Some notes on why I signed that brief for the U.S. Supreme Court


The seat of the Supreme Court of the United States
(Wikimedia Commons public domain)


Why did I sign the amicus brief for the Supreme Court regarding Mr. Trump’s proposed travel restrictions?  (See “Mormon Scholars File Brief Attacking Trump’s Muslim Ban.”)


For a number of reasons.


I’ll hastily mention some of them here.  (I need to be out the door shortly.  We’re in southern Utah.  Yesterday afternoon, we took in a very good performance of Guys and Dolls at the Utah Shakespeare Festival.  Last night, we watched a solid version of Shakespeare’s Romeo and Juliet.  And today we have two more plays.)


First of all, let me clarify that, contrary to the accusations of one very kind respondent, I didn’t sign the brief because I’m a “Communist-leaning,” “anti-American” “hater.”  Nor, despite the allegation of another, did I sign it because I “seek to have more jihadis in the United States.”


(I’m not quite sure how my pro-jihadi inclinations were discovered.  Perhaps it was my service as a bishop a few years ago.  Or maybe that reader has attended my jihadi-oriented Gospel Doctrine lessons.  And I had thought that my Communist allegiances were pretty well disguised.  After all, I supported Barry Goldwater for the presidency as a child, voted multiple times for Ronald Reagan, belonged to the Republican Party all my life [until the night Donald Trump accepted its presidential nomination], helped to host William F. Buckley Jr. at BYU when I was a student, and so forth.  I’ve subscribed to National Review, with only a few overseas-residency exceptions (e.g., my mission in Switzerland) since I was thirteen or fourteen.  I was a charter-subscriber to both The Weekly Standard and what is now called The American Spectator.  And I’ve spoken multiple times at the big annual libertarian meeting called Freedom Fest.  Shouldn’t such actions be enough?  Yet, somehow, one of my more discerning readers was still able to detect my Communism.)


I didn’t sign the brief because I look at the Middle East through rose-tinted glasses, because I’m unwilling to see anything negative in the Islamic world or because I’m unaware of the threat posed by Islamist extremism.


Trust me.  I travel quite a bit in the Middle East.  At least once a year, and commonly more often.  And extremist violence has struck many of the very places I’ve been, in the Middle East and Europe, within a few days of my being there.  And I mean the very places – within feet of where I stood – in Nice and Jaffa and Istanbul and London and Madrid and, now, Barcelona.  I’m acutely aware of such things.  And I pay a whole lot of attention to Islam and the Middle East.


I have no illusions whatever about radical Islam.


Nor did I sign because I don’t want to protect America or prevent terrorists from entering the country.  I’m all for careful screening of would-be immigrants and even those seeking tourist visas.


I signed the document for a number of reasons.


For one thing, I believe that a shameful chapter in American history, and specifically American religious history, ought to be remembered.  The brief is helpful in that regard.  And I think that we ought to learn from the story it tells.


I signed because I value liberty—and, in this case, specifically religious liberty—so highly that I think that we need to be hypervigilant against even potential threats to it.  I think that we should seek to counter such threats while they’re still small, while they still can be countered, and not wait until they’re entrenched and difficult to combat.


“In England, Elder Christofferson says religious freedom creates social, political diversity”


“In the Ecosystem of Rights, Religious Freedom Is Foundational”


As the late, great Senator Barry Goldwater said at the 1964 Republican National Convention in San Francisco, accepting his party’s presidential nomination, “Extremism in defense of liberty is no vice; moderation in pursuit of justice is no virtue.”


I signed because I’m extremely alert to the dangers posed by bigotry against unpopular religious persuasions (such as my own).


I signed because the words of the German anti-Nazi pastor Martin Niemöller (1892-1984) have always haunted me:


First they came for the Socialists, and I did not speak out—Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—

Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—

Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.


I signed because I’m a limited government conservative.  I know that the State is necessary, and I honor it.  But I also fear it — as I believe that the American Founders justly also did.  In the past century or more, it hasn’t been General Motors or Microsoft that has killed scores of milliions of people.  It has been the State.  In wars and concentration camps and forced labor and legally-mandated ghettos and government-enforced famines.


I signed because I don’t want to see anything that comes even close to threatening freedom of conscience.


I signed because of Mr. Trump’s anti-Muslim campaign rhetoric (in which he expressly called for a “Muslim ban”) and because of Rudi Giuliani’s explicit admission that the executive order on travel was, initially at least, crafted as a means of banning Muslims while still getting past the Constitution.


I’m told by legal experts (including one involved with the amicus brief itself) that the latest iteration of the travel order may well pass muster with the Supreme Court.  If so, fine.  I signed the brief because, at the very least, I wanted to help fire a warning shot across the bow of the Trump administration and anybody else who even comes close to advocating a religious litmus test for “true Americanism.”


This Video From 1943 Breaks Down Why Americans Shouldn’t Let Racist and Fascist Rhetoric Win”


I signed the brief because I want this proposed policy and everything related to it to be subjected to extraordinary scrutiny, and because, if I’m correctly informed, the courts often take intent and the prior rhetoric of legislators and policy-makers into account when they examine the precise wording of laws and executive orders.


Consider a case in which a candidate had said that “We need to keep Blacks and Mexicans out of our fair city” and then, upon election, introduced zoning legislation never mentioning Blacks and Mexicans but citing some other ground (e.g., income restrictions) that would have the effect of limiting if not altogether barring the entry of certain minorities into a community.  The courts would certainly scrutinize the proposed legislation.


I signed because I really, really care about freedom.  I signed for the same reasons that lead me to defend a cake decorator’s or a wedding photographer’s right to decline to celebrate a same-sex marriage—or a Mormon temple marriage.  I signed for the same reasons that impel me to defend a black property owner’s right not to lease out his facility for a Klan meeting, or a Jewish printer’s right to decline to print leaflets for a rally of the American Nazi Party.


It’s true that I have grave doubts about Mr. Trump’s executive order as policy.  If we send a message (even inadvertently) to the Islamic world that we’re enemies of Islam, that this is a war between Islam and the West, we’ll be helping the Islamist extremists’ cause and we’ll be causing enormous problems for American interests and American diplomacy among Muslims around the globe.


But my fundamental concerns are for liberty.


And now I’ve got to go.  We’re almost late.


Posted from St. George, Utah



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