Written by Don Byrd
The 9th Circuit’s refusal to reinstate President Trump’s Executive Order on immigration specifically declined to address the church-state violations alleged in that case. But on Monday, a federal judge in Virginia halted enforcement of the Order in a ruling that emphasizes those Establishment Clause claims.
The judge determined the claims alleging a violation of church-state separation are likely to succeed because the previous statements of President Trump and others support the state’s argument that the policy was directly connected to an animus toward Muslims rather than national security. The White House has not produced any evidence, the judge wrote, to support their contrary contention.
Responding to the administration’s view that such an injunction amounts to an improper review of the President Trump’s national security judgments, the court writes:
The Establishment Clause concerns. . . do not involve an assessment of the merits of the president’s national security judgment. Instead, the question is whether the EO was animated by national security concerns at all, as opposed to the impermissible motive of, in the context of entry, disfavoring one religious group and, in the area of refugees, favoring another religious group.
Addressing the charge that religious discrimination cannot be inferred from a policy that affects only a small percentage of Muslims, the court responds:
…the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution.
As opposed to the nationwide stay at issue in the 9th Circuit case, the Virginia court’s injunction impacts enforcement only in that state.