Supreme Court blesses Trump's Muslim ban, undermines religious liberty

Despite clear and extensive evidence that each iteration of Trump's travel ban was intended to decrease the number of Muslims in the United States, the Court myopically granted the president unfettered discretion to discriminate.

The 5-4 decision sent a clear message to current and future presidents: So long as you use facially neutral language and invoke national security, we will not stop you from discriminating based on race, religion, or national origin in immigration enforcement. 

This is music to the ears of a president who energizes his right-wing base through divisive anti-Muslim and anti-immigrant discourse.

Indeed, Justice Sotomayor's stinging dissent highlighted Trump's multiple anti-Muslim statements to show the executive order had little to do with national security.

On the contrary, Trump's travel ban on tens of millions of Muslims was precisely what he proclaimed when he issued it seven days after taking office, keeping a campaign promise to his right wing Islamophobic base.

As early as December 2015, Trump reassured his supporters that if elected president he would support "a total and complete shutdown of Muslims entering the United States," because "there is great hatred towards Americans by large segments of the Muslim population." The statement remained on his campaign website until May 2017, four months after he issued the travel ban.

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When pressed by a journalist in December 2015 on the legality of his proposal, Trump boldly pointed to President Roosevelt's internment of Japanese Americans during World War II as setting the precedent for his intended actions. 

Throughout his campaign in 2016, Trump communicated his distrust of Muslims, association of Islam with terrorism, and intent on doing something about it should he be elected president. That his first executive order exempted Christian refugees further evinced he was targeting Muslims.

With such clear and convincing evidence of animus towards Islam, the Court could have easily applied the strict scrutiny test; thereby requiring the government to prove barring tens of millions of citizens from five Muslim majority countries (originally seven in the first version of the travel ban) was narrowly tailored to protect national security.  

But instead, the Court upheld the ban because it "can be reasonably understood to result from a justification independent of unconstitutional ground". To put it simply, the Court was willfully blind to Trump's intent to unlawfully disfavour a religion.

This begs the question why America's highest court would approve such overt religious animus by a president who proudly wears it as a badge of patriotism. The answer lies in either cowardice or bias, neither of which bodes well for the Court's standing, while over half the public disapprove of a Muslim ban.

By ignoring America's past, the Court regressed the nation back to an era when overt religious bigotry infects government policies and practices

Afraid to take a stand in defense of the constitution at a time when the country is highly polarised, the Court hid behind the doctrine of plenary power - as it did in Korematsu, leading to the internment of hundreds of thousands of Japanese nationals and Japanese Americans.

It took decades for Americans to discover the purported national security justifications were a farce because the presiding Court declined to examine the facts.

Read more: Travel ban 3.0 still doesn't conceal Trump's anti-Muslim bias

In the case of the travel ban, the Court may have eschewed the facts due to some Justices' internalisation of pervasive stereotypes, namely that Islam is a violent ideology and that Muslims pose a threat to national security. 

	Members of the New York Immigration Coalition protest  in Foley Square, New York. [AFP]

Similar stereotypes were held against Catholics and Jews when they were immigrating in the millions from Eastern and Southern Europe in the nineteenth and twentieth century.

The media portrayed them as communist sympathizers culpable for the growing labour mobilisation and unrest. As White Nativism gripped American politics, Congress imposed national origin quotas to restrict further immigration by persons deemed to be racially inferior, unassimilable, and unfit for self-government, the same themes underpinning Trump's anti-Muslim actions.

White elites, including on the Supreme Court, feared the demographic changes would threaten America's Anglo-Protestant national identity.

A century later, America is experiencing another outbreak of White Nativism, but this time instead of the targets being Jews, Catholics, and East Asians; they are Muslims, Africans, South Asians, and Latinos who are the newest Americans after the national origin quotas were lifted in 1965.

Due to immigration and domestic birth rates, the US Census projects that by 2045 whites will no longer be a majority. This pending demographic shift frightens tens of millions of whites, primarily on the political Right, who believe America is and should remain a predominantly white country.

The Court was willfully blind to Trump's intent to unlawfully disfavour a religion

They are the same people whose support for Trump lies in their interpretation of the "Make America Great Again" slogan, as "Keep America White and Judeo-Christian".

By ignoring America's past, the Court regressed the nation back to an era when overt religious bigotry infects government policies and practices.

Unless the American people rise up to safeguard religious liberty and racial equality, we should expect more discriminatory policies by an administration whose White Nativism has been officially sanctioned by the US Supreme Court.


Sahar Aziz is Professor and Chancellor's Social Justice Scholar at Rutgers Law School where she directs the Center on Security, Race and Rights. She is the author of A Muslim Registry: The Precursor to Internment.


Follow her on Twitter: @saharazizlaw

Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.