Civil and Human Rights

OP-ED: Our Constitution Forbids a Religious Test for Immigration

On April 25, the Supreme Court will hear oral argument on President Trump’s Muslim travel ban 3.0.  The ban, which excludes over 150 million individuals from the United States, virtually all from Muslim-majority nations, is shot through with anti-Muslim animus.  The Supreme Court should hold the ban unconstitutional for a simple reason: it is a throwback to religious restrictions on immigration that were part of colonial religious establishments in 17th and 18th century America.  As CAC’s amicus brief on behalf of Members of Congress demonstrates, the Framers adopted the First Amendment to make clear that this kind of official discrimination against religious minorities has no place in America.  Our Constitution forbids a religious test for immigration.

Before the First Amendment became a part of our law, religious prejudice reigned in colonial America.  It is a little-known historical fact that a number of the original thirteen colonies maintained religious restrictions on immigration as part of their religious establishments, seeking to keep out members of disfavored religions.  Much like President Trump does today, Americans of the colonial era viewed certain religious minorities as dangers to the state, who had to be kept off our shores.

Catholics were the primary target of many of these early travel bans.  As early as 1609, the Virginia charter required immigrants wishing to come to the colony to swear an oath to the supremacy of the Church of England.  The charter made plain Virginia’s desire to keep Catholics out, specifically providing that “we should be loath, that any person should be permitted to pass, that we suspected to effect the superstitions of the church of Rome.”  In Maryland, which was originally founded as a safe haven for Catholics, a wave of anti-Catholic fervor in the early 18th century led the colony’s legislature to impose a special tax on the entry of Irish servants in order “to prevent too great a number of Irish Papists being imported into this province.”  Georgia welcomed a wide variety of religious believers, but, like other jurisdictions, sought to keep Catholics out.  That colony’s official 1732 charter promised free exercise of religion to all persons “except Papists.”

Quakers were also targets of our earliest immigration laws.  A 17th century Massachusetts law imposed heavy fines on any ship or vessel that brought to the colony “any known Quaker or Quakers or other blasphemous hereticks.”  In Virginia, which had a similar law, the colonial assembly also required that any arriving Quakers be imprisoned “till they do abjure this country or putt in security with all speed to depart the colonie and not to returne again.”

Thus, when the Framers wrote the First Amendment, they were painfully aware that immigration laws could be used to entrench a favored religion and disfavor a religious minority.  Centuries ago, James Madison observed that “the first step . . . in the career of intolerance” is to place “a Beacon on our Coast,” warning the “persecuted and oppressed of every Nation and Religion” that they must “seek some other Haven.”  As Madison recognized, “whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yielded to the evidence which has convinced us.”  The First Amendment denied the federal government the power to draw lines based on religion, preventing the government from acting to disfavor any religious group.

Some Establishment Clause cases divide the Justices, but the dispute over Trump’s Muslim travel ban should not.  There is broad consensus across the ideological divide that the First Amendment must be understood against the backdrop of colonial religious establishments that discriminated against religious minorities and required support of a government-approved religion.  A good example is the Court’s unanimous 2012 decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, authored by Chief Justice John Roberts, holding that the First Amendment requires a ministerial exception from federal antidiscrimination laws.  Roberts stressed the Framers’ experience under English and colonial religious establishments, noting the Framers’ struggles to ensure that churches could select their own ministers.  If the Justices follow the approach Roberts took in that case, they should strike down Trump’s travel ban as a violation of the First Amendment’s command of religious neutrality.

Justice Clarence Thomas, of all the sitting Justices, has given the Establishment Clause the narrowest reading, but even Thomas’s view supports those challenging the travel ban.  In a number of cases, Justice Thomas has argued that the Establishment Clause only limits actions of the federal government and only forbids governmental acts similar to the coercive religious establishments existing at the Founding.  These views make Thomas a sure vote to reject almost any Establishment Clause claim, but not here: Trump’s Muslim travel ban has all the hallmarks of the colonial establishments the Framers abhorred.

Trump’s effort to write religious discrimination into our immigration laws is not unprecedented—colonial governments did the same—but it is a precedent the Framers rejected when they wrote the First Amendment.  The Supreme Court should strike down Trump’s ban.

As Justice Anthony Kennedy has written, “The central meaning of the Religion Clauses of the First Amendment” is that “all creeds must be tolerated and none favored.”  The travel ban flunks that fundamental principle.  The Justices—whether left, right, or center—should recognize that our Constitution’s promise of religious freedom extends to persons of all religions and nationalities.

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