The Supreme Court of the United States, the very body charged with protecting constitutionally guaranteed freedoms, has put that freedom in jeopardy by their decision in “Trump v. Hawaii” to allow a policy to stand that targets people just because they are Muslim.
In a verbal gymnastics exercise that would probably score a 10 at a Judicial Olympics, the majority opinion of the Supreme Court argues that a policy that manifestly discriminates against people based on their religion actually does not. It doesn’t fly.
Justice Sonia Sotomayor pointed out, in her vigorous dissent, that “What began as a policy explicitly ‘calling for a total and complete shutdown of Muslims entering the United States’ has since morphed into a ‘proclamation’ putatively based on national-security concerns…But this new window dressing cannot conceal an unassailable fact: the words of the president and his advisers create the strong perception that the proclamation is contaminated by impermissible discriminatory animus against Islam and its followers.”
I must say I am not surprised by this decision from the court of Chief Justice John Roberts. In 2005, I was invited to be an expert witness, due to my academic training in American Religious History, in the Judiciary Committee’s confirmation hearings on John Roberts appointment to be Chief Justice. You may find my testimony on C-Span.
I argued before the Judiciary Committee that I saw very disturbing trends, even in the limited amount of his papers released by John Roberts. In my oral testimony I said, “there is evidence — and I have cited detail in my written testimony — that his [Roberts] judicial posture is more toward permissiveness in religious establishment and is less than vigorous in the defense of religious minorities and their freedoms.”
If you watched those hearings, you might recall that John Roberts had promised to bring “no agenda” and to take a minimalist approach to Constitutional interpretation. He compared his way of interpreting the law to that of an “umpire calling balls and strikes.”
Well, the “Establishment Clause” of the First Amendment just struck out in my view, despite the fact (or because of it?) that the majority opinion takes the extraordinarily contradictory position of chiding Donald Trump for his inflammatory statements such as “Islam hates us” or his repeated calls to “ban Muslim immigration,” while at the same time upholding the Trump approach that is manifestly a Muslim ban.
The majority opinion actually quotes the outlandish statements by Donald Trump re Muslims as a group, and then going on to quote the balanced and rational views of his predecessors on protecting religious liberty. The majority opinion goes to great lengths in this peculiar argument, from citing George Washington’s famous 1790 argument that “the Government of the United States…gives bigotry no sanction,” to both Presidents Eisenhower and George W. Bush speaking at the same Islamic Center, at different times, both urging that religious liberty and “respect and dignity and human worth” make America a “great country.”Yes, two previous Republican presidents thought it was “religious liberty” that made America great. And they were very explicit that they did not mean ‘religious liberty for only certain sects of Christianity.’
What is particularly astonishing to me is that the majority opinion in this decision waxes eloquent on religious liberty for all faiths, while denying it with their decision.
This is politics, not the plain reading of the Constitution. In fact, Justice Roberts, you looked away from the plate while the batter struck out and called it a home run.
I further believe with Justice Sotomayor that the “repackaging” did nothing to change the fact that “a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.”
Justice Sotomayor concludes “The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle.”
This was a very bad call, Justice Roberts.
As Americans, we need to do everything we can to protect the First Amendment of the Constitution, and not only the free exercise of religion, but also the indispensable freedoms of speech, of the press, to assemble peaceably and to petition the government. They are all threatened in this time.
We are facing a titanic struggle for the next Supreme Court appointment. Let’s make sure anyone nominated has a strong track record on protecting all these freedoms.
Nominees for the Supreme Court should be asked if they agree withGeorge Washington’s Letter to the Jews of Newport, Rhode Island (1790).
The Citizens of the United States of America have a right to applaud themselves for giving to Mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens.
And Washington’s concluding paragraph is of particular value as reminder exactly why Trump v. Hawaii should not have been upheld.
May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit under his own vine and fig tree, and there shall be none to make him afraid.
Dr. Susan Brooks Thistlethwaite—Professor of Theology and President (1998-2008), Chicago Theological Seminary