A Muslim Ban by any other name is still a Muslim Ban

  
           Trump’s sleight-of-hand attempt to disguise his pandering to bigotry, by banning visitors from nations that are 90-99% Muslim, has failed…again. Another Steph Curry-like three-pointer for the Founding Fathers, creating an independent judiciary, a nation grounded in the Rule of Law. As Thomas Jefferson said in the Statute of Virginia for Religious Freedom (which led to the Bill of Rights),"our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry...." Executive Order No. 13,780 (aka the Muslim Ban): Temporarily Restrained.

            Judge Derrick K. Watson: yesterday you occupied just one of 678 district court judgeships authorized by Article III of the Constitution, sitting in one of our most geographically isolated and one of our smallest states, in the District of Hawaii. Today you are a hero, the giant to protect that Constitution against a would-be tyrant, striking down the repackaged Muslim Ban in a strongly-written opinion (read it: here).

             “The Government’s premise is not true,” Judge Watson wrote. How often will we hear these words during the Trump presidency, as he tries to sell us the moon, saying it is really the sun? The Constitution and Bill of Rights that protect, among other things, religious freedom, and prevent establishment of a state-favored religion in the United States (The Establishment Clause), are not a game, Mr. Trump. This is not like real estate – where to bolster your ego you can apparently pretend a 58-story building has 68 stories, as Trump has for decades.   

            "The illogic of the Government's contentions is palpable," Judge Watson said, as Trump’s minions dissembled. The Ban’s apologists tried to say that terrorism would increase by continuing to allow in people from six Muslim countries, based upon two examples: an Iraqi, and a Somalian native who came as a child and later became a citizen. The repackaged ban omits Iraq, and allows an exception for such children. So, your Ban would do nothing worth doing, but would only fan the flames of nationalism at home, and throw gasoline on the fires of anti-American animus abroad.

            Brave Imam, Ismail Elshikh, Ph.D., who stood up for his family, and all Muslims, and for democracy in America, explaining how these shenanigans would keep his mother-in-law, a Syrian national, from visiting, how saddened he and his family have been by the message of the Trump administration, that “the United States—their own country—would discriminate against individuals who are of the same ethnicity as them, including members of their own family, and who hold the same religious beliefs.” Dr. Elshikh’s children “do not fully understand why this is happening, but they feel hurt, confused, and sad.”

            Perhaps the best part of the Court’s decision was that it held Trump accountable for all his bigoted campaign statements, when he telegraphed exactly what he intended with this Muslim Ban. Trump had the temerity to argue, “Courts may not ‘look behind the exercise of [Executive] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’” Well, that’s just not true, either: “courts may not ‘turn a blind eye to the context in which [a] policy arose.’” When we prove discrimination, we use inferences and circumstantial evidence – very few modern bigots are foolish enough to speak openly of their animosity.

Fortunately, though, Trump is such a fool -  or as the Court put it, more elegantly: “The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” Trump said he thinks “Islam hates us,” and that it’s “very hard to separate” the religion from anti-American hatred, and articulated his future policy: “[W]e can’t allow people coming into this country who have this hatred of the United States. . . [a]nd of people that are not Muslim.” He later revealed that he was “morphing” the Muslim Ban into a ban on particular (almost-all-Muslim) territories, calling it “extreme vetting.”

            The Court beautifully summarized regarding the Administration’s disingenuous arguments:

The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” Govt. Opp’n at 40 (citing McCreary, 545 U.S. at 862). The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.[]” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)).

Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order: Rudolph Giuliani explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” SAC ¶ 59, Ex. 8.

On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].” SAC ¶ 74.

These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose. Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.

            Thank you, Judge Watson. Today I am proud to be a civil rights lawyer in what is still the United States of America, one nation, indivisible, with liberty and justice for all.