On Wednesday, a federal judge again stopped the government from instituting a travel ban, on the grounds that President Trump’s revised executive order appears to violate the First Amendment’s Establishment Clause.
How can that be, given that the new order says nothing about religion, removing references to “minority religions” as the basis for admitting refugees from other countries?
“It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion,” conceded Judge Derrick K. Watson of Hawaii.
But in issuing a temporary restraining order, Watson nevertheless concluded that Hawaii was likely to prevail in its claim that the ban was intended to discriminate against Muslims.
He rejected out of hand the government’s claim that because the ban was restricted to only a few majority-Muslim countries, it was not intended to disfavor Muslims: “The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise,” he wrote.
And, citing the decision of the Ninth Circuit that upheld the previous restraining order (as well as various Supreme Court precedents), he dismissed the government’s claim that only the text of the executive order can be used to evaluate its purpose — as opposed to “circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers.”
“The record before this Court is unique,” wrote the judge. “It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.”
Does this effectively preclude any effort by the Trump Administration to ban travel to the United States for the sake of national security? No, said the judge, “it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation.”
But if more evidence is needed that the President’s intent in issuing the revised order was exactly the same as the first time around, just look at his response to Judge Watson’s ruling.
Describing his second order as a “watered down version” of the first, Trump declares, “Let me tell you something. I think we ought to go back to the first one and take it all the way up [to the Supreme Court], which is what I wanted to do in the first place.”
Next stop, the Ninth Circuit. Again.
Update: Thursday morning, a federal judge in Maryland concurred, concluding that “there is a likelihood that the travel ban violates the Establishment Clause,” and that “the Plaintiffs are likely to succeed on the merits of their Establishment Clause claim.”