Today marks a defeat for religious freedom. This morning, in Trump v. Hawaii, the Supreme Court upheld the third version of President Donald Trump’s Muslim ban. By a vote of 5-4, the court ruled that the ban can remain in effect indefinitely.
Before getting to the court’s ruling, it’s important to understand what makes the Muslim ban so odious. For months now, many American Muslims have been unable to reunite with family members from Iran, Yemen, Syria, Somalia, and Libya – parents are separated from children, husbands separated from wives – all because Trump believes that “Muslims coming into the country” are a “problem.” But that’s not all. The ban also sends an exclusionary message to all Muslims, whether or not they have ties to the five specifically targeted Muslim-majority countries, that they do not belong in the United States.
The ban regards Muslim immigrants not as part of the rich tapestry of American society but as a threat to the Trump administration’s retrograde vision for America. Indeed, even though would-be immigrants already receive much more scrutiny than short-term travelers to this country do, Trump’s ban is even more restrictive and exclusionary toward those seeking to move here, because, as the proclamation of the ban explicitly says, “[l]awful permanent residents are more difficult to remove than nonimmigrants.” In other words, the ban tells people of the Muslim faith that “we don’t want you to visit, and we certainly don’t want you living here.”
It’s no wonder that the reported rate of violence and threats against American Muslims has increased significantly since Trump first called for a “total and complete shutdown of Muslims entering the United States.” Trump having repeatedly declared Muslims unworthy of basic dignity and respect, some people have felt free to treat American Muslims as second-class citizens—and worse.
And although Trump’s lawyers now say that the “travel ban” isn’t about religion, we remember that, on the campaign trail, Trump promised that he would enact a Muslim ban without using the word “Muslim” – which is just what he did.
Trump has never disavowed or apologized for any of his demeaning, insulting, racist comments about Muslims and their faith. And he has continually called for his ban to be upheld and made “tougher.” Through all of that, many like us have tried to console ourselves with the thought that the president’s hateful words and actions do not represent most Americans. Trump’s views are repugnant, but they are his alone and do not reflect who we are as a nation. There’s still truth to that, of course, but it’s a harder story to tell ourselves today.
Because now it’s not just the president. In today’s decision, a majority of justices on the Supreme Court ruled that Trump’s Muslim ban does not violate the constitutional prohibition against religious discrimination. This despite Trump’s repeated anti-Muslim statements, which the majority opinion acknowledged cast "doubt on the official objective of the Proclamation.”
Strikingly, this decision comes from five justices who, just three weeks ago, ruled in the Masterpiece Cakeshop case that the owner of a bakery that discriminated against a same-sex couple was excused from any penalty solely because some state civil-rights commissioners made statements about the bakery owner’s religion that “cast doubt on the[ir] fairness and impartiality.” Specifically, the court ruled that the commission had violated “the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” Government has a “duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint,” the Court observed in Masterpiece.
“Those principles should apply equally here,” declares Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, in a stirring dissent that is well worth reading (begin at page 65). “But unlike in Masterpiece,” Justice Sotomayor observes, “the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and tolerance.”
Although nothing in the court’s opinion today remotely resembles the vitriol that Trump has spewed at the American Muslim community, its decision nevertheless sends a clear message. As Justice Sotomayor writes, today’s “holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country ‘that they are outsiders, not full members of the political community.’ ”
In Masterpiece, the court threw out the judgment against a Christian bakery owner – who indisputably broke the law – because some civil-rights commissioners made statements that the court believed criticized his religious beliefs. But today, a majority of the Supreme Court has allowed Trump to ban from this country thousands of Muslims – whom no one claims have done anything wrong – under a policy that was plainly enacted based on the president’s animus toward Islam.
Whatever else you might call that, it’s not religious freedom for all.