
So how can "Muslims" be considered a race, is being Baptist a racial existence ?

Perhaps people should say they think the President has bigotry toward those who
profess Islam. If he does, then it is somewhat selective because the Travel Ban does
not include all people who follow the Islamic Faith.

As for Refugees, why do Commentators assume that they must come to America when
there are other countries they could go to ? Nothing against anyone fleeing violence and
poverty in Latin America, but why do they skip all the countries in-between and come only
to America, why not Chile or Argentina ? Likewise, why can't those "Muslims" find another
Muslim country to go to ?
The Obverse of "Manifest Destiny" seems at work here.

If we have a moral obligation to accept refugees, why don't we also have a moral obligation
to use what force is necessary to remove from power those dictators/gangs that terrorise
their own people ?

What I don't hear or read from the SJW's is why open Immigration to America is good for
the Poor of America ? Perhaps they have never been desperately poor and so they don't
realise how difficult it is to get a job when the employer knows he can hire an immigrant
"Off the Book" and pay them less than minimum wage while making them work 60 plus hours
a week, knowing that if they get injured on the job the Un-Documented Immigrant will not
file for Worker's Compensation.

The violence in the World by Dictators and Gangs against their own people will never end.
Accepting Refugees is a good act, but ending the Dictatorship and Gang Rule is a
better and longer lasting solution, but it is a much harder one and requires personal
sacrifice rather than good intentions.

Anne Danielson
5 years 11 months ago

It is important to note that while there is a final authority for Catholic Canon Law, which affirms the inherent Dignity of the human person as a beloved son or daughter, Sharia Law has no final authority, thus Sharia Law is not consistent. In fact, some elements of Sharia Law are a gross violation of our Constitution and a gross violation of the inherent Dignity of the human person as a beloved son or daughter.

One can know through both Faith and reason, that it is not "fearmongering", to be concerned about those elements of Sharia Law, which continue to exist within the context of Sharia. Muslim Americans should be equally concerned about those elements of Sharia Law that continue to be a gross violation of the inherent Dignity of the human person as a beloved son or daughter.

It is certainly unjust to fail to discriminate between between those Muslims who respect our founding Judeo-Christian principles, and those who oppose our founding Judeo-Christian principles.

The problem is Sharia. Sharia encompasses these problematic elements; as long as these problematic elements, which are a gross violation of our inherent human Dignity as beloved sons and daughters, remain within Sharia, Sharia Law will remain problematic, including for those Muslims who respect our founding Judeo-Christian principles, and desire to live according to these principles, either in this country or abroad.

A system of government cannot co exist with our Nation's laws as long as it motivates actions that violate those laws that are grounded in our Judeo-Christian principles.

The President of The United States has the fiduciary duty to make this distinction clear least it appear that there is religious bigotry behind the travel band.

John Feehily
5 years 11 months ago

I am not a Trump supporter, but neither do I suffer from Trump Dearangement Syndrome. I can only pray that the author of this hit piece will recover his objectivity. POTUS is not a pastor called to throw his arms open to any groups that has “special needs”. He was elected to defend the country from all enemies, foreign or domestic. In his travel ban he used the same list of countries that his predecessor’s administration also identified as potential threats. I happen to be a pastor and I don’t hate Muslims. But I favor as vigorous a vetting process as possible when making regulations regarding travelers from countries many of whose citizens hate us and favor our demise. While I will continue to pray for conditions to change that will do away with the need for this ban, I applaud the court majority for its reasoned argument.

Daniel Hutnicki
5 years 11 months ago

I think Trump haters arent good in math or geography. Without looking at a map I can tell you that no one from Egypt, Saudia Arabia, Kuwait, Jordan or Lebanon were part of the ban. As far as I know, most of these nations have populations are mostly Muslim. Lets not forget Indonesia which has the largest number of Muslims in the world. So if Trump goal was to prevent Muslims from entering the country, I dont think he is doing a very good job at it. Secondly, if Trump decided to ban people from France, Spain and Ireland, I hardly doubt people would be complaining that he is trying to ban Catholics and Christians. As far as I can tell, most of the countries he banned dont have very good relations with the US. For the lower courts to apply what is said on the campaign trail is insane. All this means is the next generation of politicians will keep their mouth shut so that the courts cant use their words against them. As it is most politicians lie or dont mean what they say when they run for office. For example every candidate has said they would move the embassy to Jerusalem if they became president and none have done so until Trump. Should people be allowed to go the courts and sue the President beause of what he said during the campaign trail. In any case, there would be a point of all or most Muslims were banned. In reality, most werent banned, just a select few

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