Written by Don Byrd
A federal judge in Hawaii has issued a temporary restraining order halting key sections of President Trump’s revised Executive Order on immigration. The judge ruled that the President’s directive likely violates religious liberty rights under the Establishment Clause of the Constitution.
As I posted earlier, the new Order, among other changes, removes the explicit preference for refugees of a particular religious status. Despite that neutral language, however, the judge found that the government failed to demonstrate that it acted with a secular purpose as the Establishment Clause requires. Instead, the judge emphasized, past statements made by President Trump and administration officials indicate that “religious animus” is the driving motivation behind the revised “travel ban.”
Below are a few key quotes from the opinion, which puts in place a temporary restraining order prohibiting the enforcement and implementation of Section 2 (halting immigration from six overwhelmingly Muslim countries) and Section 6 (suspending the refugee program) of the Order nationwide:
Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs . . . are likely to succeed on the merits of their Establishment Clause claim.
The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”
[T]he Court emphasizes that its preliminary assessment rests on the peculiar circumstances and specific historical record present here.
The judge further stated that “an expedited hearing to determine whether this Temporary Restraining Order should be extended.”