Muslim Travel Ban Decision:  “Green Light to Discriminate”

Texas Impact and the Texas Interfaith Center for Public Policy are horrified by the United States Supreme Court’s decision today to uphold the Trump Administration’s ban on travel to the U.S. from 8 countries, most of which are majority-Muslim.

And we aren’t alone.

Brief of 44 American constitutional scholars opposing travel ban

The decision has outraged many in the American legal community and sent shock waves through Muslim and other religious minority communities. The ruling has sweeping implications for the future of religious freedom…the Founding Fathers’ First Freedom…in America.

The four dissenting justices pulled no punches in their characterizations of their colleagues’ opinion. Justice Sotomayor wrote that “the majority…ignores the facts, misconstrues our legal precedent, and turns a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are U.S. citizens.” Justices Breyer and Kagan said the decision is inconsistent with the court’s decision in the recent Masterpiece Cakeshop case. Sotomayor said the decision “masquerades behind a façade of national security,” and Breyer added that the Administration’s “waiver” process is “merely window dressing.”

Noted constitutional scholar Laurence Tribe accused the Court of “doctrinal gyrations that made it possible for the Court to turn a blind eye to the anti-Muslim animus that not even #TravelBan 3.0 could conceal,” and his colleague Jonathan Matz predicted, “Someday, law professors and historians will struggle to explain how anyone could possibly have disagreed with Justice Sotomayor’s dissent in the #TravelBan case. It gives perfect voice to the values that define our Constitution-and offers a towering repudiation of bigotry.”

Legal scholars are dismayed at the Court’s inconsistency. University of Texas law professor Steve Vladek laments, “Generations of constitutional law students are now going to learn that #SCOTUSoverruled Korematsu in the same opinion in which they upheld the #TravelBan.”

According to The Atlantic, the majority opinion amounts to semantic games: “Former White House ethics counsel Norman Eisen observed, ‘The court has twisted itself into a pretzel to avoid having to address Trump’s openly and flagrantly unconstitutional purposes. Behind the doctrinal gyrations, hypocrisy is evident in the court turning a blind eye to Trump’s bias- still lingering here on his third attempt to obscure it and iterate a Muslim ban- while applying a deeply penetrating gaze to the government actor in the Masterpiece Cakeshop case.'”

Most troubling from a Texas legislative perspective, the Court’s decision calls into question the precedent set in the 1993 Lukumi decision, which says that government shall not create or enforce policies motivated by discriminatory intent–even if they are written in such a way as to appear “neutral.” Today’s decision sends a signal that lawmakers can push even farther on the bounds of religious neutrality. A state as religiously and culturally diverse as Texas depends on government neutrality to ensure people of all faiths equal liberty.

This is a dark day for the U.S. Constitution–and Texans of all faiths should be worried.