Amdt1.1.2.1.1.2.11 Non-Financial Assistance to Religion: Trump v. Hawaii

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

An entirely different standard governs the constitutionality of a President's "national security directive regulating the entry of aliens abroad" that is "facially neutral toward religion," as the Court held in Trump v. Hawaii.  1 The plaintiffs in that case sought a preliminary injunction against a presidential proclamation that suspended or restricted the entry of foreign nationals from specified countries, arguing, in relevant part, that the proclamation "was issued for the unconstitutional purpose of excluding Muslims."  2 While the text of the document was facially neutral, restricting entry on the basis of national origin, the plaintiffs highlighted "a series of statements by the President and his advisors" suggesting that the President had intended to target immigration of Muslims.  3 The Court held that the proper standard to evaluate this Establishment Clause claim was the "circumscribed judicial inquiry" prescribed "when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen."  4 Under this standard, the Court would consider "whether the entry policy [was] plausibly related to the Government's stated objective to protect the country and improve vetting processes," and the plaintiffs' "extrinsic evidence" would not render the policy unconstitutional "so long as [the policy could] reasonably be understood to result from a justification independent of unconstitutional grounds."  5 Under this lenient standard, the Court upheld the proclamation, concluding that the plaintiffs had "not demonstrated a likelihood of success on the merits of their constitutional claim."  6

Footnotes

  1.  Jump to essay-1585 U.S. ___, No. 17-965, slip op. at 29 (2018).
  2.  Jump to essay-2Id. at 24.
  3.  Jump to essay-3Id. at 26.
  4.  Jump to essay-4Id. at 30. The Court cited Kleindienst v. Mandel, a case in which American citizens who wished to receive the speech of a foreign national challenged the denial of the speaker's visa under the First Amendment. 408 U.S. 753, 756–57 (1972).
  5.  Jump to essay-5Hawaii, slip op. at 32.
  6.  Jump to essay-6Id. at 38.