Written by Don Byrd
The Trump Administration claims the President’s controversial “travel ban” Executive Order has nothing to do with religion in a brief filed with the U.S. Supreme Court last week. A federal District Court in Hawaii and the 4th Circuit Court of Appeals, the White House argues, were both wrong to rely on campaign statements made by then-candidate Trump calling for a ban on Muslims entering the U.S. in finding the order violates the separation of church and state.
The 4th Circuit found the campaign statements demonstrated that the primary purpose of the order was religious and discriminatory, and that the President’s stated national security rationale was pretext. But the administration in its brief counters this argument in three primary ways: 1) pointing to what it calls the “religion-neutral text” of the order; 2) citing the deference typically afforded the President in national security determinations, and 3) emphasizing the fact that most of the troubling statements suggesting an unlawful, discriminatory purpose were made during the campaign and not when he was President.
It is unclear whether the Supreme Court will choose to address the question of religious discrimination and religious purpose to resolve the constitutional dispute over the order. The 9th Circuit, for example, upheld an injunction halting much of the order on the basis of immigration law, without touching on the church-state claims made by the plaintiffs. If the court does wade into the religious liberty issues, they have the opportunity, as BJC Executive Director Amanda Tyler has said, “to make clear that the First Amendment prohibits relegating certain faiths to second-class status or using religious identity as an excuse for exclusion.”
For more, see the Baptist Joint Committee’s full statement about the Supreme Court’s decision to take up the travel ban cases, the BJC’s response to President Trump’s revised executive order. (The BJC criticized the initial executive order as a “back-door bar on Muslim refugees.”)
The cases challenging the constitutionality of the revised “travel ban” Executive Order are scheduled to be heard by the Supreme Court in October. Stay tuned.