The Free Exercise and Establishment Clause are both clauses within the First Amendment in the Constitutional Bill of Rights that pertain to the freedom of religion. The Establishment Clause proceeds the Free Exercise Clause. The Establishment Clause states that “Congress shall make no law respecting the establishment of religion”. The Free Exercise Clause states that “[Congress shall make no law…] prohibiting the free exercise thereof;” These clauses state what we refer to as the freedom of religion established in the First Amendment of the Constitution.
Donald Trump’s immigration ban, which was turned out in January as an executive order, is arguably unconstitutional due to First Amendment freedom of religion clauses. While no ruling has been handed down on the constitutionality of the ban, the 9th circuit appellate court ruled on a restraining order, essentially preventing the ban from being enforced as of yet.
Regardless of one’s views on the actions of the siting president, and regardless of how one views the interpretation of the First Amendment’s Free Exercise and Establishment Clauses, in my opinion and interpretation, Trump’s ban violates these clauses and is therefore unconstitutional.
While many would argue that constitutional freedoms do not apply to non-US citizens, and while I will contend that legally this is true, morally I believe that is a very misguided excuse to promote hate based ideals. Anyway, I would argue that while constitutional freedoms do not directly apply to non-US citizens; many court rulings based on American soldiers’ violations of rights in the middle east and in Guantanamo Bay Cuba have said that, while every constitutional freedom does not extend to non-citizens, certain freedoms and rights do apply. Freedom of religion I would contend is part of this list. Like freedom of speech, freedom of religion is a reason to seek asylum in the US as a refugee. Therefore, I contend that freedom of religion extends to all people of the world, since our laws recognize it in all contexts, no matter the legal context.
Since I have now established my basis for extending the freedom of religion to all people, I will prove why in my opinion the ban is unconstitutional:
Due to the Establishment Clause cited above, I contend the ban violates this clause because, by targeting a religion in an indirect way, the executive order is essentially establishing a state religion. By banning immigration from 6 Muslim majority countries, the government, whether intentionally or not (based on Trump’s rhetoric it is), is declaring a sentiment that Islam is somehow opposed by the government. Now I understand that this is fairly obscure. I will also contend that the ban is on countries not people in a religion. However, technicalities aside, the ban is directed to Muslims not to countries. Based on the rhetoric of Trump and his administration, his people have a strong anti-Islam stance that is bigoted and hateful. This ban comes directly out of that intent and thus has some standing regardless of how the ban is phrased. While I will state that intent is not a reason to declare an act illegal or unconstitutional, intent is a major factor in the courts to determine the validity of an act of law and therefore has certain standing. With this said, by the Trump administration directly opposing Islam, the administration and his ban give stance that Islam is not acceptable in America. His ban through intent and practice gives legal validity to his opposition to Islam. The government, by directly opposing and not accepting a religion, is establishing a state religion in its own way. By elevating and supporting all other religions over Islam and by declaring Islam and Muslims dangerous, the government establishes that a religion, i.e. Islam, is inferior to other religions and that the USA will accept a superior religion. This is directly establishing a type of religion that is permissible in the USA. This, although obscure, is establishing religion and therefore is in direct violation of the Establishment Clause in the First Amendment and thus makes the entire ban unconstitutional.
However, whether one takes this as an “in addition” or as a “conversely”, the ban also violates the Free Exercise Clause. As with my explanation above, after establishing a basis for constitutional freedoms and rights applying to non-citizens, an argument against the ban can be supported based on a violation of this clause. By restricting who is allowed to enter and become citizens of the USA based on their religion, the Trump administration is limiting the free exercise of religion in the country. This again can be supported by intent since he has stated that he wants to make a Muslim registry. As with above, there is slight validity due to his intent and because of that, his desire to require a religious group to join a registry and be monitored, he restricts not only the freedoms of the people, but he also restricts the way Muslims could practice their religion. Now in regards to his ban, he is limiting the way people can practice religion in the USA by saying that if you are Muslim you cannot enter the USA and become a citizen. This is in direct violation of the Free Exercise and thus deems the ban unconstitutional.
In regards to the two arguments I present above, I contend that the ban is unconstitutional and thus cannot be upheld or enforced. However, if these arguments do not convince you based on whatever objection one may have, direct discrimination against a group of people based on nationality is also illegal and unconstitutional due to the 14th amendment. Thus I contend that no matter one’s argument, support of this ban is misguided, bigoted, and immoral. And despite my personal views against the ban, it is by no means legal, let alone constitutional, and should be opposed simply because one must exercise their right to oppose tyranny.