We now have an answer questions about the appeals court’s legal reasoning in throwing out President Trump’s seven-nation travel and immigration ban. The judges did so, in part, by invoking his campaign speeches that he would ban entry to America for all Muslims. This shows, they said, that the intent of the ban was to discriminate against Islam. Even though nearly all of the world’s Muslims were unaffected by the ban and can still enter the country. Just not citizens of seven countries with a history of terrorism.
Politicians say things all the time without their being relevant to interpreting actual laws. Are we to interpret JFK’s “ask not what your country can do for you” in such a way that it limits welfare applications?
But the courts were following a Supreme Court precedent. In 1993, a Florida city passed an ordinance forbidding the slaughter of animals. Lawmakers at the time themselves said that this would be a way to get rid of the Santeria religion, which practices the sacrifice of chickens and goats. The court ruled that the ordinance forbidding the public killing of animals was a violation of the Santeria followers’ freedom of religion. So this, in the minds of appeals court justices, justifies rejecting the seven-nation ban, because of what Trump said about all Muslims.
But these cases are not remotely similar, are they? Not being allowed to sacrifice chickens to prevent all Santerias in the community from practicing their religion. Not allowing citizens of seven nations into the USA does not affect all Muslims, as Trump was originally saying. Trump clearly changed his earlier focus from religion to national origin. If he had listed all Muslim nations, religion being the basis for categorizing them, yes, that would be religious discrimination. But here nations associated with terrorism is the criterion.
Whether you are pro-immigration or anti-immigration, for Trump or against him, can’t we agree that this legal reasoning is specious?
Photo: Santeria sacrifices by James Emery from Douglasville, United States (Santeria Sacrifice) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons
From David Ovalle, How chicken sacrifices in Miami helped stop Trump’s travel ban | Miami Herald:
In ruling against President Donald Trump’s “Muslim travel ban,” a trio of federal judges relied in part on a distinctly South Florida court case — one that granted religious protections for the ritual sacrifice of chickens and goats.
The unanimous ruling Thursday night upholding a halt to the White House executive order cited a famous 1993 U.S. Supreme Court decision that overturned a Hialeah law banning Santería animal sacrifices. Justices found that the city ordinance infringed on constitutionally protected freedoms.
The ruling by the U.S. Court of Appeals for the Ninth Circuit court made clear that judges can consider outside statements made by elected leaders — in this case, President Donald Trump himself — in trying to figure out if the intent of a government action was to discriminate against a religious group. . . .
Decades ago, the city of Hialeah — a large blue-collar city of mostly Cuban-American immigrants outside Miami — was sued by the Church of the Lukumi Babalu Aye, which wanted to operate a place of worship in an old used-car lot.
But Supreme Court justices, in a unanimous decision, pointed out that city leaders — in numerous public statements before the law was passed — singled out the religious minority, even if Santería was not mentioned in the ordinance.
As proof, Justice Anthony Kennedy (who is still on the court) said that a Hialeah City Council president, at an emergency meeting asked: “What can we do to prevent the church from opening?” The city also passed a separate resolution that declared: “This community will not tolerate religious practices which are abhorrent to its citizens.”
We now have an answer questions about the appeals court’s legal reasoning in throwing out President Trump’s seven-nation travel and immigration ban. The judges did so, in part, by invoking his campaign speeches that he would ban entry to America for all Muslims. This shows, they said, that the intent of the ban was to discriminate against Islam. Even though nearly all of the world’s Muslims were unaffected by the ban and can still enter the country. Just not citizens of seven countries with a history of terrorism.
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