Trump’s order violates Establishment Clause, say 18 states

And they make an excellent point.

World Relief Seattle receives refugees. Photo courtesy of World Relief/Amanda Wingers

World Relief Seattle receives refugees. Photo courtesy of World Relief/Amanda Wingers

Yesterday, 16 states (including my own Connecticut) filed an an amicus brief supporting Washington and Minnesota in asking a federal appeals court to uphold the suspension of President Trump’s executive order banning immigrants from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen.

Along with their claim that they have suffered harm because of the Trump order, all of the states contend that that it violated the First Amendment’s Establishment Clause. Here’s how.


The order states that once refugees from those countries are again being admitted to the U.S., claims are to be prioritized “on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”

Since all of the named countries are majority Muslim, this means that Muslims cannot be prioritized for admission even if they have been the object of religious-based persecution.

Is there any doubt that Muslims in those countries have suffered religious persecution? Not even in Donald Trump’s mind.

As he said last week at the National Prayer Breakfast, “We have seen peace-loving Muslims brutalized, victimized, murdered, and oppressed by ISIS killers.”

But too bad for them. According to the executive order, they belong to a religiously disfavored class.

The Establishment Clause (“Congress shall make no law respecting an establishment of religion…”) means that the government cannot draw invidious distinctions among religions, favoring some while disfavoring others. In the name of protecting the security of the country, the executive order does just that.

There is no doubt that the President intended to favor Christians and disfavor Muslims.

In an interview with CBN’s David Brody January 27 — the day he issued the order — Trump (falsely) claimed that Syrian Christians had a much harder time getting into the United States as refugees than Syrian Muslims. “I thought it was very, very unfair,” Trump said. “So we are going to help them.”


On January 28, Trump advisor Rudy Giuliani told Fox News, “I’ll tell you the whole history of it: When he first announced it, he said ‘Muslim ban,’ He called me up, he said, ‘Put a commission together, show me the right way to do it legally.’”

In short, the executive order uses national security as a pretext for keeping out members of one religion and letting in members of another. This is not just not doing it legally, it’s not doing it constitutionally.

Update: The U.S. Commission on International Religious Freedom comes out against the executive order, including for its prioritization of religious minorities.” Said USCIRF chair Tom Reese, “The United States should consider as refugees all those who are persecuted based on their religious beliefs or affiliation, with prioritization based on vulnerability and the severity of persecution.”

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