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