One of the many promising sections of the 9th Circuit Court of Appeal’s unanimous ruling upholding the restraining order on Trump’s travel ban is the section on religious discrimination. Washington and Minnesota have argued that the court should look beyond the “four corners” of the Executive Order to try to determine its true intent— namely, a ban on Muslims entering the United States.
The government, naturally, argued that looking beyond the actual text of the Order was improper.
They lost.
(My emphasis)
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 decision makers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).
The three judge panel did not rule directly on the question of whether discriminatory intent was in fact present, but they did acknowledge the serious issues presented.
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.
Here’s the thing: so far, only public statements made by Trump have been used as evidence of discriminatory intent. Going forward, will Washington and Minnesota be able to subpoena private statements and other evidence of discriminatory intent? Say, from Bannon? Miller? That would be quite revealing.
This indeed will be some sweet justice if the Executive Order is ultimately brought down by their own hateful speech.