Animus Too The Go Ban

By Corey Brettschneider, Micah Schwartzman too Nelson Tebbe

Donald Trump's lawyers are seeking to defend his ban on travel from vi Muslim bulk countries. Today, oral declaration volition last heard past times the Fourth Circuit Court of appeals too it volition last heard past times the Ninth Circuit on Monday.

In amicus briefs filed inwards the cases, nosotros fence that the executive guild should last struck downward because it conflicts amongst the Constitution. The briefs were signed past times over 45 prominent scholars of constitutional law. Despite their differences, these scholars concur that the ban is unconstitutional because it violates a marrow constitutional principle: no police tin ship away last based on animus against a disfavored group. This regulation transcends judicial too ideological divisions, too is the reasoning most probable to prevail inwards the Supreme Court, should the locomote ban cases come upward earlier the Justices.

The lower courts based their decisions on the First Amendment’s Establishment Clause, which is ordinarily understood to ask a “separation of church building too state.” Controversially, the Supreme Court has interpreted the Establishment Clause every bit requiring that laws conduct keep a secular purpose, rather than religious one. In the locomote ban cases, the lower courts relied on this secular operate doctrine to decline Trump’s order, asset that its operate was to accept aim at a item religion.

While nosotros concur amongst that approach, we fence that the locomote ban also violates a distinct too uncontroversial Establishment Clause rule, namely the “animus doctrine.” That regulation forbids the regime from acting on the ground of an illegitimate purpose, such every bit bias or prejudice toward whatsoever item religion. As our lawyer Joshua Matz explains inwards the briefs, the animus doctrine provides the clearest explanation of why Trump’s publicly-announced motives brand the locomote ban unconstitutional nether the Establishment Clause, which has long been understood to prohibit the regime from favoring or disfavoring whatsoever item religion.

Moreover, the dominion against official activeness based on animus is key non entirely to the Establishment Clause, but also to the Free Exercise Clause too to the Equal Protection Clause. Although these are unlike provisions amongst distinct histories, they portion the regulation that animus cannot serve every bit a legitimate governmental purpose. That has been made specially clear inwards a serial of decisions past times Justice Anthony Kennedy, who has played a critical role inwards cases involving all 3 clauses.

First, the Establishment Clause itself forbids regime from acting on the ground of religious animus. Most recently, inwards Town of Hellenic Republic v. Galloway, the Supreme Court upheld a local government’s policy of allowing prayers earlier its meetings. Writing for the Court, Justice Kennedy emphasized that it would conduct keep been a unlike representative had the town denigrated or discriminated against religious minorities. Official acts that conduct keep the operate too trial of harming a specific faith are forbidden. 

This anti-animus dominion is also key to the Free Exercise Clause. In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court struck downward an ordinance banning creature sacrifice on the dry ground that it was based inwards animus toward the Santeria faith (which used creature sacrifice inwards religious activities). Justice Kennedy explained that the text, structure, too history of the ordinance made clear that its operate was to discriminate against a item faith. Importantly, he also expressed his ain thought that statements made past times populace officials are an of import source of bear witness almost a law’s motivation. When officials tell us that they are acting out of bias, courts accept them seriously.

Lastly, the regulation expressed inwards Town of Hellenic Republic and inwards Lukumi is deeply rooted inwards the Supreme Court’s agreement of equal protection. In Romer v. Evans, the province of Colorado passed an amendment to its province constitution that sought to bound LGBT rights. Again writing for the Court, Justice Kennedy held that the Colorado amendment was based on animus against LGBT persons too was hence unconstitutional.

We know that Trump’s locomote ban is also based on animus. Trump too his senior advisors conduct keep repeatedly made statements to this effect. During his campaign, he said that he wanted to ban Muslims from entering the country, too he continues to limited this thought on his website. At this point, in that place is an extensive populace tape documenting statements past times Trump too his advisors, both earlier too later on the inauguration, showing that the ban is based on bias.

Trump’s lawyers say his existent delineate of piece of employment organization is national security. Courts should last skeptical almost this claim. Where in that place is potent bear witness that the executive’s principal motive is animus, it is non entitled to the usual deference that it receives inwards matters of security. That is the lesson painfully learned from Korematsu v. United States, inwards which the Supreme Court deferred to the government’s error-ridden national safety justification for the internment of Japanese Americans during World War II. That need for deference was shot through amongst racial prejudice, too the Court should conduct keep rejected it. Much the same is truthful today. When the President’s principal motive is animus against a religious group, his guild cannot last saved past times post-hoc rationalizations that appeal to national security.

These cases involve other questions every bit well, including whether the plaintiffs conduct keep standing to sue too whether these constitutional rights apply to noncitizens or those exterior the territory of the United States. While nosotros believe that these complex matters tin ship away too should last resolved inwards favor of the challengers, nosotros focus on merely 1 key question, namely how the courts should empathise nonestablishment, gratis practise too equal protection.

One of the founding principles of this nation is that our regime welcomes those of all faiths too rejects religious intolerance. President Trump’s guild contravenes our nation’s fundamental commitment to religious liberty too to the equal protection of the laws. Federal courts should declare it unconstitutional.

*Cross posted on Takecareblog.com