By Moustafa Bayoumi
27 Jun 2018
The US Supreme Court has upheld the Trump administration’s Muslim ban. By doing so, the court has genuflected before a deeply bigoted president and has sacrificed constitutional freedoms in the process. It’s almost impossible to describe the mixture of rage and vulnerability that I feel knowing that the ban, a dagger in the heart of the first amendment principle of religious neutrality, is now law.
At the centre of the court’s 5-4 decision is a degree of deference to the executive branch that is tantamount to nearly blind obedience. Trump’s many bigoted statements and actions denigrating Muslims are well known. And yet the Supreme Court decided that none of that matters when considering the constitutionality of this ban. This conclusion legitimates Trump’s bigotry by ripping up the Establishment Clause, one of the constitutional protections of religious freedom, into a thousand little pieces.
The court’s reasoning is as flawed as it is timorous. Chief Justice Roberts wrote that the notable provision of the Immigration and Nationality Act “exudes deference to the president in every clause”, and since the proclamation articulating the ban “says nothing about religion”, the court cannot concern itself with the motivations of the person who put the ban into motion, namely Donald Trump. The ban is “squarely within the scope of Presidential authority”, Roberts wrote.
(Justice Sotomayor is having none of this. “Deference,” she explained in her dissent, “is different from unquestioning acceptance”, and she rues “the majority’s apparent willingness to throw the Establishment Clause out the window and forgo any meaningful constitutional review at the mere mention of a national-security concern.”)
The court’s abdication of responsibility to preserve constitutional protections of equality for all becomes all the more glaring when we consider that, earlier this month, the exact same court issued these very words: “In this country, the place of secular officials isn’t to sit in judgement of religious belief but only to protect their free exercise.”
That sentence, written by Justice Gorsuch, was part of a concurring opinion in the Masterpiece Cakeshop case, which decided that a Colorado baker could refuse his services to a same-sex couple. In that case, members of a state civil rights commission made “official expressions of hostility” toward the baker’s Christian faith. The court then concluded that the baker’s rights had been violated since the state commission did not employ religious neutrality in their deliberations.
It appears that American Christians deserve more protections than American Muslims do. If American Muslims attempt to unite their families from, say, the war-torn countries of Yemen or Syria, this bigoted Muslim ban will all but prevent those unifications from happening.
Looking at the Muslim ban and Masterpiece Cakeshop cases together reveals at least one more thing. We live in a country where two unnamed state officials are held to a higher standard than the president of the United States.
The ban may now be the law, but none of it is based on truth. There still have been no fatal terrorist attacks on American soil from people who emigrated from the banned countries. There really is no meaningful process for obtaining “waivers” from the ban. The addition of North Korea to this list remains an insult to our intelligence. (It’s there only to mitigate the ban’s explicit anti-Muslim basis, as almost no North Koreans passport holders come to the US.) The bizarre idea that toddlers and grandmothers are national security risks is now law. And the racist view that Muslims are a unique national security threat because they are Muslims persists. In fact, it is now emboldened.
Most importantly, the ban continues the Trump administration’s vicious assault on multiple forms of immigration. A recent report by the Centre for Constitutional Rights has documented how the Muslim ban is tearing apart families, physically keeping parents and children from each other. That ought to sound familiar, reminding us of the unconscionable policy that has rightly occupied our outrage over the last weeks, namely separating migrant children from their parents at the US-Mexico border.
This administration revels in novel ways of transforming cruelty into locked-and-loaded patriotism. And now they’ve got the Supreme Court’s approval behind them. Make no mistake. This decision expands presidential authority significantly and the results could be ominous. The future of this country is far too important for us to let them succeed.
Moustafa Bayoumi is the author of the award-winning book How Does It Feel To Be a Problem?: Being Young and Arab in America