Written by Don Byrd
[UPDATE 2/16: The Trump administration has announced plans to replace the current Executive Order, rather than appeal the 9th Circuit’s ruling, according to Associated Press.]
Yesterday, the 9th Circuit Court of Appeals ruled against the Trump Administration’s bid to reinstate the President’s controversial Executive Order on immigration. The ruling leaves in place a district court’s decision to temporarily halt enforcement of the Order while a lawsuit brought by the states of Washington and Minnesota proceeds.
Importantly, the Ninth Circuit’s decision specifically declines to address at this stage of the litigation the religious discrimination claims in the lawsuit brought by the states of Washington and Minnesota. Here is that excerpt from the opinion:
The States’ [religious discrimination] claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.
At the same time, the ruling did address a point of contention regarding those allegations of religious preference. In evaluating Establishment Clause claims, the Court reminded, the government’s purpose does matter:
The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered 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, including sections 5(b) and 5(e) of the Order. 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.
You can read the 29-page ruling here.
For more, see the Baptist Joint Committee’s response to the President’s Executive Order.