The 9th Circuit's critique of the religious aspects of the Executive Order

[rug]

VI Likelihood of Success—Religious Discrimination

The First Amendment prohibits any “law respecting an
establishment of religion.” U.S. Const. amend. I. A law that
has a religious, not secular, purpose violates that clause,
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), as does
one that “officially prefer(s) (one religious denomination)
over another,” Larson v. Valente, 456 U.S. 228, 244 (1982).
The Supreme Court has explained that this is because
endorsement of a religion “sends the ancillary message to
. . . nonadherents ‘that they are outsiders, not full members
of the political community.’” Santa Fe Indep. Sch. Dist. v.
Doe, 530 U.S. 290, 310 (2000) (quoting Lynch v. Donnelly,
465 U.S. 668, 688 (1984) (O’Connor, J., concurring)). The
Equal Protection Clause likewise prohibits the Government
from impermissibly discriminating among persons based on
religion. De La Cruz v. Tormey, 582 F.2d 45, 50 (9th Cir.
1978).

The States argue that the Executive Order violates the
Establishment and Equal Protection Clauses because it was
intended to disfavor Muslims. In support of this argument,
the States have offered evidence of numerous statements by
the President about his intent to implement a “Muslim ban”
as well as evidence they claim suggests that the Executive
Order was intended to be that ban, including sections 5(b)
and 5(e) of the Order. It is well established that evidence of
purpose beyond the face of the challenged law may be
considered in evaluating Establishment and Equal Protection
Clause claims. See, e.g., Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free
Exercise Clause, like the Establishment Clause, extends
beyond facial discrimination. . . . Official action that targets
religious conduct for distinctive treatment cannot be
shielded by mere compliance with the requirement of facial
neutrality.”); Larson, 456 U.S. at 254-55 (holding that a
facially neutral statute violated the Establishment Clause in
light of legislative history demonstrating an intent to apply
regulations only to minority religions); Village of Arlington
Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-
68 (1977) (explaining that circumstantial evidence of intent,
including the historical background of the decision and
statements by decisionmakers, may be considered in
evaluating whether a governmental action was motivated by
a discriminatory purpose).

The States’ claims raise serious allegations and present
significant constitutional questions. In light of the sensitive
interests involved, the pace of the current emergency
proceedings, and our conclusion that the Government has
not met its burden of showing likelihood of success on
appeal on its arguments with respect to the due process
claim, we reserve consideration of these claims until the
merits of this appeal have been fully briefed.

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf

[Gothmog]

1. Thanks for posting

This is really strong. I have read all of the cases cited. The Santa Fe case involves a little community between Houston and Galveston. This analysis is strong

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2. Thanks for your input.

I often overlook the strength of the citations they use.

[guillaumeb]

3. From the decision:

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.

The bold addition is mine.

Does this mean that Trump is not a God-King?

Recommended.

[rug]

4. Yeah, the panel was really pressing the Government on that point.

Those questions produced the most stammering.

trump is going to get his very own Marbury v. Madison over this.

[guillaumeb]

5. Is it acceptable to say:

from your lips to God's ears?

[rug]

6. I'd rather hear Roberts say, "Book him, Dano."

[guillaumeb]

7. The trial could be tremendous for ratings.

Trump would be the perfect villain.