The Supreme Court heard arguments Wednesday regarding President Trump’s executive order to ban refugees from several Muslim-majority nations, a ban that has several religious groups upset. But surprisingly, a handful of prominent religious-liberty groups aren’t taking a position.
The case Trump v. Hawaii raises the question of whether Trump’s executive order violates the Establishment Clause of the Constitution by targeting Muslims. Supporters of the order point to its text, which does not mention religion and includes some countries such as Venezuela that are not majority Muslim. Opponents say the order is unconstitutional because it fulfills the president’s promised ban on Muslim immigration.
Several religious groups filed briefs in opposition to the executive order, including the Muslim Justice League, the Muslim Public Affairs Council, the American Jewish Committee, the Anti-Defamation League, Episcopal Bishops and the U.S. Conference of Catholic Bishops.
But some religious-liberty groups that often jump at the chance to take a position on a high-profile church-state case did not. The Alliance Defending Freedom and the Becket Fund for Religious Liberty have submitted briefs to the Supreme Court, but they do not take a position on the president’s executive order.
The case is a puzzle for these groups that often side with conservatives. Religious-liberty cases are almost always domestic political disputes, but this one is about foreign policy, immigration and the rights of those outside the United States.
To take a stand against the “Muslim ban” is also a stand against Trump, who remains popular among conservatives and white evangelicals, and for the rights of foreign Muslims, who are often vilified by conservative Christian activists.
The briefs that a handful of groups submitted to the court indicate that they are more concerned about how the court will consider the legal issues than they are with the actual outcome.
The Becket Fund for Religious Liberty, which argued on behalf of Hobby Lobby in the Obamacare contraceptive mandate, represents a range of religions in the courts. It also routinely submits briefs to the Supreme Court in cases involving religion.
“On one side, there are claims that the government has targeted a particular religious group for disfavor,” Becket said in its brief. “On the other side, the government offers weighty national security interests and the preservation of American lives, in the context of a slew of terrorist incidents around the world that are claimed to be religiously motivated.”
Rather than pick a side, the Becket Fund focused on explaining how the courts should consider cases like this. Instead of deciding the case now, the group wants the court to send it back to the lower court. Instead of arguing the case under the Establishment Clause of the Constitution, the Becket Fund argues, it should argue it under the Free Exercise clause.
“If you apply the wrong test, you could mess up a lot of cases in the future,” said Mark Rienzi, president of the Becket Fund and a professor at Catholic University.
A key difference between the two clauses is that under the Free Exercise clause, the tests are easier for a religious group to prove that the law unconstitutionally discriminates against them. Sometimes government discrimination is necessary, but often there can be a resolution that allows the government to accomplish its goal without discriminating against a particular religion. The lawyers opposing the ban could have a perfectly good claim under that clause, Rienzi said, but they would have to lay out the case to a lower court.
Alliance Defending Freedom also focused solely on how the lower courts had interpreted the Establishment Clause. Without taking a position on the executive order, the group argued that the Supreme Court should send the case back down to a lower court to reconsider how it interpreted the Establishment Clause. It said that the lower court had performed an “impermissible psychoanalysis of the President’s heart of hearts.”
Other bystanders are the Christian Legal Society and the National Association of Evangelicals, which represents over 40 evangelical denominations. The CLS and NAE said the courts should decide whether the government intentionally discriminated against Muslims. If so, then the order is unconstitutional.
In their shared legal brief, however, the CLS and NAE remain agnostic about the president’s motives. CLS board member Carl H. Esbeck said it was outside the scope of their group to decide whether the president meant to discriminate against Muslims or Islam.
A group of scholars of Mormon history submitted a brief explaining how immigration law in the 19th century harmed those in the Mormon faith. The scholars said that they were not able to say whether the president’s executive order was unconstitutional, but that the parallels between discrimination against Mormons then and Muslim immigrants today were cause for concern.
“If the Proclamation does target Muslims for disfavored treatment, then the history of the government’s mistreatment of Mormons suggests it could take decades — if not longer — to undo the damage that official action would cause to both America’s body politic and the place of Muslims in our society,” the scholars told the court in their brief.
Not all groups were unwilling to choose a side. Those supporting the ban included the American Center for Law and Justice, a conservative Christian group led by Trump’s personal lawyer Jay A. Sekulow. ACLJ made the argument in a brief that the order is constitutional; the purpose of the order, it argues, is to protect national security by keeping out “foreign terrorists.”