The Establishment and Exercise Clauses, First Amendment, cl. 1
The Middle Eastern Temporary Immigration Ban
© 2020 Dan Cofran
“Religion is like a pair of shoes…..Find one that fits for you, but don’t make me wear your shoes.” – George Carlin
On Monday, February 13, the federal court in Alexandria, Virginia preliminarily enjoined enforcement of the Middle Eastern temporary immigration ban. As part of its considering the likelihood that the Muslim plaintiff would succeed after a trial (a requirement for getting a preliminary injunction) the ruling addresses how the ban likely violates the First Amendment guarantee of freedom of religion.
Religious freedom is the very first freedom listed in the First Amendment, indeed, as a “double-barreled” right, as follows:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . [followed by freedom of speech, the press, assembly and petitioning government for grievances].”
There’s an historical reason freedom of religion is the first freedom in the Bill of Rights. Feelings about religious freedom were very strong in Colonial America. Most Europeans started coming America in the 1600s in order to escape religious persecution in, for example, England and France, where those countries had official religions, the Church of England in England (an Anglican form of Catholicism), and Roman Catholicism in France. The early Americans were Protestants.
Colonial Americans wanted nothing to do with official or preferred religions. Assertions today that the United States “is a Christian nation” are incorrect and are disrespectful to Jews, Muslims, Buddhists, Sikhs, Native Americans tribal religions, agnostics and atheists.
The two religious freedom clauses in the First Amendment are referred to the “Establishment Clause” and the “Free Exercise Clause.”
The Establishment Clause prohibits the government from establishing an official or preferred religion, e.g., Christianity, for the nation. It prohibits any governmental endorsement or indication of a preference for one religion over another. Similarly, it prohibits any indication that a religion is unfavored or somehow second-class. Government must be “denominationally neutral.”
The Free Exercise clause guarantees “people,” not just “citizens,” in the United States the right to believe or not believe in any religion they wish. While it protects all religious beliefs, religious practices (polygamy, animal sacrifice) can be limited if government can meet a high “strict scrutiny” test showing the limitation serves a compelling secular governmental interest and is narrowly drawn to meet that interest.
The Establishment clause comes into play regarding the immigration ban, particularly, whether it in reality is a Muslim ban that relegates Islam to a lesser status than other religions in the United States. The same “strict scrutiny” test applies requiring proof of a compelling secular governmental interest and is narrow prescription to meet that interest.
The Supreme Court in Lemon v. Kurtzman (1971) summarized three factors used for determining if a governmental action creates an “entanglement” between church and state in violation of the Establishment clause. (1) Government action must have a secular legislative purpose, (2) the principal or primary effect must neither advance nor inhibit religion, and (3) the action must not foster an excessive government entanglement with religion.
These have proven difficult and subjective to apply, making the separation between church and state “far from being a wall” and more like “a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”
However, Supreme Court decisions have included helpful observations. Justice Sandra Day O’Connor in a 1984 concurring opinion used a measure easily understood and thereafter approved in number of decisions that rings true.
According to Justice O’Connor, the Establishment Clause “prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.” Specifically, government action violates the Establishment Clause if it “sends a message to nonadherents [of a religion or agnostics or atheists] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”
The Establishment Clause’s “insider/outsider” perspective demonstrates a very important feature. The court looks not only to the specific “outsiders” before the court, in these cases Muslim green card and visa holders, but to all such persons in the nation, in this case 3.3 million Muslims in the United States, to evaluate whether they are being treated as outsiders in our political community.
The Virginia and other federal courts passing on the Middle Eastern travel ban all have rejected the government’s claim that judicial review was limited to the naked text of the travel ban executive order . . . neutral on its face . . . to determine if it in fact was religiously motivated. The courts instead looked to the many “centerpiece” statements made during and after the recent presidential campaign to ban Muslims from the United States.
So far, the courts have provided us with a badly needed Constitutional Law“ refresher course. Let’s hope they keep it up or the need goes away.