As opponents of the Trump administration’s “travel ban” called on the Supreme Court to declare the order unconstitutional, The Becket Fund, a leading religious liberty law firm, is claiming that plaintiffs are using the wrong statute to challenge the law. They urged the court to take up the case to untangle what they claim is a legal mix-up that could set a dangerous precedent for future cases involving religious groups.
Opponents claim that the president’s order, which affects six Muslim-majority countries, is a violation of the Establishment Clause of the Constitution, as it set religion as a standard for entry to the county and citizenship. So far, courts that have dealt the administration a string of losses on the issue have worked with this framework as well. The filing, submitted by Becket, says that reviewing the controversial measure by this standard confuses the issues at hand as well as endangering the future of how the clause is applied.
“The stakes here are higher still because of those Americans who are not before the Court,” reads the brief. “That is because this litigation will set the standard for how to balance these different interests for the hundreds or thousands of religious liberty cases that will arise in the future.”
The Becket filing attempts to demonstrate that the clause in question relates to government establishing a state religion and has little to no application to the travel ban. Rather, it suggests that the “Free Exercise” clause, which protects religious individuals and groups from burdens on their religious beliefs and practice, is what courts should be looking at.
Becket’s brief is unique in that it does not argue on behalf of either side of the case, but rather focuses on the dangers of not reviewing the use of what it claims are the proper tools.
“Using the Establishment Clause for this case is like using a screwdriver to bang in a nail,” Mark Rienzi of Becket told Hamodia. “Overusing the Establishment Clause puts courts in the position of making a black-and-white decision without weighing all the relevant factors, like the government’s interests in the moves it is taking. It could be an incentive to judges to make their own judgment call as to what they think is too much religion in government.”
He added that such an expansion could hurt religious groups on issues such as vouchers, and other funding could be determined by courts to violate the clause if it is allowed to be broadly interpreted.
No other filings or arguments on the matter have raised the subject of the appropriateness of the clause being presently applied. Mr. Rienzi said that a careful reading of the filings that have been made by opponents of the brief show that they are working with Exercise Clause arguments, while working officially under the banner of the Establishment Clause. He hypothesized that the decision is based on political rather than legal considerations.
“The Establishment Clause allows you to turn the matter much more squarely on the president’s motivations, and so if you are looking to raise support and money from enemies of Donald Trump, this is a good way to rally them, but it does not address the basic issue of whether such a policy in and of itself is Constitutional,” he said.