Central to the legal argument of those who oppose President Trump’s executive orders restricting travel to and from six Middle East nations is the idea that his campaign rhetoric invalidates the executive orders.
In her decision against the executive order, US District Judge Leonie Brinkema from Virginia wrote, “Absent the direct evidence of animus presented by the Commonwealth, singling out these countries for additional scrutiny might not raise Establishment Clause concerns; however, with that direct evidence, a different picture emerges.” Brinkema admits that the executive order would likely have been found constitutional had it been given by any other president. She goes on to explain her opinion that President Trump’s campaign rhetoric suggests that the order “was not motivated by rational national security concerns” but “religious prejudice.”
US District Judge Derrick Watson from Hawaii concurred. Watson reasons that Trump’s comments on the campaign trail represent “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order,” and that such animus was enough to violate the Constitution, even though nothing in the order is inherently illegal.
It is concerning that the precedent being set by these court decisions is that the author’s statements about the law determines its legality, not the actual text of the laws themselves. Presumably, this means any action taken by President Trump affecting Muslims will be declared unconstitutional.
Why wasn’t this novel legal standard applied to the previous administration’s actions affecting Christians, especially considering the administration’s animus toward those holding traditional religious values?
Amid the 2008 presidential primary season, then-Senator Obama, speaking of small town Americans, said that they were “bitter” and that they “cling to guns or religion.” By clearly demonstrating “religious prejudice” and “significant and unrebutted evidence of religious animus” toward conservative Christians, Obama’s comments could have been used to find his actions affecting conservative Christians unconstitutional, at least according the logic of the aforementioned judges.
Funny enough, Obama’s comments weren’t used to find his actions affecting Christians unconstitutional, and not for lack of opportunities. Obama administration executive orders and legislation often ended up in court on the grounds of religious freedom involving Christians, most prominently Hobby Lobby and the Little Sisters of the Poor.
Martin Castro, the Obama-appointed chairman of the US Commission on Civil Rights, declared that “religious liberty” and “religious freedom” were nothing but “code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.” Any reasonable person would interpret these statements as anti-Christian animus. As the head of a major federal agency, Castro’s words clearly carry weight. So why do his rhetoric and the similar statements of others in the Obama administration never seem to come up in religious freedom cases involving Christians? Why are separate standards applied in cases based on the religion in question?
The appropriate conclusion is clear: The religious liberty of Christians is not valued by mainstream America in the same way that the religious liberty of other religions is. And even more disappointing, the religious liberty of Christians isn’t valued by the courts in the same way other religions are.
As President Trump fills out the more than 100 judicial vacancies, he should make the issue of religious liberty a top priority in his selections. Judge Neil Gorsuch is a great start. Let’s hope this emphasis on religious liberty continues to be reflected in lower court appointments, too.
James Silberman is a guest contributor to the FPIW Blog. He is a pro-life activist from Gig Harbor, WA, and a student at Whitworth University.