Safa K. Syed
By Nafees Syed and Safa K. Syed
June 28, 2018
In a 5-to-4 ruling, the Supreme Court of
United States has upheld President Donald Trump’s executive order for a “travel
ban” aimed at several Muslim-majority countries. This decision in the case of
Trump vs Hawaii, which comes in spite of Congress’s law banning
nationality-based discrimination, defines how far the US administration can go
in the name of national security and presidential power.
This ruling may not have come as a surprise
to all observers, but in fact it represents a sharp break with another recent
decision on anti-Muslim bias, the 2015 Abercrombie case. On the surface, the
two cases seem unrelated except that they both include Muslim plaintiffs. But
they deal with very similar issues.
In the Abercrombie case, a Muslim woman,
Samantha Elauf, filed an Equal Employment Opportunity Commission claim when
Abercrombie & Fitch refused to hire her because of her religious head
covering. The Equal Employment Opportunity Commission contended that
Abercrombie’s actions violated 1964 Civil Rights Act, which prohibits an
employer from refusing to hire an applicant because of her religious practice,
unless accommodating the practice would impose an undue hardship on the
Trump vs Hawaii, on the other hand,
challenged the president’s executive order to suspend indefinitely the issuance
of visas and other immigration benefits to people from five Muslim-majority
countries for violating immigration laws and the First Amendment’s
The central issue underlying both cases is
the use of intent or motive to infer discrimination. The court’s rare 8-to-1
ruling in favour of the Muslim plaintiff in the Abercrombie case suggests a
very different court measuring religious animus than the one today. “This is
really easy”, said Justice Antonin Scalia when delivering his pithy opinion for
the court in Abercrombie. Though the store tried to argue that its “look
policy”, a strict dress code for employees, was neutral, the court suggested
that it was a thinly disguised excuse to discriminate against Ms. Elauf.
Justice Elena Kagan told the lawyer for Abercrombie, “your neutral policy
really doesn’t matter”. The other justices followed suit.
The court saw through the smoke screen
Abercrombie was trying to set up and exposed the religious discrimination at
the heart of the matter.
Over the course of his term, President
Trump issued three iterations of the Muslim ban in three executive orders, all
of which were thwarted by lower courts.
‘Neutrality’ Of the Ban
As Abercrombie did in 2015, Solicitor
General Noel Francisco focused on the apparent “neutrality” of the ban during
oral arguments, asserting that “the vast majority of the Muslim world was just
fine, but there were problems with a small number of countries”. Neal Katyal,
representing the state of Hawaii, responded that the government’s religious
animus was apparent to a reasonable observer. Chief Justice John G. Roberts Jr
and Justice Alito, who had vehemently questioned Abercrombie about its
religious discrimination, instead obscured the government’s motive in concerns
about national security.
Justice Alito, who in Abercrombie was
highly critical of the store’s anti-religious intent, argued that the
president’s executive order “does not look at all like a Muslim ban”. He also
said, “If you looked at the 10 countries with the most Muslims, exactly one,
Iran, would be on that list,” as if the government needed to ban all Muslim
countries for this to be a Muslim ban. Justice Alito’s approach was in direct
contravention to his opinion in Stormans Inc vs Wiesman in which he condemned
as an “ominous sign” the disproportionate burden placed on one religious group
Clearly, the Supreme Court’s approach to
measure religious discrimination has shifted. It could be that the court has
one standard for Christians and another for Muslims. The court’s approach is
even at odds with its previous protection of Muslims in Abercrombie case in
which the court ruled unanimously that a Muslim prisoner was legally entitled
to grow a beard.
What else might explain this change?
Justice Scalia’s passing is a glaring factor. He was a champion of protecting
religion from the state, irrespective of the religion. Justice Gorsuch is not.
Also since then, as evidenced by recent policies, xenophobia has reached new
heights in the United States, particularly against immigrants and refugees.
Trump has pushed the boundaries of what is acceptable.
Religious Animus Has Rarely Been So
presidential candidate, Trump called for a “total and complete shutdown of
Muslims entering the United States”. Yet, unlike in Abercrombie, the court
seems unwilling to look at Trump’s intent to infer discrimination. Instead, the
court is allowing the government’s peripheral arguments to sweep Muslim civil
rights under the rug.