Written by Don Byrd

Just last week, the 4th Circuit Court of Appeals affirmed a nationwide halt to President Trump’s revised executive order on immigration because, the court found, its true purpose was to disfavor Muslims in violation of the First Amendment. Now, the Justice Department has asked the U.S. Supreme Court to reverse that ruling and reinstate the order, which prohibits travel to the United States for those from certain Muslim-majority countries.

What does immigration have to do with religious liberty? Potentially a lot. Policies that would exclude people from the United States simply because of their religion, creating a religious test for entry, would be abhorrent to our national commitment to religious freedom. Yet, as a candidate, President Trump promoted and defended just such a policy, sparking a firestorm of controversy. The Baptist Joint Committee’s then-director Brent Walker called Trump’s proposal “un-American.”

Those campaign proposals are now central to the current legal argument over the lawfulness of the President’s revised order.  The plaintiffs argue they demonstrate that the underlying purpose of the order is to discriminate against Muslims, even though the revised order itself does not mention religion. Establishment Clause law clearly dictates that the purpose of a law may be relevant to whether it violates the First Amendment’s separation of church and state doctrine. But the government argues that campaign statements are not fair game when inquiring into the purpose of a presidential order, let alone one that addresses national security determinations.

In a filing yesterday, the government asked the Court to lift the injunction against the order while considering their appeal, and to expedite the review process. The questions presented to the court, the petition states, are whether the plaintiffs in this case can even challenge the denial of visas in court, whether the order violates the Establishment Clause, and whether the nationwide injunction halting provisions of the order is too broad.

The 9th Circuit is also considering a religious liberty challenge to the revised order and is expected to rule soon.