A three judge panel of the U.S. Court of Appeals for the 9th Circuit determined it is possible President Donald Trump may have violated the Establishment Clause of the U.S. Constitution by issuing an executive order that calls for prioritizing the refugee claims of persecuted religious minorities.
The relevant provision in Trump’s order would apply equally to Syrian Christians, Syrian Shiite Muslims and Syrian Yezidis—all of whom the U.S. Congress has determined are being targeted for genocide by the Islamic State, a group which ascribes to Sunni Islam, the majority religion in Syria.
The element of the Constitution the three judges believe Trump may have violated is found in the First Amendment. It says:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
On January 27, Trump issued his executive order, entitled “Protecting The Nation From Foreign Terrorist Entry Into the United States.”
The first section of Trump’s order explained its purpose. It condemned religious persecution and discrimination based on race, gender or sexual orientation.” It concluded with these words:
“In addition, the United States should not admit those who engage in acts of bigotry or hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.”
Section 5 of Trump’s order would suspend the U.S. Refugee Admissions Program (USRAP) for 120 days while the secretaries of State and Homeland Security review it to be certain the government has in place adequate screening procedures for people admitted as refugees. It also suspends the admission of refugees from Syria until the president has “determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.”
This section of the order also calls for prioritizing the refugee claims of persecuted religious minorities—insofar as that is consistent with existing U.S. laws.
“Upon the resumption of USRAP admissions,” the order says, “the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality.”
In addition, the order allows the secretaries of State and Homeland Security to admit refugees on a case-by-case basis even during the 120-day suspension period “so long as they determine that the admission of such individuals as refugees is in the national interest--including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship -- and it would not pose a risk to the security or welfare of the United States.”
These provision apply to all nations—not just nations in the Middle East or nations with Muslim majorities.
For example, in the People’s Republic of China, where, according to the CIA World Factbook, 52.2 percent of people have no religious affiliation and only 5.1 percent are Christian and 1.8 percent are Muslims, both a Christian and a Muslim could qualify as a persecuted religious minority worthy of priority status among U.S. refugees.
In Syria, where 74 percent of the population is Sunni Muslim and where minority Muslim sects (including Shiites) make up 13 percent and Christians make up 10 percent, both a Shiite and a Christian could qualify as a persecuted religious minority.
Last year, both the House and Senate approved resolutions declaring that “the atrocities perpetrated by the Islamic State of Iraq and the Levant against Christians, Yezidis, Shi'a, and other religious and ethnic minorities in Iraq and Syria constitute war crimes, crimes against humanity, and genocide."
Under President Trump’s order, the refugee claims of Syrian Christians, Yezidis and Shiites, whom Congress has declared targets of genocide, would be given prioritization.
Since the resolution declaring that the Islamic State was committing genocide against Christians, Yezidis and Shiites was first introduced in the House in late 2015, nearly 98 percent of Syrian refugees admitted to the U.S. have been Sunni Muslims.
The states of Washington and Minnesota argued in the appeals court that prioritizing the refugee claims of persecuted religious minorities—even those targeted for extinction by the Islamic State—violated the First Amendment provision that “Congress shall make no law respecting an establishment of religion.”
“The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims,” the three-judge panel said in its ruling.
In making this point, they do not cite the actual language of the order—which specifies no religion or country but generally calls for prioritizing the “refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality.”
Instead the court alludes to statements candidate Trump made on the campaign trail and argues these statements—rather than the actual language of President Trump’s executive order--can be part of the basis for a federal court to conclude that Trump is violating the Establishment Clause by acting to prioritize the refugee claims of persecuted religious minorities.
“In support of this argument, the States have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order,” the court said. “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”
In the end, the court decided that it will not decide at this time whether Trump has violated the Establishment Clause by seeking to prioritize the refugee claims of persecuted religious minorities. It says, “we reserve consideration of these claims.”
“The States’ claims raise serious allegations and present significant constitutional questions,” said the court of the Establishment Clause argument. “In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.”